Disability Insurance Lawyer Blog

Appeals Court Reverses, Orders Retroactive Disability Benefits

A Federal Appeals Court, for the Third Circuit, has reversed a lower court ruling and awarded the payment of long term disability insurance benefits to a claimant, a commercial pilot, whose benefits had been terminated.The claimant, who suffered from severe mental health problems, finally has success to an odyssey that began in May 2003 when his benefits were originally terminated. While the claim was later re-opened, it was again terminated in 2006.

The Appeals Court covered a number of important areas in the ERISA disability arena, in arriving at its determination. It addressed the issue of a conflict of interest, in light of Met Life v. Glenn, and a host of procedural factors which impacted the Court's decision. These included a reversal of the claim position, despite no meaningful change in the claimant's condition, a reliance upon non-existent plan requirements, imposing upon the claimant requirements which were not part of his plan obligations, a failure to properly advise the claimant how to perfect his claim, a failure to examine all relevant medical diagnoses, and a failure to properly consider the job requirements in reaching a claim determination. As the Court noted "we find this analysis persuasive because it is essential that any rational decision to terminate disability benefits under an own-occupation plan consider whether the claimant can actually perform the specific job requirements of a position."

This case should prove to be helpful to the claimant community, in that the Third Circuit Court of Appeals has addressed a number of commonly seen claim handling "techniques" from all the major long term disability insurance companies. This Court adjudicated the claim based upon the totality of factors, determining the "lawfulness" of the claim decision, and finding that the decision was arbitrary and capricious.

Met Life Abuses Discretion on Fibromyalgia Claim

A Federal judge has ordered Met Life to pay continuing long term disability insurance benefits to a claimant suffering from fibromyalgia, where Met Life sought to apply a limited pay period to the claim, alleging that the impairment was due to depression, rather than fibromyalgia.

The Court took issue with Met Life's claim posture, seeking to apply the limited pay period for a mental health claim, when Met Life took this position several years after the claim had been filed, and while in litigation. The Court noted that depression is a common overlay with claims for fibromyalgia. The Court also took issue with Met Life securing a paper only review of the claim, citing to cases that have chastised insurers for these types of reviews in mental health claims.

The Court also cited to one of our recent cases, Magee v. Met Life, as authority for the proposition that Met Life was wrong to require objective evidence on a fibromyalgia claim.

These important decisions continue to chip away at longstanding arguments that insurers present in long term disability insurance claims and litigations. If your insurance company has tried to take this approach with your claim, contact our firm to see how we can fight for your rights.

Disability Awareness Survey Results

The Council for Disability Awareness has reported on its 2010 Consumer Disability Awareness Survey. The results are interested, in that there is a disconnect between perceptions of the public and reality. As one example, most surveyed believed that disability was most likely to be caused by an accident, while in reality, less than one in ten claims are the result of injuries, while sicknesses cause the overwhelming majority of disability claims.

The report also indicated that more than one out of four disabilities are caused by muscle or bone disorders, such as back problems, joint pain and muscle pain. Cancer is the second leading cause of disabilities, with 15% of all claims. Cardiovascular claims have increased and are now the third leading cause of impairment.

An alarming statistic is that the odds of a healthy 35-45 year old male during his working career of becoming disabled is about 1 in 6.

If you have an impairment, or if your ability to work has become compromised, you should consult with the attorneys at Frankel & Newfield, P.C., who can guide you through the difficult process of filing a claim and securing benefits.

Decline in Claims Due to Recession?

A report published by the National Business Group on Health has found that both Short Term Disability and Long Term Disability claims dropped by a substantial amount, a result which is being largely attributed to the recession. However, the costs associated with the Long Term Disability claims actually rose on a per person basis.

The report actually served to counter a belief that employees would seek to take disability in the face of the economic downturn, but employees delayed or avoided altogether taking leaves that might otherwise have occurred.

Another factor which may have influenced the data is reduction in the workforce which would lower the pool of potentially eligible claimants to file either Short Term Disability or Long Term Disability claims. With substantial reductions in force occurring during this time frame, less people would be available to file such claims.

In our practice, we did not notice any substantial change in the volume of claims, although that is not any indication that can be compared or contrasted with the data from this report.

CAN A DOCTOR BE DISABLED AFTER LOSING HIS LICENSE?

An interesting question in the world of disability insurance benefits is whether a physician (or a dentist, lawyer or other licensed professional for that matter), can be deemed to be disabled despite the fact that their license to practice the profession has been taken away.

The answer is maybe, and the answer typically depends upon when the medical disability occurs in relation to what is commonly known as the legal disability. The legal disability is the occurrence of the loss of one's license to practice their profession (due to some type of misconduct), which results in a suspension, revocation or other action against one's ability to continue practicing. A recent decision from New York has denied summary adjudication to both sides, where the insurer sought to justify its claim decision on the basis of legal disability, while the insured claimed to be medically disabled prior to the time he lost his license.

The facts of the case serve to highlight the issues. The doctor, a plastic surgeon, claims to have suffered from bipolar disorder, which caused him to abuse several drugs. His conduct also led him to surrender his license when faced with charges of unprofessional conduct in his profession. His claim was submitted on the basis of the bipolar disorder, and was back dated to the date prior to the surrender of his license. When the insurer denied the claim, suit was filed.

We have helped a number of medical and other professionals combating this issue with their insurance companies, securing good results in these cases, by developing strong support for the medical disability, even in the face of compelling evidence to support a legal disability. If you are faced with one of these difficult challenges, please do not hesitate to contact our office to discuss and strategize your issues.

WHAT IF I HATE GOING TO DOCTORS?

If you have a disability but have not gone to a doctor's office because you are fearful of doctors or if you are out and out afraid of what a doctor may tell you about your disability, you are not alone. However, if you ever want to successfully file a disability insurance claim, failing to go to a doctor and be under a doctor's proper care will be harmful in the long run, both from a medical and a financial viewpoint.

In this era of on-line medical research and self-proclaimed diagnosis, it may seem easy enough for a reasonably intelligent person to gather enough information from reliable sources and put two and two together to arrive at a diagnosis. But online research is no match for medical school and the professional practice of medicine. As for insurance companies, nothing but a diagnosis, treatment and care from a licensed medical doctor is acceptable for a disability insurance claim. There is simply no way to pursue a claim without doctor visits and the accompanying proper medical treatment.

What if you have been ill for some time but have not gone to a doctor, and now you recognize that you must file a claim? Start by going to a doctor. Get a friend or loved one to go with you, make the appointment and get yourself there. Bring notes if it will help you explain your illness. Don't be vague and general. Include in your conversation dates when you started having specific symptoms and be able to describe those symptoms. Your medical records will need to clearly show the dates that you became symptomatic, the nature of the symptoms, etc. And when you are told to go for diagnostic tests by the doctor, do not delay. Get radiological studies, CT scans, MRIs, blood work, etc., done as soon as possible.

If you are so severely disabled enough that you are not able to work, avoiding doctor visits and proper treatment could make your illness worse, even fatal. If the only reason that you will go to the doctor is to substantiate your claim for disability insurance benefits to protect your family financially, that's reason enough. Don't delay treatment. And if you are concerned that your lack of treatment may have placed your claim in jeopardy, don't delay in calling our office to learn how we can help.

Beware of the Double Offset

Claimants with long term disability claims who have multiple policies of insurance need to be careful, as the potential exists for both policies to claim an offset for the full amount of benefits received from Social Security, so says a Federal Court in California.

Many group insurance policies permit an insurer to deduct, or offset, from their obligations to claimants, for the full amount of a claimant's receipt of Social Security benefits. However, where a claimant has two group policies, which each permit the offset or deduction, the open question was whether both policies could take the full offset, or whether some split would be appropriate, thus preventing a claimant from reaping less on a net basis due to the receipt of Social Security benefits.

In Renfro v. UNUM Life, the Court for the Northern District of California answered this question, by permitting the offset in benefits to be taken by both insurers. The Court rejected the plaintiff's claim that each policy should offset one half of the Social Security benefit. Thus, plaintiff was left worse off following the receipt of Social Security benefits than had the claim been denied.

Depression, Mental/Nervous Disability Claims - What you need to know

Similar to claims due to Fibromyalgia, Chronic Fatigue Syndrome and Epstein-Barr, a diagnosis of Depression on a Disability Claim form often sends up a red flag to the claims manager, and a red flag is never a good thing on a disability claim.

Depression is one of the most common psychological problems (anxiety is another) to cause impairments in functionality and create a need to file a disability claim. Contrary to what an insurer may believe, depression is not a malingerer's disease of choice. It is a medical illness that affects both the mind and the body, impacting on the ability to think, feel, behave and function in day-to-day life. Depression ranges in severity, from mild temporary episodes of sadness to severe, persistent depression.

There are many different kinds of depression:
Dysthymic disorder
Manic depression
Atypical depression
Chronic depression
Double depression
Endogenous depression
Situational or reactive depression
Agitated depression
Psychotic depression
Melancholic depression
Catatonic depression
Post-partum depression

Not surprisingly, depression is found to occur at a higher rate among people with other serious illness than those who are healthy. The illnesses most typically associated with depression include heart disease, stroke, cancer, HIV, diabetes and Parkinson's. Those with chronic pain conditions also often suffer from depression secondary to their physical maladies.

For purposes of disability insurance claims, anyone suffering from depression must be under the care and treatment of a qualified psychiatrist and/or psychologist, or other qualified professional, in order to demonstrate the seriousness of the condition and be able to document the condition itself, the treatment and the impact it has on day-to-day living and functionality.

The challenges for claimants pursuing a disability insurance claim occur in several ways:
If you have a psychiatric or "mental/nervous" claim, the insurance company will ask for a lot of documentation. Some of their requests for information may feel like they are prying into highly personal matters. If you are under the treatment of a psychiatrist or therapist, for instance, they may ask to see medical records that include the treating therapist's notes on your discussions. This feels like a highly intrusive request, and it is.

The treating therapist must fill out claim forms and provide anecdotal reports, but they are not required to share notes on the highly personal and private conversations that take place during sessions. Typically, a summary of the treatment sessions will suffice on claims for mental illnesses.

There are times when a diagnosis of a fatal or chronic or serious illness or injury causes individuals to become depressed as a direct result of having to face a life-changing illness or worse, a premature death. Many disability insurance companies try to re-categorize claimants into the mental/nervous diagnosis, rather than appreciating the physical impairment. This is not a clerical error on their part. Policies on mental/nervous claims are very strict and limitations are severe - with many policies offering a limited pay period of only 24 months for mental or nervous claims. This tactic minimizes their claim exposure, so they will aggressively posture claims that are physical to be considered under this limited pay period.

That is why it is extremely important that if the depression is a result of a medical condition, the medical records reflect very clearly that there are two separate disabilities, physical/medical and mental nervous.

Another tactic from the insurance companies is to question why you were not hospitalized if the condition was serious. And just as the insurance companies engage "guns for hire" medical doctors to conduct so-called "independent" medical exams, or have paper reviews done without even the benefit of an examination, the insurance companies may ask for a two-day neuropsychological examination and an exam with a forensic psychiatrist. The professionals conducting these tests rarely find their subjects to be disabled. No surprise, considering that the doctor is being paid well by the insurance company for a favorable opinion.

If you are struggling with depression or anxiety and your disability insurance company is delaying your claim or has denied your claim, call our office today and learn how we can help. If you have questions about disability claims for depression, we have answers.

PERSONAL BANKRUPTCIES TAKE A MASSIVE LEAP IN 2010

According to today's Wall Street Journal, personal bankruptcies increased by 9% from 2009 to 2010, with 1.53 million Americans filing for personal bankruptcy in 2010. Most of the filings have originated in a handful of Southwestern states. Personal bankruptcies in California rose by up by 25% from 2009; Arizona followed close at 24% more in 2010 than 2009. Pretty scary stuff.

In the meantime, insurance companies are enjoying skyrocketing profits. Depending on your sources, the revenues are either coming from investment gains or increases on insurer's annualized rate of return on average policyholder's surplus. According to Dan Froomkin at the Huffington Post, health insurance companies are already making strategic accounting moves to protect their profits, by reclassifying non-medical expenses as medical.

We think it's not much of a stretch to consider that disability companies are taking similar tactics to protect their own profitability levels. We were hoping that President Obama's call to action over the summer to fix the appeals process for disability and health insurance as governed by ERISA would actually lead to something. Sadly, that issue seems to have fallen by the presidential wayside.

If you are like the millions of Americans whose finances are precarious as a result of a disability and your long term disability insurance company is delaying or denying your claim, call our office today to learn how we can help you. Don't wait for a Presidential panel or a bankruptcy court to take action on your claim. Call the disability insurance law firm Frankel & Newfield today at 877-LTD-CLAIM (877-583-2524).

Chronic Fatigue Syndrome - Doubts Linger

While a breakthrough was thought to perhaps be found in late 2009, when scientists linked an XMRV virus with Chronic Fatigue Syndrome, last month, several papers published in the journal Retrovirus have cast that link into doubt. The result is a continuation of debate but a lack of action to help those suffering with this medical conundrum.

Chronic Fatigue Syndrome causes a host of debilitating symptoms, including profound exhaustion, disordered sleep, muscle and joint pain, and significant cognitive impairment. Unfortunately, for the patient community, both in the U.S. and worldwide, the lack of a definitive link or specific cause to this medical dilemma has challenged many patients, both in securing appropriate and compassionate medical care, and in securing their entitlement to disability insurance benefits for those left unable to work due to this condition.

Despite great efforts from the advocacy community, those with Chronic Fatigue Syndrome have continually met with resistance from most governmental agencies, who claim to need a scientific basis in order to take further actions. Thus, those with Chronic Fatigue Syndrome remain caught in the classic Catch-22.

If you are disabled due to Chronic Fatigue Syndrome, please contact us or visit our website to learn more information about the disability claim process and your rights.