Buying Private Disability Insurance: What can you protect?

Disability insurance that you buy yourself, rather than the insurance your employer provides, that is governed by ERISA, can be complicated.  There are many different types of coverage you can buy:  pure own occupation; modified own occupation; any occupation; recovery benefits, etc.  You may want to find out what is available before you talk to an agent.  Here is a good article discussing the different options, and what each option actually protects.  It also discusses how group plans commonly differ from private plans.  Private long-term disability policies are governed by the laws of each state.  If you have any legal questions about a private long-term disability policy in Connecticut, you should speak to a long-term disability lawyer who knows Connecticut law.  

From Diagnosis to Disability: When Should You Tell Your Employer About Your Chronic Condition?

This is the first in the series of posts on what to do from the diagnosis of a degenerative condition such as multiple sclerosis or Parkinson’s disease until the time you actually submit your application for disability benefits.  

In this post, I discuss what you should consider in deciding when to tell your employer about your condition. The most important criterion for this decision is how disclosure is going to affect your job and career.  Employers are supposed to keep this information confidential if direct them to do so, but you have to make the assumption that at some point it will leak out to your co-workers.  

• If things are going well and you are an executive or high-level partner, you probably don’t have a lot to worry about.  You will likely be given necessary job accommodations and leaves of absence (both of which will be discussed in later posts).  One problem, though, is you can lose control over how your condition is affecting your career:

• Your employer may want you to apply for disability sooner than you would like.  It could be that the employer notices that your condition has affected your performance more than you realize, or it could be that your supervisor is uncomfortable being around someone with a chronic illness..  Or, it could be that your employer genuinely thinks it would be better for you not to work so you can deal with your condition.  Whether it comes from a good place or not, you could be pressed to move sooner than you wanted.

• If it becomes known in the office, others may begin to treat you differently because of your condition.  You might not be offered a promotion or additional training because of the assumptions others may make about the anticipated course of your condition.  Or, even if people have the best of intentions, they may start treating you like a sick person rather than a colleague, and you might not be ready for that yet.

• If things are bad on the job, it is a more difficult decision.  You may think that your employer will just use the existence of the condition as another excuse to make your life more difficult.  You can, however, get greater legal protection in your job if you disclose your condition, under certain circumstances:

• If your condition is starting to affect your ability to do your job, you may be able to get accommodations under the Americans with Disability Act that will make it easier for you to do your job, or get medical leave, including intermittent medical leave.  You also have potential protections under the Connecticut Fair Employment practices Act.  I’ll discuss accommodations and medical leaves in future posts.  But, don’t wait until you are terminated or placed on a performance improvement plan to ask for these.  

• Asking for accommodation or medical leave, even if the employer doesn't grant them, gives you protected status under these statutes.  Retaliation for requesting benefits under these statutes is illegal.  You will at least force the employer to think twice about terminating you or disciplining you if you have requested relief under either of these statutes.

Telling your employer is one of the key tactical decisions in the process of moving from diagnosis to application.  Discuss it with a trusted adviser, and make the decision deliberately. Consulting with an ERISA long-term disability lawyer who is familiar with Connecticut and federal employment laws can be a big help in navigating the transition from work to disability, and in pursuing any appeals of a long-term disability denial, and is crucial if you want to sue for a denial of long-term disability benefits.   

Other Posts in the Diagnosis to LTD Application Series

Diagnosis to LTD Application: Six Things to Consider

Working While Disabled

New Treatment for Remitting Multiple Sclerosis: How Will It Affect my Long-Term Disability Claim?

The MS Society published a press release  regarding a new drug, Lemtrada, for relapse-remitting multiple sclerosis.  To quote from the MS Society's web site, "RRMS — the most common disease course — is characterized by clearly defined attacks of worsening neurologic function. These attacks — also called relapses, flare-ups or exacerbations — are followed by partial or complete recovery periods (remissions)."  Lemtrada raises two issues if you are applying for long-term disability benefits or appealing a benefit denial: how to prove disability when you sometimes feel fine; and will your chances of getting benefits be harmed if you don't take Lemtrada?

• Disability resulting from RRMS can be difficult to prove in a claim for long-term disability insurance benefits, or an appeal of a long-term disability benefit denial.  While you are in the "remitting" phase, where symptoms may totally disappear, the lack of symptoms can give the insurance company an excuse to find that you are not disabled: the insurer may have surveillance where you show no physical symptoms; you may take a long business trip that they learn about through your employment or medical records that you could not during a flare-up.  If you only go to the doctor during the remitting phase, the doctor might not have any personal observations of your symptoms during a flare-up.  While you may tell you doctor about the difficulties you suffer during flare ups, the insurer may dismiss this as "mere self-report" and not objective medical evidence that the condition is impairing.  To prove disability with RRMS, do the following:
• Try to see your doctor while suffering a relapse so the doctor can record his observations of your symptoms;
• Keep a log during flare-ups to record as specifically as possible the effect of the condition on your ability to perform job-related tasks.
• Make sure the doctor's medical records reflect that you suffer from RRMS.

• Do you have to try Lemtrada?  Lemtrada has serious potential side effects, including sometimes fatal autoimmune conditions. Because of this, it is only recommended after other treatments have failed.  What if your doctor recommends it but you don't want to take it?  See my earlier post to avoid giving the insurance company an excuse to deny you benefits because you have decided not pursue a certain treatment option.  

We are lucky that Connecticut has a strong MS community, with great medical expertise among doctors, and strong advocacy and support services for patients and their families.  In representing MS patients who are appealing denials of long-term or short-term disability benefits in Connecticut, I have found many of the doctors serving the MS community understand that importance of disability benefits to their patients, and their own crucial role in their patients being initially approved for benefits, and appealing a denial of benefits, or a termination of benefits.  With planning and attention, your right to long-term disability benefits can be protected no matter what decision you make about taking Lemtrada.

Frank Rich Article on Alzheimer's disease

Frank Rich published a column about his grandmother's experience with Alzheimer's disease, and discussing how the disease is increasing reflected in contemporary culture as baby boomer's approach their 70's.  

Frank Rich discusses the tragedy of early-onset Alzheimer's, as people are struck down in the prime of their work years.  One thing that can make this situation even worse is the difficulty in prevailing on a claim for long-term disability benefits for the condition, or to win the administrative appeal of the benefit denial.  The reduction in job performance caused by the early stages of dementia can be subtle at first - bad enough to make job performance difficult, but not sufficiently severe to show up in neurological or psychological testing.  Also, the doctor's records may not reflect the seriousness of the condition.  A specialist in Alzheimer's will commonly see profoundly impaired patients.  A condition that may appear mild to the doctor, considering what many of his patients are like, but can still cause serious problems for someone with a job with high cognitive demands such as a teacher, doctor, lawyer or other professional.

So, what is a long-term disability benefit claimant to do?  The series of posts I am currently working on, From Diagnosis to the Disability Application, will give you guidance in addressing these issues.  But to summarize some of the more important issues I'll address in the series:

• Consider getting a neuropsychological examination soon.  Your doctor may not think it is necessary if he is sure of the diagnosis, but it is really difficult to get an insurance company to accept any sort of cognitive impairment without one.
• Make sure you tell your doctor details about how your condition is interfering with your ability to do your work, and make sure he notes it in the record.  
• Consider keeping a daily log of how your condition makes it more difficult for you in your job, and your life in general.  

From Diagnosis to Disability: Six Issues To Consider While Working with a Degenerative Disease

Degenerative conditions that result in cognitive impairments, that is, damage the ability to think, recall and reason, and physical impairments, are among the most tragic medical conditions.  Vibrant, intelligent, active people find their abilities to think and move gradually slip away, often while in the prime of their work lives, and at a time when their families are depending on them most.  Parkinson’s disease, multiple sclerosis, rheumatoid arthritis, degenerative cognitive disorders such as early-onset Alzheimer’s disease or other dementias, and amyotrophic lateral sclerosis (“ALS”) all lead to increasing fatigue and cognitive impairment, as well as corresponding increasing physical impairments.

One positive aspect of a degenerative condition, as opposed to an acute disability such as from an accident or cancer, is that you have the opportunity to plan ahead, and to take actions while you are still working to smoothly transition from work to disability, and to increase your chances of being awarded disability benefits.  While no one can know the date when you won’t be able to continue working, for most of these conditions, being disabled from working at some point is inevitable.  For people who are diagnosed with these conditions with a substantial part of their expected work life left, there are common questions for the process of moving from the diagnosis of a degenerative condition and the day you submit your application for disability benefits:  Below are clickable links for posts that have appeared to date:

• When do I tell my employer about my condition?
• Will working while I am disabled hurt my chances to get disability benefits later?  
• Should I ask for reasonable accommodation under the Americans with Disabilities Act, or ADA, to allow me to do my job longer, and what accommodations am I entitled to?  What if I have been out of work on disability but I’ve had a relapse and I think I can return to work?  How will that affect my disability benefit claim?
• While I am still working, how do I best work with my physicians to increase the chances that I will get disability benefits when the time comes?
• If I work part-time, how will that affect my application for disability benefits, and the amount of the benefit I will receive ?
• When should I leave my job?  Should I ask for severance?  What if I am asked to sign a release?  

Over the next few months, this blog will address each of these issues in separate posts on each topic.  I hope to provide a guide for planning your work life and transition to disability as a result of a degenerative disease. 

Work life is only one part of a complex process of addressing the effects of degenerative disorders on your life, but I hope the upcoming posts will be helpful in addressing at least this one area of concern to those working with a diagnosis of a degenerative disease.  As a Connecticut ERISA - LTD attorney who has represented many claimants in long-term disability appeals, I know that actions you take now can make a huge difference when you finally make your application for long -term disability benefits.  I hope this series will provide guidance to employees with chronic degenerative diseases to make this transition from working to disability as smooth as possible.

The Insurance Company’s Interview: The One Rule You Need to Follow to Make Sure You Don’t Let the Interviewer Push You to Overstate Your Disabilities

The Interview and Its Dangers

A danger area for long-term disability claimants is the in-person interview.  The interview is usually one part of the entire process of evaluating a claim, including an independent medical exam and surveillance.  It is sometimes done during an initial application for long-term disability benefits or while an appeal of a benefit denial is pending, but it is most common when the insurer is reevaluating the claim that it is currently paying.  As you can expect, it is a fraught area for claimants, but maybe not for the reasons you think.  

As you would expect, one part of the interview is to observe you and see if you do anything that is inconsistent with the limitations you claim, such as did you sit still for an hour when you claim you can only sit for fifteen minutes.

What you may not realize is that one purpose of the interview is to set you up for the surveillance.  In many of the interviews, the interviewer appears to push the claimant to claim greater impairments than the claimant has claimed in the past.  You may think that is helpful for you, since the more impairments you have, the less likely it is you can do your job.

It is not helpful, and it can scuttle your claim.  The insurance company will typically conduct surveillance after the interview.  If you do anything in the surveillance that is at all inconsistent with what you claim your disabilities to be, your claim is likely to be denied.  Even if the activity shown on the surveillance is consistent with you not being able to do your job, the insurer will use it to discount everything else you say.  For instance, if your job requires lifting 30 pounds, it shouldn’t make a difference if the surveillance shows you lifting 15 pounds.  But, if you claimed in the interview that you could only lift 5 pounds, the insurer will assert that you lied about not being able to lift 15 pounds, and that this discrepancy means that nothing you say about your impairments can be believed.  

The Rule

How do you avoid this?  By following the same rule that I give to my clients before testifying in court.  In both instances, you want to appear to be credible by answering the questions, but you do not want to be pushed around in making your responses.  So, here’s the rule:

• Listen to the question.
• Think about what you are being asked.  Don’t worry so much what your response will be.  If you have really understood the question, your will make a good response.
• Answer the question, and only the question: when you have answered it, stop.  Don’t volunteer information.  Don’t start speaking again if the interviewer silently stares at you.  The interviewer is doing that to try to get you to start speaking again.

There are some corollaries to the Rule.  If you don’t understand a question, you can’t answer it.  It is the interviewer’s job to ask you a question you understand.  Ask for the question to be repeated or rephrased if you don’t fully understand it.  If you don’t know what to do, ask for the question to be repeated.  Make sure you are accurate with your level of recall or certainly.  If you are asked if you can do something specific, state accurately whether it is something you can do always, never, sometimes, occasionally, etc.  Hedging is fine, and will protect you against a charge of lying if the surveillance shows you doing something that you said you sometimes can’t.

Be particularly careful in responding to leading questions, that is, questions that can be answered by a yes or no answer.  Before answering, make sure your answer applies to each part of the question.  It is a good idea to always ask for leading questions to be repeated to make sure you understand them.  

Telling the truth is the most important thing.  Don’t let the interviewer push you or lead you into saying something that is not the absolute truth.  By following the Rule, you will have your best chance to avoid this.  So, during the interview, be calm, relaxed, focused, present in the moment, and listen to those questions!

Lyme Disease and Proving Disability

Willy Bergdorfer, the doctor who discovered the bacterium that causes Lyme Disease, died last Monday.  Here is a link to the Times' obituary.  The obituary discusses the long course of determining that the disease was caused by a bacterium, which was named in his honor: Borrelia burgdorferi. 

Dr. Burgdorfer's discovery, however, hasn’t been much help to Lyme disease patients seeking long-term disability benefits.  Insurers often deny claims for Lyme disease on grounds that the diagnostic criteria for the condition are not satisfied.  One of the commonly used tests is the Western Blot Test, which detects Lyme disease-related antibodies in the patient.  The Centers for Disease Control’s diagnostic criteria require 5 of 10 bands for Lyme Disease, but many doctors believe that Lyme can exist with as few as two bands, and that some Lyme disease suffers are "seronegative," that is, they lack any evidence of antibodies in their blood.  If the CDC criteria are not satisfied, then it can be difficult to get an insurer to accept a Lyme diagnosis.  Luckily, Lyme disease patients with disability benefit claims in Connecticut have many medical resources to help prove the diagnosis of chronic Lyme, central nervous system Lyme, or seronegative Lyme.

Regardless of the strength of the diagnosis, it is still more important to focus on impairment, rather than diagnosis.  I discussed this in an earlier post here.   Many of the impairments resulting from Lyme are the type of "self-reported" symptoms that insurers love to ignore.  Whatever is causing your fatigue and pain, they are real and disabling. So do what you can to improve your chances of getting benefits:

• Make sure you tell your doctor how the condition affects your daily life and ability to work, and make sure he notes it in the records.  
• Keep a log of how you feel each morning and afternoon, and what aspects of your job you can't perform, and what activities of daily living you can't perform or have difficulty performing.  
• Don't overstate your symptoms in your claimant statement, even a little, so the insurer can't use surveillance to find inconsistencies and argue that you were untruthful. 

Dr.  Burgdorfer's life and work show the crucial role that scientific developments can play in diagnosis and treatment of difficult conditions like chronic Lyme disease.  But to get disability benefits for such conditions, regardless of what is happening with the science, stick with a disciplined course of recording and documenting your impairments.  That's the best proof of disability resulting from conditions, like chronic Lyme, that do not offer many objective medical tests to show the disability.   

Teachers and Municipal Employees Disability Insurance Claims: It’s Not ERISA!

The experience of teachers and other municipal employees in Connecticut with long-term disability and short-term disability insurance policies is similar to employees from private employers: the plans are often identical to plans of private employers, and the claims are administered similarly, with a denial letter and opportunity to appeal.  Most insurers of municipal disability insurance plans follow the claims processing regulations that ERISA imposes on group disability policies offered by private employers.

While the process is similar, the reality is fundamentally different.  Employee benefits provided by governments for their employees, such as pensions, long-term disability and health insurance, are excluded from ERISA.  The most fundamental consequence of this is that any lawsuit to get long-term disability benefits from a municipal plan in Connecticut is brought in state court, not federal court, and is governed by contract and insurance law of the state.  There have not been many cases in Connecticut addressing claims of municipal employees for long-term disability benefits, so we can’t be sure whether state courts will apply ERISA concepts to non-ERISA plans.  But, there is certainly the strong possibility that many of the special rules that make ERISA cases difficult won’t apply to municipal employees’ claims for long-term disability benefits. 

• Non-ERISA claimants can get a jury trial, while juries are not available in ERISA cases.
• The deferential standard of review that is commonly applied in ERISA, upholding the plan decision if it is rational even if the court believes it is wrong, may not apply.
• The damages the claimant can recover may not be limited only to the benefit, and can possibly include emotional distress damages and consequential damages, and punitive damages under a bad faith denial  claim.
• At trial, the claimant may be able to present new evidence that was not presented during the administrative appeal process. 

Not having ERISA apply can put teachers and municipal employees in a better situation than claimants on ERISA group disability policies, depending on the facts of an individual case.  One thing to remember, though, is that you should choose an attorney to represent you, either in an internal appeal with the insurer or in court, who is experienced in state-court litigation.  The Connecticut state courts are quite different from federal court, or the Social Security Disability Income system, and you need an attorney who knows the written and unwritten rules of successfully litigating a case in state court.

Getting the Administrative Appeal Right

You have been denied long term disability benefits by your employer-provided disability plan. The denial letter says you have 180 days to send an appeal of the denial to the insurer. Should you do it? Is it important? Do you need a lawyer to handle the appeal? Can I sue in court without appealing the denial? Why should file an appeal with the same people who just denied me my benefits? Why would they change their mind?

The denial letter will give you some information about the denial, but it won't tell you why the administrative appeal process is important. Even if you are sure the insurer won't change its mind, you still should file the appeal. By law, you have to file the appeal of the denial of long-term disability benefits before you can sue the insurer in court. [1] Also, the court generally won't allow you to use any information in the lawsuit that was not submitted to the insurer in connection with the appeal.

For instance, let's say you believe your condition impairs your ability to think and reason (called "cognitive impairment"). One of the best ways to establish cognitive impairment is with a neuropsychological exam. Once the lawsuit is started, your lawyer may want to present the results of such an exam in the litigation. If you didn't have the test done and submit the results to the insurer during the appeal, however, you probably will not be able to use the results of the test in the lawsuit against the insurer. Or, you are claiming disability based on fibromyalgia, chronic fatigue syndrome or chronic back pain, and the insurer obtains a surveillance video that shows you going grocery shopping. You may want your physician to give a statement explaining why what is shown on the video is not inconsistent with your diagnosis or your restrictions and limitations. If you haven't submitted it during the appeal, you probably won't be able to submit it in any subsequent litigation.

A lawyer can assist in the administrative appeal by making sure that everything that would be necessary or useful during the litigation is submitted during the appeal. Even if you didn't use an attorney for the first level of the appeal, most insurers have a second optional or mandatory appeal where additional information can be submitted. Even if you have been denied twice, so long as not too much time has passed since the denial, we can often submit additional information during the appeal that we can then use in later litigation. Also, the same administrative exhaustion requirement applies to denials of employer-provided group medical and health insurance benefits, so you may want to use a lawyer in these cases as well.

Long-term disability benefits offered through your employer are governed by a federal law called the Employee Retirement and Income Security Act (commonly called "ERISA"). Courts have interpreted ERISA to require appeals to be filed with the insurer. . Long-term disability policies that you buy directly, and not through your employer, are not governed by ERISA, and are subject to state insurance laws. These generally do not require administrative exhaustion, but pursuing an appeal can result in the insurer changing its mind, so they are worthwhile to pursue even if they are not required.

ERISA benefit appeals and private disability insurance appeals can be complex, and actions you take during the appeal can affect your ability to recover in court later. Carefully consider whether a lawyer would be useful in navigating the process.

[1] There are some exceptions to this requirement to exhaust the plan's administrative remedies, but it is far better to file the appeal and not have to rely on these exceptions. If you haven't filed the appeal and want to know if you can still sue, give our firm a call and we can discuss it.

This is an article from my website, www.CtLtdLawyer.com.  You can go to that link for more information about disability benefit appeals.  

Proving a Disability Based on Sleepiness or Daytime Somnolence

Many medical conditions cause sleepiness or excessive daytime somnolence: side effects of drugs; poor sleep cause by sleep disorders such as sleep apnea; pain or discomfort caused by orthopedic injuries or digestive issues; narcolepsy; chronic fatigue syndrome; or chronic Lyme disease; or fatigue resulting from chemotherapy.  Sleepiness can be problem at work due to falling asleep at work or difficulty in concentrating due to fatigue.  While sleepiness can cause serious issues at work, it can be difficult to prove in applying for long-term disability benefits or appealing a disability benefit denial.  

• It can be difficult to establish disability based on daytime somnolence, either in an initial application for disability insurance benefits or appealing long-term benefit denial.  If you suffer from daytime somnolence, you should have your doctor administer the Eppworth Sleepiness Scale, which is a series of questions to assess the affect of sleepiness on your day-to-day function.  Here is a link the assessment.  It can be one of the ways to prove sleepiness resulting from medication, or from fatigue-related conditions.

• If you believe your sleepiness is caused by disturbed sleep for any reason, you may want to have a sleep study performed.  Connecticut has many sleep centers available for long-term disability benefit applicants.  A sleep study  can quantify the quality of your sleep, and can assess some of the causes of the sleepiness.  If you have been discussing your fatigue with your doctor, it will probably be covered by your insurance.  Make sure you follow up on any recommendations resulting from the study, such as use of a CPAP machine or medications such as Ropinirole for restless leg syndrome.  As I have discussed elsewhere in this blog, it is important that you actively pursue diagnosis and treatment of any condition on which you are claiming disability.

• If you primary complaint is the effect of sleepiness and that it harms your ability to think and reason (called “cognitive deficits”), you may want to get a neuropsychological test to assess the level of impairment.  I will discuss neuropsychological testing in a future blog post, but it is difficult to get an insurer to accept cognitive impairment without support by a neuropsychological test showing impairment. 

Daytime somnolence can be an important, but difficult to prove, part of a disability benefit application or an appeal of a disability benefit denial.  By analyzing how it is interfering with your ability to do your job, and figuring out what test to establish that, you can greatly increase the chance of prevailing on a long-term disability claim or appeal in Connecticut.  

Social Security Found I was Disabled. How can the Disability Insurer Disagree?

More than twenty years ago, when I started my practice as an ERISA disability lawyer in Connecticut, I would tell my clients that it was generally easier to get group long term disability benefits under their employers plan than it was to get Social Security Disability Income.  Now, the situation is reversed; so long as you do several levels of appeal, Social Security disability benefits are generally easier to qualify for than ERISA group disability insurance.   All the clients I represent in ERISA disability appeals are receiving Social Security.  

It is a strange result.  On paper, Social Security has a stricter definition of disability: the disability standard for Social Security is that you can’t do any job; for most long-term disability plans, you are disabled for the first 24 or 36 months of coverage if you can’t do your specific job.  Social Security has a number of doctrines and practices, though, that really help claimants.  If your disability fits into a certain category and your treating physician supports your claim, Social Security is obligated to pay benefits.  In the ERISA disability claim area, the doctrines that courts apply, such as applying a deferential standard of review to the plan’s decisions, have the effect of making it harder for claimants to prevail.  

So, based just on the different standards for disability, you may get complacent about pursuing an appeal vigorously, thinking “How can Unum deny my claim if Social Security found I was disabled?”  Believe me, the insurers do this all the time.  If you are denied disability benefits, make sure you pursue any appeal as hard as you can even if you have prevailed with Social Security.

Denied Health Benefits under an ERISA Health Insurance Claim? Obamacare Can Help

President Obama’s health care law, the Patient Protection and Affordable Care Act (“ACA”), also known as Obamacare, requires health insurance claims to provide for external review of many types of denials of health benefit claims under group health insurance policies governed by ERISA.  An explanation of the final rules can be found here. 

For more than thirty years, ERISA health insurance plans had to provide for an internal administrative review of health benefit claim denials, a process that a claimant had to pursue before bring suit in federal court for a health claim denial.  The ACA added a significant improvement in the existing, pre-litigation review process for ERISA health plan denials.  It requires plans to offer an external review process for health insurance benefit denials, conducted by an independent third party.  The external review process is available when the denial involves application of medical judgment such as medical necessity, level of care, and experimental or investigational treatment, and whether the health care setting (out-patient, or intensive out-patient, or residential treatment) is appropriate.  I have found the process particularly useful in appealing denials of residential treatments for eating disorders or substance abuse treatment for teens.  The external review process occurs after you have exhausted the plans administrative appeals.  In addition to the claim file, the external review will consider new arguments and documents you submit with the request, so the request should be carefully completed to make it as effective as possible.  

In my Connecticut ERISA appeal practice, I have found the process particularly useful in appealing denials of residential treatments for eating disorders such as bulimia or anorexia or drug or alcohol substance abuse treatment for teens.  Connecticut does not have facilities offering residential treatment in these areas, so doctors and parents want to send teens to out-of-state programs.  

Connecticut has been a leader in implementing the ACA, so it is not surprising that Connecticut has established a good external review process.  The external review process is conducted by the Connecticut Department of Insurance.  Click here to go to the site.   A Connecticut ERISA benefits lawyer, familiar with Connecticut’s procedures, can be a big help in preparing an effective request for external review.

An important thing to remember about external review is the deadline is 120 days after the denial.  The regular time to appeal ERISA denials is either 60 days, or more commonly, 180 days, so make sure you, or your ERISA attorney, are aware of the difference.

Because of the external appeal process established by the ACA, at least with health insurance claim denials, the insurance company does not have the last word before you have to bring suit.  

Don’t Get Hung Up On Diagnosis: Focus on Impairment

In handling ERISA benefit denials in Connecticut for more than twenty years, I've observed a big change in the grounds insurance companies give for denying benefits under group disability plans governed by ERISA.  In handling ERISA benefit denials in the 1990s, the issue of diagnosis was often central to the appeal: did the medical records establish that the claimant was properly diagnosed with the condition that caused the disability?  This often occurred with conditions like fibromyalgia, chronic fatigue syndrome, myofascial pain syndrome, migraine and other conditions that depend, in whole or part, on subjective reports of condition.  The appeals mainly concerned whether the claimant had satisfied the specific diagnostic factors for the condition, such as for fibromyalgia, arguing whether the medical records showed that the claimant had 12 or 18 tender points as required by the American College of Rheumatology diagnostic factors.

The insurers got smarter, though.  Rather than claim that there is not objective evidence of the diagnosis, over the last decade or so they acknowledge that the condition was properly diagnosed but are denying benefits on the basis that there is not objective evidence of the impairment.  It is more common for the insurer to concede that a claimant has a condition like fibromyalgia or myofascial pain syndrome, but then state that “diagnosis does not equal disability.” They then state that the absence of objective medical evidence of disabling impairments is evidence that there is no disability.   

Therefore, the focus has to be on proving the impairment rather than proving the diagnosis. In appealing ERISA long-term disability denials with the plan or in suing the insurance company in court, you must keep the focus on proving the impairments, and how those impairments keep the claimant from performing specific aspects of the job.  How to prove impairment from conditions that depend on a subjective report of pain or impairment will be the subject of many future posts

Problems with ERISA Disability Claimants Refusing Treatment

Many patients don’t want to pursue treatments recommended by their doctors: some avoid seeking recommended psychological treatment to avoid a perception of stigma or due to prior unsuccessful psychological treatment; chronic pain patients refuse narcotic treatment because of the side effects; others struggling with living with degenerative diseases such as multiple sclerosis or rheumatoid arthritis feel they simply can’t cope with another treatment modality.   If your doctor recommends surgery for chronic back pain, you may have a legitimate reason to decline surgery based on the frequently poor results of surgery. 

Unfortunately, refusal to seek treatment recommended by a physician is frequently a basis for insurers in ERISA long term disability plans and for private disability insurance to deny a claim for group disability benefits.  That a claimant is receiving “appropriate treatment” is usually required to be considered disabled.  Insurance companies frequently deny claims, stating that if a patient does not pursue a suggested treatment method, the claimant is not receiving appropriate treatment, and denies benefits.  The insurance company may claim that the pain couldn't be that bad if the person is not taking strong narcotics, or that if the condition was really disabling, you would have had surgery.

What do you do, then, if you don’t want to pursue a certain type of treatment recommended by your doctor?  Discuss the issue with your doctor, and if you can get the doctor agree with your grounds for refusing the treatment, have that reflected in the medical records.  Discuss with the doctor, and have him reflect in his medical records, alternatives to the treatment you don't want to do.  Continue active treatment and testing.  

If the doctor reflects in this medical records that you are still receiving "appropriate treatment" even if you don't want to take Oxycontin, you will make is harder for the insurance company to deny benefits, and more likely that you will prevail on an ERISA administrative appeal with the insurance company.   If the doctor doesn't do this, realize that your refusal of the treatment may be basis for the insurer to deny your benefits. A Connecticut ERISA benefits attorney can give you personal, in-person guidance in how to handle such a situation, what your alternative are, and the consequences of the choice you want to make.  

A Court Finally Awards Full Damages in an LTD Denial Case

I wrote the following blog post in October, 2014, talking about a great Six Circuit case that awarded real damages in an ERISA case.  Rochow v. Life Ins. Co. of Am., 737 F.3d 415 (6th Cir. 2013).  I wrote that I didn't think the decision would stand, considering the hostility of courts to expansive remedies under ERISA.  Unfortunately, I was right.  The original case was decided by a regular three-judge panel.  When a party loses before a panel, the party has the right to request that all the judges on the court hear the case, called "en banc" consideration.  In this case, the court granted the motion to have the case heard en banc.  And, as I predicted, they overturned the case: Rochow v. Life Ins. Co. of Am., 737 F.3d 415 (6th Cir. 2013)  Rochow v. Life Ins. Co. of Am., 737 F.3d 415 (6th Cir. 2013).

One of the most frustrating parts of a claimant’s ERISA benefits practice is explaining ERISA’s pinched remedies for wrongful denials of benefits.  In my Connecticut ERISA practice, I meet with clients who have exhausted their 401ks, are at risk of losing their houses or pulling their kids out of college.  And, I have to tell them that if we win in the administrative appeal or in federal court, we most likely will just get the benefits that the company should have paid in the first case, and maybe my attorneys’ fees as well if we win in court.  The remedies for ERISA benefit denials are  unjust: the only risk in denying benefits is that the insurer will have to pay its attorney’s fees for defending the case, and maybe the plaintiff’s fees as well.  The upside for the insurer is paying no benefits; the downside is paying the benefits plus a fraction of the value of the benefits in fees.  Why should the insurance company pay LTD claims or health insurance claims if there is little downside, either in the administrative appeal of the denial, or in federal court litigation.

If the holding of Rochow v. Life Ins. Co. of Am., 737 F.3d 415 (6th Cir. 2013) becomes the law generally, I won’t have to give that talk any more.  In this case, in addition to awarding the wrongfully denied LTD benefits, the court also ordered disgorgement of the profits the insurer had earned on the unpaid benefits, which totaled an award of $2.9 million for disgorgement of profits earned, and a benefit award of about $1 million.

The case was re-argued to all the Sixth Circuit judges on June 18, 2014, and we are waiting for a decision.  Decisions by the court that decided the case are not binding on federal courts in ERISA benefits litigation in Connecticut, and the federal courts for the district that includes Connecticut have rejected this idea.  Considering the hits that plan participants have generally suffered from the courts’ narrow reading of ERISA remedies, I do not expect the decision to stand, but if it does and the holding becomes more wide-spread, my conversations with new clients with LTD claims will certainly be cheerier.

An Appeal of a Benefit Denial with the Insurer Is Not Really an Appeal

Courts, regulations, and practitioners commonly refer to the process of having the insurer review an ERISA benefit denial as an “appeal.”  This label can be a trap when appealing an ERISA benefit claim.  Lawyers think of an appeal as a review of a decision based on the existing information in the record.  When we appeal a trial court decision, we can’t present new evidence, and we can’t even make an argument on appeal that we didn’t make in the trial court.  We generally, therefore, have to be reactive to the decision below, attacking it on the basis of misapplication of the laws or facts.

So, many lawyers and ERISA benefit claimants do a reactive appeal with a benefit denial as well, spending most of the appeal discussing how the insurer’s decision was not rational, that it ignored evidence, that it disregarded the language of the plan, etc.  There are two big problems with this:

• First, in my experience as a Connecticut benefit appeal lawyer, insurers will rarely overturn a denial based just on criticism of how the insurance company reached its decision to deny benefits, no matter how bad the decision was.
• Second, following the reactive “appeal” model may result in you not making a totally new argument on appeal that may be a better basis for an award of benefits than you made in your initial application, or in the first appeal.  You have the opportunity to make a whole new case: you didn’t argue when you submitted your LTD claim that a psychological condition contributed to your disability from a physical condition?  No problem.  On appeal, you can get statements from your treating physicians discussing the issue.  

The deficiencies in the insurer’s decision must be addressed, of course.  But first, make your positive argument, why you are entitled to benefits, including bases for benefits that you have not made before, and you will be more likely to prevail on an appeal of an ERISA benefit denial of long-term disability benefits or a group health insurance claim.  You will also have a much stronger case if it goes to court.