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Friday, November 21, 2014

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.   

Thursday, November 13, 2014

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.

Friday, November 7, 2014

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.