Articles Posted in LongTerm Disability (LTD) Insurance

A functional capacity evaluation (FCE) is a series of tests that is used to measure a person’s functional physical ability to perform certain work-related tasks. A good, reliable FCE has validity measures embedded within the tests to show that the person taking the tests is putting forth the most effort he can, given his physical limitations. FCEs have many purposes, but in long term disability, we use them to provide objective support of a client’s physical restrictions and limitations with respect to his own occupation or any occupation, if that is the stage of his claim.

Often, in LTD cases, your physician will be asked to complete physical capacity forms. Having an FCE report will assist your doctor in this endeavor by providing her with the exact measurements she needs to provide her opinion.

If you have a condition such as degenerative disc disease, back pain with radiculopathy, fibromyalgia, or many other conditions that result in physical limitations, an FCE can be a very good tool to precisely measure exactly how limited you are by your disabling conditions. We can then use the FCE results to gather further support for your claim by giving it to your physician for her to review and use when she writes a letter of support.

Most ERISA-governed long term disability policies include a limitation on the amount of time they will pay benefits when the disabling condition is one that the policy defines as a “mental/nervous” condition.  Policies vary as to what they include in their definition of “mental/nervous” conditions and the wording of the limitation varies, too.  A note about the wording of the limitation – it is extremely important how the policy words the limitation in terms of how evidence of a condition such as depression or anxiety is presented in a claim.

Generally, the limitation is 24 months of benefits will be paid if the claimant is disabled by a mental/nervous condition such as depression or anxiety. There are conditions, such as Multiple Sclerosis, Parkinson’s Disease, migraines, and disability after heart attack to name a few, that either have depression as a symptom of the disease itself, and/or result in depression from dealing with the disease.  In such cases, you may not be disabled at all by depression but if it is mentioned in your medical records – and it very likely will be – very often an insurance company will seize upon the depression and attempt to apply the policy’s 24-month benefit limitation to your claim.

If your only disabling condition is a mental/nervous condition, and your policy contains a 24-month limitation, it may also contain a 12-month extension of benefits should you be hospitalized for your mental health condition at the end of the 24-month period.  These are highly technical exceptions that often require the assistance of attorneys who understand how these exceptions are applied.

Breast-Cancer-Awareness
According to the Centers for Disease Control and Prevention (“CDC”), breast cancer is the second most common cancer among women in the United States.

  • In 2019, an estimated 268,600 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 62,930 new cases of non-invasive (in situ) breast cancer.
  • Men also get breast cancer, but it is not very common. Less than 1% of breast cancers occur in men.

If you have a condition such as migraine headaches, vertigo, or chronic pain, a condition that cannot be captured by “objective diagnostic measures” such as X-rays, MRIs, PET scans, etc., you still need evidence to prove to the insurer that you are disabled.

While letters from your physician describing your symptoms, their impact on your ability to function at work, and the underlying case are helpful as are the office notes from your doctor, we find that daily logs are very helpful. Logs, kept over a period of weeks or months, paint an ongoing picture of the number of times you are suffering from your disabling condition.

In the log, you must be sure to mark down the date, the type of symptom you are experiencing, e,g, – a migraine headache – the quality of the pain, the strength of the pain, and the duration of the pain. Over the course of several months, these logs can really help support a disability claim when they show a person is suffering from 3 or 4 migraines per week and the headaches are lasting for hours or days at a time. These logs are quite compelling when they complement the medical records.

An Independent Medical Examination (IME) is an examination by a medical doctor hired to examine you and opine on your disease state and whether it is disabling. If so, the IME can help determine the degree to which is it disabling and its impact on your ability to perform the duties of your own or any occupation, depending upon the stage of your LTD claim.

IMEs are typically quite expensive so we are judicious in when we recommend them to our clients. We recommend them in a variety of situations and this blog does not cover every situation. Of course, we make these determinations on a case-by-case basis for each of our clients but we can offer some general information here.

If your attending physician does not wish to participate in the appeal process by writing letters, responding to medical record reviews from the insurer, or completing questionnaires necessary to a successful appeal, then an IME may be appropriate for your case.  Another situation in which we might recommend an IME is if you suffer from a particular medical condition and there is an IME provider who is a well-known expert in the diagnosis and treatment of that condition.

The Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., was enacted to provide minimum standards for voluntarily established plans by employers in the private industry for the benefit of their employees. Despite its name, ERISA also applies to disability benefits an employee may be entitled to if s/he becomes unable to work due to a disability, whether or not it was work-related.

Social Security Disability Insurance (“SSDI”) benefits, in contrast, is a federal government program, and is available to most people, with certain exceptions, who have worked in any industry and contributed to the Social Security trust fund via the FICA tax.

Most ERISA plans encourage, or even require, that an employee seeking long term disability (“LTD”) benefits also apply for SSDI because any amount paid by Social Security is an offset for the insurance company, making its payments substantially less. However, being awarded SSDI benefits does not mean that the claimant will also qualify for LTD benefits because insurance companies are not bound by the Social Security Administration’s (“SSA”) determinations. Similarly, of course, the decision denying SSDI does not mean that the claimant will not qualify for LTD benefits under an ERISA plan.  But, an ERISA plan administrator is likely to use a SSDI denial as evidence that a claimant does not meet the ERISA plan’s definition of disability.

The correct response is, “maybe, or maybe not, depending on the facts, and the state in which you reside.”

Insurance policies very often have time limits on the submission of a claim for benefits. In some states, those deadlines are VERY strictly construed, and once the deadline has passed, it does become “too late” to make a claim.

However, more than half of the states apply some form of an insurance rule called the “notice prejudice” doctrine.  Simply put, even if an insurance policy imposes a time limit for the submission of the claim, if certain rules are met, a claim can be submitted after the time limit if the late notice does not “prejudice” the insurance company’s ability to investigate the claim.  However, that is just a basic summary of the rule.  In the states that apply some form of the notice prejudice doctrine, its application differs from state to state.  In some states, the insured making the late claim must demonstrate a “good reason” for making a late claim.  In others, the burden falls on the insured to prove that no prejudice would be suffered by the insurance company because of the late claim submission.

Many people submit short term disability and long term disability claims on their own, without consulting or engaging an attorney to assist them. We think you should consider hiring an attorney to assist you in this endeavor. Ensuring that you have all of the necessary information to get your claim approved with the first submission can be a daunting task. You are already not feeling well because you are disabled. Moreover, you do not know the ins and outs of the disability insurance world and we attorneys do.

There are several nuances to this process.  Disability attorneys know what documents to help you gather including not only your medical records but additional evidence in support of your claim such as independent medical evaluations, functional capacity evaluations and other medical exams. We also know how to help you get the necessary vocational evidence to support your claim that you can no longer perform the duties of your own occupation.

If you submit your claim on your own and it is denied, you will have to submit an administrative appeal in order to preserve your right to benefits. You will likely come to us at this point and we will advise you on what was missing from your initial claim that resulted in the denial. If you hire an attorney at the initial claim stage, while it is not a guarantee that benefits will be approved, if they are approved, it is certainly a time saver for you.

When you become ill with what may turn out to be a disabling condition, you are not likely thinking about whether the things you say to your physician might impact a short or long term disability claim, but you should be. Unfortunately, insurance companies use comments by claimants and their physicians found in the claimant’s medical records to discredit their claims. They can also be used to apply provisions in the policy that limit the duration of benefits. In some cases, depending on the medical facility where you treat, even your email and telephonic communications are recorded and placed in your medical records. These can be extremely detrimental to your disability claim.

Here are some examples from real claims: A man went to his physician and was diagnosed with Parkinson’s Disease. His symptoms were already pretty advanced and his doctor determined he should stop working. We helped him make a claim for disability benefits. One of the symptoms of PD is depression. Our client had mentioned to his neurologist on many occasions that he was suddenly feeling very depressed. Even though his physician attributed his depression to his PD and even though he had never before had depression, his LTD carrier tried to apply the policy’s mental/nervous limitation which would have limited his benefits to only 24 months, claiming he was disabled by depression, not PD.

In another case, a client who was already receiving long term disability benefits whose claim had been terminated came to our firm for assistance. We told him he would need assistance from his physician for his appeal of the denial. We explained the points the doctor’s letter would need to address and the client listed those points in an email to his physician. Because the client treats at Kaiser Permanente, that email was included in his medical records. When his insurer requested copied of his medical records, his insurer was able to obtain communications between the client and his attorney all because he sent an email to his doctor asking for help.

Kantor & Kantor won a notable victory against the Life Insurance Company of North America (also known as “LINA” or “Cigna”) in Elliott v. Life Insurance Company of North America, Inc., No. 16-CV-01348-MMC, 2019 WL 2970843 (N.D. Cal. July 9, 2019), a case in the San Francisco Bay Area involving a denial of long-term disability benefits to the plaintiff who is disabled by trigeminal neuralgia.

The plaintiff, Elliott had to stop working in his position as Vice President of a brokerage firm due to symptoms from trigeminal neuralgia, a chronic pain condition affecting the trigeminal nerve, which is a cranial nerve responsible for sensation and certain motor functions in the face. Elliott was experiencing symptoms including shooting facial and head pain on a daily basis, migraines, difficulty talking, as well as medication side effects including sedation and cognitive slowing.

LINA had approved Elliott’s initial claim for short-term-disability, but denied his claim for long-term disability benefits and upheld its denial on appeal, stating that there was a lack of objective evidence to support his diagnosis. After the Social Security Administration approved Elliott’s social security benefits claim, finding him disabled, LINA had another opportunity to reconsider its decision deny Elliott’s claim but declined to do so.

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