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Friday, December 26, 2014

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.  

Monday, December 22, 2014

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

Thursday, December 18, 2014

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.

Wednesday, December 17, 2014

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.  

Tuesday, December 9, 2014

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:

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.

Thursday, December 4, 2014

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!