Articles Tagged with disability

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.

In honor of MS Awareness Week, we would like to devote this blog to successfully proving and establishing a disability claim based on Multiple Sclerosis.  We find that most of our clients who have MS have struggled to remain at work, but then reach a point where they can no longer continue. In such circumstances, the carrier may ask “what changed?”  It is helpful to show that the condition deteriorated even though the client struggled to remain at work. There are steps you can take to help document the progression of the disease:

  1. Make sure that your doctor’s records accurately describe your symptoms.  Many feel that they do not have to describe their fatigue, migraines, muscle weakness, etc. on each visit to their physician(s) because the symptoms are just naturally a part of the disease. This is true, but your medical records must contain a description of the symptoms you are experiencing.  If the medical records do not contain an accurate description, a subsequent letter from your physician may be perceived as inconsistent with the medical records.
  2. If you are experiencing “adverse” side effects from your medication, this should also be reported to your physician. Again, many do not report unpleasant side effects because they are to be expected. However, the side effects and their disabling potential should be accurately described in the medical records.

Surveillance is a common tool insurance companies use to gather information about long-term disability claimants. It can feel creepy to know the insurer may scan through your Facebook posts, run a background check on you, or even hire an investigator to follow you. Here are some common types of surveillance used, and advice about surveillance for anyone on disability.

Three Common Types of Surveillance

An insurance company may use different kinds of surveillance depending on how much money it is willing to spend to investigate a claim, what kind of activity it expects to uncover, and the type of disability.

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

          Often our clients are prescribed pain medication to help control the symptoms of their disabilities.  It is well recognized that the side effects of pain medication can be disabling. An employee should not be exercising judgment, operating machinery or driving while on pain medication. See, Sabatino v. Liberty Life Assurance Co. of Boston, 286 F. Supp. 2d 1222, 1231 (N.D. Cal. 2003) (insurance company’s reliance on medical opinion “suspect” where it failed to take account of claimant’s “severe and chronic pain and the cognitive impairments” caused by her pain medication); Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 759 (11th Cir. 1996) (decision to deny disability benefits arbitrary where insurer ignored side effect of drowsiness caused by claimant’s medication) and Adams v. Prudential Ins. Co. of America, 280 F. Supp. 2d 731,741 (N.D. Ohio 2003) (insurer’s decision to deny benefits arbitrary and capricious because the insurer ignored cognitive side effects of claimant’s medication).

          Insurers avoid the obvious disability caused by pain medications by utilizing an unfair review technique.  The insurer will employ a physician to review the medical records and the physician will report that “no adverse side effects of the medication were reported by the attending physician.”  This is a misnomer for two reasons: (1) If drowsiness or cognitive impairment is an expected side effect of the medication, it will not be reported as an “adverse” side effect and (2) the failure of one’s physician to record an expected side effect in the records does not mean that it does not exist.

          We recommend that you accurately report medication side effects to your physician.  You can also report that you do not drive while on the medication and whether you need to take a nap or rest as a result of drowsiness. You should ensure that your medical providers’ records are accurate to properly document your disability, including any and all effects of your medications.

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