© 2014 by Michael A. McKuin

Attorney at Law

Post Office Box 10577

Palm Desert, CA 92255

(California State Bar No. 103328)

 

The information provided at this website is intended for educational and promotional purposes only. It is strictly general in nature and under no circumstance should it be considered legal advice.  Every case is unique and a competent, qualified lawyer must be consulted for legal advice regarding any specific case. 

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Sometimes it’s best to simply be practical.

May 13, 2017

Jill G.  (The Hartford)  

 

This case goes into the record book as perhaps the fastest Long Term Disability case I ever handled.  Jill was employed by a major insurance company. Her LTD claim was approved by Hartford and benefits paid for 5 months, but then were abruptly terminated, because of an alleged refusal to appear for an “Independent Medical Exam”.   However, she never refused the IME. She merely insisted upon her right to record it.  At that point the IME physician turned to the vendor, PsyBar for instructions.   PsyBar instructed the doctor not to proceed with the IME, based upon previous instructions that Hartford had given to PsyBar.   So the refusal to proceed with the IME was not a refusal by Jill.   It was in fact a refusal to proceed by Hartford.  Therefore, the reason stated in the denial letter was incorrect. The  dispute had nothing to do with Jill’s refusal to proceed with the IME, but rather it has everything to do with Hartford's refusal to allow her to tape record that IME. 

 

Jill’s claim arose under the mental health provisions of her plan.  The IME physician was a licensed psychologist; therefore, the IME would have consisted largely of questions posed by the doctor to Jill, which would be susceptible to audio recording. 

 

Perhaps because Jill had worked for an insurance company, she was very savvy as far as knowing her legal rights and she know that the California Board of Psychology had published a Patient Bill of Rights, which gives any patient the right to request electronic record his or her sessions with a Psychologist.  She also knew that evidence – especially verbal evidence -- could be distorted and in this case a good part of the evidence would have been the verbal give and take between her and the IME physician. Her only reason for requesting that the IME be recorded, was to preserve evidence, should the matter be litigated in the future.  The IME physician had no objection to Jill’s recording the exam.  Neither did PsyBar.  The only objection was from Hartford and its reasons for objection were not clear, as it never said. 

I was retained in the matter.  I suggested to Hartford that before we got too far into the legal process, it might be a good idea for both sides to take a few steps back and look at the case from a more practical perspective.  I felt that Hartford and Jill were at an impasse' over a rather insubstantial issue.  Therefore, I proposed a simple solution.  Allow the IME physician to audio tape the IME session, and then have either the IME physician or Hartford to maintain possession, custody and control of the audio tape, with the details of preservation to be worked out later.  That way, if the need for the tape never arose, it could be destroyed.  If the need did arise in any subsequent litigation, it could be obtained and used for any lawful purpose in such litigation. I told Hartford that if it desired any further protective measures relating to the audio tape, we could work those out by stipulation as well.

 

Hartford agreed to allow recording of IME, with Hartford to maintain custody of the tape.  Benefits were restored and the IME rescheduled.  Then, unexpectedly, Hartford decided not to go forward with the IME after all.

 

Result: The case was resolved administratively, without the need for litigation.  All benefit payments were resumed and paid in full.

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