Winning Isn't Easy: Long Term Disability ERISA Claims

How Disability Insurance Carriers View Disability Claims For Hearing Loss, Tinnitus, and Meniere's Disease

July 05, 2022 Nancy L. Cavey Season 2 Episode 50
Winning Isn't Easy: Long Term Disability ERISA Claims
How Disability Insurance Carriers View Disability Claims For Hearing Loss, Tinnitus, and Meniere's Disease
Show Notes Transcript

Listen in as Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey talks about "Winning Isn't Easy: How Disability Insurance Carriers View Disability Claims For Hearing Loss, Tinnitus, and Meniere's Disease" and other issues you may have regarding your Long Term Disability policy coverage.

Nancy is known for helping those with specific conditions fight the disability insurance company for the rights of her clients.

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Nationwide ERISA Disability Attorney Nancy L Cavey:

Hey, I'm Nancy Cavey, national ERISA, and individual disability attorney. Welcome to winning. Isn't easy. Before we get started, I have to give you a legal disclaimer. This is not legal advice, but I will tell you that nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games , the carriers play and what you need to know to get the disability benefits you deserve. So off we go, do you suffer from tinnitus Meniere's disease or some other profound hearing loss today, I'm gonna be walking you through the hallmark indicators of a few hearing loss disorders, how those who suffer from the disease tackle disability claims and tell you a real life story about a claimant that I'm representing in the claim of the problems that you can see or experience in a Meniere's disease case. So even if you don't have a profound hearing loss, I think you're still going to find some useful tidbits. So I'm gonna talk about four topics. First, I'm gonna do an overview of hearing loss disorders and how disability carriers evaluate hearing loss, tinnitus , Meniere's disease, how disability carriers view hearing loss, tinnitus , and Meniere's disease claims the medical testing. You have to have for a profound hearing loss disorder and how Unum got slammed in a Meniere's disease case and the lessons you can learn. So let's take a break.

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Nationwide ERISA Disability Attorney Nancy L Cavey:

Welcome back to winning. Isn't easy, an overview of hearing loss disorders and how disability carriers evaluate hearing loss and Meniere's disease cases. You may have purchased a disability insurance policy through your employer or on your own to provide you and your family with peace of mind. If you became disabled. Now, unfortunately, disability carriers, don't always make it easy for policy holders who have hearing loss and or Meniere's disease to get the disability benefits they deserve. In fact, they hate these cases, what you need to know about different types of hearing loss, the carriers don't get. Now, first off disability carriers don't understand the different types of hearing loss. They think it's all in your head. They think you just need hearing aids and you can go back to work in an accommodated work environment. So let's start this discussion with the three types of hearing loss. First is conductive hearing loss, which is caused by outer and middle ear problems that prevent sound from reaching the inner ear sense , neural hearing loss, which is caused by damage to the sensory cells or nerve fibers in the inner ear. The interfere with a transmission of information of the brain. An example of that is tins. And then there's the mixed hearing loss, which is a combination of both the conductive and sense of and mixed hearing loss, which is a combination of both. You have to produce objective medical evidence of the hearing loss that you have and the type of symptoms. And we're gonna talk about that next, the symptoms that of tinnitus that carriers don't get , um, is a problem. They don't even understand what tinnitus is. And tinnitus is a sound that's that is generated only in your head. No one else can hear the ringing, the buzzing, the hissing, the roaring that you can experience with tinnitus more than 80% of people with tinnitus have a hearing loss as a result of damage to the hair cells in the ear. Unfortunately there's no cure for tinnitus and carriers, hate medical conditions with no cure. In fact, carriers will often reject out of hand or minimize the impact of tinnitus and that impact on hearing. And what they try to do is they maximize the emotional problems that cause by trying to limit benefits to just two years under mental nervous policy limitations. So I wanna make sure that you understand, you've gotta spell out to your doctor, all of the physical problems that you have, all the cognitive symptoms that you have. And quite frankly, you should minimize any psychological problems that you have. What are the symptoms of Meniere's disease that carriers ignore well Meniere's disease is a disorder of the inner ear that's caused by episodes of spinning, known as vertigo. There's also fluctuating hearing loss, tinnitus, and a feeling of pressure in your ear. Interestingly, in many cases it affects only one ear, but again, documentation of symptoms is key. And I have found that rarely do disability carriers ask the right questions and ask for a symptom log. So let's talk about the evaluation process used by disability carriers in every hearing loss , tinnitus or Meniere's disease claim. Number one is they'll ask, is there objective medical evidence that is the basis of this diagnosis. That's important because many disability policies require objective medical evidence of the diagnosis. And it's crucial that you obtain your diagnosis from an ENT or from a doctor that specializes in hearing balance disorders and that you have audiology testing. It's also key that you keep an accurate history of your symptoms and how those symptoms impact your functionality of each visit. If the carrier doesn't ask, my advice is, think about it. The disability carrier will look closely at your medical records to make sure the history of your symptoms, the diagnostic findings and the examination findings are consistent with the hearing loss to Meniere's disease. Now, one way to keep , uh , uh , a record of the frequency and severity of your symptoms and how they impact your ability to work your productivity at work, your problems at home or modifications that you need at home or in the workplace is to keep a diary. Now, I generally don't tell my clients to keep a diary. Uh , if the carrier hasn't asked for one, because that's the carrier's problem. But if they've asked for a diary, you want to document not only the frequency and severity of your symptoms and the impact they have on your functionality, but document things like how long you can sit and walk, how often you have to change positions, how often you have to, or , or how much you can lift , um , because these medical conditions can impact , um, your ability to do those types of activities. What I want you to do is to just make sure that it's consistent with what you've put on the activity of daily living form. And don't forget to explain the side effects of medication. Step two, is there objective medical evidence that it's the basis of the restrictions and limitations assigned by your physician? Now, your doctor's gonna be asked to complete a form called an attending physician's statement form, explaining your restrictions and limitations. There's no uniform APS form. And the form is designed by the disability insurance company to ask your physician, if you can do least sedentary work, why, if you can do sedentary work, you're not generally disabled under the terms of the policy. Now the form is gonna ask your physician to explain the objective medical evidence that supports the restrictions. And that can be tough because these hearing issues and symptoms can wax and wane and you can have good days or bad days. So one way to help your physician complete the APS form is for you to explain that at each visit in terms of your symptoms and your functionality , uh , and if appropriate, give them a , a diary of your symptoms. I would obviously keep a copy of it. Now, step three. The , is, is there a causal relationship between the hearing loss tinnitus or mere disease, the assigned restrictions and limitations, and you're in ability to do your own or any occupation. Now, in my view, the APS form from the carrier doesn't ask the right questions and I will modify the APS form by using a social security disability hearing loss form, or a Mannes residual disability form that asks the right questions. And these forms will , uh , explain to the disability, carrier your functionality , uh , in more detailed terms, because we want the right questions to be asked about your hearing loss and Meniere's disease what's gonna happen is the disability carriers gonna have their medical unit review, your medical records and the APS form to determine what your real restrictions and limitations are. And unfortunately, they don't have to accept what your physician has to say. The disability carrier will have a hired medical gun, say there's no objective evidence of the diagnosis, or there's no objective basis for the restrictions limitations assigned by your physician. So what happens next? The disability care is gonna send you a file to their vocational rehabilitation counselor , to determine what your occupation was at the time you became disabled, the physical duties of your occupation, the cognitive duties of your occupation, whether you can perform those occupational duties based on whatever the restrictions and limitations are that the disability carrier things supply , you have the burden to show a causal relationship between the diagnosis and the restrictions and limitations and your inability to do your own or any occupation. So what is your occupation? Your policy may provide that the carrier can determine your occupation, and it can be based on the dictionary of occupational titles that describes the occupational duties and not necessarily how you perform them for your employer. It could be how your occupation has performed in the national economy or the local economy. All of these different types of definitions of occupation can be a problem. And I find that often the disability carriers, vocational evaluator gets the occupation wrong and they fail to consider the cognitive duties of your occupation that can be impacted by your pros. Now, many policies provided after a certain period of time, the standard of disability changes from an inability to do your own occupation, to an inability, to perform any occupation. The disability carrier is gonna reevaluate your restrictions and limitations. They're gonna determine whether there's any other occupation you could perform that pays similar wages. And this is not a real world test. Often the carrier will determine that you can do a sedentary occupation just to deny benefits. Now, step four is going to be an analysis of what you say in your activities of daily living form, and whether that's consistent with what's in your medical records, what you may be telling the adjuster during a call or what you may be telling the field , uh , representative, when they come to visit you, remember disability carriers are in the business of collecting premium dollars. They're not in the business of paying benefits. They're gonna be looking for conflict. They're going to be looking for inconsistencies. They're gonna be looking for a way to cherry pick your medical records and a description of your activities and use that as a basis of denial. And don't be surprised that even in a hearing loss case or a Meniere's disease case, they're gonna check up on you and they'll put surveillance on you. Now, if you're getting calls where you suspect surveillance, you need to reach out to an attorney immediately because you're being set up for ACC claims denial. We wanna make sure again that your medical records, your APS forms, everything you're telling the carrier is consistent. And I know as I've said that you have good days or bad days where you may have episodes that are unpredictable. The activities that are depicted on surveillance are not necessarily going to show you having an episode , uh , but they will potentially be used to show that you're not as impaired as you would have them to believe. And you could work in some capacity. So remember be consistent. Be careful. Let's take a break . Welcome back to winning. Isn't easy. I'm gonna talk about how disability carriers view hearing loss , tin and Meniere's disease claims. Now the ultimate issue for the disability carriers, whether you are hearing loss , tinnitus or Meniere's disease in symptoms have progressed to the point that you can no longer perform your occupation. And that's an issue, particularly if you've had these symptoms for some time, because the question's gonna be is, well, look, they worked for years with this condition. What's changed. Why is it all of a sudden they can no longer work, or you might have a situation where there's a sudden onset of the symptoms and the disability carrier is still gonna be asking why it is that you can't perform your occupational duties. And how are your , uh , symptoms progressing or changing with treatment. Your claim is going to be decided based on medical records, form statements, documenting the severity, frequency, and duration of your symptoms and , um, the , uh , impact of treatment on your , um , medical condition. Now I'm gonna distinguish between what I call a moderate case of hearing loss , uh, and a severe case of , um, the hearing loss disorder, mere disease as compared to , um , one that's not quite as severe. And I have found that disability carriers are more likely to accept and pay benefits in the case of a moderate, to severe hearing loss, tinnitus , or disease case and its complications. But again, your medical records have to establish an objective basis for the diagnosis and the carrier's gonna be looking for these symptoms ringing in the ears, buzzing hissing, chirping, whistling, dizziness, hearing loss, difficulty, concentrating, difficulty, maintaining focus, difficulty with cognition , uh , problem, sleeping, nauseousness, vomiting. Um, they're also gonna be looking for , uh , the complications , uh , associated with dizziness. Uh , and they're going to be looking at these medical records again and measuring those records against the forms that you're filling out and , um, statements that you might be giving to the disability insurance company. Now, you need to understand when you file a claim for benefits, they're gonna be getting your records. They're gonna have your physician complete the attending physician statement form. And many of these cases are accepted initially, but they will be denied once your condition is stable or it has become stable with , uh , treatment. Um, what I also see is the denial of benefits after the completion of treatment or a period of stability. And so the carrier assumes that your hearing lost in a disorder , Meniere's disease is stable, and that you can go back to work because after all, remember, you've worked with it before. If you've had this as a preexisting condition on the flip side, not all disability claims, adjusters are familiar with the progression of hearing loss and other symptoms , uh , that can happen the treatment or the side effects of the , uh , treatment that can result in disability. So we really have to spell this out in detail, not only in your medical records, but with objective medical testing that supports your claim. And of course the residual functional capacity form that will help tie some of this together. When the disability carrier is looking at your medical records, they're going to ask a physician and their employee to look at the records. Now, I will tell you that in my experience, not all the disability carriers will have your file reviewed by a competent or qualified physician. When in fact they should be having these types of claims. In my opinion , um, reviewed from the very beginning by an E N T and not some OC or family doctor, but in any event, they're gonna look for how long you've had the symptoms, the nature of your symptoms, have your symptoms progressed or changed over time? What you reported to your physician about how your symptoms impact your activities of daily living and what you say in that activity of daily living form. You completed the nature of the treatment, the response to the treatment, the side effects of medication, the extent in nature of your symptoms after treatment, whether you've been seen by specialists for treatments of your symptoms, what your physician's opinion is about your restrictions limitations. And is there any objective evidence that would support that , uh , opinion? Um, so you can see that symptoms functionality are key to winning a case and you gotta be consistent. Got it . Alright , let's take a break.

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Nationwide ERISA Disability Attorney Nancy L Cavey:

Welcome back to winning. Isn't easy. Let's talk about the medical testing you have to have for your hearing loss disorder, disability claim. Now, if you have Meniere's disease, your physician is going to diagnose Meniere's. If you have two or more episodes of vertigo, and that's the feeling of spinning or moving when you're still, and it has to last 20 minutes to 24 hours, your vestibular Sy system, which includes the inner ear, your eyes and nerves , um, help us with balance coordination and posture. And the vertigo happens when your vestibular system isn't working correctly. I think of it of like a gyroscope, if you will. Another common symptom of Meniere's disease with Invertigo can be a hearing loss. And that can change from better to worse, which is known as fluctuating hearing loss. There can be a sensation of ear pressure when you're like, your ear feels like it's full, or your ear feels like it's plugged. There can be a ringing or a buzzing sensation or noise in your ear known as tins. In my view, anyone or a combination of these symptoms can be the basis of a long term disability claim, but there's medical testing that a disability carrier expects to see, particularly in a Meniere's disease case. And I will tell you, they hate these cases because they're based on subjective complaints, like the vertigo, the sensation of your pressure, the ringing, the buzzing noise in your ears, nauseousness, all of which can fluctuate. And I know that these symptoms can make you feel sick, tired, or, or you may have a hard time hearing or paying attention. Again, disability carriers hate these subjective type complaints. So what they expect to see is a history of your symptoms in terms of the frequency of the symptoms, the nature of the symptoms, how long they lasted, what problems you have performing your occupational duties while you have these symptoms. But they're also gonna be looking for medical testing, and that's going to include something called an audiogram or a VNG or NG a electrocardiograph, which is an E C O C H G , and an MRI of the brain. I think that the lack of this kind of testing can do in your claim as this is the kind of testing you see in these cases. But just because some of this testing is negative , uh , doesn't mean that you don't have a disability insurance claim. I think that you need to consult with an experience , uh , Arisa disability attorney who can review your medical records and give you recommendations for documentation of your symptoms necessary medical testing, and dealing with medical negative medical testing before you stop work and apply for benefits because any one of these errors can potentially destroy your Meniere's disability insurance claim. Got it. Let's take a break . Welcome back to winning. Isn't easy. We're gonna tell you a story about how Unum got slammed in a Vere's disease case and the lessons you can learn. ER's disease is a disorder of the inner ear, and it causes severe dizziness known as vertigo ringing in the ear , known as tins, hearing loss, a feeling of fullness or congestion in the ears. And sometimes even nauseousness and vomiting attacks can come on suddenly or after a short period of tins or muffled hearing. In fact, there really isn't , uh , any one particular cause of an attack. And what's more difficult about these cases is that the frequency of these symptoms can vary from person to person. Now, some people will have a single attack of dizziness that can be separated by a long period of time. Others will have attacks over a number of days. Some people will have vertigo so severe that they lose their balance and fall. Unfortunately, there is no cure for the disease, but there are a variety of treatments and the disability carrier is gonna expect that you have explored the variety of treatments. Now they can include salt, restrictive diets , uh , cognitive therapy , uh , uh , therapy for anxiety, antibiotics , um, medication steroid injections in the middle ear and surgery. And you do have the right to refuse some of this, the , the invasive , uh , testing , uh , and treatment rather , um, because of the potential consequences , um, and complications of this treatment. But I'm gonna tell you the story of Mr . Weer , who was a union policy holder, and she had Vere's disease. She had nauseousness and vertigo on an infrequent basis. And as a result of toxic shock syndrome, ultimately she had both of her legs, amputated, amputated, rather below the knee. Now, despite having the in nearest disease, despite having both of her legs amputated below the knee, she continued to work for many years until her Meniere's symptoms just became so bad that she couldn't continue. She had been , uh , working , uh , at , at a company called pH Gladfelter as a projects and portfolio manager and her symptoms , uh, had worsened. Uh, so that by 2017 , she was having vertigo, dizziness and vomiting on a constant basis. And as a result, she stopped working. She applied for her short-term disability benefits and Unum approved the claim. And her employer provided the six months of short-term disability benefits. And of course, when that ended, she applied for her long term disability benefits. But guess what Unum did it not only denied the long term disability claim, but she said, they said, she'd never been entitled to those benefits because she was never disabled during what's called the elimination period. She appealed. And ultimately this case ended up in front of a federal judge. And the judge was fortunately able to use what's called a Denovo standard of review, which meant that the judge was able to substitute its judgment for that of Unum. And the judge slammed Unum for its failure to follow a claims handling agreement that it had entered to into in 2004 . And they had been sued by a number of attorney generals because of their deceptive claims handling practices. And I will tell you that practically, every disability carrier uses deceptive claims handling practices. Now UNUM had agreed that they wouldn't use biased medical reviewing physicians, that they would give significant weight to the opinion of treating physicians. They would consider all of the disabling medical conditions and give significant weight to a social security award. And of course, Unum has never really lived up to that agreement and they didn't live up to that agreement. In this case, the judge found in this case that a UNUM ignored the significance of her double amputation in the context of the Meniere's disease. So we had the double amputation, we had the Meniere's disease, but then we had the interaction of the amputation and the Meniere's disease because Meniere's disease leads to dizziness, vertigo, and a lack of balance. You know, that could be a problem with someone who had amputations and that could increase your risk or your fear of falling and cause you know, psychological distress Unum had based its denial on its peer review observations that there was a lack of escalation of treatment and the low use of medication. In other words, they were criticizing the medical care and that's a common carrier tactic. The court noted that Dwyer had reached a plateau where the effectiveness of the medication was limited and other treatment was invasive and potentially dangerous. Remember I said, you don't have to engage in , in invasive or dangerous treatment or treatment. You perceived to be dangerous. The peer review doctor felt that it was important and noteworthy that wires physicians had never personally observed , uh , active Meniere's symptoms. Well, that was wrong. But I will tell you, I rarely do. I see when my clients are examined by the physician that are actually having an active episode, but in this particular case she had, and her doctor had noted it in the medical records and the peer review doctor just blew through that. Now Unum conducted surveillance and scoured her social media , uh , post for any signs of a normal life. Um, and she reported on Facebook that she made salads and UN pointed to that as evidence she wasn't disabled. And the court said that equating the ability to make a salad with an inability to work was patently absurd. And I would agree with them particularly when the surveillance has nothing to do with the person's work activities. And particularly when the surveillance activity , um, is being, or the activity that's being observed is at a point in time when the person isn't having an episode does a disability carrier. Think you're gonna sit on your butt, your entire life and avoid trying , uh , to live a full life. Even if you have a disabling Manne symptoms of dizziness or nauseousness, I would hope not, but obviously you would be limiting your activity , uh , and it would impact your ability to work when you're having , uh , an episode. And once you've recovered from that episode, be it , uh , hours or days, then obviously you have some capacity to work. Now that capacity to work can also be subject to environmental factors. So for example, if you're working in a loud , uh , environment that impacts your ability to hear, or, or a stressful environment that can lead to attack, then even if you are quote unquote not having symptoms, the environmental envir , uh , the environment of your work location or activities can actually, in my view, be a significant factor in a disability claim. But ultimately the judge in this case rejected Unum's request that the claim be remanded back to Unum for another decision, meaning another denial. And the judge simply said, no, the judge said in this case, and this is one of my favorite quotes in a real world terms to adopt Unum's position and grant a full remand would render litigation by the claimants, such as Mr wire , a virtual impossibility, because the claimants would repeatedly have to climb a steep mountain, only return to return to it base again, and to seek benefits under disability plan. I think that was a great way to stick it to Unum and potentially to other disability carriers. 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 our review or sharing it with your friends and family. And please subscribe to this podcast this week. That way, rather you'll know, every time that a new episode comes out. Thanks for joining us. And I look forward to hearing from you about your Meniere's hearing loss disability claim .