By Kirk Sloane B.A.(Hon), LL.B.
Lawyer, David Share Associates, Lawyers
There are several investigative tools used by insurers when assessing disability claims, including IME's (Independent Medical Examinations), FCE's (Functional Capacity Evaluations), referrals to medical consultants, home visits and surveillance. The insurer has a contractual right to compel a claimant to undergo an IME, and in most circumstances, a claimant has the obligation to attend an examination.
An FCE may, however, be an entirely different matter. In contrast to an IME, an FCE is not generally contractually required and is not necessarily a "medical examination" as provided for by the policy. A FCE is a collection of tests utilized by insurers to test a claimant's maximal physical effort. The information from the FCE is then used by the insurance company to make inferences with respect to whether or not an individual can work full time on a sustained basis. There may be legitimate grounds upon which to refuse to attend an FCE, and claimants should be vigilant about asserting rights to refuse such testing.
Insurers often use in house medical consultants to contact a claimant's treating physician to discuss the claimant's condition, restrictions and limitations. In essence, the insurer's medical staff seeks to develop evidence from the physician to demonstrate that the claimant is not disabled. Often, the insurer sends a letter to the physician "confirming" the conversation and requesting a signed acknowledgment from the treating physician that he or she agrees with the statements in the letter. The letter, however, may either distort the facts, or cast the claimant in an unfavorable light. A claimant should instruct a treating physician to not respond to such a letter without first reviewing the contents of the letter with them in detail.
Insurers also utilize medical consultants to reviews claims, relying upon a non-examining physician to address functional abilities. This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim. It is vitally important therefore that claimants ensure that their treating physicians provide well developed, organized office notes and/or narrative reports to support the claim.
Home visits are common techniques employed by insures when assessing disability claims. An insurance company representative, often identified as a rehabilitation consultant, will stop by either unannounced or at a prearranged time to speak to the claimant. This individual will seek to ascertain the claimant's activity level, determine whether the claimant is working on another interest, or to develop other information to be used by the insurer. Caution should always be used when speaking to the insurer or its representative. Such interviews should be done on the claimant's terms, whether recorded with witnesses, or by having a confirmation of interview prepared - all to avoid anyone distorting the information provided.
Surveillance is another technique frequently used in high benefit cases, or where claimants allege disability based upon either subjective type conditions or where the objective support is not indicative of the restrictions or limitations. In high benefit claims, the insurer is willing to invest significant money to terminate or deny a potentially expensive claim. Claimants must be wary not only of their activity levels while on claim, but of any statements made to the insurer about their daily activities. Inconsistencies can be fatal to a claim: the expression "a picture is worth a thousand words" holds very true with regard to surveillance.
