Articles Posted in Uncategorized

“There used to be considerable skepticism that Fibromyalgia was a real disease. No more.”

Kennedy v. The Lilly Extended Disability Plan, –F.3d–, 2017 WL 2178091 (7th Cir., 2017)

It has been said that disability insurance carriers view a Fibromyalgia diagnosis with skepticism. The disease is an “invisible disease” which cannot be measured on x-ray and its diagnosis is often dependent on an insured’s report of pain, fatigue and cognitive dysfunction. For this reason, insurance carriers often try to discount the disabling nature of the disease.   We see carriers do this by: (1) hiring physicians who do not believe in the disabling nature of the disease or (2) demanding the insured submit “objective proof” of the disability, which cannot exist. There are no x-ray’s or MRI’s used for diagnosing Fibromyalgia.

For over 25 years, I have been representing individuals who have had life, health, and disability claims denied by their insurance companies.   I have represented over 3,000 people.   What is so disheartening to me is that I hear from clients again and again that they “almost gave up before calling” me. They tell me they were beaten down by the process, convinced their insurance company must be right, or that they didn’t know there were lawyers who specialized in handling their kind of case on a contingent basis.   While sometimes the client HAS waited too long for us to help them, usually my law firm, Kantor & Kantor, is able to step in and successfully resolve their claim.

However, I wonder just how many DO give up unnecessarily.   While my view of the insurance industry may appear very cynical, I am 100% convinced that the industry employs a strategy of denying as many claims as possible in the hope that claimants will just give up and go away.   I could write pages upon pages of stories about clients who had almost given up, but for whom we were able to obtain benefits with nothing more than a well written letter.   It sometimes seems like the insurance company is daring their insured to challenge the denial, or to get a lawyer.   If they do, the insurance company will reconsider its denial. If not, the denial will stand and the insurance company will keep the benefits which are rightfully yours.

In the last month, I have obtained over a $1,000,000 in total benefits for several clients who separately told me that they had seriously considered giving up before calling my firm.   This led to me to come back to a familiar thought, which was to wonder about all the people who did simply give up.   I decided to write this blog in the hope that maybe ONE insured might read it, and decide not to give up.   I am not writing this to get business. I have more than I need.   I practice in California, but this blog might be read by someone in Florida, or Illinois, or New Jersey, for example. If it is, and you were considering giving up trying to get your benefits, I am not suggesting you call me.   Go on the internet, or call your State Bar, and find an experienced attorney in your State.   The worst thing that happens, is that no one will take your case  —  but what if they will?

In addition to dealing with short term disability benefits, long term disability benefits, and health insurance denials, many of our clients are also tasked with applying for Social Security Disability benefits. On January 17, 2017, the Social Security Administration adopted new rules for evaluating mental disorders.  These rules reflect the most comprehensive revision in over 30 years to the criteria used to evaluate disability claims involving mental disorders. Changes to the rules reflect up-to-date standards and practices used in the mental health community. Most notably, the new rules reflect information from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM -5”), which is the mental health profession’s standard for classifying mental disorders. The new rules also reflect comments from members of the public and the expertise of disability policy experts, adjudicators, psychiatric professionals, and vocational experts.

Among the many changes are three new listings: 12.11 Neurodevelopmental disorders, 12.13 Eating Disorders, and 12.15 Trauma- and Stressor-Related Disorders.  Additionally, the titles of the listings have been updated to reflect the terms the American Psychological Association uses to describe the categories of mental disorders in the DSM-5.

This table shows the old and new listing numbers and titles:

OLD NEW
12.02 Organic mental disorders 12.02 Neurocognitive disorders
12.03 Schizophrenic, paranoid and other psychotic disorders 12.03 Schizophrenia spectrum and other psychotic disorders
12.04 Affective disorders 12.04 Depressive, bipolar and related disorders
12.05 Intellectual disability 12.05 Intellectual disorder
12.06 Anxiety-related disorders 12.06 Anxiety and obsessive-compulsive disorders
12.07 Somatoform disorders 12.07 Somatic symptom and related disorders
12.08 Personality disorders 12.08 Personality and impulse-control disorders
12.09 Substance addiction disorders 12.09 Reserved
12.10 Autistic disorder and other pervasive developmental disorders 12.10 Autism spectrum disorder
12.11 Neurodevelopmental disorders
12.12 Reserved
12.13 Eating disorders
12.15 Trauma- and stressor-related disorders

Under the new rules, these new mental health listings will remain in effect for five years. To read the full text of Social Security’s Mental Disorder Listings, click here https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_04 .

 

[042017sc]

Disability benefit plans are often structured to provide two different types of benefits. The first is for short term disability or often just refered to as STD, which typically provides benefits for the first 3-12 months of disability.  After the conclusion of short term disability benefits, the claim is then transitioned for approval of long term disability benefits, also referred to as simply LTD. Often, the same insurer administers both the short and long term plan and the definition for eligibility of benefits is identical. However, many of our clients find that after the expiration of short term benefits, they do not continue to receive benefits and have to go through the approval process all over again to receive approval for their long term disability claim!

Unfortunately, this is a normal course of events. We find that even though a client has been approved as disabled under a short term disability plan, insurance carriers treat the long term claim as a new claim and require a new submission of new proof. One of the reasons we suspect that this transition is not “seamless,” (as may be promised) is that the employer funds short term benefits out of its own account, and for the benefit of its employees, whereas long term disability is funded with an insurance policy where the insurer is on the hook to pay benefits.   Ordinarily, insurers have no allegiance to employees.  Therefore, even though the definitions of disability are the same under the short and long term plan, it is more difficult to be approved for long term disability benefits.

As a result, when the claim is transferred to the long term disability unit, the insurance company may require new and additional attending physician and employer statements, updated medical records and claimant completed statements before it will evaluate the claim. This can cause a delay in long term disability benefits and even a denial of the claim, despite the fact that the same insurance company approved the disability claim just weeks before!

Trumpcare, the Republicans’ proposed plan to replace the Affordable Care Act (ACA) — also known as “Obamacare” — will cut mental health and addiction treatment for 1.3 million people, just as the country is struggling to cope with an epidemic of opiate addiction. The Washington Post reported on March 9, 2017, that House Republicans admitted under questioning by Rep. Joe Kennedy III (D-MA) that their ACA repeal-and-replace plan would remove a requirement to offer substance abuse and mental-health coverage that’s now used by at least 1.3 million Americans.

Substance abuse and mental-health services are among the “essential benefits” states are required to provide under the ACA’s expansion of Medicaid, a program that provides health-care coverage to those who cannot afford it. As the article explained, if states opt out of providing those benefits, Medicaid recipients would not only lose coverage for mental-health care, but also coverage for care aimed at addressing substance abuse treatment, a critical area of care given the current drug overdose epidemic many states are dealing with. According to estimates by health-care economists, about 1.3 million Americans’ sole access to these services is through the ACA.

 

[o3odj]

Insurance denial, ERISA denial, claim denied
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid.  It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies also usually require that notice of a claim be given within a specified time period following the loss, for example, “30 days,” or “as soon as practicable,” or “as soon as reasonably possible,” etc.  Again, this is fair because evidence related to the claim is fresh, and most readily available nearer the time of the event.

But, what happens if you can’t, or don’t comply with the policy notice requirement?  What happens if don’t give notice until months, or even years after your claim accrued?

Good questions.

Why pass on free personalized advice?

One of the people who contacted us this week was a woman who had her Long Term Disability benefits terminated by Standard Insurance Company after Standard had paid her those benefits for many years. Despite multiple surgeries, her symptoms had not improved. Each morning she takes powerful pain medications. Sometimes those medications offer enough relief to enable her to attend to daily functions, but often, they do not.

Either way, she was certainly not able to perform the duties of her job when Standard cut off her benefits. Nonetheless, Standard Insurance Company all of the sudden determined she had not provided sufficient proof of disability and terminated her Long Term Disability benefits. Thinking this was simply a misunderstanding, she appealed the denial on her own without speaking to an attorney first. After all she reasoned, Standard Insurance Company had told her all she needed to do was explain to them why she was still disabled.

HOW INSURERS’ RECENT WRONGFUL RATIONING OF HARVONI DRUG TREATMENT FOR HEPATITIS C EXPOSES A LONG HISTORY OF UNREASONABLE AND HARMFUL INSURANCE COMPANY PRACTICES

Written by Tim Rozelle, Esq.

In July, August, October and December 2015, Kantor & Kantor filed class action lawsuits against Anthem Blue Cross Life and Health Insurance Company (and 26 other Anthem, Inc.-affiliated health plans nationwide), UnitedHealthcare Insurance Company (and 31 other United-affiliated health plans nationwide) and HealthNet respectively regarding the insurers’ categorical denials of Harvoni drug treatment for Hepatitis C. In denying treatment, the insurers told their insureds that their liver must reach a certain level of scarring (F3 or F4 on an F0-F4 scale) before treatment becomes necessary and would be approved.  In these respective lawsuits, our clients allege that the named insurers violated the Employee Retirement Income Security Act (ERISA) (or allege that the insureds breached insurance contracts) by using internal coverage guidelines (ICGs) to overrule providers’ determinations of appropriate medical treatment. Our clients claimed that the insurers forced them to live with a serious health problem and related issues until their livers became sufficiently deteriorated to approve treatment.

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 piggy back on that one, focusing on why the appeal itself is so important and more, why the quality of the evidence you submit during that appeal will make or break your claim.

Under the federal regulations governing 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.

In July 2011, Plaintiff Lana Robertson was diagnosed with diffuse systemic sclerosis, a rare autoimmune disease that causes the skin and other connective tissues in the body to tighten and harden. Without treatment, the disease can attack tissues in internal organs and is fatal once it infiltrates the tissues of the lungs or heart. Robertson’s treating physician, Dr. Richard Burt, Chief of the Division of Immunotherapy at Northwestern University Feinberg School of Medicine in Chicago, recommended as”medically necessary” a hemapoietic stem cell transplant (“the Procedure”).

Robertson, a plan participant under an employer-sponsored health benefits plan established by Defendant Stallion Oilfield Holdings, Inc. (“Stallion”) (Plan Administrator) and claims administered by Blue Cross and Blue Shield of Texas (“BCBS Texas”) (Claims Administrator), sought pre-approval from BCBS Texas for treatment with the FDA-approved Procedure’s protocol on November 8, 2013. BCBS denied the claim on the grounds that the Procedure was “experimental, investigational, and unproven.” The initial denial specifically stated that: “Per the data in peer-reviewed medical literature, autologous stem cell transplant is not effective, reliable, and safe for auto-immune diseases, including systemic sclerosis.”

Robertson appealed the decision twice and was denied twice (December 2013 and February 2014) by different independent review organizations (IROs). Each IRO denied Robertson’s claim on essentially the same grounds, namely that “[t]he proposed transplant for the treatment of systemic sclerosis is part of a phase 3 randomized clinical trial and is therefore considered investigational.” The IRO reviews did no more than simply endorse the position of BCBS Texas.

Contact Information