“See Attached:” Andy Rooney and The Two Most Important Words in Completing LTD Forms.

Andy Rooney  used to have a regular humor segment on 60 Mintues complaining about minor annoyances of daily life.    I was never a fan: if you have airtime, why not complain humorously about the major issues with daily life rather than the size of paper towels, as he did in the link provided?   One segment in particular stuck with me as an example of how trivial his complaints were: the whole segment was about forms that left too little space to fill in the information requested.

Once I started helping Connecticut long-term disability claimants submit initial long-term disability claims, however, I realized that insurance companies can use small spaces on forms for their own advantage.  In prior articles,  here and here, I’ve discuss the games insurance companies play in constructing their forms – creating a form that could lead to someone in a coma being found capable of performing a sedentary job - and ways to avoid the insurance company’s trap.  The too-little-space problem Andy Rooney identified is easier to deal with that this - we can solve it with   two words: See Attached.

Most long-term disability claims are started with two forms:  the claimant’s statement you complete, and the attending physician’s statement completed by your doctor.  The forms request similar information: the impairment you suffer from; your job duties; and how your impairments prevent you from performing your job.  

The topics can be complex and require a lot of information to explain.  But, the forms only give you a little space to explain them.  Here are the relevant sections from one company’s form:

This is not a lot of room to describe the effect of a complex condition on a demanding job.  You could write in little letters, but there is a better way:  simply write “See attached” in the space, and then attached a document were you can describe everything in detail.   Make sure you tell your doctor that he can put down “see attached” as well.  The best things the doctor can attach are actual office visit notes, or tests results (MRI’s showing severe spinal stenosis or a neuropsychological exam documenting cognitive impairments), that demonstrate the vocational impairments resulting from your physical condition.

The too-small-space problem arises in long-term disability benefit appeals as well, as the insurer will commonly require your doctors to prepare attending physician statements for the appeal.  The forms are more important in initial LTD applications, though, because it might be your only chance to explain your condition and how it keeps you from doing your job.  Even though you now know about the "See Attached" trick, using a lawyer who regularly works on initial LTD applications, and who knows through an active LTD benefit appeals practice  what insurance companies need to see to establish disability from giving medical condition, can make it more likely that your first application will be successful.  

2015 ERISA Litigation Review

For the sixth year, I've prepared the annual review of ERISA litigation for the Annual Review of the Labor and Employment Law Section of the Connecticut Bar Association.  Here is a link to the article.  It is intended for lawyers, but it can give you an idea of the current state of ERISA litigation.  Among the topics discussed are:

• What remedies are available under ERISA for both participants and plans;
• Pending cases in the Supreme Court whether plans have the right to recover from personal injury recoveries for medical claims paid, and whether the Summary Plan Description is a plan document that can be enforced;
• The latest installment of the saga of Amara v. Cigna, where trial courts, appellate courts and the Supreme Court have striven mightily to try to fashion a remedy when a plan lies to its participants, constrained by the Supreme Court's prior decision severely limiting the remedies of plan participants.  
• Long-term disability litigation in Connecticut district courts and other federal trial courts.  Several of the cases found against the insurer on grounds that the company's basis for disregarding the treating physicians opinions were not valid.  They provide some good clues about how to attack the insurer's decisions on appeal.  

Here is a link to my Employee Benefits Practice Page, which has links for the ERISA litigation updates I've prepared for the Connecticut Bar Association for 2010 through 2014.  Reading them together gives a good sense of the evolution of ERISA benefit appeals in Connecticut, and throughout the country.  

If You Make the Same Arguments In Your ERISA Appeal that You Made Before, Get Ready To Lose

When you submitted your initial application for long-term disability benefits, or any other benefit subject to ERISA, you thought you submitted enough to show that you were disabled: 

• Your claimant statement recited the many things you could no longer do at work or at home; 
• Your doctor submitted an Attending Physicians Statement outlining how little you can sit, stand, keyboard, lift, etc.; 
• You bugged your doctors for weeks to get them to produce the medical records requested by the insurance company.   

If your treating physician gave an opinion that you were disabled, how could the insurer disagree?

So, you are shocked when you get the denial.  You immediately start making a list of the evidence the company ignored: the doctor’s opinions rejected for no good reason; the unfair conclusions; your detailed statement about what you could do.  You are outraged at the decision, and you want to insurance company know all the ways it messed up.  If the company just conducted the “full and fair” review that is mentioned in the denial letter, they can’t help but grant you benefits, right?.  So, you prepare an appeal of the denial of long-term disability benefits, pointing out all the things in the materials you submitted that show you are disabled that the company ignored.  

Prepare to be shocked again, because it is almost inevitable that you will be rejected again.  Even if you think you have the best case possible, you have to submit new information for the appeal.  After all, the appeal will be decided by the same company that denied benefits the first time.   The company is not going to change its mind without new evidence, no matter how unreasonable the first denial was.  

ERISA requires that the insurer state the reasons the claim was denied, and what information has to be submitted to prove the disability.  Take advantage of one of the provisions of ERISA that actually helps you!  Use the denial letter to find out exactly what new information you need to submit to have the best chance to prevail in your appeal. 

The types of information you should submit is addressed elsewhere in this blog: get a neuropsych exam; have a functional capacity evaluation done; have your doctor do a new evaluation of your cervical spine to specifically address the issues raised by the insurance company.  The information submitted with the appeal will be different in every case, since it has to address the specific reasons raised by the company for denying the appeal.  And, you certainly will point out the errors the insurance company made in its initial decision.  But, you will discuss it after you present and argue your new information.     

It is hard not to respond reflexively, to defend what you have done, when you receive an indefensible decision by an ERISA plan or insurer. But, step back, take a breath, and figure out what new information you need to submit to address the grounds for denial set forth in the denial letter.  Having an ERISA attorney in Connecticut, or your state, can be a big help in the process in providing the knowledge and experience you need to get the benefits you earned.  

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.  

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.

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