Winning Isn't Easy: Long Term Disability ERISA Claims

The Common Symptoms Of Multiple Sclerosis That Carriers Will Look For In Your Medical Records & The Disabling Symptoms They Will Overlook To Deny Your Claim

August 09, 2022 Nancy L. Cavey Season 2 Episode 55
Winning Isn't Easy: Long Term Disability ERISA Claims
The Common Symptoms Of Multiple Sclerosis That Carriers Will Look For In Your Medical Records & The Disabling Symptoms They Will Overlook To Deny Your Claim
Show Notes Transcript

In this week's episode of Winning Isn't Easy - Nationwide ERISA Long Term Disability Attorney Nancy L. Cavey talks about " The Common Symptoms Of Multiple Sclerosis That Carriers Will Look For In Your Medical Records & The Disabling Symptoms They Will Overlook To Deny Your Claim"  and much more!

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ERISA Disability Attorney Nancy L. Cavey:

Hey, I'm Nancy Cavey, national ERISA, and individual disability attorney. Welcome to a winning isn't easy. Before we get started, the Florida bar tells me I have to give you a legal disclaimer. So I'm gonna give you that. Disclaimer, this podcast is not legal advice, but 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 multiple sclerosis? If, so this episode is for you now, if you don't have MS. I still think there are some valuable takeaways that you can learn from that may be applicable to your case because disability carriers play the same games. If you will. I've talked about MS before in other episodes, but I want to do another episode because this is just a hot topic today. I'm gonna talk about three things. Number one, what are the common MS. Symptoms that disability carriers look for in your medical records? Two, how does stiffness specificity , uh, work or apply if you will, in your multiple sclerosis claim and three, what visual issues are important in your MS. ERISA disability claim? So let's take a break before we get started.

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ERISA Disability Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy, ready to get started. What are the common MS. SymptoMS that disability carriers look for in your medical records? Disability carriers don't make it easy for those who have MS, particularly in the initial stages of MS, or have relapsing remitting, MS. To get the disability benefits they deserve. Many disability policies will require that you provide objective evidence to the diagnosis of MS. Now that's generally easy to provide. However, a diagnosis alone does improve that you're disabled and unable to do the material and substantial duties of your own occupation or any other occupation. So what you need to prove is that your MS symptoMS are severe enough to cause the impairment of your ability to do those material and substantial duties of your occupation or any other occupation. What are the symptoMS that you should be documenting in your medical records and in a , uh, diary or log? Well, I promise you, your disability insurance carrier is gonna have your medical records reviewed by their medical staff who may or may not get MS. They may not get the symptoMS of MS. And they certainly don't get the impact of those symptoMS on your ability to function. Your medical records are the starting point for the disability carriers analysis. So those records should be telling the story of your symptoMS and your functionality. Now, some doctors are great historians and they take great interval histories of your symptoMS and functionalities between visits while others are not so good. I suggest that you get a copy of your medical records and see what kind of historian your doctor is. Now. You might also wanna give your doctor a document that I call symptoMS and functionality sheet, and this would outline what your symptoMS are and give examples to the doctor of probleMS that you have functioning as a result of those symptoMS better yet, you might wanna keep a diary that gives , uh, a better picture of the nature, frequency, duration, intensity of your symptoMS, whether you have good days, bad days, whether you have , um, uh, days where you have less symptoMS, or in fact where days you may not have any symptoMS , uh, in a relapsing, remitting type situation. You obviously wanna keep a copy of this , uh, for yourself and your doctor, but before you send it to anybody, you should have your lawyer take a look at it because consistency is key. Your medical records and your diary have to be consistent with what you tell the disability carrier on the activity of daily living forMS that you submit and what you may have up on social media. Consistency is the key. So , so what are the MS symptoMS that you should be documenting? Now? This is I think, a list that you should kind of put in a spreadsheet so that when you're creating a document, that explains what the symptoMS are. You can specifically address each one of these, not only in terMS of the symptoMS, but give examples of functionality. So the symptoMS that you should be documenting or addressing are bowel probleMS, breathing probleMS, cognitive changes, the MS. Hug, fatigue, gait difficulties, hearing loss, heat, sensitivity, impaired, swallowing, jarred, speech, numbness, optic, neuritis, pain, restless legs, seizures, sleep issues, spasticity tremors, urinary probleMS, vertigo, dizziness, and weakness. So a nice Excel spreadsheet is very helpful in my view to document these symptoMS and the impact that these symptoMS have on your functionality, because remember, you've got the burden of proof and we don't want the disability insurance carrier to Rob you of your financial peace of mind by denying or terminating your claim, because there's no objective evidence of the diagnosis and no objective evidence of your restrictions and limitations that prevent you from performing the substantial duties of your own occupation or any occupation . Let's take a Welcome back to winning isn't easy stiffness spasticity, and your multiple sclerosis disability claim. Did you know that over 80% of people with MS have some form of spasticity and it often involves tightness or pain in a limb, this can be constant. It could be episodic, and you might have increased muscle tone within involuntary movement. You probably have pain and you certainly have discomfort, and this can impact your hands, your arMS, your low back and your legs and the involvement of any one of these areas, or even multiple areas can make it difficult. If not impossible for you to perform the material and substantial duties of your occupation or any other occupation. Now, I will tell you, disability carriers don't often understand the causes effects or the types of specificity, and they tend to downplay or even minimize the functional impacts of specificity. I will tell you, they certainly don't understand the cause of spasticity. So what is the cause of spasticity in an MS uh , diagnosis and why is it important in your disability claim? Spasticity is caused by damage to the nerves that control the electrical impulses to the muscles, MS. Damages, the Mylan sheath surrounding the nerves, and it exposes the nerve fiber. I think of it like an electric wire. That's lost its insulating cover. Now not everyone who has MS. Experiences spasticity in the same way yet. I will tell you , disability carriers have a nasty habit of using or one step fits all analysis in an MS disability claim. And that's particularly true in cases of episodic spasticity , um, that can be caused by simple things like sudden movements, physician changes, extreme temperatures, extreme humidity, tight, close , and even infections. I think it's really important that you keep a diary of these triggering events so that your doctor understands this, but that that information can be provided to the disability carrier and support of your claim. Your diary or log should track this triggering event. And if it's , uh, episodic, the frequency of those episodes and what triggers it, but just as important, you should be tracking the location of the spy . And here's the key, how it impacts your , uh, ability to function at work and at home. What are the effects and types of specificity that disability carriers don't appreciate in an MS claim? Well, I will tell you that disability carriers don't appreciate that there are two types of spasticity that can impact the functionality , uh, and your ability to do your own or any occupation there's flexor spasticity. And that happens when the muscles of the limb are bent and it's difficult to straighten. Now, this will most ha likely happen in the hips and the knees as a result that makes sitting, standing and walking impossible that stiffness in the jerking can internally to muscle spasMS or cramping that can be additionally or painful , uh, in the entire spectrum of your symptoMS. Now, flexor spasticity can happen in the hands. That's important because unfortunately can result in clawing and make it difficult to hold a coffee cup or a pen, or to do keyboarding. That's important to document, particularly if you have an occupation that involves bilateral manual dexterity. Now, the other type of spasticity is extensor spasticity. That's the opposite in extensor spasticity, the muscles are tightened in a straightened position and it's difficult to bend, so that can make it difficult to walk, to sit and certainly to use your hands. I think that you should be taking photos and certainly video that document, the spasticity and how the spasticity impacts your ability to function. What are the side effects of treatment? The disability carriers ignore or downplay in an MS. Disability claim, disability carriers expect that you're gonna get treatment for the spasticity and that's gonna include medication and Botox. However, they don't always get that muscle relaxers like Baclofen , uh, Orine can have side effects. Those can cause sleeplessness nauseousness or feeling like you're high. Now the Botox injection can provide temporary relief of muscle spasm, but the relief is just that temporary and disability carriers , um, tend to equate these injections with permanent relief of symptoMS. That's just not the case. So you want to make sure that your medical records are documenting the extent and nature of the relief, if any, that you're getting and how long that , uh, relief has lasted. I will tell you there's medical literature that suggests that Botox is more effective in upper limb spasticity than lower limb spasticity. And again, you wanna be documenting if you're getting the injections, the frequency of your symptoMS and the nature of those symptoMS and your difficulty functioning before the injection. And then once you've had the injection over time, because as we know, the re the results of the Botox , uh, are generally only temporary. So you want to be able to longitudinally show over time, how the relief is fading and how your symptoMS and functionality , uh, are being impacted by the temporary relief that you , uh, are only getting or no longer getting from the injections. I will tell you the disability carriers, don't always get the side effects of medication, the temporary nature of Botox and the weakness that can result from the injections. So I also think that you in your , uh, diaries should be , uh, keeping a medication diary that also documents the side effects of your treatment. I don't wanna disability carrier to Rob you of your financial peace of mind by denying or terminating your disability claim for MS. So please take these suggestions. Seriously, let's take a break.

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ERISA Disability Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy. Let's talk about visual issues and your MS or risk of disability claim. Do you know that 80 to 90% of people with MS have some type of visual impairment during the course of their disease? There are three common visual probleMS that can occur. Double vision, optic, neuritis, and nystagmus. One of the keys in my view to winning your ERISA disability claim and staying on claim is to establish the objective basis for the MS diagnosis. Now, once you've done that, you also have to establish the objective basis for the visual diagnosis. There should be a comprehensive explanation in your records about not all your symptoMS, but also your visual symptoMS, including the double vision. Why, because most occupations are visually dependent. And we wanna make sure that those visual symptoMS , uh, are explained and that there's documentation as to how these symptoMS impact your ability to perform your own or any occupation, the totality of your MS symptoMS, including your visual symptoMS, if properly developed can be the basis for a winning disability claim, double vision , and your MS. ERISA disability claim five to 15% of MS. Suffers have double vision. And that's caused by the ization of the brain stem pathways that control your eye movements. The brain stem will coordinate the nerves and muscles in the eye, the ization of the nerves and muscles result in an inability of the eyes to move together. So each eye is seeing something slightly different. And as a result, you're seeing double optic neuritis and an MS. Disability claim is also key. According to the Mayo clinic, optic neuritis in occurs when they're swelling or inflammation to the optic nerve. And that's a bundle of nerve fibers that transmit visual inflammation from your eye to your brain, MS. Sufferers can feel pain with eye movement, and they may even have temporary vision loss. I know that you know this, but disability carriers don't know this. Oftentimes optic neuritis is one of the first signs of MS. Though. It can also occur later in the disease process. So again, we wanna document any optic neuritis that you have in your MS claim nystagmus. Now, according to the Johns Hopkins , uh, uh, medical site nystagmus is an involuntary rhythmic side to side up and down or circular emotion of the eyes that occur in a variety of conditions. And what the main symptom is, is the illusion that the stationary world is moving. Now that can be devastating to your ability to work. And this often occurs in diseases that will affect the vestibular system. So the disability carriers do have some understanding of it, but they don't appreciate it in the context of an MS claim. What do you need to prove to get your disability benefits as a result of visual issues in an MS. Case? I have to remind you, you, you, you have the burden of proof in the disability insurance claim. What you have to prove depends on what's in your disability plan or in your policy. One of the most important provisions of course, is what's the definition of disability. What's the definition of occupation. You have to understand what that definition is, cuz you're working backwards. Let's say the definition of occupation is how your occupation is performed in the national economy and not from your employer. Well, what you wanna do is get your employer's description of your occupational duties. Look up your occupation of the dictionary of occupational titles, and then write down what it is you actually do. We wanna try to create a composite , uh, description of your occupational duties and that's particularly true where there is overlap. Why is that important? Because that's the starting point for your proof. Think about what the visual duties you have of your occupation, and then think about what it is about your visual difficulties. It would make it difficult if not impossible, to perform your occupational duties. So let me give you an example. Let's say you're a graphic designer or a lawyer or another professional that needs to use a computer. What you wanna do here is identify the occupational task that you have difficulty doing or can't do anymore and duty by duty, write 'em down and draw a line, outline the specific symptoMS that you have and how those symptoMS impact your ability to function. You can do it in an Excel spreadsheet format, but we want to have specific identifying information. And of course you may not be able to do that, but certainly you can get the assistance of a family member or friend to help you create this document. I, I know that it can be difficult to look at a computer because of blurry vision pain in the eye or sensitivity to light. You wanna document those things. One of the things you wanna do with this is to give this information to your doctor, cuz it's gonna help them complete attending physician statement forMS that the carrier's gonna ask for. And you also wanna have your lawyer review this because consistency is always the key. What you say in this document has to be consistent with what you put on the activity of daily living form and has to be consistent with what's in your medical records. That's gotta be consistent with whatever you've got on your social media posting. And as you know, everything should be taken down and no one should be posting anything about your , uh, activities. It will come back and bite you big time . It does take teamwork to understand the terMS of your policy or plan. You gotta figure out what the occupational definition, what's the definition of disability what's in my medical records. How am I gonna explain my symptoMS? How am I gonna explain the impact of functionality and how can I present this to the disability carrier and my doctor in a simple format. I don't want you to give the disability carrier a reason to deny your claim. Disability carriers are in the business of denying claiMS and you shouldn't give them an easy win with reasons to deny slow walk or terminate your MS claim. 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, sharing it with your friends and your family and subscribing to this podcast. You'll get notified every time. There's a new episode that comes out. I hope you tune in next week for another insightful episode of winning . Isn't easy.