Articles Tagged with insurance coverage

We represent a number of clients who suffer from Rheumatoid Arthritis.  This often misunderstood and “invisible” disease causes extreme pain for its sufferers.  On top of the pain, many also deal with the disbelief of friends, family and employers as to the disabling nature of their illness.

Rheumatoid Arthritis (“RA”) is a chronic disorder in which the body’s immune system attacks joint tissue and causes inflammation that can spread throughout the body.  It can also cause excruciating pain.  Because there are very few visible symptoms during most stages of this disease, its sufferers appear to be fine when in reality, they are in extreme pain.

Another difficult aspect of RA, from a disability standpoint, is that there is no single test for diagnosing the condition. Rather, it is diagnosed by clinical evaluation, lab tests and imaging. This makes meeting your long term disability plan’s definition of disabled more difficult as insurers are often looking for “objective evidence” of disability.

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

Many large companies offer employees “self-insured” or “self-funded” ERISA plans to provide disability insurance or health insurance benefits. However, these companies are not in the business of administering health or disability claims. This makes sense. Boeing doesn’t know how to evaluate a short term disability claim. Intel isn’t in the long term disability business. AT&T doesn’t know how to read medical billing codes. So, instead of trying to do this itself, most companies hire other companies to administer the disability or health insurance claims.

These “third-party” companies are either in the business of administering ERISA benefit plans (e.g. Sedgwick and Reed Group) or are already administering these types of claims because they offer medical or disability insurance themselves (e.g. Cigna and Aetna). In theory, a benefit of this structure is that the entity making the claims decision is not the same entity that has to pay the claim. There is no structural conflict of interest.

How do courts view this type of structure if a lawsuit is filed? In such a situation there was a denial of disability benefits or a medical claim was denied. If the ERISA Plan conferred discretionary authority to the claim administrator – and almost all do this – the court reviews the denial of benefits under the plan for an abuse of discretion. Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101, 115 (1989). Once the court determines that the insurance policy unambiguously grants discretion to the entity that denied the claim – here the third party administrator – the court must determine whether the administrator or fiduciary was operating under a conflict of interest. Metropolitan Life Ins. Co. (MetLife) v. Glenn, 554 U.S. 105 (2008) (“Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.”); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (“Abuse of discretion review applies to a discretion-granting plan even if the administrator has a conflict of interest. But Firestone also makes clear that the existence of a conflict of interest is relevant to how a court conducts abuse of discretion review.”).

Disability is not measured only by one’s ability to lift, walk, stand, sit, etc.  Rather, the California definition of total disability in a policy insuring one’s ability to perform their own occupation is:

“A disability that renders one unable to perform with reasonable continuity the substantial and material acts necessary to pursue his usual occupation in the usual or customary way.”

In policies insuring one’s ability to perform “any occupation” or “any reasonable occupation,” the definition has been stated as:

A recent 2018 American Society of Radiation Oncology (ASTRO) study published findings about insurance approval and appeal outcomes at a large-volume proton therapy center, one of the estimated 111 proton therapy centers worldwide. The study showed that proton therapy prior authorization rates were substantially higher for Medicare patients vs. privately insured patients — 91% vs. 30% approval on initial request, at a median 3 days and 14 days from inquiry to determination.

Of the 306 patients initially denied coverage, 276 appealed the decision, and denial was overturned for 189 patients (68%; median time, 21 days from initial inquiry).

It is absolutely essential that proton therapy providers put together strong appeal letters for their patients to increase the chances that insurance decisions are overturned during the administrative claims/appeals review process.  If a patient is insured under an ERISA-governed plan then the administrative record becomes, in some cases, the only evidence that a court can examine if proton therapy is denied on appeal leading to civil litigation.

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 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.

While we certainly do not recommend it, you may choose to handle your own short term disability or long term disability claim. A side note: we strongly recommend you do not handle an STD or an LTD appeal without legal representation.

If you decide to make a disability claim on your own, there are a few things you should keep in mind when dealing with an insurance company: (1) insurance companies are for-profit businesses with an eye on profits; (2) everything you provide to them during your claim goes into your claim file; and (3) you cannot rely on an insurance company to obtain documentation to support your claim.

Why are these things so important?

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