Articles Tagged with disability

The Lupus Foundation of America estimates that 1.5 million Americans, and at least five million people worldwide, have a form of lupus. According to the Lupus Foundation of America most lupus sufferers are misdiagnosed or can go undiagnosed for years. The goal of Lupus Awareness Month is to inform practitioners, patients, care givers, and the general public about how best to diagnose, care for, and live with lupus.

What is Lupus?

Lupus is a chronic (long-term) disease that can cause inflammation and pain in any part of your body. Lupus is a non-contagious autoimmune disease, which means that your immune system — the body system that usually fights infections — attacks healthy tissue instead. According to the Centers for Disease Control and Prevention about 9 out of 10 diagnoses of lupus are in women ages 15 to 44 and most people with lupus develop the disease between the ages of 15-44.

Even though most of us are still sheltering in place in an attempt to lessen the immediate spread and most severe health consequences of COVID-19, it is not too soon to start considering possible long-term health impacts that may arise in the wake of the coronavirus pandemic.

Because the virus affects many organs and systems within the body – from the lungs and cardiovascular system to the liver, kidneys and likely the brain – it now appears likely that at least some patients will suffer long-term physical symptoms.  These long-term and even permanent problems may result from the virus itself, the body’s own immune response or even medical interventions, especially respirators, or a combination of all these factors.  But whatever the cause, doctors are already seeing heart damage, kidney and liver damage and, unsurprisingly, lung scarring and damage in a number of COVID-19 patients who are no longer actively infected.

And these are still early days. Some patients present during the illness with serious neurologic problems such as strokes and encephalitis, as well as other more mild neurologic symptoms such as dizziness, headache and loss of smell.  There have been reports of some patients suffering from Guillain-Barré Syndrome, an auto-immune disease where the immune system responds to an infection by mistakenly attacking the body’s own nerve cells.  It seems possible that at least some of these patients may continue to suffer neurologic and autoimmune issues, and related pain, fatigue and cognitive difficulties for at least some time.

Millions of people are affected by mental illness each year. While 1 in 5 people will experience a mental illness during their lifetime, everyone faces challenges in life that can impact their mental health. As the increase in the number of COVID-19 cases affects our entire country, so too will the need for access to mental health treatment and awareness of mental health issues. So far, older adults, along with those who have underlying health conditions, have been hit the hardest by the COVID-19 outbreak, with many developing severe, life threatening illnesses. Another group that is expected to be acutely affected by the pandemic include those who have severe mental illness.

Mental illness is a real and treatable set of conditions that includes major depression, bipolar disorder, eating disorders, panic attacks, generalized anxiety disorder, attention deficit hyperactivity disorder, and schizophrenia, among dozens of others. These disorders are serious enough to significantly impact a person’s daily life functioning, whether at school, work or in their relationships with others.

Mental health issues often coincide with a unique set of challenges that make it difficult for people to access even the most necessities, such as food, medications, stable housing, and healthcare. Combined, all these factors put people with severe mental illness at a much higher risk for contracting and transmitting the new coronavirus and dealing with COVID-19.

The past few months have heralded an unprecedented situation. Millions of Americans are being laid off as COVID-19 shuts down businesses throughout the nation. This is frightening for everyone.  It is doubly difficult for workers who have physical or mental limitations.  For those workers, the specter of finding a new job in this economy, one that can accommodate their often significant limitations, may be overwhelming.

Workers experiencing health issues — including cognitive issues or mental illnesses — who have been having difficulties performing their jobs because of those limitations but have been fighting through them, may well be among the first to be laid off as underperformers. While these workers are in fact impressive in their drive to keep working in the face of daunting health issues, that very refusal to admit defeat may result in unemployment and a lack of income for them.

If you are among these workers, now is the time to evaluate whether a disability claim makes sense for you. While you still have access to your job-related insurance, you can preserve some of your income and access to health insurance.  If you have ongoing medical issues for which you have already been treating that significantly impact your ability to work, be it physical pain, chronic illness, depression, anxiety, or auto-immune issues, talk to your doctor about whether he or she would recommend disability for you.

The effect of COVID-19 on the lives of every American cannot be overstated.  What we cannot know yet is how those effects will continue into the future.  We buy insurance to protect us in the event of future calamities. A variety of different types of insurance could potentially be triggered by the varying effects of the disease.  As it can be hard to know what the future could hold, the points below summarize the different ways your insurance could be involved in COVID-19 repercussions in the months and even years ahead.

It is difficult to know with certainty the range of long term health issues that could be caused by COVID-19, as the virus has only plagued us for approximately six months. Doctors predict the long-term effects will be similar to other coronaviruses like SARS.  While 80% of sick patients had “mild” cases, of the 20% who did not, they could experience a variety of long term effects.  COVID-19 survivors are expected  to follow the path of severe respiratory issues often seen after recovery from other respiratory illnesses.  That could mean lung fibrosis, reduced lung capacity and difficulty breathing and fatigue. Preliminary data out of China demonstrates that 20% of patients hospitalized with COVID-19 had heart damage. Patients also experience increased blood clotting.  Early studies from Asia show that COVID-19 attacks T-cells in a manner similar to HIV. Doctors are also finding that close to half of those hospitalized for COVID-19 have blood or protein in their urine, which is an early indicator of kidney damage, and up to 30% of patients in New York and Wuhan lost some level of kidney function. Liver damage, intestinal damage, and neurological malfunctions have also been reported.

Health Insurance

If you have a pending ERISA disability claim, the plan administrator or insurance company may schedule an Independent Medical Examination (“IME”) for you.  Your first question may be, “do I have to attend?”  While every person’s situation is different, and you should consult with your attorney about the specifics of your case, it is recommended that you comply with reasonable requests by the administrator to have you evaluated in person.

Why, you ask?  For starters, most disability policies contain a provision that gives the administrator the right to have you examined.  Failure to comply may result in the denial of your claim.  For example, in Burke v. Pitney Bowes Inc., 392 F. App’x 570, 572 (9th Cir. 2010), the Ninth Circuit Court of Appeals held that it was reasonable for the plan administrator to request a second IME of the plaintiff and that the plaintiff’s refusal to attend prejudiced the administrator’s ability to decide the claim.  The Court found that the termination of disability benefits based on the plaintiff’s failure to attend the IME was not an abuse of discretion.

Second, if your matter ends up in litigation, it is important that you appear reasonable and cooperative to the judge.  The focus should be on the merits of your disability claim, not on whether you should have attended an exam.

Over the past 15 years, I have represented hundreds of claimants in their claims for disability benefits governed by the Employee Retirement Income Security Act of 1974, also known as ERISA.  If an ERISA disability claim is denied, a claimant must appeal that denial to the plan administrator or insurance company before he or she is able to file a lawsuit.  The appeals process is referred to as exhausting administrative remedies (though there is no administrative agency involved). The ERISA Regulations provide rules that an administrator must follow in order to give a claimant a “full and fair review.”  See ERISA § 503; 29 CFR § 2560.503-1 (Claims procedure).

Effective April 1, 2018, the ERISA Regulations were changed to require that an insurance company or administrator provide to the claimant copies of new evidence it obtains after a claimant submits an appeal so that the claimant has an opportunity to respond to the new evidence before the insurance company issues a final claim decision.  Some insurance companies, however, refuse to provide this evidence to claimants who filed their disability claims before April 1, 2018.

What if you fall into this pre-April 1, 2018 category?  Do you have any rights to know what the insurance company is relying on before it issues a final decision on your appeal?

Kantor & Kantor, LLP, one of the most experienced law firms in the nation dealing with litigating insurance claims against insurance companies, is proud that once again five Partners have been selected to the 2020 Southern California Super Lawyers list.  Co-Founders Lisa Kantor and Glenn Kantor are joined by Senior Partners Alan Kassan and Corinne Chandler, and Partner Brent Dorian Brehm makes his fourth consecutive appearance.

No more than five percent of the lawyers in Southern California are selected by Super Lawyers. Super Lawyers, part of Thomson Reuters, 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 their practice of law. For more information about Super Lawyers, go to SuperLawyers.com.

If you have a condition such as migraine headaches, vertigo, or chronic pain, a condition that cannot be captured by “objective diagnostic measures” such as X-rays, MRIs, PET scans, etc., you still need evidence to prove to the insurer that you are disabled.

While letters from your physician describing your symptoms, their impact on your ability to function at work, and the underlying case are helpful as are the office notes from your doctor, we find that daily logs are very helpful. Logs, kept over a period of weeks or months, paint an ongoing picture of the number of times you are suffering from your disabling condition.

In the log, you must be sure to mark down the date, the type of symptom you are experiencing, e,g, – a migraine headache – the quality of the pain, the strength of the pain, and the duration of the pain. Over the course of several months, these logs can really help support a disability claim when they show a person is suffering from 3 or 4 migraines per week and the headaches are lasting for hours or days at a time. These logs are quite compelling when they complement the medical records.

The Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., was enacted to provide minimum standards for voluntarily established plans by employers in the private industry for the benefit of their employees. Despite its name, ERISA also applies to disability benefits an employee may be entitled to if s/he becomes unable to work due to a disability, whether or not it was work-related.

Social Security Disability Insurance (“SSDI”) benefits, in contrast, is a federal government program, and is available to most people, with certain exceptions, who have worked in any industry and contributed to the Social Security trust fund via the FICA tax.

Most ERISA plans encourage, or even require, that an employee seeking long term disability (“LTD”) benefits also apply for SSDI because any amount paid by Social Security is an offset for the insurance company, making its payments substantially less. However, being awarded SSDI benefits does not mean that the claimant will also qualify for LTD benefits because insurance companies are not bound by the Social Security Administration’s (“SSA”) determinations. Similarly, of course, the decision denying SSDI does not mean that the claimant will not qualify for LTD benefits under an ERISA plan.  But, an ERISA plan administrator is likely to use a SSDI denial as evidence that a claimant does not meet the ERISA plan’s definition of disability.

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