Winning Isn't Easy: Long Term Disability ERISA Claims

More On Myalgic Encephalomyelitis - Chronic Fatigue Syndrome Disability Claims

July 19, 2022 Nancy L. Cavey Season 2 Episode 52
Winning Isn't Easy: Long Term Disability ERISA Claims
More On Myalgic Encephalomyelitis - Chronic Fatigue Syndrome Disability Claims
Show Notes Transcript

Listen in for this week's episode of Winning Isn't Easy by Nationwide ERISA Disability Attorney Nancy L. Cavey as we talk about: WIE Season 2: More On Myalgic Encephalomyelitis - Chronic Fatigue Syndrome Disability Claims.

Segments Include:
1 - What Type of Doctor Does the Long-Term Disability Carrier Expect You to Treat With If You Have Myalgic Encephalomyelitis or Chronic Fatigue Syndrome?

2 - The Two Things You Should Track in Your Chronic Fatigue Diary to Win Your Long-Term Disability Chronic Fatigue Claim

3 - What You Shouldn’t Track Your Daily or Weekly  Schedule in Your Chronic Fatigue Long-Term Disability Claim

4 - Why You Must Have a CPET Test if You Are Applying for Your Long-Term Disability Benefits Because of ME/CFS

Resources Mentioned In This Episode:


LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

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ERISA 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've gotta give you a legal disclaimer. This podcast isn't legal advice. The Florida bar association says, I've gotta say this. So now that I've said it, I'll tell you nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play and what you need to know to get the disability benefits you deserve. So off we go, do you have chronic fatigue syndrome? Well , this episode is for you, if you don't. I think there's still some takeaways to learn from. We've talked about this disease before, but I think there's so much more to discuss, especially in relation to disability insurance claims. I decided I'd just do another episode and we're gonna talk about four things today. Number one, what type of doctor does the long term disability care expect you to treat with? If you have chronic fatigue syndrome, two, what are the two things that you should be tracking in your chronic fatigue diary to win your claim? Three? What shouldn't you track in your claim? And fourth, why you should have a C pet test. If you're applying for your long term disability benefits because of chronic fatigue syndrome, let's take a break for a moment before we get started with this week's episode,

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ERISA Attorney Nancy L. Cavey:

Welcome back to winning isn't easy. Are you ready to get started? What type of doctor does the long term disability carrier expect you to treat with? If you have chronic fatigue syndrome now chronic fatigue syndrome notice CFS can be hard to diagnose and it can be hard to treat. It can be very difficult to find a doctor who gets CVS and that can make it harder to get the right diagnosis to begin with. And you may have to see multiple doctors before you finally get the right doctor who makes the right diagnosis as a result. Many CF suffers are gonna see lots of doctors before they get the right diagnosis and treatment. And that could be a problem and it can play right into the disability insurance carriers hands. The lack of diagnosis is a problem and it can complicate any disability insurance claim. Many carriers expect that you'll be diagnosed with , uh , me CFS. And otherwise they're gonna start playing games with a claim because they'll say there isn't a diagnosis. There's these unsubstantiated subjective type complaints. So what type of doctor does the long- disability carrier actually expect you to treat with? If you've got chronic fatigue syndrome, I'll tell you that if the diagnosis comes from a general practitioner or a family doctor, that diagnosis is going to be suspect in the view of the disability carrier's eyes, unless the doctor actually demonstrates in the medical records, an understanding of the criteria for the diagnosis of CFS. And it explains the basis of the diagnosis in your medical records. Now we know, and certainly, you know, by experience that there's no specific medical specialty for , uh , me CFS the diagnosis and the treatment is generally made by a neurologist, a rheumatologist, maybe an infectious medicine , uh , specialist, maybe , um , an internist. But what's clear is that you have to treat with a medical doctor who has specialized knowledge and training in , uh , me CFS. So before you stop work and apply for your benefits, it's important that you're diagnosed with , uh , uh , CFS by a specialist. And that doctor should certainly have not only a special expertise in , uh , evaluating and treating , uh , CFS patients. But if they've published papers, that's even better. Now, I'm often asked, can I treat with an integrative medicine doctor, a nature path , a doctor, or a functional medicine doctor. And I will tell you that disability carriers generally do not recognize any of these , uh , physicians as medically acceptable, and they don't give much weight to the opinion of these types of doctors. The disability carrier wants you to be diagnosed and treated with, as I said, a specialist, most likely a rheumatologist or an infectious medicine specialist who has that special interest in expertise in CFS, you should check with your local support group for a list of doctors and stay away from integrative , uh , medicine providers , uh , functional medicine providers, and those that aren't recognized , um, within generally the , uh , disability community, the insurance disability community, as being experts. Next we learn what you should do in tracking your chronic fatigue , uh , syndrome symptoms , and , um , how and what you should be tracking. Welcome back to winning isn't easy. What are the two things that you should be tracking in a chronic fatigue diary to help you win your disability claim? I will tell you disability insurance carriers hate subjective medical condition, disability claims like chronic fatigue syndrome claims. They want objective evidence of the diagnosis when none can be had. There's really no gold standard diagnostic study. They'll also want objective evidence of your restrictions and limitations. And that of course is predicated upon your subjective chronic fatigue symptoms. And they wanna know how those symptoms limit your ability to perform the material and substantial duties of your occupation or any occupation. Now, one of the most important tools that you can use to help quantify your symptoms and tell your story is a diary. This is not dear diary, that the diary is gonna help your doctor render an opinion about your restrictions and limitations that would prevent you from performing your own and any occupation. In other words, you wanna be explaining in this diary, the symptoms that you have, how those symptoms impact your ability to work, and you wanna document relapses good days, bad days. Now there are other purposes for keeping the diary of your symptoms and your activity. You want to also be looking for patterns of activity that might increase your symptoms, and that may help certainly your physician with your treatment, but you also can help. This can help you determine when during the course of the day, you might be more functional. So this tracking can offer insights into your functionality. What must you document in a winning chronic fatigue diary? The disability carrier wants to know what your symptoms are on a daily basis, how long those symptoms last, what you try to do to control or reduce those symptoms, what side effects of medication you might have and how those symptoms impact your ability to function on a good day and on a bad day. And whether , of course you have relapses, you can start by keeping a paper diary, or you can get an app if you aren't sure, just ask your doctor what it is they recommend, what are the two things that you should be tracking? Well, in my view, the primary thing you should be tracking is your symptoms. So in regard to the symptom complex, what I'm looking for and what your doctor should be looking for is what are your symptoms? And then what are your most disabling symptoms? And do they vary with activity or day to day and do your symptoms change from day to day ? Uh , is there any interaction with other symptoms of any other medical conditions you might have? Is there waxing or waning or reassuring symptoms? And if there is this relapsing symptoms, what's the pattern, if any. So I think that each symptom needs to be addressed using this kind of analysis. So you might have fatigue that you wanna track. Uh , you might have brain fog that you may try to want to , uh , track. You might have , um , muscle pains or ache, and you want , potentially wanna do that. I think by , um , upper extremity, lower extremity. So make a list of your symptoms and then kind of do a track, a tracking of them , uh , in your diary. Now, the second thing I think you need to track is your activity level, and that should document what activity causes your symptoms, what those symptoms are, how long you are doing that particular activity , um, how that activity changes your baseline symptoms. In other words, you might have a certain level of symptoms, but activity might increase some or all of the symptoms, how long it takes you to recover , uh , from that activity, whether you have to increase your medication as a result of that activity, how that activity impacts your sleep and how that activity impacts your concentration or your cognitive abilities. So how do you use a chronic fatigue diary to prove your long term disability case? You have to understand that in a long term disability case, you've got the burden of proof. You've gotta prove that you meet the policy or plan definition of disability. And I think the way to do that is to work backwards. You need to also understand the definition of occupation. So if your policy or plan defines the term occupation as the occupation you do for your employer, you wanna sit down and write a list of all the material and substantial duties of your occupation as you perform them for your employer. Then also write down the symptoms that interfere with, or prevent you from doing each of these duties. So this is gonna be a pretty detailed document. Now what you've created here is a guide , uh , and these , um, this guide will serve , uh , not only you to document your disability claim, but I think is a tool for your doctor so that the doctor can understand the nature of your symptoms, the frequency, duration, how , uh , activity impacts those symptoms, but ultimately in the context of your long term disability case, the key is to tie these symptoms to functionality issues. So what is it about these symptoms that prevent you or interfere with your ability to do the material and substantial duties of your occupation? If you aren't working anymore , then you wanna use examples of activities of daily living around the house that are impacted, and that potentially might have some , uh , tie over or , or relationship to the kinds of duties you did in your occupation. Now, one thing I re do not recommend you do is to use it a pain scale. Um, and you'll see , um, pain scales on a scale of one to 10, 10 being you're excruciating pain , uh , and in the emergency room and one, or being little or no pain. The reason I don't like that kind of system is that pain's individual, each person experiences pain differently. And my five might be your 10. So I don't want the disability carrier to create in their own mind, their interpretation of a pain diary. Now you certainly should be represented in my view , uh , in any disability claim and your lawyer should be reviewing this chronic fatigue diary before you send it to your doctor or send it into the disability carrier. And the reason I say that is while I like diaries to be kept, diaries can also backfire. If you say the wrong thing, your doctor's gonna render an opinion in part and relying on what you've had to say in that diary. So the diary has to document things in the right way, in the right manner. And that diary has to be consistent with the activity of daily living forms. You're preparing, if not the disability insurance carrier is gonna cherry pick your medical records and cherry pick , uh , the activity of daily living forms and say that you can do more than you are actually doing, or that you're not being accurate with your doctor. And that therefore the doctor's opinion is invalid. Cuz the doctor is relying on what you've had to say. And for heaven's sakes, don't be on social media. Don't be on social media, don't be on social media. I was in a deposition just yesterday , uh, uh , where the , um, claims adjuster said, well, we know what the claimant said in his activity of daily living form. We know what he told the doctor, but you know, his social media posts show him going boating , uh , snow skiing , um, cutting his lawn. All that stuff is inconsistent with what it is he's had to say. So consistency is the key disability carriers love to deny claims on the basis that you said one thing about your chronic fatigue symptoms and functionality in the records. You said another in your logger diary and your social media post shows something else. And guess what the surveillance film that they have of you? Well, they're gonna argue that that surveillance film is the accurate picture of your symptoms and functionality, not what you put in that diary. Clearly your diary should be re rude and approved by your lawyer. And if you've got social media posts, you need to disclose those to your lawyer so that they can decide if they're gonna send in that diary. If they're not gonna send it in , um , uh , what potentially are the alternatives to get information and how to deal with the inconsistencies in your diary, the inconsistencies in your medical records and what showed on social media and surveillance. So obviously it takes teamwork to make sure that this diary is not only meaningful, but it doesn't backfire and be used against you. You ready to take a break?

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ERISA Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy. What shouldn't you track in your daily or weekly schedule in your chronic fatigue, disability insurance claim? I'll tell you disability insurance carriers demand all sorts of proof in chronic fatigue syndrome cases. You've got the burden to prove your disabled as that term is defined in your disability policy or plan. Now, one of the things that the disability carrier's gonna demand is objective evidence of your restrictions and limitations. The issue is what are your symptoms and how do those symptoms impact your ability to perform the material and substantial duties of your own occupation or any occupation. Now, I think that that can be hard to prove without a functional capacity test or a CPA test. One of the most important tools that can be an adjunct to this is a chronic fatigue syndrome diary. The diary is going to help your doctor render an opinion about the restrictions limitations that prevent you from doing your occupational duties. In other words, it can help explain the nature of your symptoms, how those symptoms impact your ability to work and document relapses. Now, I know that you might be tempted to supplement this with a daily or a weekly schedule log and submit it to the carrier as proof , uh , as to why you can't work a full day or a full week. And I actually think that's a bad idea. Why shouldn't you track your daily or weekly schedule in your chronic fatigue claim? As I've said before, keeping a diary can help you and it can hurt you. If you say the wrong thing, the doctor is going to be relying on that diary and rendering opinions about you. And it has to document things in the right way, and it's gotta be consistent with your activity of daily living forms. Now, often your daily and your weekly activity is gonna vary based on your symptoms and your activity level. There may may not be a rhyme. There may not be a reason to your daily or weekly schedule. You might have one good day and one bad day or a cluster of bad days or a cluster of good days. Disability carriers see daily or weekly schedule logs as a golden opportunity to assign surveillance and to cherry pick , uh , the diary or the , uh , the logs. Now, one of the things they're gonna do is they're gonna wanna take your statement at looking for any inconsistencies in your medical records, your activity of daily living forms and your logs. These inconsistencies are a perfect setup for surveillance, and they love to deny claims on the basis that there's an inconsistency between your symptoms and your functionality is reported in your medical records and in your diary , uh , and ultimately any surveillance that they might get on you. Now, these inconsistencies are that very set up for surveillance. And what they're looking for is, is your social media postings, your report of activity to your doctors and your logs . And , and they're gonna try to get you on film . Now, the problem of course, is that your symptoms may vary day to day , week , week based on activity. And if the disability carrier sees a pattern in your documents or sees a string of good days , they're potentially just gonna seize, just seize on that slice of your , uh , activities, your social media post , um, your doctor's reports, and try to create the impression that you're a liar. The reason they're gonna do that is they're gonna go back to the doctor and say, look, doctor, you relied on these documents that were given to you by your patient. You relied on the history. Um, but doctor, if that history is inconsistent, if we've got film, showing them doing something that's inconsistent, would you agree with us that your opinions about the restrictions and limitations about their ability to work , um, is , is wrong? And doctors will rarely say, well, you know , I really wanna take a look at this stuff and analyze it cause they don't have time. And what will happen is that the doctors , uh , will let the disability carrier paint you as a liar, a fraud, or even worse on a linger . So I really don't want you to be creating and submitting any kind of daily or weekly activity , uh , di diary and submitting it to your disability carrier. I think just a simple diary , uh , as I've discussed in earlier , uh , episodes is appropriate, but giving too much detailed information , uh , can be a disaster. Let's talk about the one test that you should get that can make or break your chronic fatigue syndrome case . Let's take a Welcome back to a winning isn't easy. Why you must have a CPE test. If you're applying for disability benefits. As a result of me CFS me CFS , uh , is, are medical conditions that disability carriers hate because they are subjective in nature while they may recognize the diagnosis. Disability carriers always want objective evidence of your physical restrictions and limitations, your fatigue and your cognitive difficulties. That can be hard to do. I think the best way to document the restrictions and in an me CFS case is a cardiopulmonary exercise test known as a C P test. Did you know that there are different types of C P tests where there are one is a one day C P test? And the second is a two day C P test. Each has its own advantages and disadvantages. And I will tell you each can be hard to obtain a one day CPE test can be obtained from a cardiologist or an exercise physiologist. I am leery of testing done by a cardiologist cuz they're not sympathetic to why they're getting this testing , uh , for disability claim or I think necessarily how to interpret it in the context of a CFS diagnosis. Unfortunately, I will tell you the one day C P test really addresses the common issues in CFS, which is the post exertional malaise . That's why you're better off trying to get the more expensive two day C P testing. I know it could be difficult to , uh , find, and it might be difficult for you to even find one in your state. You might even have to go to New York, Washington state, California, or even Florida for the testing. And that adds to the expense of an already expensive test. What do I recommend? Well, in certain cases, I'm gonna recommend that more expensive two day CPE examination. If you don't pass the first test, you don't have to do the second day. But if you pass the first day, we really want the second day we wanna document the fatigue and cognitive issues. Now I suggest that you'd contact and discuss with your doctor , uh , where their C P testing locations in your area and their thoughts about whether or not you should undergo a one day or two day test. If you have any questions or issues, you can give my office a call and we can make some recommendations for you. What is it that you have to prove in your CFS disability claim? Well remember in a , any disability claim, be it me CFS or anything else, you have the burden of proof. And in my view, and as recognized by the courts, a C P test can objectively document the functional problems you have in performing the material and substantial duties of your occupation. Now, do I think every me CFS claim needs a CED examination? No, but I need you to remember that it's the goal standard test to document your restrictions. My recommendation is gonna be based on the strength of your medical records, your doctor's willingness to fill out an me CFS, residual functional capacity for APS forms, who your carrier is and what the policy says. So it's not just a cut and dried answer. If you do undergo a CED exam, you want your doctor to sign off on these results. Now don't be survives surprised rather if your disability carrier asks for the raw testing data so that their liar for higher peer review doctors can review and comment on the results. Now , I want you to understand that a two day C pet test is no guarantee that the carrier will agree with the results or paid benefits, but I will tell you, I have never seen a written judicial opinion rejecting the opinions of a CPE test. They're the goal standard for testing. And we wanna make sure that that C P testing corroborates any me CFS pain diary , uh , that you've been keeping. So I always want the C P provider to have a copy of that diary. If you've been keeping one, there's also an issue that you need to understand in the context of an me CFS case, and that's the subjective medical condition cap limitation. There are some disability insurance policies that limit benefits for subjective medical conditions to just two years. And that's called a subjective medical condition, policy limitation, get your policy out and look for one. And what it says is something like this, the provision may limit the payment of benefits for subjective medical conditions like fibromyalgia, migraines, fatigue, muscle pain, or weakness to just two years. So depending on the terms of your policy, a C P test might help us get past that two year subjective medical condition limitation. Again, each case is fact and medical specific. Well, I hope you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, please like our page, please leave a review and please share it with your family and friends. And also please subscribe to this podcast. That way you're gonna be notified every time a new episode comes out. Additionally, our 2022 KV law scholarship is up and running. We're taking entries until August head over to the KV law.com scholarship , uh , page to enter . I hope you tune in next week for another insightful episode of winning. Isn't easy.