The Disability Insurer Is Calling You a Liar: Objective Evidence of Subjective Conditions

The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments.  By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.

Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard.  The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing.    The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors.  This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.  

Why would a patient lie to her doctor?  The insurers never say, but there are only two possibilities:  

• the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or 

• the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing.  In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."

Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.  

But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment?   When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints.  Kelly v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932 (D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's chronic and severe pain under the apparent theory that MRIs or EMGs must demonstrate some structural deformity for a person to be disabled because of back pain. Unfortunately for all parties involved, back pain, even severe pain, is not so simple.")

But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain.  Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions.  A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady.  And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been  made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.  

The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence.  Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true.    Some courts have accepted this analogy.  Lasser v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform him of his daily activities in order to obtain an effective program of rehabilitation. Indeed, it is based on this indicium of reliability that such out-of-court statements by Dr. Lasser would be admissible under the Federal Rules of Evidence.”).

In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it.  The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar.  We'll see if Connecticut federal courts will start turning the tables and require  insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.  

MS Society Presentation on Managing Cognitive Symptoms and Fatigue in the Workplace

The  National MS Society has a great on presentation on dealing with cognitive deficits, that is, difficulties with thinking, remembering and concentrating, in the work place.  The presentation is geared to MS, but would also apply to any degenerative cognitive disease, such as Alzheimer's disease, fronto-temporal lobe disorders, Parkinson's, and side effects of opiods and other medications taken for chronic pain.

Cognitive deficits from degenerative diseases can present difficulties with long term disability benefit claims.  In the early stages, someone may look physically healthy, but have started to suffer cognitive problems.  Your boss may doubt that you are disabled if he sees you working out at the gym after  you requested a reduced work schedule due to cognitive issues resulting from fatigue.  To address the potential doubts, make sure you tell your doctors about the difficulties you are having with cognitive issues.  You consider getting a neuropsychological exam to provide a baseline for neurological function so you can prove that your cognitive difficulties have in fact declined.  

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.

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.  

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

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

Working While Disabled

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.

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:

• When do I tell my employer about my condition?
• Will working while I am disabled hurt my chances to get disability benefits later?  
• Should I ask for reasonable accommodation under the Americans with Disabilities Act, or ADA, to allow me to do my job longer, and what accommodations am I entitled to?  What if I have been out of work on disability but I’ve had a relapse and I think I can return to work?  How will that affect my disability benefit claim?
• While I am still working, how do I best work with my physicians to increase the chances that I will get disability benefits when the time comes?
• If I work part-time, how will that affect my application for disability benefits, and the amount of the benefit I will receive ?
• When should I leave my job?  Should I ask for severance?  What if I am asked to sign a release?  

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.