Winning Isn't Easy: Long Term Disability ERISA Claims

The Disability Insurance Claims Processes Most Common In a Nurse's Disability Insurance Benefits Claim

May 02, 2022 Nancy L. Cavey Season 2 Episode 46
Winning Isn't Easy: Long Term Disability ERISA Claims
The Disability Insurance Claims Processes Most Common In a Nurse's Disability Insurance Benefits Claim
Show Notes Transcript

Nurses and The Long Term Disability Process

Nationwide ERISA Long Term Disability Attorney Nancy Cavey is going to talk about some nurse-centric short- and long-term disability claims. Nancy acknowledges that Nurses are the backbone of the medical community, and have been integral in combating the COVID-19 pandemic. Disability claims are highly scrutinized, and the same goes for those of nurses as she dives into some examples.

1 - Registered Nurse with Cushing’s Disease Awarded LINA Short-Term Disability
Benefits

2 - Nurse Anesthetist Self-Treating Insomnia Results in Death and Denial of
Accidental Death and Dismemberment Policy

3 - How a General Workplace Standard of Occupation in a Medical Trainer
Nurse’s Disability Policy Doomed Her Disability Insurance Claim

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Nationwide ERISA Attorney Nancy L. Cavey:

Hi, I'm Nancy Cavey, national ERISA, and individual disability attorney. Welcome to winning. Isn't easy. Before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida bar tells me that I have to say this, but I will tell you nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games, the disability carriers play and what you need to know to get the disability benefits you deserve. So off we go today, I'm gonna be talking about nurse centric, short and long term disability. Claims nurses are the backbone of the medical community, and they've been integral in combating the COVID 19 pandemic disability claims are highly scrutinized and the same goes for disability claims of nurses. So let's take a look first. I'm gonna talk about a registered nurse with Cushing disease who was awarded line of short term disability benefits. Next I'm gonna talk about a nurse aesthesis who was self-treating their insomnia, and unfortunately passed away. We'll talk about why that claim got denied for accidental death and dismemberment benefits. And lastly, I'm gonna talk about how the general workplace standard of occupation and a medical trainer, a nurse disability policy doomed, ultimately her disability insurance claim. Now just because I'm talking about nurses doesn't mean that there isn't anything that you can learn. So listen up, let's take a break first though.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy, ready to get started. Let's talk about a registered nurse who had Cushings disease and how ultimately she was awarded her line of short term disability benefits. Cushing's disease is a disorder that has a potential to cause debilitating symptoms. Those symptoms can include muscle pain, joint pain, headaches, vertigo, insomnia, brain fog, fatigue, and memory loss. Any any of those can interfere with a nurse's ability to perform their occupational duties. In fact, it can result in the death of a patient. Let me give you you an example of something that happened in a case involving a nurse by the name of nurse Flores , she was responsible for providing collaborative and comprehensive care at St . Joseph's based on the patient's needs and the family needs. She provided patient assessments, treatment and care and medication administration. That means that she had a physically and cognitively demanding occupation. Now she stopped working in January of 2017 because she was experiencing symptoms of undiagnosed cuing disease. She was outta work for at least six months and ultimately returned to employment at St . Joseph's in August of 2017, despite having these Cushing symptoms, she went back out of work a second time on January 20th, 2018. And that was less than six months from her August 7th, 2017 returned to work date , six months later, Flore got a call from Cigna, the disability carrier asking if she was gonna file a long-term disability claim. She said, Hey, I wanna go back to work. I'm a nurse. I wanna take care of my patients. And Cigna closed her LTD file on July 21st, 2007 . But unfortunately the symptoms of cuing disease caused nurse Flores to , um, stop working again on January 28th, 2018 , and subsequently on July 30th, 2018, she filed a claim for short term disability benefits. So what did Lena do with nurse Flores's short-term disability claim in view of the nature of her symptoms and the fact that she had had some attempts to go back to work well, as usual li had her, the medical records reviewed by its liar for hire nurse consultants and those nurse consultants, cherry picked and selectively reviewed her medical records. Of course, they determined that there was no functional impairment and they denied the claim Flores is treating PCP said, look, the symptoms that she has and had were consistent with Cushings, and that's based on objective testing, which co , which was ultimately corroborated by a neurosurgeon who had performed a craniotomy a second line in nurse rejected all these medical records. And ultimately Flores said, that's enough. And she filed a lawsuit in the case of Flores versus Cigna. A federal judge in California took line to task for rejecting the more qualified attending physician statements who were board certified specialists had treated an examiner and who were all of the opinion that she was disabled based on the examination, findings and discussions with nurse Flores . And the judge said, oh, no, we're not gonna allow this wrongful denial to stand. And the judge awarded short term disability benefits, but denied the claim for long term disability benefits. Why? Well nurse Flores actually hadn't even filed a claim for long term disability benefit. And the judge said, look, your attorney gave you some bad advice when he told Lea that they were gonna pursue the LTD benefits through litigation rather than file a claim. Now, that was a huge mistake because nurse Flores lost her right to pursue her long term disability benefits to age 65. Now, what should have been done is obviously file an appeal of the short term disability denial, but nurse Flores should have filed a claim for long term disability benefits as it were result of her Cushing's disease and exhausted her administrative remedies. If the claim was denied. In other words, if Cigna had denied that long term disability claim, she would've had to file an appeal. And if the appeal denial was upheld only then could she file a lawsuit? She jumped the gun and jumping the gun, cost her a lot of money. You can see that you can make crucial mistakes, not only in a short term and long term disability claim, but those mistakes can deprive you of needed , uh , and well deserved. Long-term disability benefits through the life of the claim. Obviously you wanna be consulting with an experienced Arisa disability attorney before stop work. If you get a short-term disability , uh , denial, and to learn more about what you need to do to file a long-term disability application, to preserve your rights to those benefits in our next segment, I'm gonna talk about a nurse anthesis who was self-treating their insomnia, and unfortunately passed away what happened when the fed tried to file a claim for accidental death and dismemberment benefits. Let's take a break. Welcome back to winning. Isn't easy. I'm gonna talk about a nurse aesthesis who was self-treating their insomnia. Do you know that accidental death and dismemberment policies will often exclude the payment of a D and D benefits for a death caused resulting from or contributed to by alcohol prescription non-prescription and illegal drugs, medication intoxication and or, and, or narcotics. Now that's a pretty broad exclusion. And the key to the application of the exclusionary clause starts with a policy to the plan language. Unfortunately, there is no uniform policy or plan language, and you've gotta get out particular policy or plan. And when a lawsuit ends up in court, the judge is gonna begin their analysis with a policy or plan language in the case of Baptist versus secur and financial group, judge Altman of the Southern district applied 11 circuit case law to this, a D and D claim. Now every federal circuit has its own approach to the analysis of a claims denial. And the 11th circuit is no exception in the 11th circuit, which is in Florida. We happen to use a five step sequence in determining whether or not a claim denials, arbitrary and capricious in the 11th circuit. A claim administrator's denial of benefits is gonna be upheld by the court. If the denial is reasonable. Now what's key is that the administrator's decision is reasonable. If it's supported by some reliable evidence in the record, even if the claimant or the policyholder's position is reasonable. Now, in this case Baptist who sued on behalf of his brother's estate advised the, in the claim that his brother was a nurse aesthesis and had been self-treating insomnia for years with IV met . And unfortunately Baptist's brother passed away because of an overdose. The amount of benefits was $673,000. And the carrier denied this on the basis that the death wasn't an accident as defined in the terms of the policy that the death was excluded under the drug exclusion, and it also the crime and felony exclusions. In my view, this is the trifecta of defense theories that are commonly seen in drug overdose cases. The brother had been found dead in his apartment with an IV inserted in his hand and vials of medications scattered throughout the apartment. The medical examiner concluded that there was no evidence of an injury, and that the manner of death was an accident with a drug use as the cause of death. Unfortunately, the toxicology report revealed a number of substances, including ketamine, lidocaine , um , Metro Prolo , and fentanyl with a blood alcohol of 0.17 , obviously intoxicated, the claim was denied. And ultimately when a lawsuit was filed, judge Altman had to decide if the drug exclusion applied. Now Batis argued that the , um , policy was misinterpreted. The Securian had misinterpreted or incorrectly applied the term, not narcotic and claimed that his brother who was a nurse anthesis could legally self-treat funny there , it was funny in , in that there was no pharmacy records of any medication that had been found by a toxicologist. So unfortunately , um, it appears as if the brother was basic stealing this and probably stealing it from the medical facility that he worked at. So as a result, securing the a D and D carrier also invoked the crime and felony exclusions on the basis that the brother was in the possession of controlled substances and Unprescribed medication and violation of the law now. So what did the judge do ? The judge first started out by finding that the policy required that a bodily injury be evidenced by visible contusion or wound, and that it has to be the sole cause of the death or dismemberment. Unfortunately, there was no such evidence on the body. So the judge found that there was no accident. Um, and the judge then went on to the next question, and that was whether or not this was intentional, or whether the brother had subjectively expected that his actions would result in death or serious injury. Now, if the court can't determine the deceased subjective expectations while using drugs, the court will use an objective analysis and ask whether or not someone with a similar background or experience would've expected an injury or death to result in the, these circumstances. What the court found was that the deceased brother, the nurse Ansis was not legally qualified to prescribe and administer the drugs on which he overdosed. The judge said, look, it's really fair to say that a reasonable person in his shoes given his extensive trading experience would have known that in rear death, would've resulted from the act of ingesting, not only enormous amounts of alcohol, but a cocktail of Un-prescribed medications. The judge ultimately ruled that the death was not a covered loss. And even though the judge could have stopped the analysis at that point and said, I'm denying the claim. The judge went on and found that the exclusions, the criminal exclusions that had been raised also applied and using this trifecta of denials, the , uh , reasons for the denial, the 11th circuit upheld the denial. And now I will tell you, the result potentially could have been different in a different circuit with different plan language, but you can see that the plan, a language and the facts of the case matter and whether or not a case is compensable and whether or not a judge is going to uphold or overturn a claims denial. Got it. Okay. Let's take a break.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to Winning Isn't Easy. I'm gonna talk about how the general workplace standard of occupation in a medical trainer, nurse's disability policy ultimately do her disability insurance claim. One of the most important definitions in a disability insurance policy is the definition of occupation. Why is that? Well, to get your disability benefits, you have to prove that you're unable to do the material and substantial duties of your occupation, how your policy defines the term occupation and what your occupation was at the time you became disabled can make all the difference in whether or not you get your disability benefits. And I think the story of nurse and K found in the case of K versus Hartford life will really ill issue straight . The importance of understanding the policy definition. Kay , worked as an operating room nurse for over 13 years and developed low back pain. She ultimately had to change positions with Syron and she became a clinical specialist , uh, on a per diem basis. Now she underwent back surgery, subsequently recovered and went back to work for ciran . However, when she went back to work , uh , ciran had merged with candle corporation and they hired her as a full-time clinical specialist and a medical device trainer. Now, unfortunately her low back pain return, she had limited range of motion. Her treating physicians took her out of work. Diagnostic studies showed that she had lumbar degeneration above the old fusion and on physical examination. She had mild radiculopathy as well as a chronic S one L five radiculopathy. So she was having back pain and back pain with radiation of pain down her leg, which is clearly painful. Now, she also went on to develop cervical degenerative disc disease and spine in her neck, but there was no nerve impingement when she applied for her disability benefits. She was paid short and long term disability benefits by Hartford, but Hartford subsequently terminated at her benefits, noting that she had to prove based on the policy that she could not perform the essential duties of her occupation as generally recognized in the workplace, not as performed specifically for her employer. Clearly Hartford was looking for a reason to deny the claim. They had a vocational evaluator look at her of occupational history and the description of her occupational duties. They concluded that her occupation required her to provide support to sales. She would travel to customer locations. She would move devices, and that required her to sit and stand for hours. She would push and pull up to 20 pounds. She would lift and carry up to 20 pounds. So once they established what they thought, her occupational duties were, they went on to have a paver paper review physician look at her medical records, and guess what that liar for hire medical reviewer said, ah , she could perform those duties. And when her claim was denied, she appealed. And she said, look, you have incorrectly the term and my occupation and the strength level at which is performed. And you clearly don't understand that my diagnosis renders me unable to meet that applicable strength level. Well on appeal, what did the Hartford vocational evaluator conclude? Hartford had another vocational analysis done. And the VA concluded that our occupation was a combination of a training representative and a general duty nurse. The occupation's essential duties involved administering treatment in accordance with nursing techniques and preparing the adequate equipment and developing and conducting individual and group training programs for employees for industrial commercial or government clients of the equipment and the treatment. And lastly, the VA concluded that the physical demands were out of ranged from light to medium, with occasional lifting, carry, pushing, and pulling of up to 50 pounds. WHAT DID THEY DO? Will Hartford did the same thing? It did the first time it sent the case to a second liar for hire peer review doctor, that doctor looked at her records and disagreed with her treating physician about her capabilities. And as a result, Hartford said, we think you can do , uh, the , uh, essential duties of is occupation as we've defined it. Obviously this case ends up in federal court. The analysis starts with what was the policy definition of occupation that the court was required to apply. Now, the policy provided that a person was disabled. If they were prevented from performing one or more of the essential duties of your occupation, the term your occupation was not subjective, and it didn't consider her specific duties as she performed them for her employer. Rather, this policy had an objective definition of occupation as recognized in the general workplace. In other words, she had to prove by a pro of the evidence that her medical diagnosis prevented her from performing an essential duty of her occupation has recognized in the workplace now, unfortunately, Kay and her attorney did not do a very good job in the appeal of explaining why her medical condition prevented her from performing her occupational duties. And she never challenged this faulty vocational conclusion on appeal. After the second denial, Kay, should have attempted to rebut Hartford's vocational analysis that concluded their occupation was a combination of occupations and that her physical demands were in a range of light to medium. Secondly, she didn't provide any proof that she was unable to perform any one of those activities. She didn't even submit a functional capacity evaluation, which is a physical examination to determine a person's strength levels and their tolerance levels. That would've been key. Thirdly, she didn't have her physician address her restrictions, limitations, and rebut the opinions of the liar for hire peer review doctors who said she could do these duties. And lastly, she didn't submit a vocational report , uh, contesting and rebutting. The conclusions of Harford's vocational evaluators. The court obviously rejected her, her , uh, argument that she that the , that Hartford was wrong and that they should just accept her doctor's conclusions. The court noted that the doctor never explained the restrictions and limitations with any kind of detail, which of course was another mistake which could have been addressed by taking the statement of the physician. These were fatal mistakes that doomed her claim. She failed to provide Hartford and give the court the necessary proof of her restrictions and limitations. She didn't challenge the vocational classification of her occupation, and she certainly didn't provide the court with the information as to how her diagnosis and her symptoms impaired her ability to perform her occupational duties. And as a result, this left the court with no choice, but to accept Hartford's paper review doctor's opinion about her restrictions and limitations and their opinion as to why her diagnosis and symptoms didn't prevent her from perform at a medium duty level. As a result, the court upheld the claims denial. And this is a sad example of what can happen when you don't have an experienced ERISA disability attorney representing you in the appeal. I hope you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, consider liking our page, leaving a review and sharing it with your friends and family. Also, I would love it. If you would subscribe to this podcast, you'll be notified every time a new episode comes out. By the way, I also wanna tell you that we have our 2022 Cavey Law scholarship it's up and running, and we're taking entries until August. You can head over to caveylaw. com/scholarships to enter or to tell friends or family about this great scholarship opportunity. I hope you tune in next week for another insightful episode of Winning Isn't Easy.