In order to obtain private disability benefits, you must be able to show that you are unable to perform the duties of your occupation due to symptoms of a medical condition. An important component of your claim is determining whether your condition is related to an injury or sickness. Many private individual policies provide for lifetime benefits if the disability is caused by injury.

We typically think of an “injury” as occurring during an event such as a fall-down or motor vehicle accident. However, that is not necessarily the case. It is common, for example, that professionals such as dentists, physicians, and chiropractors can develop debilitating injuries over time from the repeated physical maneuvers required of their work. We represent many clients who have obtained lifetime disability benefits for such injuries, which can include carpal tunnel syndrome, ulnar nerve entrapment, and serious cervical spinal issues.

An example of this type of case can be seen in Chapman v. Unum Life Ins. Co. of America, 2021 U.S. Dist. LEXIS 155798 (D. Minn. August 18, 2021). Dr. Chapman, a practicing endodontist, had become disabled due to degenerative arthritis in her hands. Her condition was caused by the repetitive stress injuries she sustained in her decades-long dental career. The claim forms completed by Dr. Chapman, and the certifications of her treating providers, all indicated that her disability was the result of an injury. Nevertheless, Unum approved her claim as a “sickness” (thus limiting her benefits) because it had not been caused by one specific traumatic event.

The denial of a disability claim can be incredibly frustrating and confusing for claimants. Insurers typically provide only vague reasoning for the decision, leaving claimants in the dark to figure out why they were denied and what steps they should take to appeal the decision. They are advised of the deadline and procedure for appealing the denial, but often don’t know where to start.

If the claim was made under an ERISA plan, the denied claimant is entitled to request a complete copy of their claim file, which will contain “all documents, records, and other information” relevant to his or her claim. 29 CFR 2560.503-1(h)(2)(iii). It should include any and all internal notes, memos, correspondence, and reviews/reports by third parties, allowing the claimant to thoroughly understand the insurer’s decision-making. The insurer has a continuing obligation to provide an updated claim file on request throughout the appeal process.

Although ERISA regulations define “relevant” broadly, insurers frequently take it upon themselves to decide which documents do, and do not, need to be shared. Most of the time, the documents they withhold are helpful to the claimant. The recently-decided case of Jette v. United of Omaha Life Insurance Company, 18 F.4th 18 (U.S. 1st Cir. 2021) provides one example.

Insurance companies routinely hire physicians to perform a medical records review and use that review to decide whether a claimant qualifies for disability benefits. The use of reviewing physicians is not always problematic, as they may support the claim. A fair and thorough review can also provide valuable insight and identify evidence that can be provided by the claimant to shore up their case. Those potential benefits, however, are often outweighed by the reviewing physician’s anti-claimant bias.

Medical reviewers often work as independent contractors for many different insurance companies, and frequently earn more reviewing cases than they would treating patients. As their livelihood depends on providing reports that will please the companies that retain them, they simply cannot afford to be impartial. Insurance companies rely on reviewers’ opinions over the treating physicians who confirm that the claimant is disabled.

We know that treating physicians have far more information about their patient’s condition and functional abilities than insurance doctors. Their experience personally examining the patient, making their own clinical assessments, and engaging in discussions with the patient all provide information that is not available just by reading the records. Most treating doctors take the time to develop a formidable basis to decide what restrictions and limitations are appropriate.

If you or someone you love suffers from Multiple Sclerosis (MS), you already know how debilitating this progressive and incurable illness can be. Nearly one million people in the United States currently live with MS. In honor of MS awareness month, we highlight this all-too common illness and share tips and resources for succeeding in MS-based disability claims.

MS is an autoimmune disorder that attacks the central nervous system – the part of your body that controls your ability to walk and think. It causes unpredictable symptoms such as pain, fatigue, impaired balance and walking, issues with memory and cognition, mood changes, blindness and/or paralysis. Although there is no cure for MS, there are therapies and medications available to treat its symptoms, reduce the frequency and severity of attacks, and to slow the progression of the disease.

MS affects everyone differently, and the nature and severity of its symptoms will vary by patient.  Many people who have been diagnosed with MS can continue to work for years before their ability to complete their job duties is impacted. We’ve previously shared examples of the types of accommodations that can be requested when that happens. Once symptoms have progressed to a point where accommodations are no longer enough, it may be time to submit a disability claim.

Insurance policies often have different terms of coverage for disabilities caused by “accidental injuries” and “sickness” so it is important that your claim is correctly classified.  A recent case by an endodontist disabled by advanced degenerative arthritis in her hands illustrates the tactics used by insurers to limit coverage.  Chapman v. Unum Life Ins. Co. of Am.  Unum asserted that her claim was based on sickness, which limits disability benefits to age 65.  Dr. Chapman claimed that she was entitled to lifetime benefits under the “accidental injury” clause in her policy on evidence that her arthritis condition was caused by repetitive stress injuries to her hands from work, causing micro traumas evidenced in x rays.

Secondly, Unum claimed that even if the condition was caused by injuries, it was not an accident, imputing knowledge to Dr. Chapman that she was highly likely to suffer this injury by her work.  The court disagreed, explaining, that it “strains credulity to conclude that any endodontist views the possibility of disabling arthritis simply by practicing endodontia as highly likely.  If this were the case, the dental field would be suffering a severe shortage of endodontists.”

The court considered the reasonable expectation of the insured:

We are often asked by our disabled clients if they must stop all cease or limit their daily activities in order to prove they are unable to work in their occupation.  The answer is no.  Insurers do poke around, asking claimants on “Activities of Daily Living” forms questions such as how far they can travel, what computer devises they operate, whether they tend to their yard, or clean their home or exercise at a gym.  Detailed prodding often seeks information about how the claimant spends their day from the moment they awaken to when they go to sleep at night.

We have handled appeals for clients who suffer from chronic pain but are able to mow their lawn, or clean their own home, or care for children.  Hartford, Cigna, Unum and Prudential often deny claims of individuals whose lives outside of work appear to be too busy or too “normal” to justify a disability claim.  However when rushing to deny a claim, the insurer does not ask how often the person is able to perform these activities, or under what conditions.  We have successfully appealed cases where the insurers have challenged our client’s claim because they admit to using a computer or smart phone. The insurer simply concludes that the person surely can perform the duties and demands of their sedentary job which requires sitting at a computer during the normal work day.    We have established the key difference between using a mobile device and computer periodically to check emails, or the news,  and functioning in an executive capacity, performing cognitive demanding, time sensitive work duties on a daily basis.   We advise our clients to be careful when completing insurer forms and to place their acitvities into the proper context.

A recent case by a Software engineer, disabled by cognitive and depression symptoms outlines the courts analysis on this issue.  In Chapin v. Prudential Ins. Co. of Am., Prudential alleged that Mr. Chapin was not disabled due in part to his doctor’s noting that he continued to exercise, ski and hike. The court noted “Being able to ski, hike and work out in no way transfers into or supports performance as a software engineer.”  Evidence supported that he was disabled from his cognitively demanding occupation despite his continued attempts to remain physically active.

Recently our firm has seen a significant upsurge in disability insurance companies including Hartford, Cigna, Aetna and Unum suddenly denying long term disability claims that have been paid for many years.  It is the burden of the disabled claimant to remain under medical care for their disabling condition and to periodically provide updates to the insurance company.  But often, after years of being on claim, and reaching the point of medical care that is palliative, many people reduce their doctor visits and learn to live with their condition with minor medical care.  A recent legal case reminds us that being on claim for a long time does not automatically mean your claim will not be challenged.  In  Skinder v. Fed. Express Long Term Disability Plan      Aetna found Ms. Skinder, a FedEx account executive totally disabled from working in any occupation in 2004 due to a back condition and paid her ever since. Suddenly, Aetna’s medical consultant performed a paper file review and decided that Mr. Skinder was no longer unable to work! The court examined the evidence and determined that the paper reviewer failed to thoroughly review all of the evidence and cherry-picked favorable medical records to support his biased view. Aetna was admonished for failing to advise Skinder of exactly what medical evidence they needed to continue to approve the claim after so many years.  The court reasoned, “a denial without new medical information to justify that decision should be treated with significant skepticism.” Aetna’s failure to “get to the truth of the matter undermines its claim that it used a deliberate, principled reasoning process.”

The lesson of this case is, to stay on top of your medical proofs, be sure that you keep up with periodic medical evaluations and provide your doctor with all of your symptoms and continuing medical problems so their records are complete.  Do not assume that since you have been on claim for a long time, the insurer will just put your file away and not question your disability in the future.

We at Bonny G. Rafel LLC monitor our clients’ cases to be sure that their medical proofs remain supportive of their disability. We are prepared to update the disability insurers periodically to advocate for our clients, as the Voice of The Disabled.

Disability insurance should cover individual claims for loss of income due to contracting COVID-19 and its after effects on medical health.  What about our medical providers who were exposed to the horrors of the illness in hospital settings for example, and develop mental health impairments.  Are they required to continue working, suffering in silence?  No. ,Disability insurance policies provide for coverage for conditions of mental health, but unfortunately, many policies, especially group policies limit the duration of these claims to 24 months. The Parity Health Parity and Addition Equity Act enacted in 2008 bars health insurers from offering different benefits for the treatment of chronic physical conditions and mental health conditions. This act does not apply to disability claims. It is a travesty that  disability insurers can limit their benefits based on the type of illness, whether related to mental health or physical health.  Millions of Americans are struck with symptoms of anxiety, panic, depression, and turn to their disability policies only to learn that their illness is limited in coverage.  With the increase of these claims as related to COVID-19, the insurers will tighten their purse strings, and try their best to limit their financial exposure and continue to discriminate against those with psychiatric conditions.  This is a disheartening failure of our congress and the judicial system.

Even with the safety equipment provided by employers, must all employees return to the workplace?  Would disability cover the class of workers who are at high risk of contracting the COVID? Individuals with conditions that place them in a risk of severe medical illness from COVID may qualify for disability insurance since they need to remain sequestered until the risk of the virus passes.  The Centers for Disease Control and Prevention have identified certain conditions that warrant such restrictions, such as severe asthma, lung conditions, heart disease, people who are immuno-compromised, and several others.  These claims have not been litigated yet, and you can be sure that the disability insurance companies are deep in discussions on how to limit these claims.  There is some precedential decisions in this area of the law, mostly related to individuals with a high risk of severe medical complications such as a person with severe cardiac disease who risks heart damage including a heart attack, if exposed to high work stress.

Medical practitioners will be facing new challenges as their patients seek their support for seeking disability benefits.   What patients will be eligible to continued disability benefits because their medical health does not warrant them returning to the workforce?  We have helped many offices address this issue, and come up with a viable strategy when facing their dual roles as treating physician supporting and as a specialist advocate for their patient remaining out of the workforce.

The Department of Labor Employee Benefit Security Administration just established by Federal Regulation an extension of certain timeframes under ERISA for group health plans, disability and other welfare plans during the COVID-19 National Emergency.  On March 13, 2020, the government declared a National Emergency Concerning COVID-19 in effect as of March 1, 2020.  As a result of the National Emergency, participants and beneficiaries covered by these plans “may encounter problems in.. filing or perfecting their benefit claims.. and the EBSA has taken steps to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established time frames.

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A, all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notice (the “Outbreak Period”)8 for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503-1(h),

The disabled must navigate the maze of insurers’ roadblocks to maintain their disability benefits often when they are too ill to tend to the demands of the insurers.  Insurers aggressively find ways to deny the payment of bona fide disability claims.  Over a decade ago, the Supreme Court recognized that insurers have an incentive to hold onto the benefit dollars they owe to claimants because it clearly improves the company’s finances. Insurance companies have what is referred to as a structural “conflict of interest when a plan administrator both determines eligibility for benefits and pays benefits claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 171 L.Ed.2d 299 (2008).

A common thread in disability denials is the company’s decision that the insured can perform “sedentary work” despite their restrictions and limitations.  Sedentary work, simply considers the physical condition of the person- can they sit most of the time, and walk or stand for brief periods of time.  The DOT definition for sedentary work conveniently focuses exclusively on the physical demands and disregards any other aspect such as cognitive.

In Smith v Reliance, Reliance paid LTD benefits out for several years to an executive who had strokes and suffered from heart problems. Reliance then reversed course and concluded Mr. Smith could return to work, alleging he had to prove that he could not perform sedentary work due to a physical limitation on, for example, sitting, typing, or speaking.  The court disagreed, holding that if someone had to prove they could not sit, speak or type, in order to receive disability benefits, “such a rule would erase disability eligibility for all but the bedridden. Some serious diseases are debilitating because of their effect on the mind or because they worsen with stress.” Smith v. Reliance Standard Life Ins. Co., 2019 U.S. App. LEXIS 18518, at *14 (4th Cir. June 20, 2019)

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