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“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 (7^th 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.

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!

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.