Appealing a denied incapacity insurance claim - should we comply with dodgy sounding "Abilities Determination" test?
May 3, 2011 7:50 AM   Subscribe

We are appealing a denied incapacity insurance claim. Should we comply with dodgy sounding "Abilities Determination" test?

As per my recent question, my SO has had ongoing chronic pain type problems for around 5 years, and has seen many many specialists but does not have a specific diagnosis. She was working up until about 9 months ago, and has incapacity insurance with her employer through Friends Provident. She has been unable to work for the past 6 months, and has made a claim, but FP have denied it on the grounds that there is no "objective clinical evidence" that she cannot work.

We are still going back and forth with FP. Stalling seems to be their main tactic. They have now asked her to go and do a "Chronic Pain Abilities Determination" test with a company called "Form Health".

My reading of it is that this company is basically on the side of the insurers and will just collect a load of unfalsifiable "evidence" that she could actually work. But if we refuse to co-operate, that would also be used as "evidence" that the claim is invalid.

They have a supposed "scientific paper" about how "objective" their process is, but it sounds to me like a load of pseudo-scientific nonsense that is meant to intimidate non-scientists into accepting their unbacked claims as evidence:

One bit stands out as particularly egregious: "a new software programme [..] can detect any inconsistency or failure of effort on the part of the patient (whether it be conscious or subconscious)."

There is no evidence in the paper for this crazy claim.

1. Does anyone have a subscription to IMJ? This is put forward as a "peer reviewed" claim. Can anyone get hold of the peer review bit? Does anyone who reads the IMJ accept this claim? Have they produced any evidence? Is the IMJ a real journal?

2. Do you think she should go to this test?

posted by richb to Health & Fitness (8 answers total)
Don't wait...get a lawyer and get good advise on your next move. Do not take the test until you have done so.
posted by txmon at 7:54 AM on May 3, 2011 [2 favorites]

You are explicitly asking for legal advice and help researching a legal case. This is not what AskMe is for.

Generally speaking, a claimant needs to comply with the terms of the policy before an insurance company is required to make a claim. One of these terms is always assisting the insurer in investigating the facts of the claim, and if that involves an evaluation of the insured's medical condition, then yes, you need to submit to a medical exam with a professional of the insurer's choosing.

This is going to be true of UK as well as US law, so I'm comfortable saying that. But beyond that, including whether or not you are permitted to get your own expert and if so, who pays for it, is something you are going to need a lawyer to determine.
posted by valkyryn at 7:59 AM on May 3, 2011

YOU NEED A LAWYER'S ADVICE NOW. Depending on the language of the policy you may have no choice but to comply with the insurer's request. IF you are in the US then ERISA may play a part. IF you are in the UK seek a solicitor experienced in this area. He/She will tell you if you need a barrister at this point.

DO NOT take any action or fail to take any action until you've seen a competent lawyer/solicitor who has read the entire policy and can then advise you.

Mis-steps now could easily create a basis for permanent denial of an otherwise worthy claim.

Remember - the insurance company is a soul-less machine which cares only about profits. A denial of your claim which sticks creates a profit. It wants to profit at your expense. YOU need an advocate who understands that and can fight the company.
Did I use enough allcaps to scare you into calling a lawyer?
posted by BrooksCooper at 8:21 AM on May 3, 2011

Yes, LAWYER. But, to answer some of your lesser questions:

The Irish Medical Journal is a real journal, which has been publishing for over 140 years.

Here is the paper in question on their web site; the citation differs slightly from the PDF in your link, though I think that's most likely due to publication delays and not any kind of shady intent. I didn't compare the text word-for-word but it appears to be the same.

I have nothing like the ability to verify their claims, so I'm not even going to try to address that. I know this is a rough situation for you, so I will echo the cries of LAWYER to help you navigate it.
posted by shiny blue object at 8:55 AM on May 3, 2011

I am sorry to hear about your SO's difficulties. I know that filing an insurance claim (especially for something that is extremely important to you because it is a long-term issue) is incredibly stressful. There are all kinds of horror stories out there about people denied coverage for legitimate claims, and that is shameful. I agree that often the insurance companies are overly concerned with their bottom line and patient care can suffer.

I'm not familiar with the specific test that your insurance company is asking for. However, I just wanted to note that many types of tests of abilities (for example, neuropsychological tests of attention or intelligence) has items which are meant to detect "lack of effort". The test creators include these items because they acknowledge that there can be a benefit from performing poorly on the test (for example, receiving certain academic accommodations or being eligible for disability payments). The sad fact is, just as insurance companies may use everything in their power to deny a legitimate claim, some people also try to game the system by purposely not giving their full effort.

Again, I don't know the test you referenced specifically, and I don't deny that the insurance company stands to profit from denying your claim. I just wanted to note that the fact that this test has some features which are meant to detect lack of effort doesn't mean that it won't accurately detect your SO's level of impairment.

And yeah, probably worth getting a lawyer for an issue as important as this one.
posted by Bebo at 8:55 AM on May 3, 2011

I won't address the legal aspects of your question because I don't have anything to add, but as far as the paper goes it looks like it was in a legit, peer-reviewed journal, although it is somewhat obscure. If you look at the address to request reprints from (which is usually the institution where the lead author works) it is:

JD Newman
FormHealth Ltd., 51 Colney Hatch Ave,.
London N10 1LJ, UK

Furthermore, a quick literature search reveals only 1 other publication (maybe) by any of the authors on this topic, and the paper has not been cited by other papers. So while the paper is some evidence that the test is valid, it is pretty weak evidence until other people who do not work for FormHealth independently verify those claims.
posted by TedW at 9:19 AM on May 3, 2011

You really need a lawyer.

This is too much for you to be doing on your own and the longer you let them screw you around, the more chance that you'll mess something up or make a mistake that will be impossible for you to fix. It's easy to forget to file a paper or misread a question.

Get a lawyer.
posted by the young rope-rider at 12:50 PM on May 3, 2011

I'm reluctant to comment here, and all this may be highly counterproductive, so run it by your legal advice:

Claiming a state benefit may provide an independent test of capability for work, if one is needed and a satisfactory report is not available from your own consultant/GP/etc for whatever reason. The reason I say it may be counter-productive is that in practice many people initially fail the Work Capability Assessment when presenting with conditions such as CFS - particularly if they do not receive proper advice during the assessment period. Even if successful, I have no idea of the standing an Employment and Support Allowance (ESA) medical would have in a disputed insurance claim. However, one reason I mention it is that you may be missing out on money to which you are entitled. There is an appeals process for ESA, which I would suggest requires specialist help.

If an employee has been sick for 28 weeks then the statutory element of sick pay should have expired, and so they are entitled to try and claim sickness benefit, i.e. ESA from the DWP, on top of any contractual sick pay. This will mean undergoing one of the now-ubiquitous "computerised", and much-criticised, but ostensibly "independent" medical assessments, in which the claimant is measured against the somewhat arbitrary points-based scoring system that the government are now using (they moved the goalposts last month). Following a successful placement in the work or support group, you could request the medical report the DWP obtained to make their decision. Alternatively, a failed ESA medical might be fatal for your insurance claim, so seek legal advice on the strength of your claim first.
posted by wilko at 7:34 PM on May 3, 2011

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