California Insurance Lawyer Blog

Last October we blogged about a promising development in the treatment of chronic fatigue syndrome. Researchers believed they had discovered a retrovirus similar to the HIV virus as the culprit behind chronic fatigue and as a result would soon be able to treat the disorder with antiretroviral drugs. See “ XMRV Virus May Be Cause of Chronic Fatigue.” People with chronic fatigue tested for XMRV, and some began taking the toxic drugs used to treat AIDS. Now it appears the optimism was premature.

As many as five research teams attempting to confirm the finding say they have been unable to locate the XMRV virus in people suffering from chronic fatigue, reports the Los Angeles Times, “The Push and Pull Over a Chronic Fatigue Syndrome Study.” http://www.latimes.com/news/health/la-he-chronic-fatigue-20100614,0,6928481.story.

The U.S. Centers for Disease Control and Prevention has estimated that as many as 4 million people in the U.S. – most of them women -- have the disease. Chronic fatigue cannot be diagnosed with any known lab test and no FDA-approved drug has been developed to treat it. That’s why the isolation of a possible cause and treatment caused such high hopes for people with the disorder.

Immunologist Judy Mikovits, lead author of the paper about the XMRV virus published in Science, says the research teams are biased. She calls the XMRV infection possibly “the worst epidemic in U.S history.” She told the Times her finding is “being ignored by a dithering, even hostile scientific world.”

“Even the best scientists can be wrong,” writes reporter Trine Tsouderos. “Findings must be tested and confirmed by other researchers before they can be trusted. And that has yet to happen for XMRV and chronic fatigue syndrome.”

Disability insurers will likely use this debate over the cause of chronic fatigue to delay and deny claims from people with the disorder, some who have been fighting for years to get their physical suffering acknowledged. Still, the fact that so many researchers are now attempting to prove Dr. Mikovits either right or wrong could lead to scientifically tested and approved ways to diagnose and treat chronic fatigue.

If you suffer from chronic fatigue syndrome and have been denied health or disability insurance benefits, call us at (800) 446-7529. We have years of experience helping people with chronic fatigue and similar conditions appeal benefit denials or challenge insurers or health plans in court, particularly when insurers refuse to acknowledge the seriousness of their disease.

In this blog we often comment about medical doctors who derive most if not all of their income testifying for insurance companies and health plans. As a result, it’s never a surprise when their review of a policyholder’s medical file reaches a conclusion in favor of the insurance carrier.

“How a Medical Reviewer Helped Reliance Standard Deny Disability Claims,” The Insurance Forum (June 2010), highlights William S. Hauptman, a Philadelphia gastroenterologist who worked as a medical reviewer for Reliance Standard Life Insurance Company on disability claims. Dr. Hauptman’s support of adverse claims decisions was mentioned in several lawsuits filed against Reliance, including a case our firm successfully appealed, Gunn v. Reliance, No. 04-01852 (U.S. District Court, Central District of California).

Igor Gunn, a UBS/PaineWebber financial advisor, was diagnosed with symptoms of multiple sclerosis, including fainting spells, constant dizziness, fatigue, balance problems, cognitive difficulty and depression. His long-term disability plan administered by Reliance paid Mr. Gunn benefits for two years while the plan investigated his claim. Mr. Gunn submitted medical evaluations from his psychiatrist and three physicians. Two concluded Mr. Gunn was totally disabled; the other two submitted treatment notes. Mr. Gunn’s psychologist concluded he was completely disabled on “both medical and psychological grounds.”

Mr. Gunn’s plan would pay benefits for physical conditions, but not for mental or nervous disorders after two years unless Mr. Gunn was in a hospital or institution. This policy language becomes important because of what happened next.

Although five of Mr. Gunn’s physicians were clearly treating him for physical as well as psychological symptoms, the physician from whom Reliance sought an independent evaluation, Dr. Carl Orfuss, concluded that 99 percent of Mr. Gunn’s disability stemmed from “psychiatric problems.” As a result, Reliance informed Mr. Gunn that he was not physically impaired, benefits would terminate and he must return to work. Mr. Gunn appealed he decision, including in his appeal a doctor’s diagnosis of physical disability from multiple sclerosis.

Reliance asked Dr. Hauptman to review the medical file, and he agreed with Dr. Orfuss that “consistent with the entirety of the medical records” 99 percent of Mr. Gunn’s disability resulted from depression. Reliance denied the appeal and Mr. Gunn sued in federal court.

The District Court, ruling that Mr. Gunn was entitled to benefits, had a very decided opinion about Dr. Hauptman: “Reliance is the only insurance company for which Dr. Hauptman works, and he derived approximately one-third of his income from his work with Reliance. Reliance prohibits Dr. Hauptman from contacting a beneficiary’s treating physicians to discuss those physician’s opinions unless he first receives permission from Reliance.”

Joseph M. Belth,editor of The Insurance Forum, sums up the situation in the June 2010 issue of his newsletter this way:

"I believe that Reliance and other disability insurers use many physicians to help the companies deny claims. Using a physician in that way creates a serious conflict of interest for the physician. The physician knows that the company wants his or her support for adverse claims decisions, that he or she will be paid generously for providing that support, and that failing to provide that support will discourage the company from using the physician.

Ideally, disability insurers should be looking for ways to honor claims rather than looking for ways to deny claims. In the absence of that ideal situation, it is difficult to address the above conflict of interest. One possibility would be to disclose publicly the number and percentage of cases handled by a physician where he or she recommended denial of a claim."

We find it highly unlikely that insurance carriers will choose to address this conflict of interest the way Mr. Belth suggests because that would make it too easy for courts to throw out biased testimony. Rather, they will continue to look for ways to deny claims and make you fight to prove their examining physician has a serious conflict of interest.

If your claim has been denied because your health plan relied on the report of their hired doctor who made an analysis that contradicts your own physician’s diagnosis, please contact us at (800) 446-7529 and let us help you fight for the benefits you deserve.

Medical researchers have developed a new way to diagnose the painful disorder fibromyalgia, according to a recently published study. Using a pain index and a measure of key symptoms and severity, medical doctors may soon be able to diagnose the condition with more accuracy and begin treatment options sooner. See, “A New Way of Diagnosing Fibromyalgia.”

Diagnosing fibromyalgia has long been a problem within the medical community. Fibromyalgia is usually determined by administering “tender point” exams that document pain or tenderness on at least 11of 18 specified points during a three month period. But doctors who are not rheumatologists are uncomfortable with exam, which isn’t fail-safe, said Robert Katz, MD, a rheumatologist and professor of medicine at Rush University Medical Center in Chicago and author of the study. As a result, people with symptoms commonly associated with the fibromyalgia were often told by their doctors that the problem was “all in their heads.”

All that is not lost on disability insurers, who tend to deny claims from people suffering with fibromyalgia, particularly when policyholders cannot get a clear diagnosis of their condition.

The new diagnosing criteria, already approved by American College of Rheumatology, avoid the tender point exams. Instead, a 19-point pain index and severity scale is administered. A patient marks the number of body parts where she has experienced pain during the last week. Typical fibromyalgia symptoms such as unrefreshing sleep, fatigue, and cognition are rated on a scale of severity from 0 to 3. The physician completes the diagnosis based on the number of painful areas and number of symptoms and their severity.

Dr. Katz predicts that once the new diagnosis criteria are in use, the number of recognized cases of fibromyalgia could double or even triple.

All this is good news for people who believe they are suffering from the painful symptoms of fibromyalgia but have never been officially diagnosed with the disease. On the other hand, they may be in for a shock if and when they file disability claims. We predict that carriers won’t readily agree that this new way to diagnose fibromyalgia is superior to previous methods and will still make Firbo sufferers fight to get the benefits they deserve.

The new federal healthcare legislation could bestow broad new powers on California’s next insurance commissioner, already one of the nation’s most powerful jobs of its kind, reports the Los Angeles Times. “Healthcare reform raises the stakes in California insurance commissioner election.” Four candidates are running for their parties’ nominations in the June 8 primary election -- Democrats Dave Jones and Hector De La Torre, and Republicans Brian D. Fitzgerald and Mike Villines – and the winner of the June 8 primary will face four other minor party candidates in November.

In addition to new authority under federal law, the insurance commissioner may gain the regulatory powers currently under the charge of the California Department of Managed Healthcare, which oversees health maintenance organizations, if the Legislature approves and the governor signs a bill that would shift all regulatory power to the commissioner.

This year’s insurance commissioner race is one of the most important in the state’s history.

We support Democrat Dave Jones, who proved a strong consumer advocate while serving as a California Assemblymember. In addition to supporting the regulatory shift from the Department of Managed Healthcare, Jones wants California lawmakers to give the commissioner the power to approve or reject insurer requests for rate increases, subjecting health insurance rates to the same detailed approval process that applies to automobile, home and other types of property and casualty insurance.

“I’ll be working to impose rate regulation on health insurance and healthcare plans to rein in the excessive rate increases that have afflicted California consumers year after year for the past 10 years,” Jones told the Times.

We believe Jones has the experience, leadership skills and ability to protect consumers as insurance commissioner, as well as hold insurance companies accountable when they break the law or deny benefits their customers rightfully deserve. From what we have seen thus far, he is fully capable of fulfilling the challenges facing the state and the insurance industry during the next four years and of building a bureaucracy that works in the consumers’ interests.

Bloomberg’s Businessweek reports that fewer workers are filing disability claims during this down economy, fearing their jobs won’t be available when they are able to return to work. See “Ailing Workers ‘Gut It Out’ on Job, Opt Against Disability.”
Although this trend appears to mainly affect workers with “lower back pain, nervous conditions and ‘more discretionary’ claims,” it’s unclear how many employees might be seriously injuring their long-term health by remaining on the job. Disability insurance typically pays only 60 percent of an employee’s salary.

One thing IS clear, however: This is really good news for disability insurers. For example, Unum has posted increased profits for five straight quarters, boosted its dividend and approved a $500 million share repurchase program.
“You can’t make a windfall on these products,” Unum Group Chief Executive Officer Thomas Watjen told Businesweek. “It’s not like you can go on claim and make an enormous amount of money.”
In one sentence, Mr. Watjen confirms the argument we make every day for our clients suffering from disabling conditions: If they weren’t sick, they’d be at work. It pays better. That is something we’ll be sure to remind Mr. Watjen’s representatives each time they make a policyholder fight for his or her benefits.

If you are eligible for benefits through your employer – life, health, disability, etc. – and you make a claim for those benefits that is denied, you have the right to file a lawsuit in federal district court. Of course, not every such lawsuit is successful. If the denial of your benefits is upheld at the district court level, you have the right to appeal that decision to a Circuit Court of Appeals.

In most cases, it is hard to convince a Circuit Court of Appeals that the district court made a mistake. Here in California, the reversal rate of the Ninth Circuit Court of Appeals in civil cases – i.e., the percentage of cases in which the Ninth Circuit finds that a mistake has been made – is only about 15%. Because the odds are stacked against appeals at the outset, it takes the diligence and expertise of experienced attorneys to obtain a reversal.

At Kantor & Kantor, we have extensive experience at the federal appellate level and have won several significant victories. Most recently, in a case we took over from another attorney, we convinced the Ninth Circuit in Ford v. Hartford Life & Acc. Ins. Co. that the district court applied the wrong standard of review to the claim of a man with a serious spinal condition whose disability benefits were terminated after they had been paid for five years. [link to decision]. The Ninth Circuit ruled that the district court used out-of-date cases to support its decision, and should have relied on newer cases such as Montour v. Hartford Life & Acc. Ins. Co. [link to 12/10/09 blog entry].

As a result, our client has a fresh chance to have his claim considered under more modern law, which is more favorable to him and tougher on insurance companies. We hope to demonstrate that the same errors made by Hartford in the Montour case were made in our client’s case as well, resulting in a different verdict the second time around.

If you have been denied insurance benefits, please consider successes like these in deciding who should represent you in your efforts to get your benefits back. Call us at (818) 886-2525 or log on to www.kantorlaw.net.

-PS

Although it’s much too soon to tell how the federal healthcare overhaul will affect the way the insurance industry conducts business, the bill may have done a few things right. “Immediate Effects of Health Reform Bill.” A few provisions go into effect in six months; others won’t be enforceable until 2014.

• People whose policies are rescinded through no fault of their own are now protected under federal law. Even though rescission is regulated under the law of most states, carriers tend to ignore the laws and do as they please until they are caught, then pay moderate fines. How the federal government will enforce this provision remains to be seen.
• People with pre-existing conditions can no longer be denied coverage; however, because the bill doesn’t regulate caps and increases, insurers can change as much as they want and increase when they feel like it. The federal plan does provide a government program for people whose health problems make them uninsurable now.
• Insurers can no longer place lifetime caps on benefits and annual limits on coverage.

If insurers don’t find a way to wriggle out of these three reforms, the bill imposes important measures that are necessary to rein in abusive industry practices. But we don’t expect the industry to embrace reform without a fight.

Rather than criticizing the bill for its flaws, which many say include an inability to contain costs, industry and enterprise could turn this into an opportunity to provide products and services both affordable and sustainable for this century.

Kantor & Kantor, LLP achieved an important victory in the U.S. District Court in Los Angeles for a client suffering from the rare muscular disease Charcot-Marie-Tooth. Our client was denied disability benefits from Standard Insurance Company, which insured the disability plan of Countrywide Home Loans where she worked as a mortgage loan underwriter.

This case is significant because it is the first district court decision decided after the recent Ninth Circuit case of Montour v. Hartford Acc. & Life Ins. Co., 582 F.3d 933 (9th Cir., 2009), wherein the Ninth Circuit clarified how a trial court should review claims decision by an insurer.

In our client’s case, the district court found that Standard’s decision to deny benefits “was tainted by its financial interest” and cited the following as evidence:
• Standard neglected to advise the plaintiff of what type evidence to provide to support her claim. The federal law governing workplace disability plans, the Employee Retirement Income Security Act, mandates that plan administrators tell insureds what specific information they must submit. To request mere “medical evidence” or “information you believe is relevant” does not comply with the letter of the law. The administrator must tell the claimant what information the administrator considers relevant.
• Standard used the wrong occupational criteria. This is significant because our client’s plan language included the “own occupation” criteria rather than the “any sedentary occupation” criteria Standard relied on. In our client’s case, that means she is entitled to benefits because her illness prevented her from performing the requirements of a job she held for nearly a dozen years. Whether she could work at another job was irrelevant under the terms of her plan.
• Standard denied our client’s claim without full investigation, neglecting to wait for complete answers about our client’s disability from its own medical examiners and neglecting to ask its examining physicians the necessary questions to document our client’s illness. In particular, the court found that Dr. Elias Dickerman was not adequately trained by Standard – even though he received more that $200,000 annually from Standard since 2006 for his medical diagnoses – and that he made errors in his reading of our client’s medical records.

The court determined that our client’s policy should be reinstated and awarded her all her unpaid benefits.

If you have been denied insurance benefits for similar reasons or had benefits delayed with excuses that seem in error, contact us right away to find out how we can help you restore your benefits. Call (818) 886-2525 or log on to www.kantorlaw.net.

Photos on Social Media Sites May Give Insurance Adjustors Wrong Impressions

Canadian citizen Nathalie Blanchard was merely following her doctor’s suggestion that she spend time with friends and vacation in a sunny climate as a cure for depression when her sick-leave benefits from her employer-provided insurance were abruptly terminated. Nathalie made the fatal error of posting photos of herself having fun on Facebook. Her insurer discovered the photos, determined she was no longer depressed and told her to return to work. Although the insurer told the Associated Press that it did not solely rely on the Facebook photos in making its decision, it neglected to mention what other sources – such as sound medical evidence -- it did rely on. Nathalie is appealing the denial. See “Canadian Woman Loses Benefits Over Facebook Photo,” http://news.yahoo.com/s/ap/20091122/ap_on_re_ca/cn_canada_facebook_insurance.

This latest news article illustrates the level of scrutiny ill and injured people typically encounter from their insurers when they are unfortunate enough to actually need the benefits they’ve paid for. Their lives become open books where even the most innocent of activities become an insurance inspector’s evidence of suspected fraud.

Here’s our sad but true advice to Americans receiving disability benefits: What you post or print on social media sites will be discovered by your insurer and interpreted in the light most unfavorable to your disability claim – even if you are only following doctor’s orders.

A new study published last week in Science magazine announced that a retrovirus called XMRV may cause Chronic Fatigue Syndrome (CFS). The virus' actual name is xenotropic murine leukemia virus-related virus,and it was found in nearly 98 percent of about 300 patients with the syndrome. See, NY Times, Virus Is Found in Many With Chronic Fatigue Syndrome by Denise Grady.

This discovery provides hope for researchers because if the retrovirus – part of the same family as the HIV virus that causes AIDS – definitively proves to cause chronic fatigue, the disease might be effectively treated with antiretroviral drugs. Currently, no treatment or cure is available for chronic fatigue syndrome. Researchers also believe that they can create a blood test to determine if a patient is infected with XMRV virus, much the same way a blood test can determine HIV.

Chronic fatigue patients are also hopeful that their symptoms – severe fatigue and body aches – will now be taken seriously by doctors and insurers. Because chronic fatigue can only be diagnosed by ruling out other illnesses, some in the medical community refuse to treat chronic fatigue as a legitimate disease or attribute it to a psychiatric disorder. As a result, most health and disability insurers are skeptical about providing benefits for chronic fatigue sufferers who are too ill to work. Many are accused of “malingering,” that is, lying about or exaggerating their symptoms. Now the medical community may have valid research to back up a diagnosis of chronic fatigue.

The study is considered significant for two other reasons: First, the XMRV virus has been linked to prostate cancer. Second, about 4 percent of healthy people studied were carriers of the XMRV virus. According to the Wall Street Journal, that means that “10 million people in the U.S. and hundreds of million people around the world are infected with a virus that is already strongly associated with two diseases.”

The National Cancer Institute has authorized more research to find out if the virus is linked to any other diseases.

Dr. Judy Mikovits, one of the lead authors of the XMRV paper, told the Wall Street Journal, “Just like you cannot have AIDS without HIV, I believe you won’t be able to find a case of chronic-fatigue syndrome without XMRV.”

We have seen it time and time again… insurers downplaying the symptoms of CFS and even accusing our clients of being untruthful about their inability to function normally, all because there was no “objective evidence” of their Chronic Fatigue. Hopefully, this will all change soon as more is learned about XMRV. Has your insurer refused to consider your diagnosis of chronic fatigue seriously? Kantor & Kantor can help.

"Tort Reform, Tort Reform, Tort Reform," the phrase has almost become a song. Nobody likes to see undeserving people win huge, unjustified damage awards, but the fact is, it doesn't really happen in California, except on maybe on TV. Los Angeles Times business columnist Michael Hiltzik couldn’t be more correct when he writes that one of the biggest fans of so-called tort reform is the insurance industry, “because the less money they pay out to plaintiffs, the more they get to keep.” See “Why Tort Reform Is a Frivolous Diversion.”

While that statement is enough to make sensible people wary of the deep pockets behind tort reform movements, Hiltzik clears the confusion and makes a very good case about why limiting an injured victim’s ability to use the legal system to be made whole is not the great fix for rising medical costs insurers and many politicians claim.

The argument for tort reform, as Hiltzik explains, is that plaintiff lawyers are filing too many “frivolous” lawsuits and claiming millions of undeserved dollars. Doctors are ordering unnecessary tests to ensure they don’t misdiagnose or fail to diagnose something that could end up in court. As a result, medical costs escalate.

“The truth is that medical liability isn’t a big driver of health costs overall,” Hiltzik writes. “[T]he cost of malpractice litigation, in court and through defensive medicine, [is] roughly 2% to 3% of all U.S. healthcare spending.”

In California, since 1975, the Medical Injury Compensation Reform Act (MICRA) has capped recovery for pain and suffering to $250,000. That’s next to nothing when to compared to what plaintiffs can receive in other types of cases. Lawyers’ fees are also limited.

But did MICRA help consumers? According to a 2004 Rand study, the MICRA caps don’t amount to a fair distribution of justice. Victims of medical errors who had small economic losses but suffered major damage to their quality of life are unfairly compensated. Women are disproportionately affected. The MICRA cap isn’t adjusted for inflation. In today’s dollars, the award has the same purchasing power as $62,000 did in 1975. And the most unsettling result of all is that may unjustly injured people won’t even pursue a case because the award may not even cover the litigation cost.

The big MICRA winners are insurers, who last year paid out only 17 cents of every dollar they collected on medical malpractice insurance. And carriers don’t even have the good sense to be humble about it.

“At American Physicians Capital,” writes Hiltzik, “claims were falling so fast in 2007 that its chief executive publicly compared his underemployed claims managers to ‘the Maytag repairman.’ The next time you find yourself nodding in assent while some politician carries on about tort reform, remember that its benefits will go to characters like this.”

Clearly, this only reinforces what we’ve been saying all along: If you want real reform, start with the perpetrators, not the victims.

According to Medical News Today, fibromyalgia is no longer an “invisible” syndrome. Citing a study reporter in the Journal of Nuclear Medicine, the article reports that researchers in France were able to detect functional abnormalities in the brain after performing brain scans on 20 women diagnosed with fibromyalgia. Those scans were then compared with scans from 10 healthy women. See “Fibromyalgia Can No Longer Be Called an Invisible Syndrome.”

The diagnosed brain abnormalities directly correlated with the severity of the disease, as reported by the women on questionnaires they filled out in advance of the scan. The results of the study disprove the widely held belief that fibromyalgia is caused by depression. The study found that the brain abnormalities were “independent of anxiety and depression status.”

The study follows news earlier this year that a Stockton, Calif., surgeon patented a process to objectively determine the presence of chronic pain. See, “Surgeon’s Patent Removes the Subjectivity from Chronic Pain.”

Dr. Robert England uses an MRI image to compare the brain image of a person in chronic pain receiving stimulation such as a finger squeeze or mild electric shot to the brain image of a healthy person undergoing the same stimulation.

For people with fibromyalgia, England said his studies showed 13 areas of pain when the patient's thumb was squeezed. When a pain-free person's thumb was squeezed, only one area of pain appeared in the brain.

When these tests will be widely available – and whether insurance health plans will accept them as valid documentation – is still unknown. But they are encouraging developments for people with fibromyalgia who are often accused of fabricating the severity of their illnesses so that the insurer can deny disability or health benefits.

The Long Island Business News reports that many people think they have enough insurance until they need the policy. Then they learn its limitations, find they have insufficient coverage, or discover “loopholes big enough to drive a truck through.” Laura Glasser, “With Insurance, the Fine Print Matters,” June 30, 2009. This is particularly true, the article reports, for health and long-term care policyholders because they aren’t reading their policies to understand coverage limitations.

“One reason many people get surprises is they don’t know much about their coverage to begin with. If you’ve read your policy lately, you’re in the minority. Most health policies, for instance, cover up to $1 million in lifetime benefits. But most people don’t know that,” writes Glasser. Here’s what two insurance industry executives had to say about the situation:
“The information’s there,” said Ian Laird, director of strategy, sales and programs for Empire Blue Cross Blue Shield. “It’s just in a document that I don’t think the average person bothers to read.”

“You expect people to read their benefits,” said William Golden, chief executive of UnitedHealthcare’s health plan for New York, of the source of many surprises. “I’m not sure that really happens all the time. It’s important to read the small print.”
Here are two insurance executives admitting in black and white that they are selling policies that people don’t read, filled with fine print that limits coverage, and they appear just fine with the situation. In fact, one wonders if they might be taking advantage of this information by filling policies with fine print loopholes that end up surprising many people.

We say it everyday…and we’ll say it again here: READ YOUR POLICY BEFORE YOU NEED IT. If you don’t understand something, ask someone who can help.

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The National Fibromyalgia Association, sponsor of Fibromyalgia Awareness Day, is using its 2009 campaign to focus on the far-reaching effects of the chronic pain disorder, including the financial, social and emotional repercussions. For information about May 12 events, log on to www.fmaware.org.

With so many chronic illnesses and so many organizations seeking to find cures and provide support for people suffering from them, it’s easy to lose a sense of urgency about why we draw attention to a particular syndrome. Fibromyalgia is one condition, however, that could benefit from increased awareness.

Many people, unless they have the illness or know someone who has it, have never even heard of fibromyalgia. If they have, it’s usually in the context of being labeled a “non-disease” or “all in your head.” This belief results from a number of factors.

First, fibromyalgia is difficult to diagnose. NFA research shows that it takes from three to five years to diagnose the syndrome. This could mean that many doctors don’t take the illness seriously and are not pursuing options that could lead to a speedy diagnosis. Because no lab test definitely proves a patient suffers from fibromyalgia, the doctor must rely on the patient’s description of symptoms. Doctors then diagnose by elimination.

Second, fibromyalgia is controversial. Some physicians don’t acknowledge that it is a real illness because in most cases the cause of the symptoms is an enigma. Medical science is reluctant to accept conditions for which there is no apparent cause. http://www.health.com/health/condition-article/0,,20188874,00.html.

Third, fibromyalgia affects women more often than men, and no one knows why. Add that to the fact that women have not historically been primary wage earners. Conditions that keep women from paid employment often don’t get the same level of respect as those that affect both genders equally.

Finally, insurance companies put up a fight to pay disability benefits for people unable to work because of fibromyalgia. They embrace the theory that it is not an illness and welcome medical assessment to reinforce that concept. The American Pain Foundation, in an informal study, found numerous barriers to the effective treatment of fibromyalgia, most notably the fear of losing insurance coverage once the syndrome was documented.

We support the National Fibromyalgia Association and its efforts to raise awareness of such a misunderstood syndrome.

On April 1, 2009, the New York Times ran an article about "hanky panky" with "Independent" Medical Exams (IME's) in the world of Workers' Compensation.

The bottom line is that the word "independent" is a misnomer. It turns out doctors sometimes don't even examine patients and are yet still miraculously able to write comprehensive reports. But wait, it also turns out that the doctors sometimes don't even write the reports...the consultants and insurance companies write them.

No big surprise to us. We think the very same thing happens in Long Term Disability insurance claims, which we handle every single day.

Read the article..and if you're a claimant...weep.

Earlier this month, an Associated Press article renewed speculation about a debate many in the fibromyalgia community believed had been finally resolved. Is fibromyalgia a legitimate disease with recognizable symptoms, or is it a “murky ailment” drugmakers are promoting to increase sales of pharmaceuticals that offer pain relief? “Drugmakers’ Push Boosts Murky Ailment”

According the article’s author, reporter Matthew Perone, “Fibromyalgia draws skepticism for several reasons. The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.” Perone cites critics of fibromyalgia diagnoses accusing drug companies of unduly influencing doctors and patients to make a profit.

“I think the purpose of most pharmaceutical company efforts is to do a little disease-mongering and to have people use their drugs,” said Dr. Frederick Wolfe, who was lead author of the guidelines defining fibromyalgia in 1990 but has since become one of its leading skeptics.

The National Fibromyalgia Association is fighting back. Its president, Lynne Matallana, says the article “merely regurgitates the same arguments that have been published in the past and offers the opinions of the same two men who have built careers out of drawing attention away from the hundreds of scientists who continue to make amazing scientific strides toward understanding the underlying cause(s) and pathophysiology of what fibromyalgia patients experience.” Says Matallana:

This article misinforms readers in a way that undermines and victimizes innocent people. By telling only selective parts of the story the author is perpetuating misperceptions and making it difficult, if not impossible, for readers to grasp what is truly important: that we need to stop debating and pointing fingers and start asking why it is perceived as acceptable to stigmatize a patient population just because medical research hasn’t yet provided us with all the information needed to understand that particular illness. Every illness seems to go through a stage of having to prove its legitimacy, but why should the patients be suspect during that phase of research?

Perone’s article points out that Matallana’s group, as well as other disease organizations accept grant money from pharmaceutical companies that they use to lobby Congress and fund educational programs. I suppose he expects the reader to assume everyone is colluding to manufacture a disease so they can all get rich.

Kantor and Kantor has represented literally scores of individuals with Fibromyalgia. It only takes knowing one person suffering from that disease to understand how impossible it would be to invent the painful symptoms suffered by thousands of others.

Who is the real culprit here? We believe that if you scratch the surface slightly, you’ll find that the insurance industry has the most to gain from research attempting to cast doubt on the legitimacy of fibromyalgia. Insurers could save millions relying on such research to deny disability claims from people in constant, debilitating pain and then refuse to pay for the drugs proven to provide relief.

If you doubt this, keep reading the AP article, which quoted Dr. Nortin Hadler, a professor at the University of North Carolina who believes fibromyalgia is not a medical disease but a psychological condition. Until the recently passed federal mental health parity legislation, in most states (California is an exception) insurers had tremendously more leeway to deny or limit benefits for mental health treatment than they did for treatment of physical diseases. And it’s still unclear how strong the federal legislation will turn out to be. In other words, if fibromyalgia is a mental health condition, insurers may be better able to limit their exposure to pay benefits for treatment or drugs. Similarly, since most group disability policies have limitations on the amount of time benefits will be paid for mental disorders, insurers will benefits in this arena as well.

According to Perone, Hadler “has occasionally advised health insurers about how to deal with fibromyalgia.”

Need we say more?

Earlier this month, an Associated Press article renewed speculation about a debate many in the fibromyalgia community believed had been finally resolved. Is fibromyalgia a legitimate disease with recognizable symptoms, or is it a “murky ailment” drugmakers are promoting to increase sales of pharmaceuticals that offer pain relief? “Drugmakers’ Push Boosts Murky Ailment”

According the article’s author, reporter Matthew Perone, “Fibromyalgia draws skepticism for several reasons. The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.” Perone cites critics of fibromyalgia diagnoses accusing drug companies of unduly influencing doctors and patients to make a profit.

“I think the purpose of most pharmaceutical company efforts is to do a little disease-mongering and to have people use their drugs,” said Dr. Frederick Wolfe, who was lead author of the guidelines defining fibromyalgia in 1990 but has since become one of its leading skeptics.

The National Fibromyalgia Association is fighting back. Its president, Lynne Matallana, says the article “merely regurgitates the same arguments that have been published in the past and offers the opinions of the same two men who have built careers out of drawing attention away from the hundreds of scientists who continue to make amazing scientific strides toward understanding the underlying cause(s) and pathophysiology of what fibromyalgia patients experience.” Says Matallana:

This article misinforms readers in a way that undermines and victimizes innocent people. By telling only selective parts of the story the author is perpetuating misperceptions and making it difficult, if not impossible, for readers to grasp what is truly important: that we need to stop debating and pointing fingers and start asking why it is perceived as acceptable to stigmatize a patient population just because medical research hasn’t yet provided us with all the information needed to understand that particular illness. Every illness seems to go through a stage of having to prove its legitimacy, but why should the patients be suspect during that phase of research?

Perone’s article points out that Matallana’s group, as well as other disease organizations accept grant money from pharmaceutical companies that they use to lobby Congress and fund educational programs. I suppose he expects the reader to assume everyone is colluding to manufacture a disease so they can all get rich.

Kantor and Kantor has represented literally scores of individuals with Fibromyalgia. It only takes knowing one person suffering from that disease to understand how impossible it would be to invent the painful symptoms suffered by thousands of others.

Who is the real culprit here? We believe that if you scratch the surface slightly, you’ll find that the insurance industry has the most to gain from research attempting to cast doubt on the legitimacy of fibromyalgia. Insurers could save millions relying on such research to deny disability claims from people in constant, debilitating pain and then refuse to pay for the drugs proven to provide relief.

If you doubt this, keep reading the AP article, which quoted Dr. Nortin Hadler, a professor at the University of North Carolina who believes fibromyalgia is not a medical disease but a psychological condition. Until the recently passed federal mental health parity legislation, in most states (California is an exception) insurers had tremendously more leeway to deny or limit benefits for mental health treatment than they did for treatment of physical diseases. And it’s still unclear how strong the federal legislation will turn out to be. In other words, if fibromyalgia is a mental health condition, insurers may be better able to limit their exposure to pay benefits for treatment or drugs. Similarly, since most group disability policies have limitations on the amount of time benefits will be paid for mental disorders, insurers will benefits in this arena as well.

According to Perone, Hadler “has occasionally advised health insurers about how to deal with fibromyalgia.”

Need we say more?

An article published in the Utah Law Journal last September recently came to our attention. “ERISA: License to Cheat Lie and Steal for the Disability Insurance Industry,” authored by Loren M. Lambert, is an expose of the state of disability insurance coverage under the Employee Retirement Income Security Act. Lambert introduces his article with these words:

There is an increasingly popular notion that modern litigation is an evil that must be stamped out at all costs. This belief has not only been propounded by the uninformed, but has been championed by some of our leading legal scholars, judges and legislators. They have sought to rarefy litigation by creating unnecessary legal complexity, stripping litigation of its essential components, gutting administrative agencies of staff and money, limiting attorneys fees, and completely eliminating adjudication of some claims.

This trend is reminiscent of individuals who desire optimum physical health without exercise or moderate consumption. All that is needed is a bit of surgery, some electrical stimulation, copious amounts of cellulite reducing creams, and the latest magic pharmacopoeia. This same approach is applied to litigation. The power brokers propose that optimum justice can be obtained through radical surgery, intellectual sophistry, copious amounts of judicial neglect, and a magic statutory bullet here or there. …

[M]odern litigation is neither inefficient nor evil. Litigation is the machine of justice, exquisitely crafted, well oiled and highly refined through centuries of evolution and fine tuning. … To the other extreme, the dismantling and disfigurement of our modern system of litigation into some effete, feeble but seemingly more efficient administrative or arbitrary process controlled by insurance corporations or governmental agencies, is, in the long run, as inefficient, brutal, and arbitrary as was trial by ordeal except that the deepest pocket, and not the more cunning combatant, usually wins.

Lambert then eloquently and persuasively lays out his argument about why ERISA “has created a brutal, arbitrary, and inefficient administrative process controlled by the insurance industry.”

In the 9th Circuit of the Federal District Court where most of our cases are filed, things are not quite as bad as Lambert laments. Even still, in many instances the struggle to get disability benefits paid can be much as he explains. We wondered how the article may have affected attorney Lambert's legal practice and spoke with him last week. Lambert said the feedback has been mostly positive, from lawyers like us in the same war against the insurance industry. He received calls from as far away as New York (Lambert practices in Utah) and has been able to help people he otherwise would not have reached without the article.

And Lambert isn’t stopping there. He is finishing the final editing on a 25-minute documentary that follows one of his clients through the process of attempting to obtain her disability benefits, complete with all the denials, frustrations, double-talk and various players that make the ERISA process so “brutal, arbitrary and inefficient.” Lambert promised to send us a copy for review.

In the meantime, read Lambert’s article by following this link: http://webster.utahbar.org/barjournal/2008/09/erisa_license_to_cheat_lie_and.html. It’s for everyone who ever wondered why on earth they are forced to hire a lawyer to obtain their disability benefits.

Welcome to our world. And if it also happens to be your world, give us a call. We have a map.

I recently had the privilege to speak to Associated Press reporter Steve Lawrence and alert him to some troubling California insurance regulation proposals that would weaken consumer protections, “California Insurance Commissioner Seeks Disability Changes,”

California Insurance Commission Steve Poizner, gearing up for his possible gubernatorial candidacy, is attempting to rescind important state rules about how disability insurers handle claims, rules that for the past several years prevented insurers from denying claims or using offsets from pensions, wages and other sources to deny coverage.

According to the article, former insurance commissioner Lt. Gov. John Garamendi, who instituted the consumer measures during his tenure, agrees with me. He says removing the regulations would be a “disaster for policyholders” and “provide no foundation for protection” of consumers from overly zealous insurance adjusters.

Garamendi, who also plans to run for governor, is understandably alarmed at Poizner’s blatant courting of insurance industry deep pockets prior to announcing his candidacy.

While this may all be politics as usual in California, I believe it’s nothing more trying to garner the support of the big insurance companies in anticipation of the need for future campaign support. It certainly is NOT looking out for the interests of consumers! People with legitimate disability claims already have to fight too long and too hard for insurance payouts, and rescinding these regulations will only make it more difficult to get benefits.
After all, no one plans to become disabled. Let’s not remove important safeguards from those who have a small measure of protection when they do.

Poizner’s poorly timed and ill-conceived proposals should have every California voter thinking twice when and if they see Mr. Poizner’s name on any future ballot. 1/23/09 GRK.

One of the most misunderstood terms in insurance contracts is “pre-existing condition.” It’s one of the biggest factors insurance companies look at when they decide whether or not you’re eligible for coverage and how much you’re going to pay for that coverage. It’s also one of the biggest reasons I see people getting their claims denied. What most people don’t know is that having a pre-existing condition DOES NOT preclude you from getting coverage, even long-term disability (LTD) insurance.

Under an employer-provided group plan, every qualified employee is eligible for coverage -- regardless of his or her pre-existing conditions. That’s one of the (few) benefits of the ERISA law; everyone can get insured. Specific to LTD insurance, not only are you able to get coverage, you can even go out on disability for the pre-existing condition! There’s only one catch, and it’s pretty simple to understand. Yet I see hundreds of people fall victim to the fine print year after year.

Here’s a standard clause: “Pre-Existing Condition Limitation: We will not pay Disability Benefits for any period of Disability which is caused by, or contributed to, or results from a Pre-Existing Condition.” That seems pretty simple, and would probably discourage some people from getting coverage at first glance. But then, you move on a couple sentences and find, “This limitation will not apply to a period of Disability that begins more than 12 months after your most recent effective date of insurance.”

Quite simply, the policy provision is saying that if you have a pre-existing condition, you have to be covered under the plan for one full year before you can make a claim based on that pre-existing condition. If you have a completely unrelated illness or injury you can go out on disability in that first year, but to make a claim for your pre-existing injury you just have to make it past one year.

It is always devastating to have to tell someone with a perfectly legitimate disability that had they tried to stick it out a little bit longer, they would have been entitled to disability benefits. We have spoken to people who left work with less than two weeks to go before the year is up and had to tell them there was nothing that could be done for them. Don’t become one of those people. Read your policy, and make yourself aware of these types of restrictions and limitations. If you have a pre-existing condition, and it becomes clear that you’re going to have to go out on disability for it, do whatever you can to get through that year or you’ll be left out in the cold. MH, AK 12/08