Articles Tagged with disability

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.

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?

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.

Many of our clients suffer from chronic pain. For some chronic pain is a symptom of an underlying condition and for others it is the main condition; in either case, chronic pain can be and often is disabling. Because so many of our clients are affected by chronic pain, we thought a discussion of the organization that provides information, support and education for those who suffer from chronic pain conditions might be helpful.

The American Chronic Pain Association’s mission:

  • to facilitate peer support and education for individuals with chronic pain and their families so that these individuals may live more fully in spite of their pain; and

Lupus is a chronic, autoimmune disease that can damage any part of the body (skin, joints, and/or organs inside the body). Chronic means that the signs and symptoms tend to last longer than six weeks and often for many years.

In lupus, something goes wrong with your immune system, which is the part of the body that fights off viruses, bacteria, and germs (“foreign invaders,” like the flu). Normally our immune system produces proteins called antibodies that protect the body from these invaders. Autoimmune means your immune system cannot tell the difference between these foreign invaders and your body’s healthy tissues (“auto” means “self”) and creates autoantibodies that attack and destroy healthy tissue. These autoantibodies cause inflammation, pain, and damage in various parts of the body.

Lupus is also a disease of flares (the symptoms worsen and you feel ill) and remissions (the symptoms improve and you feel better).

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.

Seeking treatment when symptoms from mental health conditions become severe can be scary. A person experiencing paranoia, delusions, or hallucinations may not be able to advocate for themselves. They may not be able to tell doctors and nurses which medications they have adverse reactions to, how to best treat their symptoms, and who to call in case of emergencies. This may lead to them being put in situations that exacerbate rather than relieve their symptoms.

One tool that can help is a Psychiatric Advance Directive, or PAD.   A PAD is written by a currently competent person who lives with a mental illness.  The PAD describes treatment preferences and/or names a health care proxy or agent to make decisions if the person is unable to do so for themselves.

What a PAD Can and Cannot Do

April is Parkinson’s Disease Awareness Month, so we thought we would write a blog entry talking about the illness and the organization that provides information, support and education for those who suffer from Parkinson’s.

The Parkinson’s Foundation (PF) 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.

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

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