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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.

A common thread in disability claims is how active the individual is after filing their claim. Insurance companies require claimants to complete detailed forms describing their activities, asking them how they spend their day from morning to evening, what computer systems they use, even how often they watch TV.  It is important to understand that the real reason insurers want this information to prove that you are doing activities that suggest you are more functional than reported, or to identify an alternative job you can perform, so they can deny your claim.

Our clients ask us whether they need to suspend all of their social interactions, and give up gym memberships, etc. because they have a pending claim. The answer is a qualified “no”.  However, your activities post-disability must match your declared limitations. For example, if you claim that you cannot sit for long durations, traveling by air to Hawaii would create a question related to your ability to sustain siting.

In a case currently under review in our office, an individual suffering from Long COVID attended a family wedding, as noted by her doctor in her record.  The company denied the claim for several reasons, including its allegation that our client could not be that disabled since she went out and socialized. What they intentionally left out is the doctor’s note that indicated that our client was terribly fatigued for days after the wedding.  We represent another individual whose insurance company incredibly asserted that his disability could not be that bad because he was able to attend doctor and therapeutic visits.

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.

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.

Common thinking about disability coverage would cause the average individual to expect that if they become unable to perform the specific duties of their occupation, they would qualify for disability benefits.  For example, if your employer requires you to travel for your occupation, then if you cannot perform this essential duty, you should qualify for coverage. The insurance companies would prefer to profile the occupation in a generic sense, because the manner in which one employer requires the employees to perform their duties may be particular to that work setting, or even geographical area of employment.   This issue is often litigated because many policies define “occupation” based on how the job is performed in a fictitious “national economy,” which is a term of art.  Courts are split on their treatment of this issue. Should insurance companies evaluate whether a claimant can perform their actual duties or should they evaluate whether a claimant can perform the duties of their occupation as it is generally performed?

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019).  The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.”  Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference.  Hankins v. Std. Ins. Co. 677 F.3d 830 (8th Cir. 2012).

Another example concerns the occupation of an attorney.  The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018).  The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.”  The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

We regularly file appeals of disability insurance denials of long term disability claims.  Our clients are bound by ERISA regulations which require that all appeals must be filed within 180 days of the insurance company denial. We meet with our clients as early as possible following their receipt of the denial, to strategize what evidence to collect to challenge the wrongful denial of LTD benefits. We always demand a copy of the insurance company’s entire claim file, because we have a right to the record and it often provides great insight as to the thoughts of the insurer as they planned their denial of the claim.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days.  In our experience, insurance companies regularly ignore these deadlines.  They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination.  The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands.  Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline.  Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors.  We object to our clients having such an exam during the appeal.  It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned.  Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier.  We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline.  Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

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.

Disability policies contain a provision explaining that coverage will not be extended for a claim based on a “legal disability.”  Legal disability relates to the individual’s eligibility to work due to necessary licensing, such a financial advisor (Series 7 license), lawyer (bar license) and physician (medical license).  What happens when a disability caused by a physical or mental disability results in the professional becoming legally prohibited from working in their occupation-due to suspension or revocation of their license? This may occur if an attorney develops dementia, commits ethical violations and becomes disbarred- or if a doctor develops a substance abuse, such as addiction to fentanyl, and loses his medical license.  Recently several doctors have been incarcerated for Medicaid fraud.  What is the root cause of the disability? Do they have a valid claim for disability benefits while their license is suspended?

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors:  (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.”  Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012).  The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.”  Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)

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