33% of Social Security Disability Claims are Based on Mental Disorders; 27.7% are Musculoskeletal

The law firm Lane Powell, a Pacific northwest firm with an employer-side ERISA practice, has a great post here about the recent report from the Social Security Administration breaking down types of Social Security disability claims by type of claim and region.  It also has a good discussion of the significance of social security determinations in long-term disability benefit denials and appeals.  I've discussed this issue as well in a prior post. 

It is significant that the combined mental disorder/musculoskeletal conditions amount to 50% of social security disability income claims.  These conditions present some of the more difficult issues in winning an initial long-term disability claim or disability appeal because the insurers claim objective medical evidence doesn't exist to support the claims.  For these claims, it is important to work closely with your doctors to make sure the medical records reflect that all the standard diagnostic criteria are present, and the records contain a discussion of how the condition affects your ability to do your job.  As a Connecticut LTD lawyer, I know how important it is to work with the claimant's doctor to establish the impairment, and the effect of the impairment on the claimant's ability to work.  

Positive Interim Report of Stem Cell Treatment for Multiple Sclerosis

The National Multiple Sclerosis Society issued a press release about interim results of a study of autologous hematopoietic (blood cell-producing) stem cell transplantation– or HSCT, for treatment of relapsing-remitting MS.  The therapy seeks to "re-boot" the immune system to stop the auto-immune attack on the brain and spinal cord.  In a study of 24 people, 74% showed no progress in the disease after the treatment.  There were some serious side effects from the study,so it will be a long time before the treatment is generally approved.  
When HSCT is approved,  whether to try the treatment can be in an issue in initial benefits claim, or an administrative appeal of a denial of long-term disability benefits.   As I discussed in a prior post, if you ever decline a treatment suggested by your doctor, make sure you discuss that decision with your doctor, that your doctor agrees that your decision is reasonable, and that the discussion, and your doctor's approval of the decision, is reflected in your medical records.  As a long-term disability insurance lawyer, I've learned that Connecticut has some great MS specialists who have been a great help in appealing denials of long-term disability claims based on MS.  By working with them, you can make sure your treatment decisions don't harm your long-term disability insurance claim.  

Another Small Indication the Courts May Someday Award Complete Damages for Violations of ERISA

Richard Johnson has a great ERISA blog exploring legal issues from the employee/plan participant perspective.  Since my blog is aimed more towards claimants than to lawyers practicing in the ERISA area, his blog is a good supplement to mine. He has a  post about the recent case of D'Iorio v. Winebow, Inc. where the court stated that ERISA claimants might be able to obtain more generous remedies for violations of ERISA than have generally been allowed.   

As I've discussed in a recent post in this blog, the remedies available under ERISA when a plan wrongfully denies benefit are generally limited to payment of the benefits that should have been paid in the first place.  Punitive damages(to punish the company for an unreasonable denial), or consequential damages (to compensate for the consequences of a benefit denial such as emotional distress or losing a house) are generally not available.  As I discussed in the recent post, there have been a few indications that the courts were loosening up and might be willing to start ordering more comprehensive relief.  

As Richard Johnson explains, in  D'Iorio v. Winebow, Inc.,  a New York federal trial court case raises the possibility of that consequential damage and punitive damages may be available when a plan breaches its fiduciary duty to disclose plan terms to a plan participant.  But the court does note that the burden to show such damages is high, requiring fraud or actual malice (that is, a motivation to personally hurt the plaintiff), and that the plaintiff is unlikely to be able to show that such damages are recoverable in the case.  However, the court said it was too early in the case to decide that she could not recover such damages, and denied the motion to rule in the plan's favor at that point in the proceedings..  

The courts continue to take some steps towards in awarding adequate damages for plan's misconduct, but only baby steps so far.  It is encouraging to have the decision in a trial court in the Second Circuit, that also includes my state of Connecticut.  But, the D'Iorio case involved a different section of ERISA that is involved in benefit denial cases, so it is only tangentially related to denial of benefit claims.  Maybe someday, however, as a Connecticut LTD lawyer, I'll be able to recover reasonable damages in a disability benefit claim denial in a Connecticut federal court.    

From Diagnosis to Disability: Working While Disabled- How Will It Affect My Disability Claim?

Career and family are the two poles about which many of us organize our life.  Losing the pole of work is one of the most distressing consequences of a degenerative condition.  Rather than being outward facing to meet the needs of others (clients, supervisors, co-workers), patients with degenerative diseases are forced inward to focus on healing and coping.  The financial costs of going on disability insurance, which usually pays 60% of income, can make going on disability a difficult decision, particularly if one has children in college, or is dealing with the dual roles of caregiver for one’s children, and one’s parents.  Working while disabled can affect your disability claim, though.  Clients in my long-term disability insurance practice in Connecticut regularly confront the consequences of working while disabled in ERISA benefit appeals and ERISA benefits lawsuit.  

Many people with degenerative diseases, therefore, work as long as they can.  They will make extraordinary efforts to maintain a busy travel schedule even when chronic back pain makes sitting for more than an hour excruciating.  They work longer hours to get the same work done to cope with the cognitive effects of multiple sclerosis.  They ask for duties to be shifted to other employees to deal with a lifting restriction.

What are the consequences to your long-term disability benefits if you work while you are disabled?

• Partial Disability Benefits.  If you have a policy or plan that provides for partial disability benefits, you can be in good shape.  Under such a provision, if you work part-time or less productively as a result of the disability and your income declines, you can get a partial benefit that makes up all or much of the decline in income.  These provisions care often included in private disability policies.  You can reduce your hours and duties, reduce your pay, and replace all or most of the lost income with a partial disability benefit.  Since your employer can pay you for the reduced value you are bringing in, it is more likely that they will keep you on.  This is a great provision, but the formulae for calculating the benefit for a given level of income can be complicated, so it may be useful to consult with an ERISA benefits attorney if you have any questions about it.  

• Will The Insurer Decide You Are Not Disabled if You Are Working?  One of the most unfair consequences of working while disabled is that the insurer may conclude that if you are working, then you can’t be disabled. For instance, let’s say your medical records reflect a level of impairment in May 2013 that could support a finding of disability, and the records for each month after report that you are “stable.”  If you keep working until May 2014, the insurer could say that the fact that you did work for a year shows that you are not disabled.  The insurer may say the medical records reflect no change in condition that could explain why you could do the job from May 2013, but could no longer perform it in 2014.  Some courts haven’t been fooled by this, and realize that some people make heroic efforts to remain in the jobs even though they are disabled. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, (7th Cir. Ill. 2003) 

What Should You Do To Protect Your Right to Benefits when Working While Disabled?

Whether you are planning to receive partial disability benefits, or just trying to avoid the insurer claiming that you are not disabled because you have worked for your disability, you should do the same thing to make sure working while disabled doesn’t hurt your long-term disability insurance claim:

• Talk to your doctor about how the impairments are affecting your work, and make sure he records it in the medical record.  Here’s a link to an article I wrote on the issue: Making Your Medical Records Work For You
• Keep a log of the difficulties your job gives you.  Make sure you do this particularly if you are doing some activity that could be argued is inconsistent with your disabilities.  For instance, if you take a long business trip, make sure you make a record that you had to take two sick days after the trip to recover.  Then, when the insurer it up in claiming that it shows you can work full-time, you will have a record to refute it.

Don’t let working while disabled turn into not working and not getting long-term disability benefits.  Talking to your doctor and keeping a log will make it more likely you will prevail on an initial claim for log-term disability benefits, in an appeal of the denial with the insurer or plan, and in any ERISA benefits law suit you file.

Other Posts in the Diagnosis to Disability Series

Diagnosis to LTD Application: Six Things to Consider

When Should You Tell Your Employer About Your Chronic Condition?

Reasonable Accommodation Can Keep You At Work