Articles Tagged with disability

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.

Multiple sclerosis (MS) is an unpredictable, often disabling disease of the central nervous system that disrupts the flow of information within the brain, and between the brain and body. The cause of MS is still unknown – scientists believe the disease is triggered by an as-yet-unidentified environmental factor in a person who is genetically predisposed to respond.

According to the National MS Society, MS is thought to affect more than 2.3 million people worldwide. The progress, severity and specific symptoms of MS in any one person cannot be predicted. Most people with MS are diagnosed between the ages of 20 and 50.

According to the Mayo Clinic, the following risk factors may increase a person’s risk of developing MS:

We recently wrote about how the Trump administration wants to expand the use of social media, such as Facebook and Twitter, in evaluating disability claims. In that post we noted that Kantor & Kantor proved, in Court, that social media posts are of limited value in deciding if someone is unable to work. What did the Court say?

The issue came before Judge Yvonne Gonzalez Rogers, United States District Court Judge in the Northern District of California. She was asked to decide if our client had proven he was disabled by back and leg pain of unknown origin. For years our client struggled to continue working as a tax professional at Hitachi despite ever increasing back and leg pain. This job required high cognitive ability, including critical thinking, decision-making, complex problem solving, and high levels of concentration.

He underwent multiple back surgeries, but this did not give him pain relief. In order to get some degree of pain relief, he had to take opioid medications. While this somewhat helped the pain, a medication side effect was difficulty concentrating. Because of the pain and inability to concentrate, our client’s work performance suffered. He had to stop working.

In honor of  ME/CFS week, we are happy to highlight the newest tool in the fight to not only treat but also recognize chronic fatigue and related conditions: The Invasive Cardiopulmonary Exercise Test, also known as iCPET.

As those familiar with ME/CFS and other related conditions may be aware, “traditional” CPET is the gold standard for objectively measuring the limitations caused by chronic fatigue and the impact those limitations have on an individual’s ability to work. Dr. Christopher Snell and the incredible people at the Workwell Foundation have been administering (and improving) this test for years. Despite the plethora of peer-reviewed data confirming CPET’s objective effectiveness in measuring such limitations, insurers still do their best to disregard and minimize CPET.

In contrast to the CPET, which only requires being hooked up to “external” sensors, the iCPET involves the additional insertion of pulmonary artery and radial artery catheters before administering the test. This allows for “complete cardiopulmonary hemodynamic and peripheral tissue O2 extraction analyses, without which only the degree of impairment (maximum Vo2) and the identification of a pulmonary mechanical limitation to exercise are possible.

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

Under the federal regulations that govern 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.

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