Articles Posted in Medical Developments of Interest

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Insurers often balk at paying a disability claim for a condition that has existed for a long time before the individual stops working.  It seems that people that struggle to continue working despite progressive medical impairment are not rewarded for their heroism. An interesting case was recently published in California regarding a woman suffering from pain from chronic migraines.  In Leetzow v. Metro. Life Ins. Co., 2016 U.S. Dist. LEXIS 173698 (C.D. Cal. Dec. 5, 2016), the court recognized that long absences from work show that her condition worsened over time and that it is likely that she was unable to perform with reasonable continuity the substantial and material acts necessary to perform her job, leading up to her disability claim.   The court found it unnecessary for Plaintiff’s condition to abruptly change on that particular day, for her to be disabled for the entirety of the elimination period.

Ms. Leetzow suffered from migraines for 20 years getting more severe, more frequent, (2-5 per week) and more resistant to treatment. Metropolitan Life challenged the viability of the claim, since there was no “objective evidence” of her crippling pain.  Another roadblock to recovering disability benefits is if the impairment is based on a claim of chronic pain.  The court laid the groundwork for a claim such as this.  Since there are no neurological exams for migraines that are likely to be positive, claimant’s personal accounts of her migraine related pain are to be credited, “migraines are an invisible illness and there is often no objective medical evidence to confirm their existence, patients’ personal accounts are the strongest, and often only, evidence of disability in such cases”.

The frequency of medical visits to the doctor was less critical to the Court, since Ms. Leetzow stated that her disability makes it harder for her to initiate and arrange and attend doctors appointments. And she had in the past tried all reasonable treatment for her condition. The court noted,

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In light of Robin Williams’ passing this year, mental health has returned to the headlines. As described in Arianna Huffington’s article “Robin Williams, Connectedness and the Need to End the Stigma Around Mental Illness,” Williams’ suicide was undoubtedly linked to his struggle with depression and anxiety. In fact, as Huffington reports, “90 percent of those who commit suicide suffer from a mental illness of some kind at the time of their death.” Of all mental disorders, depression is the most common: it inflicts one out of every twenty Americans. This public-health concern has received far too little attention and since the 1980s, government “spending for mental health, while increasing in raw terms, has still remained only 1 percent of the economy, even as overall health spending has risen from 10 percent of GDP to 17 percent by 2009.” This lack in spending is largely due to the stigma associated with mental-health issues.

Decades ago, disability insurers became aware that a high percentage of their policyholders became disabled by mental health conditions. Instead of lending a helping hand, they turned their back on this population, by incorporating coverage limits for disability caused or contributed to by a mental health condition. This sweeping limitation has been upheld on court challenges even involving the ADA. 42 U.S.C. § 12101 et seq; Fletcher v. Tufts University 2005 U.S. Dist. LEXIS 7237 (D. Mass. April 15, 2005)

Illnesses of the body that affect our physical health are far easier to objectify and more accepted within the disability landscape, tending to overshadow emotional health. Physical ailments are often related to or can lead to mental disorders. NBC reported that Robin Williams was battling symptoms of early Parkinson’s disease. The news source noted that in addition to the paralyzing affects on a patient’s body, Parkinson’s often leads to “depression and other disability.” This is well documented.

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Multiple Sclerosis is an autoimmune disease where the individual’s autoimmune system attacks healthy tissue in the brain and spinal cord, damaging nerve fibers. Typical symptoms include muscle spasms pain and tingling, numbness, cognitive impairment, vision problems and difficulties with balance and walking.

An estimated 400,000 Americans have this disease. The New York Times recently highlighted several New Yorkers living with Multiple Sclerosis and reported the toll the disease has on their lives in Multiple Sclerosis Takes Toll on Body and Soul.

The story of Denise Muller in particular peaked my interest because it is so similar to the experience of our clients struggling to have their disability claims paid. A significant percentage of the cases we handle at Bonny G. Rafel LLC involve autoimmune disorders, including Multiple Sclerosis.

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The New York Times Magazine recently published a thought-provoking article in its health issue called, “How Do You Heal a Traumatized Mind? A Revolutionary Approach to Treating PTSD.” While most trauma therapists swear by the two most clinically approved and widely employed techniques in treating Post Traumatic Stress Disorder (PTSD), cognitive behavioral therapy and exposure therapy, Dutch psychiatrist, Bessel van der Kolk, challenges the norm.

Van der Kolk reasons that the most helpful therapies to heal patients suffering from PTSD are not emotional or behavioral, but instead physiological. Van der Kolk calls the patient’s act of remembering a traumatic event, “reactivation,” because the body sends the individual back into fight-or-flight mode. The majority of PTSD patients desire to numb this “reactivation” of pain by “dissociating” in the short-term, and self-numbing (food, exercise, work, alcohol, etc.) in the long-term. While most therapists would normally focus on the mind and how it relates to the traumatic incident, van der Kolk’s techniques shift that focus to the body.

To treat the disconnect between memories and the body’s reaction to them, van der Kolk suggests techniques that give attention to the way the body functions, like yoga, the Emotional Freedom Technique (tapping), or eye movement desensitization and reprocessing (E.M.D.R). With a therapist’s guidance, patients use Emotional Freedom Technique by tapping various acupressure points with their own fingertips while reciting positive phrases. By physiologically tuning into the problem, tapping can calm the sympathetic nervous system and prevent the patient from entering fight-or-flight mode. For patients with isolated traumatic memories, van der Kolk also recommends E.M.D.R., in which “a therapist wiggles fingers back and forth across the patient’s field of vision and the patient tracks the fingers while “holding in mind” the traumatic memory. Van der Kolk now uses this technique routinely because it helps patients process their traumas; the goal is for the negative experience to transform from an existing paranoia into a distant memory. Now, more than 60,000 therapists around the world are certified in E.M.D.R., and van der Kolk calls the therapy a godsend.

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The law on marijuana use is rapidly changing nationwide. To date, 23 states have legalized some medicinal use of marijuana, with legislation pending in three additional states. Most notably, 2012 ballot initiatives in Colorado and Oregon legalized recreational marijuana use. Further, additional jurisdictions have decriminalized marijuana, and some prosecutors, such as the Brooklyn District Attorney’s Office, no longer pursue low-level possession charges. This quickly evolving area of law will impact not only our criminal justice system, but also disability benefits claims. As legalized medicinal use of marijuana becomes more common, employers and their workers will face tough questions. Employers are understandably unlikely to allow a worker under the influence of marijuana to work. However, if an employee has not been able to find relief for their disabling conditions through any other means, should they be allowed to work if it is controlled through marijuana use? And if they work in a particularly sensitive occupation where driving or the operation of heavy machinery is necessary, is an employee’s use of marijuana to control their symptoms disabling? Unfortunately, there are no documented cases of medicinal marijuana use and disability, but we do expect to see some in the near future as access to the drug increases. However, other cases dealing with medicinal use of controlled substances and disability are instructive of how medicinal marijuana use may be disabling.

Certain jobs come with zero-tolerance for the use of even prescribed controlled substances. The Federal Aviation Administration’s (FAA) Office of Aerospace Medicine has published a lengthy and non-exhaustive list of prohibited medications, and Aviation Medical Examiners have been instructed to refuse issuance of an FAA medical certification to any person who use any drug on this list. In

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If you are one of the millions of people suffering from Parkinson’s disease and debilitating conditions like it, you may have considered going on disability. Both the physical and mental symptoms, including loss of body control, stiffness, tremors, depression, and thinking problems can take a toll on a patient’s daily life. The Wall Street Journal recently published an article entitled “Specialized Care Urged for Treating Parkinson’s Disease” detailing the unconventional methods Parkinson’s patients can use to seek support and care. Many movement-disease specialists encourage treatment far beyond the ‘Here, take a pill’ tradition.

In the past, patients have had to make the effort to locate well-trained and knowledgeable health professionals that specialize in movement-diseases. The Wall Street Journal reveals that out of 500 patients that completed a Harris Poll survey for the Michael J. Fox Foundation, only 28% of the participants were seeing movement-disorder specialists, and roughly 50% of the them felt “informed” or “very informed” about how to control their symptoms. These statistics point to a lack of education about treatment and access to care in this medical field.

To close this gap between education and care, the Michael J. Fox Foundation has taken an important first step. In collaboration with the International Parkinson and Movement Disorder Society, the foundation has launched their newest initiative called, Partners in Parkinson’s. This program offers an online tool to help patients locate a movement-disorder specialist; it has also implemented patient and family events where specialists in surrounding clinics demonstrate comprehensive evaluations. Beyond the doctor’s office, specialists motivate patients to engage in a regular exercise routine to delay disease progression. Dr. Lawrence Elmer of the University of Toledo’s Gardner-McMaster Parkinson Center affirms that an active lifestyle can help and even reverse the effects of Parkinson’s disease.

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For patients suffering from cancer, treatment may only be the first battle. Insureds who receive disability benefits during the course of radiation and chemotherapy may be denied benefits by their insurers once they enter remission, based on the insurer’s argument that they no longer suffer from the disabling condition (cancer) that put them out of work. However, denying cancer patients disability benefits on these grounds often disregards the disabling effects that cancer treatment can leave long after the disease itself has remitted or been cured.

For example, the Los Angeles Times recently published an article on post-chemotherapy cognitive impairment, or “chemo brain,” the mental fog often caused by chemotherapy treatments. Los Angeles Times, Feb. 27. 2012. Symptoms of “chemo brain” include impaired cognition, attention, and memory, as well as mental fog, fatigue, and confusion. Mayo Clinic Online. The Times cited a recent study which tested 196 women who had undergone chemotherapy treatment for breast cancer, and which found that women who received the chemotherapy “fared much worse” on cognitive and executive function tests long after (21 years on average) they finished treatment. While it is not clear whether it is chemotherapy alone or complications of the treatment that cause “chemo brain,” the symptoms can be disabling, especially for patients whose pre-disability occupations required extensive cognitive or critical thinking ability. The long-lasting effects of cancer treatment have been acknowledged by the courts. See, e.g., McCauley v. First Unum Life Ins. Co. (finding that the insurer wrongfully denied a cancer survivor disability benefits where chemotherapy had left him both mentally and physically impaired).

Another well known side effect of chemotherapy treatment that can be disabling independent of the cancer itself, is peripheral neuropathy. This condition is often irreversible and can be devastating and painful. Objective testing such as EMGs and Nerve Conduction Studies can be helpful in proving that this condition is severe to the insured.

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Many of our clients have chronic pain and suffer greatly. The Wall Street Journal recently reported that chronic pain affects approximately 116 million Americans (about 1/3 of the total population).

The Institute of Medicine has stated that “pain is all too often undertreated in the U.S.” The article goes on to explain the difference between acute pain and chronic pain. Acute pain is generally a warning signal to stop doing something that is harmful to your body. Chronic pain is described in the article as an alarm that “keeps sounding and producing pain long after the original cause is gone, probably due to a malfunction in the central nervous system.”

Chronic pain is a terrible condition. Having to wake up each day with no medical improvement is so difficult for our clients to endure. But in order to prove that your pain is severe and restricts and limits you constantly, it is very important to be careful when filling out disability forms and medical forms. Do not overstate your limitations.

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Each of us knows at least one person who suffers from migraines which often can be managed with medication. For those of you who do not know what it is like to experience a migraine, it is difficult to describe. In a New York Times article titled Migraine Miseries Push Patients to Ways of Coping, the author states that migraines can cause such severe throbbing pain in the head and nausea that the victim may have to retreat to a dark room for a day or more.

Craig Partridge, the chief scientist for a high tech research company, describes a migraine as imagining “someone having driven a nail straight through your head.”

The Migraine Research Foundation reported that nearly a quarter of all households are affected by migraines and that migraines are three times more likely to occur with women compared to men. The Foundation also found that more than 10% of adults and children suffer from migraines.