Winning Isn't Easy: Long Term Disability ERISA Claims

Fibromyalgia And Your Long Term Disability Claim

November 08, 2021 Season 2 Episode 38
Winning Isn't Easy: Long Term Disability ERISA Claims
Fibromyalgia And Your Long Term Disability Claim
Show Notes Transcript

Do you suffer from Fibromyalgia or CFS? Nationwide Long Term Disability ERISA Attorney Nancy Cavey talks about how she handles Fibro disability claims.


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Nancy L. Cavey:

I'm Nancy Cavey national ERISA and individual disability attorney. Welcome to a Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says I have to say it. So I said it, but nothing will ever stop me from giving you an easy to understand overview, the disability insurance world, the games that carriers play and what you need to know to get the disability benefits you deserve. So off we go with today's episode, do you have fibromyalgia? If so today's podcast for you, but if you don't have fibromyalgia, I think you can still learn lessons from this podcast. I'm going to talk about three things today, first fibromyalgia, and how disability carriers evaluate fibromyalgia claims how disability carriers actually view fibromyalgia claims and forms fibromyalgia and your claim. Let's take a break for a moment. Before we get into this episode,

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Nancy L. Cavey:

We'll go back to a winning isn't easy. Are you ready to get started? I'm going to talk about fibromyalgia and how disability carriers will evaluate fibromyalgia claims. So let's first talk about the disease and its symptoms. The Mayo clinic says that fibromyalgia is a disorder characterized by widespread musculoskeletal pain. It's accompanied by fatigue, sleep memory and mood issues. Researchers believe that fibromyalgia will amplify painful sensations by affecting the way your brain processes pain signals. Mayo clinic also says that women are more likely to develop fibromyalgia than men. Many people who have fibromyalgia will also have things like tension, headaches, tempo, mandibular, joint disorders, irritable bowel syndrome, anxiety, and depression. The causes of fibromyalgia are not well understood. And this plays into the hands of disability insurance carriers. And the other problem of course, is that symptoms can range from , um, moderate to severe and , uh, can vary from day to day, week to week, month to month. There is currently no cure for the disease though . There are treatments. And again, as you'll hear, this is going to play into the evaluation process, used disability carriers and how they evaluate a claim. So how do disability carriers go about evaluating a fibromyalgia claim? Well, the first question they're going to ask is, is your fibromyalgia pre-existing condition. Why? Well, every preexisting absurd , every policy has what's called a pre-existing disability condition clause. And it says, look, if you become disabled within a certain period of time after you became covered under the policy, your disability is considered to be a preexisting condition and the carrier legally can deny your claim. If you have a preexisting condition clause and you've picked the wrong date to become disabled. The second thing they're going to do is ask, is there objective medical evidence for the fibromyalgia diagnosis. Unfortunately, many disability policies require objective evidence of the diagnosis. And we all know that can be difficult to obtain in the case of fibromyalgia because there's no gold standard test for fibromyalgia. Now, the American college of rheumatology has , has created the standard that's used for fibromyalgia diagnosis and the disability carrier is going to be looking very closely at your medical records. They want to make sure that the history of your symptoms and your examination findings are consistent with fibromyalgia. What's step three. Well, they're going to look for objective medical evidence , uh, of your restrictions and limitations assigned by your physician. Your doctor is asked to complete an attending physician statement form explaining your restrictions and limitations. The display carriers, APS warm is designed so that your doctor is going to say that you can do at least sedentary work. Why is that? Well, if you can do sedentary work, you might not be disabled under the terms of your policy, but worse yet the APS form, ask your doctor to explain the objective basis of your restrictions and limitations. Now that can be tough because fibromyalgia is characterized by pain , uh , by body-wide aches and by other symptoms that are subjective in nature. So it can be really hard for a doctor to say that there is an objective basis for the restrictions and limitations. And quite frankly, there are times when I recommend that you undergo what's called a functional capacity evaluation or better yet a CT pet exam. If you can find a low one to be performed in your area. Now I of course will supplement the carrier's APS, warm with something called a residual functional capacity form. And I use that in my social security case. The reason that I do that is that I don't think the APS form asks the right questions. I want your doctor to answer the right questions that are relevant to you and your personal situation. What step four? Well, the carrier is looking for a causal relationship between your fibromyalgia, the restrictions, limitations, and your inability to do either your own or any occupation. And as I've talked about the key to getting your benefits is that blasted APS form that doesn't ask the right questions. The disability care ultimately is going to have your medical records and the APS one reviewed by their own liar for hire doctors, because they want to determine what your real restrictions and limitations are. And unfortunately, there is no treating physician rule in a disability insurance claim. So the carrier has the right to accept the opinions of the liar for hire doctor who says there's no objective basis for your restrictions and limitations. Now, step five is what is, or what was your occupation at the time you became disabled? What are the material and substantial duties of that occupation and how do your limitations affect your ability to perform those duties? So what happens after the carrier does the medical review is that they do a vocational review. They send it to their in-house liar for hire vocational reviewer , and that review our attempts to determine your occupation. At the time you became disabled and often they will make a mistake about what your occupation was. The second thing that the VA does is to determine what the physical and cognitive duties were of your occupation. And often the VA gets that wrong. And then the VIII is asked whether or not in their vocational opinion, you can perform your occupational duties based on whatever the restrictions and limitations, the disability carrier things apply. Now you've got to show a causal relationship between all of that to prove that you are entitled to your disability. What are the problems at this stage of the case is that most of the times policy holders don't understand what the definition of occupation is in the policy. That can be a problem. There's no uniform policy and there's no uniform definition of occupation. So the policy may define occupation as it was performed by your employer, for your employer, how it's performed in a local economy, how it's performed in the national economy. Warehouse performed according to a book called the dictionary of occupational titles. That can be a problem because you need to understand what the definition of disability as an occupation, so that you're in there talking to your doctor about the problems that you're having, both physically and cognitively with the material and substantial duties of your occupation as that term is defined in your policy. Now, what also happens is that after a certain period of time, the definition of disability changes from an inability to do your own occupation, to an inability, to do any occupation. And at that point, this multi carrier is going to reevaluate your restrictions and limitations. And they're going to have a new vocational evaluation. The game here is to prove allegedly prove that you are capable of engaging in sedentary work, which is basically sitting down all day. And that based on your restrictions and limitations, your education and skills, there are other sedentary type jobs that you could do in the mythical national economy , uh, that would pay you a wage such that the carrier potentially would not have to pay you any disability benefits. Now, what happens of course, is there are lots of mistakes that are made for purpose by the disability carrier at this change of definition, stage step six. Well, what do you say about what you can do on your activities of daily living forms and is that consistent with what you've told the adjuster who cold called you and what's in your medical records? I promise you that disability carrier is going to be looking at those three things. What did you say in your activity of daily living form? What did you say in your medical records and what did you say to them in the course of a conversation? Sometimes all of this can result in surveillance and surveillance can be your worst enemies. But the other thing that they'll also check by the way is your social media account. And quite frankly, social media and surveillance are now being used hand in hand to deny claim. So we're looking for consistency , um, realistic descriptions of your activities of daily living and not curated reality on social media and the seventh thing that disability carriers are going to be asking themselves is , oh, okay, well, if we have to accept this claim, is there a limitation on how long we have to pay this claim? Now there are some times conditions , uh , called subjective medical conditions. And if you've got a policy, that's got a subjective medical condition, closeted, you might be horrified to find out the fibromyalgia is one of those subjective medical conditions that's listed where benefits are just limited to two years, or there might be a mental, nervous , um, medical condition , uh , limit in your , um, policy. Now, I don't know how many of you have heard of John Cleese and Monte Python, but one of my favorite sayings from one of their famous movies goes along involving a lines in a , in a gag about a wafer thin mint and the person eats it and then blows up. Um, that is what I call the wafer thin theory of medical nervous limitations. What do I mean by that? The policy may say if your disability is caused or contributed to, and that's the wafer thin mint , uh , your disability benefits are limited to just two years and the carrier is going to be looking for that clause . All right , let's take a quick break. Before we head into our next segment, We'll go back to a winning. Isn't easy. How to disability carriers view fibromyalgia claims? Well, the hate fibromyalgia claims is pretty simple. Many times these claims are denied because the carrier doesn't like disability claims based on subjective complaints. And after all the carrier will say, well, anybody can be in pain. They can complain that they're fatigued or that they have brain fog and can't work. How do we know if this is really, really a legitimate claim? So to help them with their claims denial, they have complete, they have prepared something called position statements on fibromyalgia claims. So they have internal policy statements that guide the claims adjuster, the physician and the vocational evaluator on how to evaluate if I run myalgia claim, I think that there are four disturbing patterns in these policy statements. First, they say that they're going to deny a fibromyalgia myalgia case. It doesn't meet the American college of rheumatology criteria, and that criteria has changed over the years, but some of the highlights of the criteria are evidence of chronic widespread pain, including pain in the back neck chest for all quadrants of the body. Objective evidence like lab work that shows the physician has ruled out other diseases like lupus. That could cause the same symptoms you have, as well as any one of the following pain and discomfort with at least 11 out of 18 tender points , uh, repeated manifestations of six or more fibromyalgia symptoms such as fatigue, non-restorative sleep, cognitive or memory problems, fibro or brain fog, depression, anxiety, irritable, bowel syndrome, headaches, muscle weakness, abdominal pain, renounced syndrome, seizures, or dizziness. And they're looking at your medical records using these policy statements, regardless of whether the criteria is right or not to evaluate whether or not you in fact, meet the American college of rheumatology criteria. Now that depends, of course, on the accuracy of your doctor's reporting, which can be a problem. And they are going to give little weight to the subjective nature of fibromyalgia complaints because of the lack of objective basis of the diagnosis or restrictions. And they say that right in their policy statements. And they also give little weight to the complaint of fibro fog, unless it's documented by extensive neuropsychological testing, which of course they will cherry pick. And they always, and there are certain doctors they use day in and day out that say, anybody who has fibromyalgia can work. You just don't want to work now, what are the disability carriers do next? After they are looked at their policy position statement, they analyze your medical records and they'll have a claims examiner who was the adjuster looking at your file. And they'll ask a staff nurse or , uh , an in-house liar for hire doctor to evaluate your records because they want to know, is there an objective basis for the diagnosis? Now courts have shot them down on that one because courts understand that there generally is no objective basis for the diagnosis, but they're also looking at what's the basis of your restrictions and limitations. And that's where courts have upheld denials because they're looking for an objective basis of the restrictions and limitations. So what's the carrier looking for? What's their medical review look evaluated , looking for well, they're looking for how long you've had these symptoms, the nature of your symptoms, whether they've progressed or changed over time, what you've reported to your physician about your fibromyalgia symptoms and how those symptoms have impacted your activities of daily living. Then they're going to compare that to what you reported on your activity of the other living forms or what you're talking about in your social media posts. They're going to look at the nature of your treatment and your response to treatment, the side effects of medication. What other physicians have diagnosed fibromyalgia, what your physician has said about your exam findings and any laboratory findings. And they want to see that you've been seen by specialist for the treatment of your symptoms. They don't want you to be treating with just a general practitioner or a primary care provider. They want to see that you've seen a rheumatologist, an orthopedist, maybe a neurologist, a gastroenterologist, a physical therapist, a psychiatrist, or a psychologist. So they're going to be looking closely at your medical records. What else are they going to do? Whether they're going to review other evidence. And that of course, is that APS one, the form completed by your doctor with a problem of courses we've mentioned before, is that the APS form doesn't on purpose, ask the right questions. I supplement the APS, warm with a social security fibromyalgia form. Now the carrier is going to start picking apart that APS form , and maybe even have their physician contact your physician in an effort to persuade your physician, that you can work at at least a sedentary capacity. I strongly suggest that you contact your doctor's office and request that if a carrier questions them wants to talk to them, that their staff be instructed to tell the insurance company doctor, to put their questions in writing and copy you so that there's no chance that the peer review provider will misrepresent what your physician has to say during the call or misrepresent your medical evidence to the physician or misrepresent your activity of daily living. Don't be surprised if the disability carriers, doctor lies about these conversations. I see it all the time and you want to make sure that your doctor is sending a letter confirming the conversation. What will often happen is that the doctor, the peer review doctor will send a letter to your doctor, confirming the conversation and twisted in a way that your doctor , um, will tend to agree with, or basically say, if I don't hear from you in two weeks, I'm going to presume you agree with those restrictions and limitations or worse yet the doctor's just so busy as we understand what their practice , they don't have the time to really closely look at this letter. And it's just easy to sign off on a letter. So there's a , some of the mistakes that your doctor can make interacting with a disability insurance carrier. And they're counting on that. Now, the next tactic is to send you for a not so independent medical examination. You carrier has the right to ask you to have an IME, but these doctors are hired guns. They're not in the business of giving the disability carry ammunition with which to pay your claim. They're in the business of giving the carrier ammunition to deny your claim. If you are being scheduled for an IME, I really think you need to talk to a disability attorney, not just any attorney and disability attorney, because there are some things that potentially we can do to protect you , uh, during the IME , uh, by filming , uh, the , um, IME having witnesses present, or some other techniques that we can use to help you be prepared for the IME. Now, I don't let my clients complete forms in the IME doctor. I don't really let the, my clients give a history. I let the doctor review the incorrect summary from a disability carrier because the doctor's there to do a physical examination and answer the carriers questions. By the way, they're not there to render advice to you about the nature of your disease or the treatment, or even give you information about your ability to work. So they're there as the enemy to sabotage and destroy your claim. I think that the reality is that the APS forms are one on the sufficiency of your medical records, the APS forms , and ultimately your credibility. Let's take a break.

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Nancy L. Cavey:

We'll go back to winning. Isn't easy in my last segment, I'm going to talk to you about forms and fibromyalgia and winning your claim. I think that there are two keys to winning your fibromyalgia disability claim. The first is the attending physician form and the second is the social security residual functional capacity form. Now the APS form is designed, as I've said before, to , um , lead your doctor to a conclusion that you can work in some capacity. In fact, they don't even give them the option to say you can't work. These forms will have your doctor address your ability to sit, stand, walk, stoop, bend squat, and use your upper and lower extremities. Now, curiously enough, or maybe funny enough, they don't ask questions about your cognitive problems , uh , nor do they really explain to the doctor what the standard of disability is or what your occupation is. In my view, these worms never asked the right questions , um, about the physicality of your restrictions and limitations, fatigue, a lack of focus and concentration, the ability to follow simple instructions or to complete tasks in a timely manner, the need to take breaks issues with absenteeism issues, with side effects of medication. So that's why I think it's really important to use the social security residual functional capacity form. Now, hopefully you're being represented by a social security attorney. And hopefully that attorney is a like myself who does both Orissa long-term disability and social security. So I know the games that are played in both claims the RFC form, and it's all scurry case in my view, ask the right questions. And so many times I'm going to modify that APS form with questions about this from the social security residual functional capacity form. Now, why is all of this important? Because ultimately the carrier is trying to determine whether or not you can do the material and substantial duties of your occupation in the social security world. We talk about exertional and non exertional limitations, and we want to develop both of those. One of the ways that you need to understand exertional limitations is basically the physicality of your abilities. In other words, how long can you assist and walk students , uh, lift Ben, but the non exertional , uh , impairments are limitations that can reduce your functioning level to less than sedentary. Having less than a sedentary work capacity is the key to winning generally, both your LTV case and your social security case. Sedentary work is an ability to lift only 10 pounds at a time, sit for six hours, occasionally walk and stand two hours for an eight hour day. What I want is an APS form that says you're functioning at less than a sedentary exertional level, or I want to develop one that can erode your occupational base to , um , less than sedentary because of your non exertional or cognitive limitations. So let's say you can't lift more than 10 pounds. Can't sit, walk or stand one , two hours out of eight hour day. You are functioning at a sedentary level. Let's say, though, you can lift more than 10 pounds. You need to alternate sitting and standing , um, in the course of a day and you can sit and stand six to eight hours, but because of your cognitive issues or fatigue, you have to take a break at least once an hour and maybe take a nap once or twice in the course of a day, you can't complete your task on time or with the proficiency, with which it's required. So you can't meet the pace and production requirements. Those are the kinds of things that I want to develop , um , on the social security residual functional capacity form , because the RFC, the APS form rather does not ask the right questions. Now, I think it's really important that you be talking to your physician about these blasted forms as quickly as possible. If your doctor doesn't want to fill out forms, we need to find a new doctor ASAP because if your doctor doesn't support your claim, if your doctor won't fill out the forms, if the doctor won't play ball with you, you aren't going to win your case. The other thing that is going to be important as a result of these forms is developing , um, not only the exertional and non exertional impairments, but the fatigue and the cognitive impairment. And because there's no test to prove that you have pain or cognitive issues or fibro fog or fatigue, there are times when I recommend that we have what's called a functional capacity evaluation. That's a physical measure of your ability to sit, stand stew , walk , and bend , but better yet. I try to have my clients undergo a , uh , cardiac pulmonary exercise test, see pet test. Now there can be one day test, two days tests , but it is hard to find somebody who can perform them and they can be expensive. That is the best way to , um, objectively demonstrate , uh, your pain, your fatigue , uh, the problems that you have from a cognitive standpoint, you can also potentially get neuro-psychological testing. Uh, but if I had a choice, I would prefer a C pad exam. Now, part of filling out these forms is the fact that your doctor relies on your complaints when you go in to see them. And I want you to be giving your doctor a great history about the location, duration, frequency, intensity of your pain, how your pain affects your activities of daily living, what activity increases your pain, whether you have to take naps, whether you have to break up things so that you can get them done. Um, and how that carries on through the course of the week. I think that's really important because your doctor needs to have an accurate history of your functionality in addition to their exam findings or the results of any diagnostic studies, such as an FCE or a C pet exam in filling out forms. Now I mentioned before that the disability carrier is going to compare all of this to your activity of daily living forms. One of the primary ways I think to tell your story more accurately is in the medical records, but you're also going to be asked to complete these lasted ADL forms and they are open-ended and they're written in a way, much like the , um , APS form. They don't ask the right questions, or they'll ask the questions in a way to try to lead you to exaggerate. Um, so they may ask you, can you cook, can you clean your house? Do you do the laundry? Do you grow grocery shopping? Do you do yard work, et cetera, et cetera. How do your fibromyalgia symptoms impact your ability to do these activities? So instead of answering that in a broad brush, I want you, for example, to explain that you might be able to stand in the kitchen only long enough to microwave food that you have to maybe just make one bed in the house, trying to clean up before you're exhausted, or you might be able to grocery shop for 30 minutes, but you got to make a list of the things you have to get. And then you lose a list or you have to break up that grocery trip. Or when you come home, you have to have someone carry the groceries in, or you have to take a nap. So I want you to be explaining in detail , um , the nature of the functionality issues that you have and how it impacts your ability to function. Now it's gotta be truthful because again, if you exaggerate or of what you have to say is inconsistent with what you're reporting to the doctors, aren't the activity of daily living for them. You may ultimately end up with , uh , surveillance. And of course , um, the , this carrier is going to use your medical records to determine your credibility. But they're also going to combine that with social media searches. Now the disability carrier is going to use your forms and your medical records to determine your compliance with medical treatment, because many policies were required that you get appropriate medical treatment by the right type of medical provider. And while they can't make you have invasive treatment, they do expect that you get treatment and they want to see what your response to that treatment was. Because again, they're going to be evaluating the treatment plan, your response to it, how that treatment is impacting your functionality and whether or not all that's consistent with what your doctor put on your APS form and what you put on your activity of daily living forms. So we want to make sure again, that your medical records are documenting your symptoms and functionality, giving examples, how activity increases your pain , um, what your response to treatment is, what the , uh, other treatment you might be getting to relieve your symptoms, including therapy and acupuncture, and , um, your, your response to those treatments. Now, I want to tell you that many times disability carriers do not like alternative medical treatment, particularly in fibromyalgia cases. They want you to be getting treatment by a recognized medical provider, like a rheumatologist , um, or , um, a pain management specialist. Uh, certainly you can try to supplement your treatment with things like acupuncture and alternative treatment, but that cannot be the way that you prove up your case in terms of the diagnosis, disability, or your restrictions limitations, so that you can ultimately see that your activities of daily living form your medical records, we'll lead into that APS form. The APS form in my view is really a key factor to getting your disability benefits from fibromyalgia. But again, it's a combination of these things. Well, I have thrown a lot at you today. I hope you've enjoyed this episode. If you like this podcast, consider liking our page, leaving a review or sharing it with your friends and family. Remember my podcast comes out weekly. So tune in next week for another insightful episode of winning isn't easy.