Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 28: Parkinsons and Long Term Disability Claims

April 19, 2021 Nancy L. Cavey Season 1 Episode 28
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 28: Parkinsons and Long Term Disability Claims
Show Notes Transcript

In this week's episode learn about: "Parkinsons and Long Term Disability Claims." and much more! Nancy Cavey is a national Long Term Disability ERISA disability lawyer who specializes in helping those with disease based insurance claims get the disability insurance benefits they deserve!

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/

Need Help Today?

Need help with your Long Term Disability or ERISA claim? Have questions? Please feel free to reach out to use for a FREE consultation. Just mention you listened to our Podcast!

Review like and give us a thumbs up! We love to see your feedback about our Podcast!

Nancy L. Cavey:

I'm Nancy Cavey national ERISA and individual disability attorney. Welcome to winning. Isn't easy. Before we get started, I've got to give you that legal disclaimer that the Florida bar requires. This podcast is not legal advice. So now I've said it, but nothing prevents 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 your disability benefits. So off we go, April is national Parkinson's month. This episode is going to be devoted to Parkinson's disability insurance claims. I'm going to cover a lot of topics today. Um, and the first topic I'm going to cover is the evaluation process used by every disability insurance carrier and deciding whether or not to pay your Parkinson's claim and deciding whether or not they're going to continue to pay your benefits, whether they're going to deny or terminate your claim. Secondly, I'm going to talk about what you need to know about how a disability carrier views, a Parkinson's claim. And third, I'm going to talk about the attending physician statement form the key to winning your disability benefits. And I'm going to close with my David versus Goliath story, proving that your Parkinson's symptoms cause functional limitations and the story of Ms. Withers , uh , Donna is director of supported employment programs and how she beat mutual of Omaha . This story will tie this whole episode together. So before we get started, we're going to take a quick break. So stay tuned.

Promotional Message:

You've been robbed of your peace of mind from your disability insurance carrier. You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long-term disability claim process, request your free copy of the book at caveylaw.com today.

Nancy L. Cavey:

Welcome back to winning. Isn't easy. I'm going to first talk about the evaluation process used by every disability insurance care in deciding whether to pay your Parkinson's claim and in deciding whether or not they're going to deny your benefits, terminate your benefits, or continue to pay your benefits. Now, I know that you've purchased your disability policy through your employer or on your own to provide your family with peace of mind. If you become disabled, what you do need to understand is that a disability carrier will rarely pay benefits for PD Parkinson's disease in the early stages of the disease. And that's because it's often difficult to diagnose and even difficult to get doctors to assign restrictions and limitations. So what do you need to know about Parkinson's disease? Uh, that disability carriers just don't seem to understand? Well, PD is a gradual, but it's a progressive disorder of the central nervous system that impacts your movement. Now in the early stages, there'll be noticeable tremors. And just one hand you'll have little or no , uh, um, um, facial expression and your arms generally don't swing when you walk and these symptoms of course are going to be progressive. Now also the symptoms of Parkinson's can include cognitive issues and emotional issues. Their presentation varies from person to person , um, that can make it difficult, not only difficult to diagnose, but difficult to , um, to see the progression of the disease process. And those two things really play into a disability carriers , uh, weapons. Uh, they're looking for a definitive diagnosis. They're looking for a progression of symptoms that impact your ability to function. And they're looking for restrictions and limitations that will impact your ability to do your own or , uh , any occupation. Now they apply or try to apply it cookie cutter approach to these claims. And they don't look at a person's the totality of symptoms or the progression of the symptoms. And that is an issue. So what is the evaluation process used by a carrier in every Parkinson's claim? First thing they're going to do is look for defenses to the claim, and that's a call of coverage. Defense. They're going to ask first is your Parkinson's disease, a preexisting condition. Every policy has a pre-existing condition clause . And it says that if you become disabled within a certain period of time, after you have become covered, your disability is considered a pre-existing condition. Now they're going to do a look back period, and they're going to see whether or not you got treatment for your disabling condition during this period. And if so, the carrier is legally , uh, able to deny your claim. Now, this can be a huge problem in two respects. One is if you've just been hired by the employer and you are getting on their insurance coverage , uh, and you're getting treatment for your PD or your PD, hasn't been diagnosed, but you're getting treatment for other , uh , issues. Uh, the carrier might say that is pre-existing condition , but it can also be a problem if your employer is switching , uh , carriers. Uh, and unless there's an agreement between the insurance companies to , uh, to address preexisting condition , uh , uh, situations , um, carriers, the new carrier might be inclined to say, Oh no, no, you , uh , are , are excluded from coverage because it's a pre-existing condition. And the original carrier will say, well, you were never disabled during the period of time when we covered you. So that can be an issue. And one that you really need to consult a lawyer with. If you're learning that your employer is going to be changing disability, insurance companies, number two, they want to know if there is an objective evidence or medical evidence. That's the basis of the diagnosis. Now there are disability policies that require objective medical evidence of diagnosis, and that quite frankly, should be coming from a Parkinson's disease specialist. It's also crucial that you're giving an accurate history of your symptoms , uh , at each visit. So you might have uncontrolled tremors, muscle stiffness, and inability to do voluntary movements, impairment , posture, or balance , uh , loss of automatic movements, including blinking or smiling changes in your speech, changes in your writing, difficulty concentrating, cognitive issues, depression. Now the important thing here is that they carrier is looking closely at your medical records to make sure that your history of your symptoms is consistent with Parkinson's. Your diagnostic findings are consistent with Parkinson's and the examination findings are consistent with Parkinson's. Cause they're looking for inconsistent inconsistencies as a way to deny your claim. Now, the next question that they're going to look at her issue, they're going to look at is, is there an objective medical evidence? That's the basis for the restrictions and limitations assigned by your physician? Your doctor is going to be asked to fill out these blasted forms called attending physician statement forms, APS worms , those forms ask about the restrictions and limitations. But if you've ever looked at them, they really don't in my view, ask the right questions because they're designed to be generically applied. They're also designed to lead the doctor to say that you can engage in sedentary work or some of the material and substantial duties of your occupation. Now, if you're in the own occupation stage, that's one thing. If you're in the NT occupation stage, that can be an issue because if you can do sedentary work, the carrier is going to deny your claim on the basis that that sedentary workability lets you do other work. Now the APS swarm is going to ask your physician to explain the objective medical evidence that supports your restrictions and limitations. And that can be tough as we've talked about before because of the nature and the progression of the symptoms and the fact that people present differently, people have good days, bad days. Um, people have different reactions to medications. So there is no uniform , uh , presentation, but your doctor has got to explain the objective medical evidence in your case, in your case that supports these restrictions and limitations. Now , uh, I think that one of the ways to help your doctor do this is to actually give your doctor, what's called an interval history of your symptoms and how those symptoms impact your functionality. And I'm going to give you a tip about the APS form later in this podcast. Now number four, is, is there a causal relationship between the Parkinson's diagnosis and those restrictions or limitations and your inability to do your own or any occupation? So the key to getting your disability benefits is that APS one. But what I do is I supplement that APS form with a social security disability Parkinson's residual functional capacity form. Now why would I do that? Well because the social security RFC form asked the right questions about a Parkinson's case, ask the right questions about your symptoms and ask the right question about your functionality. Now the carrier is going to have their medical unit review your file and the APS forms to determine your real restrictions or limitations. Unfortunately, they don't have to accept what your physician has to say. And sometimes they will hire a gun, a medical gun that will say that there's no objective basis for the restrictions and limitations assigned to your, by your physician. So at step four, what's going to happen. Next is they're going to send your file to a vocational rehabilitation counselor ultimately to say, what is your occupation at the time you became disabled? What are your physical duties? What are your cognitive duties? Because they're going to try to determine whether or not there is a causal relationship between the diagnosis and the restrictions and limitations and your inability to do your own or any other occupation. And of course, there's always a fight about what your occupation is. If your claim is being denied based on a fight about your own occupation, you really do need to hire an attorney because often the carriers VIII, vocational evaluator will get this tissue wrong. Now at step five, they're going to say, okay, now we've looked at your medical records, but what are your activities of daily living form say, are they consistent with what's in those records? Or is it consistent with what you told the adjuster on that phone call carriers are in the business of collecting premiums and not paying benefits. They're going to be looking at that ADL form. They're going to be looking at your medical records. They're going to see, is there any consistency or inconsistency? And there are times when those forms, those records will lead them to put surveillance on you. Um, if you think you are being surveilled, you need to hire a lawyer right away. The next thing that the carrier is going to be looking at is, okay, we've got to pay benefits, but does the policy limit how long we have to pay those benefits? Now some policies will have clauses called subjective medical condition, clauses that will legally limit how long they have to pay benefits and a subjective conditional limitation. Policy provision may say something like any medical condition that's characterized by pain or stiffness is limited to just two years or there might be a mental nervous policy limitation in the , uh, the , uh , a policy that says we're only going to pay benefits for two years. If this disability claim is caused or contributed to regardless of how small by any psychological issues such as depression, no, look, I know that depression is a feature of Parkinson's disease. And so you need to understand if there are any subjective medical condition limitations for mental nervous limitation in your policy, so that you understand how long your disability benefits are going to be paid. Now we have talked about the basics. Let's talk about how carriers view these claims, how it really works in the real world. Welcome back to winning isn't easy. So what do you need to know about how disability carriers view Parkinson's claims? Well, I've talked a little bit about how disability carriers will question the diagnosis , uh, particularly in the early stages of a claim or will , uh , question the progression of the disease because they want to make sure an insist that your PD is severe enough to significantly limit your ability to perform your own occupation for any occupation. And that creates a problem why well disability carriers will deny claims on the basis that there's no objective evidence to support your subjective PD , um, symptoms. Now, obviously some of them can be observed, but , uh , not all of them can be observed particularly again in the early stages of a claim. And there are times when , uh, the carriers will make even a more horrendous mistake. I call it a mistake because it's a leap of quote unquote logic, and they'll conclude that you're exaggerating or faking your pain. And again, that's why it's important that your doctors explain the objectives , findings that support your complaints and that your symptoms are consistent with a diagnosis or progression of the disease and that those symptoms impact your functionality carriers. Don't always appreciate the fact that you'll have symptoms that make it difficult for you to sit, stand, turn side to side change positions, walk, bend, squat, use your feet, have visual issues. And they certainly don't IM uh , appreciate the cognitive issues that impact your ability to work. So there are times when I suggest that because of the way carriers view, Parkinson's claims that you have several different types of testing. First is to potentially get a functional capacity evaluation by a patient friendly physical therapist who understands that the purpose of this FCE is to address the policy definition of your own occupation or any occupation. Now this can help your doctor fill out the APS one, but more importantly is considered to be an objective measure of your functional restrictions and limitations. The other thing there I suggest at times is neurocognitive testing to document the problems that you have with concentration, executive functioning sequencing, staying on pace. It's expensive testing, and I don't always recommended, but when I do recommend it, I want to pair it with questions , uh, for the , uh, neuro-psychologist to address regarding the cognitive duties of your occupation, because I want to connect the dots between the cognitive re responsibilities that you have and the cognitive impairment as documented by the testing. Now, what other things can you do? Well, I think that keeping a diary or even shooting video can be of great assistance in documenting the frequency and severity of your symptoms and how they impact your attendance at work, your productivity at work, your activities at home and modifications that you might need both at work and home. So I think that that shooting a video can help. And as part of shooting that video, you might also want to talk about any side effects of medication. As I've said, documenting your symptoms are crucial. So what are the other tools that assist , um, and addressing the way carriers view these files is to make sure that you are giving a good interval history of what your symptoms are and how their symptoms impact your ability to function. You want to tell the doctor about good days and bad days and flare ups. Now I think that that is crucial , uh, because , um, we want to show that the progression of your symptoms and its impact on your functionality. And I know the doctors don't always do a great job of charting. So you want to keep the symptoms and functionality, document a copy for yourself and give a copy to the nurse , uh , and ask that that be made part of your chart. Now, I think that this is particularly crucial if you have been working and your disease is progressing , uh, because you just can't really say that you're going to stop working and you've worked the day before. In other words, it doesn't make sense. You worked on a Thursday, but you can't work on a Friday. So we have to show a progression of your symptoms and preferably , uh , one of the ways to address how carriers look at these claims is to have you do what I call a slide outs like sliding into home plate. You want to gradually , uh, show that your symptoms are getting worse and that , uh, you can no longer function so that you're sliding into home base , uh, scoring that point and proving to the carrier that as of this particular date and time, you really are disabled. Now carriers have a nasty habit of denying benefits after a completion of treatment or a period of stability. Why? Because they assume that you can immediately return to work. And they'll often , uh, also , uh, misapprehend or fail to even apprehend the progression of Parkinson's symptoms, the treatment and the side effects of medication. They think that once you've got treatment and you've improved, that you're cured, or you can go back to work, but they don't understand the complications of treatment, the need to change treatment modalities or how your disease is progressing. And that's why you've got to spell this out in detail in your medical records. And again, I think that symptoms and functionality worksheet that we have our clients use is, is key. And I think that's why it's important that your records are documenting your symptoms, documenting the objective medical testing, having , uh, your residual functional capacity for APS form completed, all of which are consistent because how is the carrier also going to be looking at this claim? Well, they're going to be looking at that medical record, all those charts that talk about how long you've had your symptoms, the nature of your symptoms, how their symptoms have progressed or changed over time, what you've told your doctor about what you can do. And by the way, particularly your ability to sit, you need to alternate sitting and stand standing problems with bilateral manual dexterity problems, with your vision problems, with cognitive issues. And they're going to want to see the nature of your treatment and the response to that treatment. Now that's just part of the medical analysis that they're going to do, and they may also take another view of the case. And that is, they may say, look, we're really looking for a way to deny this claim. We're going to exercise our rights to an independent medical examination. I call it the liar for hire peer review examination. The liar for hire has been hired for one reason. And it's not to give them an honest opinion about your diagnosis, the progression of your disease, the restrictions, the limitations, right ? Anything about your case. They are looking for a reason to deny your claim. Now, if that's been scheduled again, I think you need to consult an attorney to learn about your rights and IME. Whether it can be videotaped, whether you can be witnesses, how you can be prepared. So you really do need to understand the games that disability carriers are going to be playing, how they look at the claims and the tools that they are going to be using to try to deny your claim. So let's take a break for a moment.

Promotional Message:

Are you a professional with questions about your individual disability policy? You need the disability insurance claim , survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to do's regarding your disability application that will assist you in submitting a winning disability application. This is one you won't want to miss for the next 24 hours. We are giving away free copies of the disability insurance claims survival guide for professionals order yours today at disabilityclaimsforprofessionals.com.

Nancy L. Cavey:

Welcome back to winning. Isn't easy. Now I've been , uh , hammering the attending physician statement form, which is the key to winning your disability benefits, but I'm going to have her a little more. Um, I told you that the APS warmer carriers use don't ask the right questions, which is why I always want to supplement it with the social security disability PD , uh , residual functional capacity form. Why do I want to hammer that? Because if you are at the, if you're at the own occupation stage and your occupation is sedentary in nature, where you're the, any occupation stage , uh, the game in both of those situations is for the carriers to say, Hey, based on the APS form, based on our review of the , um, your medical records, our doctors say you can do sedentary work. Well, why would they want to do that? Because they could deny the claim. So what is sedentary work is the ability to lift a maximum of 10 pounds at a time, sit six hours occasionally and walk and stand for two hours out of an eight hour day. What do you want? You want an APS or an RFC form that says that you're functioning at less than a century from an exertional standpoint. Now, if you can't lift more than 10 pounds, if you can't sit or walk or stand more than two hours out of an eight hour day, you're functioning at less than a physical sedentary capacity. But the carriers APS one rarely asked the right questions about Parkinson's symptoms, including issues with the need to take breaks, cognitive impairments, the need to take naps because of fatigue, visual issues, concentration issues. The fact that you might be absent more than four times per month, the side effects of medication, all of those things must be developed. If your carrier's , uh , APS warm , doesn't ask the right questions, or you're not using the social security disability, residual functional capacity form. So you need to understand the key. If you have an own occupation and your occupation is sedentary, or you're now in the AU or any occupation stage is that you got to demonstrate that you can't even do sedentary work. So hopefully you understand the issues and how is crucial to erode , uh, uh, your level of physical functioning and the non exertional functioning to sedentary or less. And that will make it harder for the carriers, vocational evaluator, to say that you don't meet the standard of disability. Let's take another break. Welcome back to winning. Isn't easy. I'm going to be telling you the David versus Goliath story that ties this all together. And we're going to talk about how Ms. Withers adopters director of supported employment program proved that her Parkinson's symptoms caused functional limitations and how she beat mutual of Omaha. You're ready to hear this story. Okay. So I have told you that , uh , disability carriers are always looking for a way to , um, discredit your symptoms , uh , and your , um, functionality. Um, and so , uh, let me tell you this particular story, because I, as I said, I think it ties this all together now. Um, one of the things that disability carriers are going to be looking at is the medical records. They're going to look at your activity of daily living forms, and they're going to be trying to determine what your level of functionality is. Uh , and as I've said, it's important that you have the symptoms and functionality form to document this so that we've got a good interval history. Now there is, as I've said, no uniform definition of disability and a disability policy. So you need to get out your policy and review that definition because the policy probably says that you would be considered disabled. If you can't do the material and substantial duties of your own or any occupation and your activities of daily living can demonstrate the limits on your ability to perform your own occupation. Particularly if your symptoms are limiting your ability to sit, stand, or walk for more than an hour without having to rest, whether it impacts your ability to use your upper extremities, whether you have difficulty remembering simple instructions or completing a task because of your symptoms. Now, what you need to, to understand in this particular case that I'm going to use as an example, is that the Parkinson's disease can not only be difficult to diagnose, but that that's going to be used , um, in the carrier's favor. And they're also going to question whether their symptoms result in functional impairment. So let me tell you what , um, mutual of Omaha did in this case. They use those kinds of excuses and the federal judge said no way. So Ms. Withers was employed by a Donta as the director of supported employment program. This job required a high level of cognitive functioning. She provided oversight to individualize , placement and support for supported employment programs. She did training and supervision. She monitors Steve staff in the field. She implemented quality improvement plans and acted as a liaison to other departments and agencies within this , uh , organization. Now, obviously this job required effective written and verbal communications functioning with team members, adapting to new and changing situations, responding to emergencies and even safety compliance. That's a big hat, isn't it. Now her employer supported her claim and wrote a letter to the disability carrier saying she couldn't interact with the employees and clients at the capacity that was safe for her or around those. So medically over the years, she had been diagnosed with [inaudible] disease Hashimoto's syndrome and an excessive sweating disorder. She even underwent a tilt test table for , uh , a postural orthostatic hybrid attack, a cardia , uh , known as pots , and that yielded a borderline result in may of 2018 on physical examination. She showed hyper reflexes of the knee with blurred vision. Uh , right-handed at head tremors with Brady Canadia . Um, she was diagnosed with unspecified tremors and one , the list of diagnosis was secondary Parkinsonism. What no clear diagnosis. Now she continued to present for evaluation and treatment with ongoing tremors , uh, and , um, the hyper reflexes in April of 2018, it was suggested that she had a diagnosis of secondary Parkins ism with tremors, but the etiology and the diagnosis wasn't clear by may of 2018, her symptoms had progressed and she even had the decreased arm swing characteristics of PD, but even so her doctors didn't make a clear diagnosis, even though she presented with a common and recognized symptoms of PD. And it wasn't until August of 2018, that she was actually diagnosed with Parkinson's. So what happened to her claim? She applied for and received her short-term disability benefits through mutual of Omaha. I'm going to call them Omaha, but when she applied for long-term disability benefits, her claim was denied, not withstanding the fact that Omaha had pay the short-term disability benefits and her Parkinson's symptoms have progressed. Omaha hired several liar for hire doctors who did not agree with the diagnosis of Parkinson's. And they didn't feel that the physical exam findings supported any specific restrictions or limitations. Now in a twist of logic, no , that's in quotes. The Omaha doctor said, look, since there isn't a specific diagnosis, there can't be restrictions and limitations now in my humble, but correct opinion, I think that's wrong. And if that wasn't enough, Omaha also objected to the letter. Her employer wrote on the basis that her employers letter had no value because it was relying on her subjective complaints. And they insisted that the , since the employer didn't specifically comment on those symptoms, which impacted her job duties and our inability to perform those duties, that the letter was just fluffing meaningless. Obviously they denied her claim. She appealed, ultimately this case went in front of a federal judge. And let me tell you how the judge addressed the lack of a timely diagnosis and the no diagnosis and pyramid game. This is a case called Withers vs . United of Omaha life. It's found at two Oh two on , uh, West of the WL . Um , uh , one Oh six two five five. One is out of the Western district of Kentucky in March of 2021. And judge , um, Stivers was the judge and he was not impressed that the peer review doctors hadn't considered considered the mental or the physical requirements of her occupation and noted that, Oh , uh, um, Omaha's liar for hire doctors, never addressed the requirements of her position for explain how she could possibly be able to continue doing that work. The judge criticized their failure to consider the objective findings on PD, including her tremors and their impact on her ability to work. And the judge saw through this no diagnosis, no impairment game, and the judge awarded her, not only her back, so short-term disability benefits, but her long-term disability benefits. So you can see in this case how the carrier plays this , uh , no diagnosis, no impairment game and what it takes to win a Parkinson's disease case. Wow. We've covered a lot of material today. I hope you've enjoyed it. And if you like this podcast, please consider liking our page, leaving a review or sharing it with your friends or family. Remember this podcast comes out weekly. So tune in next week, I look forward to sharing more information about your rights for long-term disability benefits in our next episode. Thanks.

Speaker 3:

[inaudible] .