Good faith approach needed in mental health disability claims

By Tony Poland, LegalMatters Staff • Insurance companies “need to take a good faith approach” when it comes to assessing mental health claims, says Ontario disability insurance lawyer Courtney Mulqueen.

“I am not talking blind faith,” says Mulqueen, principal lawyer of Mulqueen Disability Law Professional Corporation. “By good faith, I mean there has to be more trust when assessing these claims. Specifically, more trust in what claimants and their treatment providers are reporting to them. That starts with asking the right questions of the person’s treatment providers.

“That includes asking specific questions about a person’s cognitive function even if answers to those questions are based on the person’s self-reported symptoms and activities. Trusting doctors to determine if a person is credible in their reporting should be a given,” she tells LegalMattersCanada.ca. “However, sometimes it seems insurers do not want the answers that might result in the approval of the disability claim. If they take a good faith approach and trust the person’s treatment providers’ opinions, they would have to approve far more claims than they do.”

More workers seeking time off

Mulqueen pointed to a recent Wall Street Journal (WSJ) report that found “more workers are seeking paid time off to treat mental health conditions such as anxiety, depression or post-traumatic stress disorder, and they are facing more resistance than do employees with straight medical claims, according to lawyers, industry experts and data from insurance-claim administrators.” 

According to the WSJ, industry observers say “the challenge of assessing the severity of symptoms makes it more important to defer to medical providers who treat patients and understand their conditions.” 

The Journal spoke to a man whose workload and 60-hour workweeks wore him down. 

He had been diagnosed with generalized anxiety disorder and other mental disorders years earlier and the pressure of his job caused his symptoms to flare, the report states.

“In this remote world where you can see someone only on camera, I look put together,” the man told the WSJ. “But when you turn off the screens, you don’t see that someone is crying or hyperventilating.” 

Three years into what he called his dream job, the man took a leave of absence following his doctor’s advice. 

Applying for benefits became a full-time job

During the next six months, he said applying for benefits and filing appeals after his claim was rejected became a full-time job. The man said no matter how much documentation he and his doctors provided, the insurance company wanted more, the Journal states.

His final appeal was denied and he returned to work. About a month later he was told his job performance was inadequate and he was terminated, according to the WSJ. He sued his company and the insurer and the case was settled earlier this spring, although details of the settlement are unavailable, it was reported.

Mulqueen, who was not involved in the case but comments generally, says it is not unusual for those seeking benefits for a mental health issue to be met with resistance by the insurer.

“The claims process sets up these claims to fail,” she says. “Insurance companies are always looking for objective evidence. But how do you prove how severe your condition is when it is so subjective? It is not like a long-term disability claim where someone has suffered a physical injury that can be assessed using diagnostic imaging.”

Claimants are often subjected to a “sort of backwards assessment,” Mulqueen says.

“The insurer tries to figure out how severe someone’s condition is based on the doctors they have seen and the treatment they have received,” she explains. “Have they seen a psychiatrist? Are they getting therapy bi-weekly or is it only once a month? Are they taking medication and at what dosage or has the medication been changed or increased?

‘These cases are so individual’

“That is the method often used to determine how severe a mental health condition is,” Mulqueen adds. “However, there are many problems with that, not the least being that these cases are so individual. What is effective in treating one person may not translate to another person. That combined with long wait times to see psychiatrists and therapists, means that even the most severely disabled claimants might not be able to prove their benefit claims.” 

She says disability claims are assessed based on functionality. However, just because a person may have the ability to function physically does not mean they can perform the duties of their job if they are suffering from a mental health condition, Mulqueen notes.

“I see this all too frequently. Insurers will say, ‘You can do household chores, care for your children, go grocery shopping. Clearly, you cannot be that unwell,’” she says. “However, what insurers should be looking at is does this person have the functional ability to perform the duties of their job? You need to understand what level of function those duties require. 

“If they have a job requiring high cognitive functionality and their doctor is saying they are struggling with memory, concentration, focus, dealing with stress and regulating their emotions, the insurance company should have to pay that claim.”

Claimants can be accused of malingering

It is not uncommon for those filing mental health claims to be accused of malingering as opposed to suffering low motivation, which is a common symptom of mental illness, says Mulqueen.

She says she’s hard-pressed to think of a single client who would not rather be at work collecting their full pay than dealing with mental illness and receiving only a percentage of their wages or fighting with their insurance company.

People shouldn’t be punished for doing their best to live their lives as they work through mental health issues, Mulqueen says.

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“Insurance companies need to understand the individual and the steps they are taking to get better,” she says. “It can be challenging for someone to force themselves to go to the gym or go into a grocery store and do their shopping. But these things can be potentially therapeutic.

“It is also important to remember that just because people can go off and do these things, it is not an indication of their ability to do their job every single day.”

Mulqueen says a common misconception is “that with a little bit of treatment, a little bit of therapy and a little bit of time” people can recover and return to their former selves.

‘Treatment-resistant mental health conditions’

“It is this idea that mental health disability is temporary,” she says. “Meanwhile, I see clients who have severe, treatment-resistant mental health conditions. 

“They may have been struggling their entire life,” Mulqueen adds. “Unfortunately, every time they have an episode, their condition may become much worse and it could take longer for them to recover.”

The stress of dealing with a mental health issue doesn’t necessarily dissipate when someone is approved for benefits, she notes.

“People may be under added pressure because of insurance company deadlines to submit updated medical information and to return to work as soon as possible,” Mulqueen says. “Threats to terminate benefits if information is not received on time or if the person does not participate in a return to work program can be detrimental and have the opposite effect, aggravating their condition and delaying their return to work.”

She says pharmacogenetic testing, which combines the sciences of genetics and the study of drugs to determine how people react to medication, has proven to be beneficial for those suffering from a mental health condition.

Can take weeks to know if medication is working

“However, when it comes to medication, people may have to go through multiple rounds of different types of drugs at different dosages,” Mulqueen says. “It can take several weeks to even know if the medication is working. It may even stop being effective at some point.”

Fighting for benefits takes a toll, she says, and many people are just so fed up dealing with the insurer that they take a nominal offer just to avoid any further stress.

“By the time they get to litigation, they have been through the wringer with the insurer,” Mulqueen says. “There has been so much anxiety dealing with the insurance company that once they get to any sort of an offer, they are just so worn down because they are so vulnerable that they want to take it. I understand that and there might be value in taking a settlement.

“However, I remind clients who have a serious condition that they are not going back to work anytime soon,” she adds.  “It may seem easier to give in but if they have a legitimate claim, it is worth pursuing.”

Mulqueen says people should remember that their insurance claim is only personal to them.

Insurers see it ‘as a contract dispute’

“They are dealing with a company who sees it as a contract dispute,” she says. “They just look at it as dollars and cents and how much money they need to spend on a claim. That is it.”

Mulqueen says for people to get the help they deserve, insurance companies need to be more trusting and take an individualized approach to assessing mental health claims.

“They should approach these cases with more trust in the claimant and ask the right questions of that person’s treatment providers,” she says. “Question the claimant’s functionality and even their credibility if necessary. If a doctor is supporting their claim, making referrals and the claimant is doing everything in their power to get better, then insurers should have faith in that doctor’s opinions regarding the severity of the person’s condition and their level of functionality.

“Perhaps taking a good faith approach to mental health claims would not be great for the insurer’s bottom line because they could conceivably be paying out more claims,” Mulqueen adds. “But are they not supposed to be in the business of paying legitimate claims if someone is not able to work for any medical reason, including mental health conditions?”