Articles Posted in New and Newsworthy

Sometimes our clients who are physicians diagnose and self-treat their conditions and ask us whether they can establish their disability claim based on their own assessment.  It stands to reason that an insurance company asked to pay benefits will not rely solely on the word of the claimant. In fact, most policies indicate not only that the claimant has to be under “appropriate care” for their condition, but they cannot be treated by a family member.  Weisman v. The Guardian Life Ins. Co. of Am., Civil Action No. 7:22-cv-00595, 2024 U.S. Dist. LEXIS 2807  (W.D. Va. Jan. 5, 2024).is interesting because the court held that Dr. Weisman, neuro-ophthalmologist and ophthalmic surgeon who experienced tremors and self treated for years was eligible for disability benefits even though he had not seen a doctor just before stopping work in Dec 2021.   The court concluded that whether or not Dr. Weisman met the policy requirement that he be under the regular care of a doctor during his disability was not relevant because the court agreed with Dr. Weisman that he had reached his maximum point of recovery and was  disabled before the policy ended.   The court relied on the opinion of a specialist, who examined Dr. Weisman after the fact and stated that he had received the appropriate care for his disability.

Finally, the court rejected Guardian’s contention that there was inadequate evidence that Dr. Weisman was disabled before he quit his job because he was self-evaluated (and treated) up to that point and only went to the specialist after he stopped working. This ERISA claim turned on whether he was covered under the policy even though he sold his business as of the date of his disability. .

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled.  See our website for video presentations and information on our boutique practice and contact us to discuss your case.


We commonly work with clients who, aside from suffering from the physical impacts of cancer, are unable to re-engage in their occupation due to long lasting cognitive effects of chemotherapy and other medication treatment.  We are particularly keen on helping women who have endured the impacts of breast cancer, but experience deficits in their memory, and cognitive fatigue during and after chemotherapy.  Insurance companies regularly attempt to limit their liability under a two-year mental health limitation in the disability policies. We recently reviewed a decision against Unum Life Ins. Co. of America, brought by a anesthesiologist suffering from the aftermath of breast cancer.  Berg v. Unum Life Ins. Co. of Am., No. 2:21-CV-11737-TGB-DRG, 2023 U.S. Dist. LEXIS 49587 (E.D. Mich. Mar. 23, 2023) Dr. Berg suffered from cognitive impairment confirmed by testing that revealed her executive dysfunction and problems with sustained vigilance. Unum attempted to limit the claim to two years by alleging that Dr. Berg’s ongoing cognitive problems were based on mental health issues, rather than caused by her treatment including aromatase inhibitor therapy.  The Court rejected Unum’s position and held that Dr. Berg was disabled due to breast cancer and not, as Unum contended, from general anxiety disorder. Although Dr. Berg continued to be treated with regular therapy sessions throughout her cancer treatment, the court held that Dr. Berg was ultimately unable to continue her work “due to the affects and issues related to having cancer,” including from the cognitive side effects and the fatigue she experienced as a result of the cancer treatments and medications prescribed by her oncologist which left her unable to practice medicine.  In ruling for Dr. Berg that she remained disabled, the court reasoned, “to practice medicine, a physician must be mentally fit and without cognitive impairment. Fatigue, concentration problems, and medication side effects can all render a physician unfit to practice.”

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled.  See our website for video presentations and information on our boutique practice and contact us to discuss your case.

The need to go out on disability leave is based on one’s inability to perform the duties of their occupation, not on the choice to step away from working. If you obtained disability coverage through your employer, the need to stop working due to a sickness or injury must occur while you are still employed. In our practice, we have noticed a particular “disconnect” between the disabled person’s intention to convey their need to stop working and the impact their choice of words has on the disability assessment.

Accepting that you are disabled can be very difficult and uncomfortable. This is especially true for our skilled and/or high-level professional clients such as doctors, lawyers, and corporate executives. It often feels easier to tell patients, clients, and employees that you are “retiring”, rather than admit you can no longer perform the job and need to step away. Many of our clients wonder, does it really matter what word is used? As recently seen in Cameron v. Sun Life Assur. Co. of Can., the answer is a resounding yes. 2022 U.S. Dist. LEXIS 200078 (C.D. Cal. Nov. 2, 2022).

In Cameron, the plaintiff was a radiology administrator who became disabled by a cardiac condition. He returned to work for a short period time, then determined that he would need to stop permanently due to the stressful nature of his job, which was impacting his health. Instead of returning to his doctor to address his ongoing symptoms, he “retired” from work. Months later, his condition continued to progress and manifest symptoms supporting his decision to stop working.

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.

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),

Many individuals with chronic permanent medical conditions reach a level of treatment that is palliative, that will not improve their symptoms or effect their prognosis. Continuing to visit a medical provider to monitor your condition  that does not provide any medical benefit may seem pointless, and can use up valuable time and money resources. The disabled may reduce the frequency of medical visits, especially when the provider advises that no treatment is necessary.  Nonetheless, claimants on long-term disability must fulfill the burden of proof showing that they remain disabled over time. Such a requirement includes furnishing continuing proof of disability, such as medical notes or disability forms signed by a current treating medical provider.

The incompatibility of these two situations clash when the insurer to your disability claim requires “appropriate treatment” for the disabling condition in order to continue the claim.  The recent court decision in Griffin v. Hartford Life & Accident Ins. Co., 898 F.3d 371 (4th Cir. 2018) makes clear that continuing medical visits are necessary. Griffin stopped working due to pain from a herniated disc and saw his medical provider from September 2011 to June 2013. Since there was o feasible medical treatment to improve his condition, he stopped active treatment. Griffin explained to Hartford that he was unable to afford continuing visits to his medical provider, yet Hartford still required that a physician remark on functionality in order to continue paying Griffen long-term disability benefits. Since no treating physician could speak confidently on Griffin’s current disability the court upheld Hartford’s denial of Griffin’s long-term disability claim despite his contention that he remained disabled.

I advise all clients experiencing a chronic medical condition to remain under the care of a physician with at least quarterly visits, even if the physician maintains that the condition remains unchanged. Clients should have disability claim forms completed by their treating provider and keep up to date with any necessary claim materials, so that disability is continuously supported. While it may seem unnecessary to spend resources on visiting a provider when no tangible benefit comes from doing so, previous cases such as Griffin v. Hartford Life show that courts are likely to view, as insurance companies do, a lack of continuing medical history as congruent with improvement in one’s condition or absence of disability altogether.

An action taken by the U.S. Department of Labor to protect the disabled fortunately passed on December 19, 2016, on the eve of the Obama’s departure and will go into effect January 1, 2018.  Claimants counsel breathed a sigh of relief when the amendments to the Employee Retirement Income Security Act of 1974 (ERISA) remained intact despite the new administration’s clawing back on many consumer rights.

We will issue several blogs on the important changes to the regulations to demonstrate how significant the changes are to repair fundamental flaws in ERISA.  The Department of Labor explained that the regulations were enacted

“to promote fairness and accuracy in the claims review process and protect participants and beneficiaries in ERISA-covered disability plans by ensuring they receive benefits that otherwise might be denied by plan administrators in the absence of the fuller protections provided by this final regulation.”

Multiple sclerosis is a serious and unpredictable medical condition which effects the central nervous system (brain and spinal cord). Most people are diagnosed between the ages of 20 and 50. Worldwide, more than 2.3 million people are affected by MS and every week approximately 200 people are diagnosed. Over 400,000 Americans live with MS. The National Multiple Sclerosis Society recognizes that “Symptoms range from numbness and tingling to blindness and paralysis. The progress, severity, and specific symptoms of MS in any one person cannot yet be predicted, but advances in research and treatment are moving us closer to a world free of MS.” While the root causes of MS are still being researched and debated, it is believed that some form of virus or environmental trigger causes the body’s immune system to target benevolent cells in the myelin sheath.  The myelin sheath is a protective fatty tissue around the nerve fibers that serves as a form of insulation to protect the electrical impulses traveling the nerves of the CNS. The Institute for Neurodegenerative Disorders explains how with MS, the myelin is destroyed, and “forms scar tissue (sclerosis), which gives the disease its name”, appearing in the CNS and bringing with it an abundance of symptoms.

There is no known cure for MS. The National Multiple Sclerosis Society recommends that people with MS begin treatment with Avonex, Betaseron, Copaxone, or Rebif as these “drugs help to lessen the frequency and severity of MS attacks, reduce the accumulation of lesions in the brain, and slow progression of disability.” Many therapies are also available to treat MS symptoms.

Many individuals can continue to work for a long time before the symptoms associated with this disease, often fatigue, cognitive deficits, pain, spasticity, bladder problems, and muscle weakness impair their ability to continue working. People with MS may request work accommodations, such as: moving a workstation closer to the bathroom, allowing for longer breaks, allowing to work from home, allowing a flexible work schedule, parking closer to the work-site, adjusting desk height if a wheelchair or scooter is used. Once symptoms progress, many people with MS are unable to continue working and file for disability benefits.

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