As part of Mental Health Awareness Month 2019, the American Foundation for Suicide Prevention (“AFSP”) has launched a public awareness campaign called #RealConvo. The goal of the campaign is to inspire people to
Mental Health Awareness Month has been observed in May in the United States since 1949 by Presidential proclamation. Each year millions of Americans face the reality of living with a mental condition. According to the National Institute for Mental Health, an estimated 26.2 percent of Americans ages 18 and older—about one in four adults—suffer from a diagnosable mental illness in any given year. Not only are these adults affected by one mental illness; 45% of these adults meet criteria for two or more disorders.
Mental illness is a real and treatable set of conditions that includes major depression, bipolar disorder, eating disorders, panic attacks, generalized anxiety disorder, attention deficit hyperactivity disorder, and schizophrenia, among dozens of others. These disorders are serious enough to significantly impact a person’s daily life functioning, whether at school, work or in their relationships with others.
Among children, ADHD, behavior problems, anxiety, and depression are the most commonly diagnosed mental disorders. According to The Journal of Pediatrics, 2018,
If you suffer from certain medical conditions including Multiple Sclerosis, Complex Seizure Disorder, Dementia to name just a few, you may also suffer from cognitive impairment which can affect your ability to perform the duties of your job. If you become disabled and make a claim for disability benefits, it is extremely important to document the cognitive impairment you suffer. Neuropsychological testing is the way to document your cognitive impairment.
If you suffer from cognitive impairment, you likely are already treating with a neurologist. He or she may order this testing as a routine part of your care. If that has happened, you may be able to use the test results as part of the evidence you provide to your disability insurer. If that has not already happened, we strongly recommend you get this testing done to support your claim. Note that if your neurologist orders the testing as part of your treatment and care, your medical insurance may cover the cost, which is high. If, however, you have the testing done on your own or through your attorney, insurance most likely will not cover the cost as it is forensic testing – testing to provide evidence.
Not all neuropsychologists understand the intricacies of documenting cognitive impairment to support a disability claim. At Kantor & Kantor, we work with several highly esteemed and experienced neuropsychologists who do understand what we need to document. They work with us to determine the which tests to conduct to best document your cognitive losses.
In the last decade in the U.S., teenagers and young adults are experiencing a dramatic increase in mental health conditions that is not present in other American age groups. According to a recent article in the Journal of Abnormal Psychology, 2010 teenagers are much more likely to develop major depression, have suicidal thoughts, or live with crippling anxiety than teenagers from the 2000s.
Why are today’s teenagers more susceptible to depression and anxiety? Researchers who studied the data theorize that because the biggest increase occurred around 2011, it is unlikely the cause is the political climate, the economy, or genetics. Instead this uptick in mental health concerns is attributed to the cultural changes in the way young people spend their time outside school and work and how they communicate with each other. Teenagers are sleeping less, exercising less, and spending less time interacting with other people face-to-face, instead spending significantly more time scrolling through social media and communicating electronically. The researchers conclude that teenagers and young adults should focus on activities known to improve mental health – face-to-face social interaction, exercise, and sleep. You can read more about the study and its findings HERE.
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.
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 a previous blog, we discussed the steps you need to take if you have a long term disability claim through a policy provided by your employer, before you hire an attorney. This blog will piggyback on that one, focusing on why the appeal itself is so important and more importantly why the quality of the evidence you submit during that appeal will make or break your claim.
Under the federal regulations that govern ERISA claims and the cases that have interpreted those regulations, your appeal is the only opportunity you will have to get evidence of your disability into your claim file. (There are a few exceptions to this general rule but for purposes of most cases, the appeal is it).
While you do have a right to litigate your claim once you have exhausted your administrative remedies under the plan, you do not have the right to testify, call witnesses or present new evidence to the judge. All the judge will see, if your claim goes that far, is the evidence that was submitted during your administrative appeal. Thus, the type and quality of the evidence you submit during your appeal is crucial to a successful claim.
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.
Surveillance is a common tool insurance companies use to gather information about long-term disability claimants. It can feel creepy to know the insurer may scan through your Facebook posts, run a background check on you, or even hire an investigator to follow you. Here are some common types of surveillance used, and advice about surveillance for anyone on disability.
Three Common Types of Surveillance
An insurance company may use different kinds of surveillance depending on how much money it is willing to spend to investigate a claim, what kind of activity it expects to uncover, and the type of disability.
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.
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.
California Insurance Lawyer Blog