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Thursday, July 21, 2016

Even Ex-NFL Players Have Trouble Getting Disability Benefits for Post-Concussion Impairments

The New York Times has an article this week about the lawsuit that Haruki Nakamura brought against Lloyd’s of London for wrongfully denying disability insurance after his doctors, and the NFL, told him he could no longer play in the NFL.  While my clients are more likely to sit at a desk and work at a computer all day than tackle an NFL running back, it is remarkable to me in reading the complaint that Mr. Nakamura confronted the same issues as my clients.  The post would be far too long if I addressed all the similarities, but I will note a couple of points:

  • Mr. Nakamura alleges that Lloyd’s imposed “virtually impossible” procedures, making repeated requests for the same documents, losing documents, and distorting medical records.  If the procedures were virtually impossible to fulfill for someone who made a million dollars a year and had a personal assistant to help deal with the insurance company , imagine how easy it is for an insurance company to impose absolutely impossible requirements on someone who made $75,000 a year and has a working spouse.  As I tell my clients, the courts are remarkably tolerant of insurers requiring endless recertification, updated medical records, and independent medical examinations.  Even if we think they are grossly unfair, we have to do the best we can to comply, as the insurance company will use any failure to comply as a basis to reject the claim, and we can’t count on a federal judge being sympathetic to the procedural difficulty of complying with the request.
  • The complaint shows how hard it can be to prove post-concussion syndrome and other conditions that result in cognitive impairments.  As regular readers of this blog know, I have frequently discussed how it is difficult to get insurers to accept cognitive impairments without a neuropsychological exam.  Mr. Nakamura didn’t get such an exam, and it was one basis for the denial.  Neuropsych exams are not always a help, though.  They are a rough measure that may not show the slight decreases in cognitive ability that can make it impossible to perform a cognitively demanding job like a bond trader, so Mr. Nakamura may have decided not to risk a neuropsych that was not helpful.  But, it shows how important it is to have a comprehensive strategy to demonstrate disabling cognitive issues.  I always make sure to emphasize and prove any psychological or physical impairments to make up for any difficulties in proving the cognitive side.
  • The case also shows how willing insurers are to ignore the opinions of highly-credentialed treating physicians.  Mr. Nakamura’s doctor was “an internationally renowned expert in sports-related concussion” who had established the first and largest research and clinical program on the issue.  The doctor on whom the insurer based the denial is employed by “Triangle Forensic Neuropsychiatry,”  and has no particular expertise in concussions 
  • Due to the strong medical community in Fairfield County and Southern Connecticut available to support LTD disability appeals, I am fortunate to work with some of the most prominent doctors in their fields.  The insurance companies, however, are happy to rely on anyone with the right initials after their name.  One insurance company rejected the opinion of a national authority on multiple sclerosis who was a full professor at Yale in favor of an opinion from a family medicine doctor whose only clinical experience was ten years of work in a rural Maine medical clinic.  Again, the way to deal with this is a comprehensive strategy to create an overwhelming case for disability.
The lesson of the Nakamura case is that insurers are equal-opportunity abusers, happy to abuse the rich and famous as well as poor and the middle class.  Make sure you are not alone on this journey by finding an experienced, sympathetic and aggressive lawyer who can create the comprehensive strategy necessary to succeed in long term disability appeals and long term disability litigation.