Listen in as Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey talks about the many disabling conditions that disability insurance carriers and other issues you may have regarding your Long Term Disability policy coverage.
Nancy is known for helping those with specific conditions fight the disability insurance company for the rights of her clients.
Resources Mentioned In This Episode:
LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/
LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/
FREE CONSULT LINK: https://caveylaw.com/contact-us/
Need Help Today?
Need help with your Long Term Disability or ERISA claim? Have questions? Please feel free to reach out to use for a FREE consultation. Just mention you listened to our Podcast!
Review like and give us a thumbs up! We love to see your feedback about our Podcast!
Listen in as Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey talks about the many disabling conditions that disability insurance carriers and other issues you may have regarding your Long Term Disability policy coverage.
Nancy is known for helping those with specific conditions fight the disability insurance company for the rights of her clients.
Resources Mentioned In This Episode:
LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/
LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/
FREE CONSULT LINK: https://caveylaw.com/contact-us/
Need Help Today?
Need help with your Long Term Disability or ERISA claim? Have questions? Please feel free to reach out to use for a FREE consultation. Just mention you listened to our Podcast!
Review like and give us a thumbs up! We love to see your feedback about our Podcast!
Hey, I'm Nancy Cavey, national ERISA and Individual Disability Attorney. Welcome to this week's episode of Winning Isn't Easy. Before we get started, a Florida bar says, I have to give you a legal disclaimer that says, this podcast isn't legal advice. Nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Do you have me CFS or fibromyalgia? Now, I talk a lot about me CFS and fibromyalgia claims because I think that they are the trickiest cases to win. Um, in this episode, I'm gonna talk about three topics, but I want you to understand that even though I'm talking about me cfs, it doesn't mean that these topics aren't relevant to other diseases because disability carriers will generally play out of the same playbook. Topic one is a diagnosis of fibromyalgia sufficient to overcome an Aetna disability insurance claim denial, two, chronic fatigue syndrome, disability insurance claims, and what you need to know about limited disability benefit clauses and fibromyalgia and objective medical evidence. Hartford Challenges a 20 year claim ready to take a break. Before we jump into this week's episode, let's do it.
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Speaker 1:Welcome back to Winning Isn't Easy. Is a diagnosis of fibromyalgia sufficient to overcome an Aetna claim insurance denial. Let's start out with some basics. You, as the disabled policy holder or beneficiary, have the burden to prove your entitlement to benefits. Is diagnosis alone sufficient to meet your burden or proof? So let's talk about this case in the context of Boatright versus Aetna Life. This is a, a middle district case outta Florida, and Ms. Boatright was diagnosed with a number of medical conditions, including fibromyalgia. She applied for it. She was paid her own occupation, long-term disability benefits by Aetna until the definition of the disability change to in any reasonable occupation test. At that point, Aetna denied her claim based on the lack of current medical information from treating physicians the result of three liar for hire, peer review, uh, doctors who had looked at her records, a vocational report that said she she could work and surveillance. Now, guess what? Her case ended up in federal court and she tried to overcome her lack of medical evidence by arguing that the diagnosis, the lack of improvement over time and the fact that there's no known cure for fibromyalgia was sufficient to win the day, unfortunately. But predictably, the judge disagreed noting that the diagnosis of a condition or conditions is insufficient to establish that a plaintiff meets the definition of disability within the meeting of the policy of the plan. Now, the judge correctly pointed out that the issue before the plan administrator was whether the fibromyalgia precluded her from working in any reasonable occupation. So it wasn't the diagnosis that was at issue, it was whether or not she had, uh, restrictions and limitations that would prevent her from doing any reasonable occupation. As that term is defined in the policy, I think there's some lessons to be learned from this case. The case was lost primarily because of the lack of proof. So we need to understand first that the diagnosis alone isn't sufficient. Two, that you've got the burden to prove and your case, and you've gotta provide medical information about your symptoms, how those symptoms impact your ability to work in any reasonable occupation, the objective basis for those restrictions and limitations that impact the ability to work. And to do that, number three, you should be undergoing what's called a functional capacity evaluation, which is an objective measure of your physical capabilities or a c a study to document the impact of fatigue, uh, on your ability to work. If your doctor isn't supportive, then you need to find a new doctor. And, uh, the fourth tip is not only do you need to find a new doctor, but potentially you should undergo your own independent medical evaluation by a physician who understands the nature of this disease and is competent and qualified to renders opinions based on a physical examination and review of your records, um, about your diagnosis and your restrictions and limitations. And number five, you should be obtaining a vocational evaluation because you would need to tie it all together. You need to establish not only that objectively you have restrictions and limitations, but that these restrictions and limitations are such that you couldn't perform any reasonable occupation or depending on the definition, any other occupation in the, uh, that you could perform potentially based on your education, training, experience and skills that you've learned. Got it. Please, please don't let these mistakes doom your claim. You need the assistance of an experienced, there is a disability attorney in these, uh, claims simply because these are the kinds of claims that disability carriers hate and they love to deny. So don't give the disability carrier a reason to deny your claim. Let's take a break. Welcome back to Winning Isn't Easy, chronic Fatigue Syndrome, disability Insurance Claims, and what you need to know about limited disability Benefit clauses. Did you know that many disability policies or plans have subjective medical conditions or limited disability benefit clauses? That means that your payment of disability benefits can be limited to just 24 months, and there is often a fight, in my view about the terms of these limited disability clauses and whether a particular medical condition falls within the limited disability clause. So let me tell you the story about Tucker versus Express Scripts. This is a case out of Missouri. Tucker was covered under a disability plan that had a limited disability benefit provision that limited the payment of disability benefits after 24 months for certain medical conditions, including chronic fatigue syndrome. Now, when there's such a policy limitation, there are two arguments that we make as attorneys to try to, um, rebut the application of this clause. The first is that the policy limitation is so poorly written that we can't figure out whether this condition is included or not, and or the disabling condition isn't one of the limited listed benefit conditions. Now, in Tucker's case, the benefits for chronic fatigue syndrome were limited to just 24 months, is right there in black and white in the terms of the policy, or rather the plan. Now, the disability plan found that Tucker was disabled by chronic fatigue syndrome and denied his claim for the payment of benefits that was greater than 24 months. And of course, his case ended up in federal court. So what did Tucker argue? He argued that, Hey, I'm not disabled by chronic fatigue. I'm disabled by post-viral chronic fatigue syndrome, fibromyalgia and chronic Epstein bar infections. So that's another approach. Another approach to attack these limited disability clauses is to argue that you're disabled based on medical conditions that aren't listed in the limited disability insurance clause. But I'll tell you that can be tricky for several reasons. Now, first and foremost, many of these policies and plans have what's called a discretionary clause. That's a, a get outta Jail free card. Uh, the, the the discretionary clause basically says to the judge, you've gotta defer to our interpretation of the terms of limited disability benefits. Uh, and judge you can only overturn that if the interpretation is unreasonable. Secondly, you need to understand that the judge is gonna review the carrier's medical analysis and conclusions about what medical conditions are the cause of the disability, and whether or not those medical conditions are excluded by the limited disability benefit clause. So in Tucker's case, he's saying, look, my disabling diseases are post-viral, chronic fatigued syndrome, fibromyalgia and chronic Epstein Bar virus, and Epstein Bar is not one of those limited benefit conditions. So voila, you gotta pay me. Now, in this case, the planet determined he was disabled because of his chronic pain, uh, and fatigue and not the chronic EB infection. Tucker's physicians and the plans physicians actually relied on the same medical article in term trying to come to a conclusion about the relationship between CFS and Epstein Bar. And guess what? Treating physician had one opinion. The carriers, uh, physicians had another opinion. They didn't, they didn't agree. One of the fundamentals under the ERISA l case law is that a carrier plan doesn't have to accept the opinions of the treating physician over that of its own doctor. In other words, there is no treating physician rule. And when you have an abusive discretion clause, the courts will routinely say that it's not an abuse of discretion for the carrier to accept the opinions of its own doctors, even if they're liar for hires, uh, and their own interpretations of the medical literature over that of the treating physicians. So as a result in this case, there was a claims, uh, denial, and the court upheld the claims denial regardless of the approach, um, that you, you know, you potentially take, um, either arguing that the limitation is poorly written or the disabling condition isn't one of the listed conditions. You know, the bottom line is that you've got the burden of, of proof, particularly when you've got this, um, arbitrary and patricious standard of review. Look, disability carriers are in the business of denying claims, but I don't think you should, should necessarily give up. I do think that there is hope, but you have to have a very strategic approach to not only filing the claim, but to filing an appeal and, you know, filing ultimately your complaint if needed in federal court. Got it. All right, let's take a quick break.
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Speaker 1:Welcome back to Winning Isn't Easy, fibromyalgia and Objective Medical Evidence. How Hartford challenged a 20 year claim. They've been writing checks for 20 years. What happened? Look, disability carriers don't like fibromyalgia disability claims, and they will often deny these claims on the basis of a lack of objective medical evidence. And it's rare, quite frankly, that they pay claims long and even as long as, in this case, 20 years. Let me tell you the story about Terry Haing, uh, and the Hartford Life Insurance Company. Now, Henick had been treated for over 20 years for fibromyalgia and depression. Out of the Blue Hartford said, eh, we don't believe the treating physicians anymore. We're gonna deny this claim. She filed a lawsuit and the court fortunately found that Hartford's exclusive reliance on a series of liar for hire file reviewers and paid consultants showed that the benefit termination was arbitrary and capricious. Um, and they noted that Hartford had relied on an overly uh, crib view of this case and, and what constituted objective medical evidence and documented clinical findings. Now, the court acknowledged that fibromyalgia, uh, does not necessarily lend itself to laboratory findings or the quantitative medical testing, and ultimately the court overturned this denial and reinstated the benefits. But you need to understand that that doesn't always happen In this appeal. What should have been done and hopefully was done, is that, uh, they addressed, um, what the objective medical evidence was that established the diagnosis, uh, established objectively through a functional capacity evaluation or a CPAT exam, the true and and ongoing nature of her restrictions and limitations and how the, uh, FCE was objective medical evidence of the restrictions, limitations, and then tied it all together with a vocational opinion. I know that this segment is about objective medical evidence, but ultimately cuz you have the burden of proof, you've gotta tie it all together, uh, in a bow tie, if you will, or in a bow ribbon or whatever you wanna call it. And, and basically prove an objective basis of the diagnosis to the extent that you can in a medical condition like this. More importantly, objective evidence of the restrictions, limitations, and then objective evidence that establish a causal relationship between those restrictions and limitations and your inability to do your own or any occupation. Uh, the more proof, the better and the more likely it is that a judge will, will, uh, overturn a wrongful claim, denial or termination. Just remember it, it doesn't how, it doesn't matter how long that they've paid you the benefits, they're always looking for a reason to deny the claim, terminate the benefits, and stop their exposure. Got it. It. Well, I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, consider liking the page, leaving a review, sharing it with your friends or family, and please subscribe to this podcast. You'll be notified every time a new episode comes out. I hope you'll tune in to next week's episode, and I thank you for being with us.