Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 15: The Evaluation Process Used In Every Long-Term Disability Benefits Claim For Diabetes

November 30, 2020 Nancy L. Cavey Season 1 Episode 15
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 15: The Evaluation Process Used In Every Long-Term Disability Benefits Claim For Diabetes
Show Notes Transcript

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about "The Evaluation Process Used In Every Long-Term Disability Benefits Claim For Diabetes" and much more!

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Nancy L. Cavey:

I'm Nancy Cavey national ERISA and IDI disability attorney. Welcome to winning isn't easy. November is national diabetes month. This episode is devoted to those who have diabetes and are facing the difficult decision to stop work and apply for benefits or appeal or wrongfully denied or terminated disability insurance claim. Before we get started, I've got to give you a legal disclaimer, this podcast isn't legal advice. The Florida bar association says that I have to say this. So now I've said it let's get going. In this episode, I'm going to talk about the six step evaluation process used by disability carriers in every diabetes claim. The myths that disability insurance policy holders believe about diabetes, disability claims, and the truth. The real life stories about this way. Claims handling hopes that a long-term disability benefits would be paid to a sales representative. Disabled by diabetes are dashed by the court. And the first surrogate seldom SREs from upholding and this way insurance carriers requirement that a policy holder produce objective medical evidence of disability. We'll take a quick break and stay tuned. Let's talk about the six step evaluation process used by disability carriers in every diabetes claim, diabetes will disrupt the production of insulin . Insulin is essential to the absorption of glucose from the bloodstream into the body cells for conversion into cell your energy. Now diabetes affects many body systems. And as a result, I think it's important to develop the medical evidence, not only documenting diabetes, but the complications of diabetes, the complications of diabetes can include hyperglycemia, which can lead to a disruption of nerve and blood vessel functioning. In many parts of the body. There should be medical evidence. If you have the following of diabetic peripheral neuropathy, neurovascular disease, amputation, diabetic retinopathy, coronary artery disease, peripheral vascular disease. Gastro-paresis a poorly healing, bacterial and fungal and skin infections, diabetic peripheral, and sensory neuropathies, cognitive impairment, depression, and anxiety. So what is the evaluation process used by disagree cares in every diabetes claim. I think you should understand this evaluation process and the games that can be played by carriers , not only in evaluating a diabetes claim, but a case involving the complications of diabetes. The first thing that carrier's going to ask is is your diabetes a pre-existing condition. Now every disability policy has a pre-existing condition clause that says if you become disabled within a certain period of time after you've been covered with under the policy, your disability is considered to be a pre-existing condition. The carrier doesn't legally have to pay your benefits. It's crucial, therefore that you understand how the preexisting condition clause works. And if it's applicable to you so that you don't pick the wrong date to become disabled. The second thing the carrier's going to ask is is there objective basis of the diagnosis because many policies do require objective medical evidence of the diagnosis of diabetes or his complications. I think it's crucial that you get the diagnosis from an endocrinologist internist or neurologist and give them an accurate history of your symptoms at each visit. The carrier's going to be looking closely at your medical records to make sure that the history of your symptoms and your exam findings are consistent with diabetes, worse complications. So what is the objective basis of the diagnosis that the carrier is going to be looking for? There are three types of blood tests that are commonly accepted as objective evidence and diabetes. There are fasting plasma glucose test, which is given after an eight hour fast, an oral glucose tolerance test. That's given after an eight hour fast followed by the administration of a glucose containing beverage and an additional two hour wait and a random Plaza, plasma glucose test, which measures the blood glucose without any kind of fast. So the carrier is also going to be looking to see whether or not you have any , um, complications of diabetes. And that's going to include objective evidence of neuropathies that affect two extremities that will cause disturbances in your ability to stand or walk acidosis, which is an abnormal increase in the acidity of bodily fluid that will occur and is documented by blood tests, diabetic neuropathy that will cause tingling and numbness of your upper lower extremities and visual problems that affect your ability to read or drive the third thing that carrier's going to be looking for as objective medical evidence. That's the basis of the restrictions and limitations assigned by your physician. Your doctor is going to be asked to complete an attending physician statement form that explains your restrictions and limitations. And I find that these forms purposely to not ask the right questions that they ask those questions, because they don't want to know whether or not you can either in your own occupation or any other occupation based on the definition of your , , this way under your policy. Now, the form is going to ask your physician to explain the objective medical evidence, to support your restrictions and limitations. And that can be tough because some of the complications of diabetes can be subjective. I think one of the ways to help your doctor , um , explain it, eh , their answers on the APS form is for you to give them a history of your symptoms and examples of how your symptoms impact your ability to function. So let's recap, we've talked so far about the evaluation process used by carriers in every disability claim. Number one is your dis D diabetes, a preexisting condition. Is there objective evidence? That's the basis of the diabetes diagnosis is or objective medical evidence. That's the basis for the restrictions limitations assigned by your physician. After a short break, I'm going to talk about the last three steps that carrier use in the evaluation process. So stay tuned.

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Nancy L. Cavey:

I wish and process used by carriers in every disability claim. Number one is your diabetes. A preexisting condition is objective evidence. That's the basis of the diabetes diagnosis is or objective medical evidence. That's the basis for the restrictions limitations assigned by your physician. After a short break, I'm going to talk about the last three steps that carrier use in the evaluation process. So stay tuned.

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Nancy L. Cavey:

Welcome back now. Step four, the carrier's going to ask, is there a causal relationship between a diabetes or its complications and the assigned restrictions and limitations and your inability to do either your own or any occupation? Now, I think that the key to getting your benefits is an APS form that has been supplemented with a social security this way, residual functional capacity form. I generally will modify the APS forms with questions from that social security form, to make sure that your physician is asked and answers all the right questions about your diabetes, horse complications, the carrier's going to have their medical unit review your file. The APS forms to determine what they think your real restrictions and limitations might be. And unfortunately they don't always accept what your physician has to say. It will often hire , , a liar for higher medical Gunn , who will say that there isn't any objective basis for the restrictions and limitations assigned by your physician. Now, I think one of the other reasons by for having this social security residual functional capacity form completed is that these forms will document the complications of advanced diabetes. So if you are having neuropathy that affects your extremities and causes difficulty with standing, walking, or using your hands, or you have acidosis, which is an increase in the acidity of the blood fluid , , or you have diabetic neuropathy that causes problems with your vision. Those are the kinds of things that I think can tip the scales in a disability insurance claim. And many times I find the carriers will only approve a diabetes claim in conjunction with one or more of other disabling conditions caused by diabetes. So you also may have complications , , or medical conditions caused by diabetes. That will cause you to have cardiac issues, or you might have circulatory issues. Those are the kinds of other medical conditions that should be developed in conjunction with your , , diabetes claim and addressed by your physicians and the attending physician statement form. So what happens next after these forms have been filled out, the carrier is going to send your file to a vocational rehabilitation counselor, to determine your occupation. At the time he became disabled, the physical duties of your occupation, and whether you can perform those occupational duties based on whatever your restrictions or limitations , , Arlet the carrier thinks that are applicable. You've got to show a causal relationship between those restrictions, limitations and your inability to do your own or any other occupation. So what is your occupation? Let's break out that policy and learn whether or not the policy defines your occupation on the dictionary of occupational titles description , , how it's performed for your employer, how it's performed in the national economy, how it's performed in a local economy. You need to know how the carrier is defining occupation, because that's going to be the test. Now, another game of carriers will play is to get your occupation wrong on purpose. Well , why would they do that? Because if they can pigeonhole you into a job that can be performed at the sedentary level, bingo, they have got a way to deny your claim. And that's particularly true. , when you're in the , um, what's called the, any occupation stage of your claim and the is going to be looking to tag you into , , a set of restrictions limitations that will allow them to find a quote unquote occupation that you can perform , , in view of your education skills and restrictions. Now let's remember is not a real world test, and there will be using , um, a transferable skills analysis to analysis to determine what skills you have that might transfer. And they might even do a labor market survey doesn't necessarily matter that these jobs really do exist in the people are hiring, or that you could even get the job. As I said, this can be a mythical test. And one way to start attacking the basis of these vocational opinions is that residual functional capacity form and an APS one that's well completed. Next thing they're going to do is say, okay, are your activities of daily living forums consistent with what's in your medical records or what you tell the adjuster during a call now they are going to be looking at your medical records. They want to look to see how long you've had your symptoms, the nature of your symptoms, how those symptoms progressed or changed over time. What have you told them about your symptoms and how they impact your activities that they're living as compared to what you reported on the ADL form ? What's been the nature of your treatment, any side effects of medication and , um, what is the impact of those , um, side effects of medication on your restrictions and limitations? Now, generally, what I find is that there, if there is any inconsistency at all, between the activities of daily living forms and what's in your medical records or what your doctors filled out, it becomes fodder for them to either set you up for surveillance or to set you up for a statement to try to catch you , , in inconsistencies inconsistencies, or even outright lies. The sixth thing they do is to see if they can apply a policy limitation that will limit how long they have to pay a claim. Now, there might be a subjective conditional clause in your policy that will legally limit the carrier's obligation to pay. And they're going to be looking for that clause. They're also going to be playing with , , the stabilization of diabetes. In other words, if your condition is stable with medication , , they're going to say that you can work and that you're simply refusing to work, not withstanding the progression of your diabetes or as complications. So you need to understand that these , um, subjective policy limitation clauses will say that if you have problems with pain , , fatigue , , sleepiness , , dizziness, all that sorts of things, those are really subjective conditions. And we're going to apply that policy limitation, not withstanding the fact that your diabetes might be progressing or that you're having complications of treatment or that you even have other medical conditions caused or contributed to by your diabetes, such as a cardiac condition. So let's summarize the six step evaluation process used by carriers in every disability claim involves one, an analysis of whether your diabetes is a preexisting condition. Two , whether there's objective medical evidence, that's the basis for that diagnosis. Three is there objective medical evidence? That's the basis for the restrictions and limitations assigned by your physician for is their objective , , evidence of a causal relationship between your diabetes and its complications and your restrictions and limitations with your inability to do your own or any occupation. And number five is what you say on your activities of daily living for them , consistent with what your medical records have to say or what you've told that adjuster during a call. And then lastly, does the policy have a limitation that lets them live at your benefits? I hope you've enjoyed this segment. We're going to take a quick break and we're going to talk next about myth-busting . The myth is claims are what in loss with the attending physician statement form and the APS form that the carrier has sent ask all the right questions of your doctors. So we're going to talk about myths Next. Welcome back. Let's do some busting in today's myth. We're going to be talking about the myth that the APS form, the disability carrier will send to your doctor, ask all the right questions about your diabetes or its complications so that you can get the disability benefits you deserve. Now, I have told you that the APS forms rarely asked the right questions. Um, and that's on purpose. These questions will generally ask , , , for these forms. We'll ask questions about your ability to sit, stand, walk, lift, carry bin squat, maybe use your upper and lower extremities, but they're rarely ask questions about your ability to focus or handle simple instructions, or whether you have any sensory limitations in terms of peripheral neuropathies with tingling and numbness, so that you've got problems with balance and walking. They don't ask questions about whether you have blurred vision or frequent urination. I think that all of that is crucial to establishing that you have, don't have the ability to do your own occupation and at the Antioch occupation stage can't even do sedentary work. In fact, I'll tell you these forms, don't even ask questions about the side effects and medication. I think that the exertional limitations are key, and that is an inability to lift a maximum of 10 pounds at a time sit six hours and occasionally walk or stand two hours out of an eight hour day. That's the sedentary functional limitations. But I find that it is the non exertional limitations that are the key to getting these benefits. So if you have to take frequent breaks because of fatigue, or because you've got to run to the restroom, if you have to take naps because of the fatigue, if you have tingling or numbness in your hands, that cause you not to be able to meet patient production requirements, or you're going to be absent more than four times a month, that those non exertional impairments should reduce and eliminate your ability to do even sedentary work. And that's particularly true. If you have neuropathy that impairs your ability to use your hands or that you are having complications from diabetes, including visual loss, we want to develop all of those complications from diabetes , , in not only your medical records, but the residual functional capacity forms. So what's important from a vocational standpoint, are symptoms such as visual impairment, fatigue, numbness in your hands or feet, incontinence, pain, mental confusion, depression, side effects of medication, frequent urination, product hunger, the need to eat frequently. If you're having any of those symptoms, you want to make sure that those are developed in your medical records and that you're giving your doctor an interval history about these symptoms, because the truth is that your doctor will rely on this information and completing the APS, warm the diabetes, residual functional capacity form. The truth is that that form that you get from the carrier is not designed and does not ask the right questions about your diabetes. It should be supplemented with a social security disability, diabetes, residual functional form that can be used in both a disability insurance claim and your social security disability claim. In the next step. I'm going to tell you two stories about disability policy holders, who had diabetes and how the carriers handled their claims.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. You know, I read the cases that come out across the United States, and I learned a lot of things from those cases. I learned how this way carriers handle claims how , um, the experts that they use , um, the rationale they come up with claims denials and how courts , , deal with these claims. Unfortunately, sometimes these court cases can read like horror stories. And I'm going to tell you two more stories today that illustrate the points we've made about how disability carriers evaluate the diabetes claim. And I think that this reinforces the theme that we've discussed today, about how carriers will evaluate claims and they don't always appreciate restrictions and limitations. So let me tell you about Mr. Cosmin off. He was a sales representative, disabled by diabetes, and his hopes were dashed by the court. Now sales representatives work long hours. They prepare and make sales presentations. They travel locally and across the country and even across the world. But what happens when a sales representative has diabetes, that's aggravated by the physical demands of their duties is crucial that the claim be supported by medical evidence that establishes the objective basis of the restrictions and limitations, the risk of further injury or acceleration of a disabling medical condition. And even the risk of death simply saying that you have those kinds of issues doesn't make itself . And that's what happened to Mr. Cosmin off in his claim against Unum. Now he worked for Thomas Rueters and became disabled as a result of diabetes. He claimed that he was entitled to those benefits because performing his duties involved a high risk of injury or mortality due to his inability to control his blood sugars. He worked as much as 12, 18 hours a day as he traveled across the United States, of course his claim was denied and he appealed the Unum denial. The bad news is that the court upheld the denial of benefits on the basis that the records did not support a functional loss. And the court also noted that his employer had made an offer of accommodated work, which was refused. Now, in retrospect, what he should have done was have his doctors address accommodations , , and submit any proposed accommodations to his employer, try the accommodated work. And if he failed at that, have his doctors address in objective medical terms, why it failed the doctor should have also address the impact of the , , , of working and how it contributed to the progression of his disease and potentially was life-threatening. So the key year is to read the policy cover, to cover and learn whether objective proof is required, whether that is defined , um, w determine whether there's any accommodation provisions in the policy and then plan, plan for how you're going to make this argument , , that the accommodations either aren't feasible, or if there are accommodations that they weren't successful and how your , um, um, occupational duties resulted in a progression of the symptoms or even threatening your life. Obviously, this is going to require a review of your medical records. More importantly, in my view, it's going to require coordination with an experienced ERISA disability attorney. Now, let me tell you the story about the first circuit. And there are a tough circuit. They generally will seldom stray from holding a dissuade carriers requirement that there be objective medical evidence of disability. And you can hear this theme while there isn't a uniform discipline policy in the United States. Every carrier has got multiple versions of their policies, but rarely do I find that , , these policies , um, we'll , we'll give you a free pass on objective medical evidence. Now I know that your employer, your human resources department probably never told you that you had to have objective evidence of disability or objective evidence of restrictions and limitations. And that's bad news for you because you bought something thinking it was going to cover you, and you didn't really understand what it is you had to prove. Now, the other issue also in these policies is whether there is what's called a subjective medical condition. Um, and many policies will have a laundry list of conditions that are not considered to be objectively based like fibromyalgia or pain or tingling or numbness. So let me tell you the story of Mr. Santana Diaz. He was insured , , through a plan , , administered by MetLife and MetLife paid him two years of benefits under the mental nervous limitations. Now he had diabetes and had diabetic neuropathy in his hands and feet. It caused tingling and numbness. The MetLife policy required that he submit objective medical evidence of clinical findings of the nerve pathology to continue payment of his benefits beyond two years. Like the case that I told you about where the policyholder had to have an EMG and nerve conduction study test to document his diabetic neuropathy. And unfortunately, Mr. Santana Diaz did not have that objective evidence. And as a result, MetLife denied his claim. This policy gave MetLife the discretion to interpret the term objective medical evidence, and to determine whether there was any such evidence in the claims file. The first circuit said, look, the policy gives MetLife this discretion, and we're going to defer to MetLife in determining whether there was any objective medical evidence to support the continued disability benefits. Unfortunately, for him, his claimed denial was upheld. And you can see in both of these cases that not withstanding the diabetes and the complications carriers are going to insist on objective evidence of the diagnosis and objective evidence of the restrictions and limitations. Hopefully this episode has opened your eyes to the kind of proof that needs to be submitted to support any disability claim. Well, that's it for this episode, if you liked this podcast, please like this page, leave a review and please share it with your friends and family. Our podcast comes out weekly, so stay tuned. And I look forward to talking with you next week. Take care.