Enter Your Email Address to get Updates Emailed to You

Wednesday, February 25, 2015

Chronic Fatigue Syndrome: Doctors Still Have Trouble Accepting that It Is Real

Julie Rehmeyer has an Op-Ed piece in the New York Times discussing the hostility of doctors to the Chronic Fatigue Syndrome diagnosis.  She discusses comments by physicians to the Institute of Medicine report, discussed in this blog here, demonstrating this hostility.  She states that until there are effective treatments of CFS and a definitive diagnostic tests, some doctors will never accept the reality of the diagnosis.  The best existing test, the  two-day exercise-to-exhaustion challenge, can make CFS much worse for an extended period. She discusses some good developments, like treatment with Rituximabe.  She calls for more federal support to find both better diagnostic tests, and more effective treatment.  

If some doctors are doubtful about CFS, you can imagine how doubtful insurance companies are about the reality of the condition, and the impairments resulting from it. You must focus on the impairments you suffer from, and specifically how it affects your ability to work.  See my blog post on focusing on the impairment, and not the diagnosis.

With conditions like CFS, were diagnosis is not based on something definitive like a blood test, and quantifying how a condition like fatigue or cognitive issues is difficult it can be useful to have a long-term disability lawyer to assist with an appeal or an initial claim.. Connecticut has many excellent physicians experienced with CFS, and a Connecticut long term disability attorney can help in securing the cooperation of the physicians that is crucial to a successful appeal of a denial of LTD benefits.  Working together with your doctors and you, we can do much to overcome the hostility of doctors, and disability insurance companies, to the condition.

Thursday, February 19, 2015

Study of Comorbidities with Multiple Sclerosis: When You Have Other Medical Issues in Addition to MS

The MS Society has an article reporting on a study of what other medical conditions are commonly associated with MS, called a "comorbid condition" or "comorbidities."  The study identified many areas where more research is needed, but its preliminary findings were that the five most prevalent disorders occurring alongside MS were depression, anxiety, high blood pressure, high cholesterol, and chronic lung disease.

Comorbidities can cause issues with applying for long-term disability benefits or in an appeal of an LTD denial.  With all claimants suffering from multiple conditions, insurance companies tend to look at each condition in isolation: they will get a report from a psychiatrist that the depression and anxiety is not disabling, a report from a neurologist that the cognitive issues are not disabling, and a report from a neurosurgeon that spinal stenosis is not disabling.  The insurer will then conclude that the claimant is not disabled, without ever considering the combined effect of the different conditions.  Some of the multi-state settlements with insurers regarding unjustified denials of long-term disability have required that the insurers consider the effect of comorbidities together.  

Comorbid physicial and psychological conditions also create a problem if the plan has a limited period to pay disabilities resulting from psychological or nervous conditions.  If there is such a limitation, the insurer may argue that the disability is really the result of the depression and not the associated MS, and discontinue benefits after 24 months.  As shown by the Connecticut LTD case of Kruk v. Metro. Life Ins. Co., 2013 U.S. Dist. LEXIS 35637, 12 (D. Conn. Mar. 13, 2013), involving lupus and depression, the insurer may be able to deny benefits on this basis.  

If you are depending on a combination of conditions to establish disability, or you need to show that you are disabled disregarding a psychiatric condition, you situation is complicated enough that you probably want to have a long-term disability lawyer to represent in the initial appeal of benefits, and certainly in any appeal.  

Friday, February 13, 2015

Disabled While Working: Leaving Your Job? Get Your Personnel File!

Your personnel file can provide useful information to support an initial claim for long-term disability benefits, or to help prevail on an appeal of a LTD denial.  For instance, performance reviews may show a change in performance that can attributed to impairments resulting from your condition; older performance reviews may have praised you for your attention to details, but later ones cite that as a weakness.  This is concrete, objective evidence of the most important fact: the effect of the condition on your ability to do your job.  Also, attendance records can be important.  If you condition is causing you to be out of the office ten days a month, it is hard to claim that you can still do your job.

If you are filing a long-term disability insurance claim in Connecticut, or handling a Connecticut LTD denial appeal, you may not have access to this information if you wait too long.  The Connecticut Personnel Files Act, C.G.S. Sec. 31-128a, only requires an employer to retain personnel records for one year after employment ends.  An employer will probably keep the records for three years to satisfy federal law requirements, but there is an argument that the employer isn't required to release the records after one year after the end of employment.

To avoid this argument, request a copy of your personnel file when you leave your employer, whether it is voluntary or otherwise, so you can make sure you have access to this information in the future if you need it for a Connecticut disability benefit claim or appeal.

Wednesday, February 11, 2015

Names Change, Problems Remain: Myalgic Encephalomyelitis - Chronic Fatigue Syndrome - Systemic Exertion Intolerance Disease

LTD applicants with CFS or ME/CFS can have a hard time being approved for benefits, or to win an appeal of a denial of long-term disability benefits.  The traditional diagnostic
criteria of the C.D.C., link here, are quite subjective.  Also, it can be difficult for a treating physician without experience in this area to exclude all the other diagnoses necessary to establish a diagnosis of CFS.  Due to diagnostic errors by inexperienced doctors, and inherently subjective criteria, insurer have a lot of grounds to deny a claim.   

Some of these issues may be resolved.  Today the Institute of Medicine of the National Academies (“IOM) issued new diagnostic criteria, and recommended that Systemic Exertion Intolerance Disease be the new name for the condition traditionally referred to as Chronic Fatigue Syndrome, and more recently sometimes as myalgic encephalomyelitis/chronic fatigue syndrome (ME or ME/CFS for short).  Here is a link to the IOM page with a number of different reports about the recommended change.  If this is TLDR (too long, didn't read), here  is a link to a New York Times’ discussion of the history of the name of the condition, and why the change was recommended.

The change in diagnostic criteria will make a difference for me as a Connecticut LTD lawyer, in appeals and initial applications. The new criteria establish a diagnostic
algorithm that makes it easier for a doctor to make a proper diagnosis, which will make it less likely that the insurer will deny a claim based on a faulty diagnosis.

But, the most important thing to win a claim for the condition, whether you call it CFS, MECFS or SEID, has not  changed.  You must focus on the impairment, rather than the diagnosis.  See my prior post on this issue.  Your doctor may not be a big help here; doctors are there to diagnose, not conduct a vocational assessment.  So, make sure that in any initial benefits application, or any appeal of a denial, you make sure it is clear:

  • What condition is causing the impairments, 
  • What the impairments resulting from the condition are; and 
  • The specific aspects of the job that you can't do as a result of the impairments. 
Having an experienced ERISA benefits lawyer can help, but whether you are represented or handling the claim on your own, make sure you focus on impairment, not diagnosis.