Updates in Disability Insurance: Chronic Fatigue, Insurance Mergers, and New Regulations

Posted by:  Andrew M. Kantor

Happy 2019! In honor of the New Year, I wanted to take some time to discuss some of the newer developments in the world of Disability Insurance.

Advancements in the Fight to Acknowledge ME/CFS

As many disability insureds are aware, disability carriers are woefully behind the times when it comes to medical science. It can take years, even decades, for a disability carrier to acknowledge new medical insights on disability. For example, carriers can still employ supposedly independent doctors who might conclude that a fibromyalgia claimant isn’t really disabled, on the basis that claimants with fibromyalgia are advised to continue working. But according to a 2017 study published in the Journal of Pain, it’s clear that there are still many flaws in how medical professionals approach fibromyalgia and other chronic pain conditions.

Claimants with ME/CFS and other chronic fatigue related illnesses know the suffering such ignorance can create. For years, claimants with ME/CFS have been wrongfully denied disability benefits as a result of disability carriers willfully ignoring or disregarding subjective and objective evidence of ME/CFS related impairment. Unfortunately, these claimants were largely helpless to fight back.

That changed when Cardiopulmonary Exercise Testing (CPET) from organizations like the Workwell Foundation entered the field of play. Finally, there was an objective scientific method of analyzing and confirming chronic fatigue related limitations leading to disability.

In a perfect world, disability carriers would accept CPET and pay disability claims accordingly. Unfortunately, this world is far from perfect – especially for those claimants whose policy is governed by the Employee Income Retirement Security Act of 1974 (ERISA). Instead, disability carriers began to find ways to undermine and undercut the examination. They call it “not objective evidence” or “unproven,” – despite both of these asserts being patently false – or they ignore it altogether. Further, since the testing is relatively new, it hadn’t been extensively “tested” in Federal Courts.

Thankfully, 2018 brought major achievements in the world of ME/CFS evidence. Several published legal decisions, including Vastag v. Prudential and Fleming v. UNUM, concluded that CPET can be considered verifiable, objective evidence of disability. Furthermore, our own disability lawyers here at Kantor & Kantor, LLP have made significant strides in predicting and undermining new legal theories implemented by insurance carriers to undermine CPET.

We’ve also observed that certain insurance carriers have actually begun to acknowledge CPET as persuasive evidence, overturning denials pre-litigation where previously we certainly would have had to file suit to convince the insurer to change its tune.

In sum, 2018 brought significant improvements for sufferers of ME/CFS and other chronic-fatigue related conditions, and we hope that the momentum will continue for years to come.

Get to Know the New Regulations

One of the biggest advancements in the protection of ERISA claimants’ rights is the activation and enforcement of 29 CFR Part 2560. These Department of Labor regulations implement a wide range of protections for disability claimants whose claims were filed on or after January 1, 2018.

Arguably, the most notable rule implemented by these regulations is the right to review and respond to new information prior to a final decision, after an administrative appeal has been submitted. Before the implementation of these regulations, insurers could “sandbag” claimants with evidence in response to a claimants’ appeal, all while denying the claimant the right to respond. Because ERISA prevents new information from being entered into the evidentiary record (barring limited circumstances), claimants were completely deprived of the right to provide contrary evidence during litigation.

With the new regulations, however, insurers are now required to provide said evidence to the claimant prior to the final determination on denial. This not only allows claimants an additional opportunity to argue their case: It provides another opportunity for a claimant to secure legal counsel and perfect an appeal.

Knowing your legal rights is one of the best tools against an insurer that doesn’t want to pay. Click here to read more about the new Department of Labor regulations.

Mergers & Consolidation

2018 also brought two major mergers of four of the largest LTD insurance carriers – Hartford absorbed Aetna, and Lincoln Financial absorbed Liberty Mutual. While such business mergers technically shouldn’t impact the customers of any of these four carriers, claimants should be cautious of the following possibilities:

  • Carriers may be incentivized to review claims currently categorized as “Stable” in search for new claims to terminate in order to make financial numbers look more impressive to stockholders, a significant concern after mergers of major public companies;
  • Carriers may experience administrative inefficiency in the process of actually initiating the merger; claim delays, even those which run afoul of ERISA regulations, may ensue;
  • Claimants may find their claims assigned to new representatives, who may bring along with them new nuances and requirements as far as keeping your claim paid, some of which may be far more restrictive than previous requirements; and
  • There is a significant possibility that the terms of your LTD Plan have changed or will change in the near future as a result of these mergers. Remember, you are entitled to an updated copy of Plan documents from your employer.

If you are receiving LTD benefits from one of the aforementioned insurers, and you feel that it they are gearing up to terminate your claim, please do not hesitate to reach out to discuss your concerns with myself or another attorney at Kantor & Kantor by calling (877) 783-8686.

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