New Jersey Disability Lawyer Blog

Alternative Psychological Therapy for Claimants Disabled By PTSD

July 28, 2014 | By Bonny Rafel

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.

Medical Marijuana to Treat Disability Substantiates a Claim

July 25, 2014 | By Bonny Rafel

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

Courtesy Disability Appeal Does Not Extend the Deadline For Filing Lawsuit in ERISA Disability Claim

June 30, 2014 | By Bonny Rafel

Following the U.S. Supreme Court’s Decision in Heimeshoff, Lawyers are being extra-careful in determining the deadline for filing a lawsuit in court to protect a clients’ rights. Unfortunately, the insurers do not believe they are responsible to advise their insured if a deadline is approaching. A recent example of the insurer outfoxing the insured is Gordon v. Deloitte & Touche, LLP Group Long Term Disability Plan, 2014 U.S.App. LEXIS 6688 (9th Cir. April 11, 2014).

Ms. Gordon had appealed the denial of her claim several times. She let the claim lay stagnant, and then recontacted MetLife and requested they consider another appeal. Following intervention by the Department of Insurance, MetLife agreed to reevaluate the claim and did so. Detailed exchanges commenced, and the ultimate outcome was MetLife’s upholding its denial. Gordon filed a lawsuit and the 9th Circuit upheld the application of the Plans’ statute of limitations deadline for filing a lawsuit. The court held that MetLife’s reopening of Gordon’s claim file does not in and of itself revive the statute of limitations because it would discourage reconsideration by insurers even when reconsideration might be warranted.

Commentary: One would consider estoppel or waiver in this circumstance. Firstly, it is well established law that “a defendant will be estopped from setting up a statute of limitations defense when its own prior representations or conduct have caused the plaintiff to run afoul of the statute and it is equitable to hold the defendant responsible for that result.” However, in this case, the statute of limitations had already run before MetLife agreed to review the appeal again. Secondly, caselaw suggests that waiver requires an intentional relinquishment of a known right and consideration for the alleged waiver. In this case, there is no evidence that MetLife intentionally relinquished its right for the statute of limitations defense. However, MetLife did advise Gordon that she should file an appeal of their decision and in the event her appeal is denied she would then have the right to bring a civil action under ERISA. Unfortunately for Gordon, she embarked on a costly comprehensive appeal expecting that she would have the right to contest a denial in court, but that would not be the outcome.

Parkinson’s Disease- A Disabling Disease

June 27, 2014 | By Bonny Rafel

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.

AT&T Disabled Employee Proves Claim Administrator, Sedgwick Is Conflicted and Biased

June 24, 2014 | By Bonny Rafel

We are often faced with dealing with a claim administrator who services a self-insured plan. A recently published case highlights the issues that arise and is useful precedent for the cases we handle for our New Jersey disability clients. In this case, May v. AT&T, AT&T retained Sedgwick to perform the claims handling on its behalf and even made the decisions of which disability claims to pay. At&T defended its role in the claim, since it delegated all claims making decisions to Sedgwick, it believed would serve as a buffer from exposure for bad faith decision making. Many courts have held that a plan cannot be liable for arbitrary decision making that is influenced by the money saved by denying claims, if a separate claims administrator makes all of the decisions.

Here, however, the court saw through this house of cards. Sedgwick was the ERISA claims fiduciary. The court held that the actions of Sedgwick showed that Sedgwick demonstrated more loyalty to the funding entity which had employed it, than to its cestui que trust during the administrative process. The court noted “Sedgwick jealously guarded its client’s money, ” commenting, “This is one of the most bothersome aspects not only of this case, but of ERISA benefits cases in general.” Ms. May was faced with the unenviable task of appealing to Sedgwick each denial. “She hit a stone wall each time.”

The Court was particularly interested in considering whether it would be appropriate to remand the case to Sedgwick to reconsider the ongoing claim. They determined, ” if Sedgwick were ordered to take another look at the claims in light of favorable SSA decision Sedgwick could and probably would treat the SSA findings as simply something else to discount in comparison with its “independent, non-examining medical experts.” Assuming the court had the power to remand the case to the Sedgwick Briar Patch, that Briar Patch is one in which Sedgwick is accustomed to navigate.”

Psychiatric Disability Claims – How To Succeed Under ERISA

June 22, 2014 | By Bonny Rafel

Recently the District Court of Pennsylvania issued an important decision regarding a disability claim based on psychiatric illness.

Disabled Walmart Employee Deprived of His Day In Court Due to Statute of Limitations

February 3, 2014 | By Bonny Rafel

The U.S. Supreme Court recently determined that a plan may contract to a particular limitations period even one that starts to run before the cause of action accrues as long as the period is “reasonable”. The Hartford plan provided that its three-year limitations period ran from the time that proof of loss was due under the plan.

Heimeshoff , an employee of Walmart, filed a claim for disability benefits with Hartford who provided the long term disability policy for Walmart employees. Hartford denied the claim and Heimeshoff appealed within the 180 day deadline. The denial was upheld several times. The plan provided that litigation must be filed within three years of the proof of claim. Heimeshoff filed her claim in federal court within three years of the final denial, but more than three years after proof of loss was due.

Taken literally, the claim had to be filed before the internal appeals period was exhausted. The general rule was that statute of limitations commence upon accrual of the cause of action.

CIGNA Ordered to Pay Disabled Claimant a Surcharge Remedy

February 3, 2014 | By Bonny Rafel

Rochow v. LINA 2013 FED APP. 0338P(6th Cir 2013). In a groundbreaking decision, the 6th Circuit awarded the Rochow’s estate both disability benefits due plus equitable relief under 502(a)(3). Rochow had been due the benefits since 2002, but had been tied up in legal battles with LINA (a subsidiary of CIGNA) ever since. The disability claim was litigated which resulted in a finding by the district court in 2005 that LINA’s decision was arbitrary and capricious. LINA appealed; however the Sixth Circuit affirmed the district court’s judgment. Upon remand to determine the amount of money due to Rochow’s estate, Rochow demanded an equitable accounting and asserted that LINA must give up (disgorge) the profits that it realized by holding onto the disability benefits ultimately awarded to Rochow.
The court cited a recent Supreme Court case,CIGNA Corp. v. Amara, 1312 S.Ct. 1866 (2010) which found the “surcharge” remedy is available in equity to “provide relief in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.’ The court noted, “Insulating LINA from disgorgement in this case would exacerbate the existing systemic conflict of interest.” Here the court justified its award, reasoning “LINA breached its fiduciary duty by continually ignoring its own plan definitions which resulted in wrongly denying benefits for five years after the initial request.” Disgorgement of the profits CIGNA earned by holding Rochow’s money was required to prevent unjust enrichment. The court awarded $3,797,867.92.

We at Bonny G. Rafel LLC handle disability cases against Cigna and all insurers, focused on restoring disability benefits and all other ancillary benefits that ended with a claim denial. This case demonstrates a new direction the courts may take under Amara to disgorge profits the insurers earn by wrongly denying claims.

A Revised Manual That Will Change the Handling of Mental Illness Disability Claims

July 22, 2013 | By Bonny Rafel

Often times, we are approached by clients who are denied disability claims because of mental health issues (i.e., posttraumatic stress disorder, social anxiety, or major depressive disorder). The main reason why these clients are denied disability is because mental illnesses are hard to prove, and it is even harder to prove that such a condition makes an individual incapable of performing his or her occupation. Insurance companies often times prove that an individual is not physically disabled by way of surveillance video; however, there is no equivalent when it comes to “testing” mental illnesses.

However, those with mental illnesses should not be discouraged from filing a claim for disability. This is because courts have previously faulted an insurer’s failure to “give meaningful consideration as to how Plaintiff’s chronic fatigue, as well as memory and concentration problems, would impact upon her performance.” Engel v. Jefferson Pilot Financial Ins. Co., 2009 U.S.Dist LEXIS 89396 (W.D. Pa. Sept. 28, 2009); see Olive v. Am. Express Long Term Disability Benefit Plan, 183 F. Supp. 2d 1191 (C.D. Cal. 2002) (claimant’s ability to focus and concentrate must be considered as an essential occupational duty and must be taken into account in determining whether he/she is disabled).

Generally, the guide used for “proving” mental illness is the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). This manual has been broadly used by psychiatrists and mental health professionals for decades and was just recently revised, as it is now in its fifth edition. Recently, an interesting article appeared in Corporate Counsel, Will the DSM 5 Lead to Crazy Employment Law?, where it discussed how the new edition will impact employment law; mainly because the new edition of the DSM adds new diagnoses, while also broadening already existing diagnoses. For example, the new DSM adds the diagnoses of “social (pragmatic) communication disorder,” where this disorder applies to individuals with “persistent difficulties in the social use of verbal and nonverbal communications.” Essentially, employees who were previously thought of as being shy may qualify under this new “disorder.”

Surveillance is Often Misused to Justify a Denial of Disability Benefits

July 9, 2013 | By Bonny Rafel

We are often faced with assisting a disabled client who has been denied benefits from Cigna, Prudential, Aetna, Hartford or Unum based on a brief video surveillance of their daily activities. Our clients ask us, how can a company justify a denial on the flimsy basis that they saw me walking my dog, or taking my daughter to school? And, do they even have the right to videotape me?

The answer to that question derives from the influential case of Creel v. I.C.E. & Accocs., 771 N.E.2d 1276 (Ind. Ct. App. 2002), where the court determined that videotaping an individual where their actions are open to the public does not surmount to an invasion of privacy. This is because, and as the court explains, invasion of privacy can occur when there is an invasion of one’s private or “physical space,” such as a person’s home. Therefore, there is no invasion of privacy when people are videotaped outside of their private space, such as walking their dog or taking their daughter to school.

Although videotaping claimants cannot generally be considered an invasion of privacy if their actions are recorded in public places, this does not mean that insurance companies can use this surveillance to deny disability claims. In a recent case, Ingravallo v. Hartford Life & Accident Ins. Co., 2013 U.S. Dist. LEXIS 48397 (E.D.N.Y. Mar. 29, 2013), the video surveillance showed the claimant “pushing a baby stroller from her home to a pharmacy two blocks away” and “unloading grocery bags from the trunk of her car.” From this surveillance, the insurance company hypothesized claimant’s ability to work a sedentary job; however, the court determined that this was an inappropriate use of the surveillance video because the classification of disabled depends on claimant’s ability to do work, not “chores.” Therefore, it is improper for an insurance company to use short clips of surveillance video to justify denial of a disability claim where such footage does not depict a claimant’s ability to perform his or her job requirements, but rather, depicts his or her ability to perform “normal activities.” This case was similar to Rigg v. Cont’l Cas. Co., 2004 U.S. Dist. LEXIS 8009, at *16 (N.D. Cal. May 5, 2004), where the court found no correlation between claimant’s limited ability to perform some daily tasks, with the ability to work “as a project manager, facilitating business requirements, and the implementation of accounting software on a global scale.”