Disabled Attorneys Should Not Handle Their Own Claim

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Disabled attorneys have a specific challenge to overcome when filing for disability benefits. Due to the generally sedentary setting of the occupation, physical illness must impact one’s ability to work in an office at a computer and present cases in court. Often the insurers simply focus on whether an attorney can physically “sit” rather than whether they can continue to represent clients and perform the necessary duties inherent in the practice of law. See for example, Hertan v. Unum Life Ins. Co. of Am., 2015 U.S. Dist. LEXIS 75261 (C.D. Cal. June 9, 2015) where the Court found that “[r]ather than address the cognitive demands of Hertan’s occupation as an attorney, Unum consistently focused almost entirely on the physical requirements of what they concluded was a sedentary occupation. Hertan suffered from chronic pain and had to take narcotic pain medication. The court recognized that “[e]ven minimal loss of cognitive abilities could.. prevent her form working as an attorney will under the influence.” Both her pain and the use of pain medication impaired her cognitive skills.

Cognitive disabilities resulting from mental health issues, cardiac illness, Multiple Sclerosis, Parkinson’s disease, chronic pain, present unique challenges to overcome to obtain disability benefits. Cognitive decline for an individual may include difficulty concentrating, inability to process, retain or integrate information, impairments in memory, reduction of attention and processing speed. Such deficits are difficult to tease out when the attorney enjoyed a high baseline of functioning to begin with. We have represented many attorneys over the years, and know that insurance companies typically require objective evidence of cognitive decline to support a claim. Neuropsychological testing can be a valid and reliable tool to prove cognitive decline and is recommended where a claimant experiences an impairment that affects their brain functioning. Courts recognize how cognitive skills are vital to the practice of law.

In Teicher v. Regence Health & Life Ins. Co., 562 F. Supp. 2d 1128, 1140 (D. Or. 2008) the claimant attorney filed a claim based on cognitive decline following a traumatic closed head injury, post concussion syndrome and TBI. He scored within the average percentile on neuropsychological tests and benefits were denied. Yet, Mr. Teicher’s neuropsychologist opined that “the critical measure of impairment of an intelligent person such as Plaintiff is the relative change from his pre-injury abilities . . . a drop from the 99th percentile to the 50th percentile reflects a drastic change indicative of an impairment.” The court agreed, as “the record reflects Plaintiff’s high-level executive functions, including his ability to process and to learn new and complex information are, fundamentally impaired” and are so detrimental to his ability to practice law that he is totally disabled. The court further concluded that Mr. Teicher’s ability to read and write does not satisfy the requirements of his profession because “an attorney is not permitted to satisfy only some of the standards required by the profession.”

Similarly, in Cheney v. Std. Ins. Co., 2014 U.S. Dist. LEXIS 120043 (N.D. Ill. Aug. 28, 2014), the Court determined that Cheney’s ability to sit for long durations was irrelevant to the claim. Here, “the non-examining doctors relied on by Standard . . . failed to opine on [P]laintiffs non-exertional limitations and how those would affect her ability to perform the high stress work of a litigation partner.” Cheney, a litigation partner at a large law firm was required to prove an inability to perform only a single material duty of her occupation. The court concluded that Standard “‘glossed over’ the issue of [P]laintiff’s need to concentrate and perform the ‘mental demands of the active practice of law.'” Standard did not consider the “qualitative and quantitative aspects of plaintiffs work as a litigation partner”, which the court found to be the crux of the case. The court found that Plaintiff’s inability to perform enough tasks or perform them for a long enough period placed her within the definition of disability in the policy.

A practice pointer for attorneys is not to handle their own claims, especially when claiming a cognitive deficit, because their brief interaction with the insurer will likely influence an outcome that since they can handle their own case, they are not disabled! We at Bonny G. Rafel, LLC understand that even minimal cognitive decline can detrimentally impact your ability to professionally and ethically practice law. Contact us for a consultation if cognitive impairment or any other problem has inhibited your ability to work as an attorney. We may be able to assist you in getting the benefits you deserve.

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