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Tuesday, October 28, 2014

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.  

Friday, October 17, 2014

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.

Wednesday, October 15, 2014

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.  

Friday, October 10, 2014

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

Monday, October 6, 2014

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.  

Wednesday, October 1, 2014

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.