Articles Posted in Health Insurance

Multiple sclerosis (MS) is an unpredictable, often disabling disease of the central nervous system that disrupts the flow of information within the brain, and between the brain and body. The cause of MS is still unknown – scientists believe the disease is triggered by an as-yet-unidentified environmental factor in a person who is genetically predisposed to respond.

According to the National MS Society, MS is thought to affect more than 2.3 million people worldwide. The progress, severity and specific symptoms of MS in any one person cannot be predicted. Most people with MS are diagnosed between the ages of 20 and 50.

According to the Mayo Clinic, the following risk factors may increase a person’s risk of developing MS:

We recently wrote about how the Trump administration wants to expand the use of social media, such as Facebook and Twitter, in evaluating disability claims. In that post we noted that Kantor & Kantor proved, in Court, that social media posts are of limited value in deciding if someone is unable to work. What did the Court say?

The issue came before Judge Yvonne Gonzalez Rogers, United States District Court Judge in the Northern District of California. She was asked to decide if our client had proven he was disabled by back and leg pain of unknown origin. For years our client struggled to continue working as a tax professional at Hitachi despite ever increasing back and leg pain. This job required high cognitive ability, including critical thinking, decision-making, complex problem solving, and high levels of concentration.

He underwent multiple back surgeries, but this did not give him pain relief. In order to get some degree of pain relief, he had to take opioid medications. While this somewhat helped the pain, a medication side effect was difficulty concentrating. Because of the pain and inability to concentrate, our client’s work performance suffered. He had to stop working.

In honor of  ME/CFS week, we are happy to highlight the newest tool in the fight to not only treat but also recognize chronic fatigue and related conditions: The Invasive Cardiopulmonary Exercise Test, also known as iCPET.

As those familiar with ME/CFS and other related conditions may be aware, “traditional” CPET is the gold standard for objectively measuring the limitations caused by chronic fatigue and the impact those limitations have on an individual’s ability to work. Dr. Christopher Snell and the incredible people at the Workwell Foundation have been administering (and improving) this test for years. Despite the plethora of peer-reviewed data confirming CPET’s objective effectiveness in measuring such limitations, insurers still do their best to disregard and minimize CPET.

In contrast to the CPET, which only requires being hooked up to “external” sensors, the iCPET involves the additional insertion of pulmonary artery and radial artery catheters before administering the test. This allows for “complete cardiopulmonary hemodynamic and peripheral tissue O2 extraction analyses, without which only the degree of impairment (maximum Vo2) and the identification of a pulmonary mechanical limitation to exercise are possible.

On March 10, 2019, the New York Times reported the Trump administration has been working on a proposal to use social media, such as Facebook and Twitter, to help identify people who claim disability benefits without actually being disabled. The example the Times gave was if a person claimed disability benefits due to a back injury but was shown playing golf in a photograph posted on Facebook, that social medial post could be used as evidence that the injury was not disabling.

While the Trump administration’s concern is related to Social Security disability benefits, in the private long-term disability world it has long been known that the likes of Unum, MetLife, Aetna, Hartford, or Mutual of Omaha have a keen interest in the social media of disability claimants. This is based on the belief that social media is a goldmine of information about people applying for or receiving long term disability benefits.

It is not impossible for this to be true. But as with many things related to long term disability insurance, the topic has layers. Social media is often an outlet for the disabled. A place where a person unable to work goes to socialize and post pictures of themselves in better times or when they are having a good day (not a bad day). Sure, some of our client’s use social media to share with the world their struggles with MS, or back pain, or fibromyalgia, or lupus, but it’s the exception.

In honor of MS Awareness Week, we would like to devote this blog to successfully proving and establishing a disability claim based on Multiple Sclerosis.  We find that most of our clients who have MS have struggled to remain at work, but then reach a point where they can no longer continue. In such circumstances, the carrier may ask “what changed?”  It is helpful to show that the condition deteriorated even though the client struggled to remain at work. There are steps you can take to help document the progression of the disease:

  1. Make sure that your doctor’s records accurately describe your symptoms.  Many feel that they do not have to describe their fatigue, migraines, muscle weakness, etc. on each visit to their physician(s) because the symptoms are just naturally a part of the disease. This is true, but your medical records must contain a description of the symptoms you are experiencing.  If the medical records do not contain an accurate description, a subsequent letter from your physician may be perceived as inconsistent with the medical records.
  2. If you are experiencing “adverse” side effects from your medication, this should also be reported to your physician. Again, many do not report unpleasant side effects because they are to be expected. However, the side effects and their disabling potential should be accurately described in the medical records.

While we certainly do not recommend it, you may choose to handle your own short term disability or long term disability claim. A side note: we strongly recommend you do not handle an STD or an LTD appeal without legal representation.

If you decide to make a disability claim on your own, there are a few things you should keep in mind when dealing with an insurance company: (1) insurance companies are for-profit businesses with an eye on profits; (2) everything you provide to them during your claim goes into your claim file; and (3) you cannot rely on an insurance company to obtain documentation to support your claim.

Why are these things so important?

Before the enactment of the Affordable Care Act, also called ACA or Obamacare, under the guise of making health insurance more affordable, health insurers whittled away at the health services covered by individual and small group health plans. Slowly but steadily, health plans covered fewer and fewer services. Individual and small group health plans were a vulnerable target for health insurers. The purchasers of these plans do not have the same bargaining power a large employer does, and often were given insurance with substantially less favorable terms than large group policies. ACA was enacted in part to ensure that all individual and small group plans provide meaningful health insurance coverage.

To accomplish this goal, ACA requires all non-grandfathered health plans in the individual and small group markets to cover ten Essential Health Benefits. The Essential Health Benefits are:

  1. Ambulatory patient services – Medical treatment one receives without being admitted to a hospital. An example would be a check-up at a doctor’s office, or minor surgical procedures that do not require an overnight hospital stay. The size of a plan’s network may vary, but it must be “sufficient” to meet ACA guidelines

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

Long before I became a lawyer, all the way back in childhood, I hated when people spoke in absolutes. For those who don’t know, speaking in absolutes is using all or nothing terms like: always/never; best/worst; everybody/nobody; can’t; nothing/everything; all the time; all/nothing; constantly; definitely; etc. I dislike absolutes because while on the surface they appear to make a message stronger (“this always happens to me” or “my mom’s cooking is the best”), they actually do the opposite by weakening your credibility.

Does anything happen “always”?

Think about it. Does anything happen “always”?  Can you definitively say there’s no one on the planet who cooks better than your mom? Of course not! But in addition to saying something that you can’t prove, you have also opened yourself up to allow people to be able to prove – very easily I might add – that you are a liar. And once they can prove you lied about that one thing, they can then turn around and use that lie to cast doubt on everything else you say.

As you probably know, insurance companies are masters of fine print. You may think you have coverage for a condition or injury under your insurance, but when the worst happens, you may find out that you weren’t actually covered after all. Or, you may be covered, but you didn’t have as much coverage as you thought you did.

You can’t always protect yourselves from these gotchas. Many of us have insurance through our employers, and we don’t have power to negotiate the terms of those policies.

However, you can still avoid nasty surprises by reading the fine print in advance. Medical insurance is the type of insurance most people are familiar with, and while you don’t need to know your entire insurance policy by heart, you should know the basics of calculating your benefits – i.e., what your deductible, coinsurance, copay, and out-of-pocket maximums are.

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