Articles Posted in LongTerm Disability (LTD) Insurance

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.

There is almost nothing more important to a successful disability claim than a supportive physician. At every point of your claim, you will need the help of your doctor. At the initial claim, your doctor will be asked to complete a form certifying that you are disabled and providing detailed information about the symptoms you have that prevent you from performing the duties of your occupation. She will also be asked to provide your restrictions and limitations that prevent you from working.

If you have been awarded disability benefits and you are “on claim,” your insurance company will ask your doctor for information on your condition as it periodically investigates whether you remain disabled under the terms of your policy.

You will need a doctor who is willing to fill out forms sent by the insurance company. More importantly, you will need a doctor who understands that if she is too quick with these forms and does not pay attention, noting that you “can sit frequently” when she means you are fine to sit at home on your sofa and does not intend to say you are fine to go back to work can be enough to get your claim denied.

Due to their depth and breadth of knowledge, the attorneys at Kantor & Kantor are frequently asked to speak at seminars, conferences, or give presentations. In June of 2019, partner Brent Dorian Brehm was asked by a national continuing legal education (CLE) provider to speak about long term disability benefits.  The seminar was titled “Mastering Social Security, Long-term Disability & Government Benefits.” Mr. Brehm took the attendees on a journey from the start to the end of a long term disability claim – and everything in between. He also covered relevant differences between disability claims governed by state law and those governed by ERISA.

While we cannot provide you with the actual presentation or the question and answer segment that followed, we can provide Mr. Brehm’s outline. This information is valuable to anyone at any stage in the long term disability claim process. It starts from the beginning – explaining what LTD benefits are. It then goes through tips on making a successful LTD claim. It addresses what needs to be done during the claim stage to avoid litigation – but be ready for it if that must happen. And finally reviews the nuts and bolts of litigating both an ERISA and bad faith disability claim.

What are long term disability benefits?

Kantor & Kantor, LLP is pleased to announce that for the fifth consecutive year (after three years as a Rising Star), Michelle L. Roberts has been selected to the 2019 Northern California Super Lawyers list.  No more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. To top that off, Ms. Roberts was once again named as one of the Top 50 Women and Top 100 Attorneys.

And in the first of what we are confident will be many accolades, Andrew M. Kantor has been selected to the 2019 Southern California Rising Stars list in the Employee Benefits practice area. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Yahoo Finance published an article about how insurers try to prevent individuals from obtaining disability benefits. While the article discusses Canadian insurers, our experience is that the tactics described in that article also happen in the United States.

This blog elaborates on some of the points raised in the article, especially as they relate to ERISA insureds. The Yahoo article observed:

Surveillance is a common tactic. Insurers will hire private investigators to try to catch you in the act of doing something a disabled or injured person couldn’t, like moving a ladder or other heavy objects.

We represent a number of clients who suffer from Rheumatoid Arthritis.  This often misunderstood and “invisible” disease causes extreme pain for its sufferers.  On top of the pain, many also deal with the disbelief of friends, family and employers as to the disabling nature of their illness.

Rheumatoid Arthritis (“RA”) is a chronic disorder in which the body’s immune system attacks joint tissue and causes inflammation that can spread throughout the body.  It can also cause excruciating pain.  Because there are very few visible symptoms during most stages of this disease, its sufferers appear to be fine when in reality, they are in extreme pain.

Another difficult aspect of RA, from a disability standpoint, is that there is no single test for diagnosing the condition. Rather, it is diagnosed by clinical evaluation, lab tests and imaging. This makes meeting your long term disability plan’s definition of disabled more difficult as insurers are often looking for “objective evidence” of disability.

Researchers at Stanford University recently made exciting and significant progress toward developing a possible diagnostic test for chronic fatigue syndrome, or ME/CFS. In a pilot study of 40 people, half healthy and half with ME/CFS, all of the patients with ME/CFS showed a potential biomarker, where the healthy individuals did not.  More details can be seen HERE

As sufferers of ME/CFS know, the struggle to obtain not only treatment, but mere confirmation of the existence of a real disease, can be overwhelming. While the new test itself is still viewed with significant skepticism due to the study’s small sample size, it could be the first step in finding a reliable, objective test to confirm the presence of this debilitating disease.

Disability insurance companies deny claims based on ME/CFS at an extraordinary rate; not because these claims are not righteous. Rather, without a medically accepted diagnostic test, insurers can dismiss your devastating limitations as mere “subjective reports.” Fortunately for consumers, insurers’ attempts to dismiss such claims can be fought, and won, with the right expertise.

Long term disability policies frequently have two different definitions for disability. The first provides benefits if one is unable to perform their “own occupation.” To determine benefits under these criteria, the carrier often looks at the “material and substantial duties” of the insured’s occupation and whether the insured can perform those duties with his or her restrictions and limitations.

After 24 months, the criteria often change to whether the insured can perform “any occupation” for which he or she is suited by education, training and experience.  Most, but not all policies, also expressly include “station in life” criteria.  This means the carrier must also consider the insured’s prior earnings and any alternate occupation identified by the carrier must pay earnings commensurate to the insured’s prior occupation.

We frequently see carriers terminate benefits at the “any occupation” phase of the Plan based on mythical occupations. For example, Hartford has terminated benefits for our clients, stating that the insured can be a “Lens Inserter” or a “Jacket Preparer.”  The carriers take the position that it does not matter if the job actually exists in the national economy. Since the occupations are identified by the outdated Dictionary of Occupational Titles, the carriers believe that they are suitable alternative occupations.

It seems we are handling an increasing number of Lupus cases, so we thought we would write about the illness and the organization that provides information, support and education for those who suffer from Lupus.

The Lupus Foundation works to find a cure, to advance research, to increase knowledge, to empower the community and to ensure that those living with the disease enjoy the best quality of life possible. http://www.lupus.org/about

This organization can provide valuable information for our clients with Lupus and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing Lupus and support for care partners and family. These are just a few examples of the many resources available on the Lupus Foundations’ website.

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