Listen in as Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey talks about the many disabling conditions that disability insurance carriers broadly classify as Shoulder Problems, how the carrier will classify your injuries or conditions in a way that benefits them the most, 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 broadly classify as Shoulder Problems, how the carrier will classify your injuries or conditions in a way that benefits them the most, 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 Winning Isn't Easy. Before we get started, the Florida Bar says, I have to give you a legal disclaimer. This podcast isn't legal advice, so I've said it, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance, world Games, the carriers play, and what you need to know to get the disability benefits you deserve. So, off we go. Shoulder disabilities can be extremely, uh, difficult to work around, if you will. Um, that's because we use our shoulders, uh, in front of us, above us to the side. And lack of mobility or stiffness can impact not only the use of that, um, particular extremity, the affected extremity, but it also affect the use of both of your shoulders, which is called bilateral manual dexterity. That is really important in an ERISA disability claim. And that's what we're gonna talk about today. Specifically, I'm gonna talk about can you get long-term disability benefits for shoulder problems? Second, I'm gonna tell you the story about how MetLife applied a musculoskeletal and soft tissue disorder limitation to a shoulder surgery case. And I'm also gonna talk to you about how disability carriers will use medical improvement and, uh, shoulder injuries or conditions to terminate disability benefits. Ready? Well, I think this is gonna be an exciting episode, but let's take a break before we get started. Okay.
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Nationwide ERISA Attorney Nancy L. Cavey:Welcome back to Winning Isn't Easy. Can you get Long-Term Disability Insurance Benefits for shoulder problems? If you have a disability insurance policy or plan through your employer, or you've purchased a disability insurance policy on your own, you might be entitled to your long-term disability benefits because of shoulder problems. But in the course of my practice, I have found that disability carriers or disability plans don't understand the anatomy of the shoulder joint or the types of disabling shoulder problems that can be the basis of a disabled, uh, disability claim. So let's talk about those because I want you to be on the same page with me. Let's first talk about the anatomy of the shoulder. Your shoulder joint has three bones. The upper arm is known as the humorous. The shoulder blade is known as the scapula, and the collarbone is known as the clavicle. So we've got the basic bone structure here, but I want you to think of your shoulder as a shallow cereal bowl. The top or of the upper arm or the humus is shaped like a ball. And this humorous is gonna fit into the shallow cereal bowl. This is like a shallow socket, if you will, in the scapula. Now, ligaments will keep the ball centered in the socket and your rotator cuff muscles will just do that. They'll lift and they'll rotate your arm. The clavicle, which is across the top of your shoulder, provides support and that allows your arm to move freely. If you've got problems with your shoulder, you might have pain, you might have weakness, you might have instability. And disability carriers don't understand this architecture of the shoulder joint, the shallowness of the joint, and the strong ligaments that are required to keep the ball centered in the socket and then the muscles that allow you to move your arm. What are the common problems with rotator cuffs that disability carriers don't understand? Well, one of the most common problems you'll see with shoulders is RO rotator cuff problems. Um, think about a, a baseball pitcher. That repetitive motion of throwing that type of motion or um, which is called repetitive trauma or actual trauma to the shoulder, can cause rotator cuff problems. So let's talk about the anatomy of the rotator cuff and let's talk about what carriers expect to see in your medical records. Now a lot of people say, Where are you going through all this? Because, you know, I just got a rotator cuff problem. Well, the reason is that the disability insurance carrier or plans doctors are going to go through those records. Basic anatomy, the four rotator cuff muscles that move your shoulders, um, can um, really impact your ability to use the, the the shoulder. Um, and the shoulder, um, is uh, as we've talked about before, is in a shallow joint and the muscles and the tendons help keep the shoulder joint in place. And then the rotator cuff muscles will actually move the um, shoulder lets you move it. So one of the most common, well, well it is a common muscle, one of the integral muscles in the shoulder is the deloid muscle. And so let's talk about um, some more issues with anatomy and problems that we've got here. Tendonitis is an inflammation of the tendon that connects your shoulder to the upper arm. Bone bursitis is an inflammation of the bursa, which is a fluid filled space in the shoulder. There can also be a partial or a full tear of a tendon, and then there can also be shoulder impingement. That's where the rotator cuff rubs or sketches on the bones of the shoulder. Not only that can lead to a tear. So now that we've got some basic anatomy here and we understand some of the basic, uh, problems in the shoulder, what is it that the disability carrier's gonna do when they look at your medical records? Well, what they're going to be doing is they're gonna look for the history of the onset of your symptoms, your symptoms, the results of the x-rays or MRIs and an arthrogram of your shoulder. They're also gonna be looking for x-rays that will show boney injury, bone spurs or arthritic changes. The MRI is gonna show detailed imaging of the tendons, the ligaments, and the muscles that surround the joint. The MRI is also important because it can provide information about the location, size, and age of the rotator cuff tear. An arthrogram, which I've had before, uh, is an injection of dye into the shoulder joint and it's not a pleasant feeling to have it, but nonetheless it can reveal hard to find problems in the shoulder including dislocations or instability. So in all of this, the disability carrier's gonna wanna see a diagnosis of the shoulder problems and then a differential diagnosis that rules out other causes of your shoulder symptoms such as a herniated disc in your neck or even gallbladder disease. Once the diagnosis is established, then the disability carrier's gonna look at your records for the treatment and your response to that treatment. The first course of treatment that the carrier is gonna expect to see is a recommendation for rest to allow the inflammation or the irritation to subside. But prolonged rest can be bad because it can cause joint stiffness. Now the disability carrier plan is gonna expect that you've undergone a course of physical therapy medications including non-steroidal anti-inflammatories and even steroid injections. I have found that many times disability carriers or plans deny claims at this point cuz they'll argue that the severity of your claimed medical problems including pain, the limited range of motion and stiffness have resolved since your condition wasn't bad enough to have surgery. Okay? But they're gonna flip that argument. If you've undergone shoulder surgery, then the disability carrier plan is gonna closely review your medical records for your postoperative course of treatment and your response. Disability carriers, as I say all the time, aren't in the business of paying benefits. And one of the things they use, one of the tools they use is a disability duration guideline. And that provides conservative, conservative, conservative estimates of how long it should take for you to recover from your rotator cuff problems. Disability duration guidelines are just that a guideline, uh, because you know people are different, but disability carriers absolutely use these as absolutes. Um, so you need to understand that they're gonna game disability guides. Now there are also other problems with the shoulder that can lead to disability claims. One is a frozen shoulder that's known as adhesive capsulitis. It causes a severe and painful restriction of the motion of the shoulder joint. And I have a lot of disability claims arising out of frozen shoulders. It's a common condition, um, that unfortunately impairs your ability to lift and move your arm. It feels like it's like moving through concrete, slow mo the pain can make getting and staying asleep difficult. So again, we have these issues with, um, disability carriers not understanding the anatomy of the shoulder joint, the causes of the frozen shoulder, the symptoms, and the three stages of a frozen shoulder. So what are the causes of a frozen shoulder? It's twice as likely to develop in women than in men and it commonly occurs in ages 40 to 60 with and without trauma. That confuses disability cares because they expect to see trauma it can develop after a shoulder injury, after shoulder surgery and as a complication of diabetes and even vaccinations. So discipline carries expect some major trauma and they don't understand that there could be minimal trauma or no trauma at all. That's important because then they'll question the diagnosis, but then they'll also question the severity of your medical condition cuz they equate trauma with severity. What are the symptoms that disability carriers miss and things that you need to make sure are in your medical records? Well, if you have problems with the shoulder, they want to, uh, have you address whether or not you're having any neck pain issues. Upper shoulder pain, elbow and forearm pain, neck stiffness, headaches and numbness in the hands. Now again, I don't always see disability carriers considering the advanced stage of symptoms or the impact that those symptoms have on your functionality. So if you have pain or numbness, the disability carrier is going to expect to see that you've undergone an EMG and nerve induction study test to rule out a herniated disc or even carpal tunnel. Um, they get hung up unfortunately on the diagnosis. Now, as I indicated to you before, these symptoms can impact bilateral manual dexterity and that's important to performing most, uh, occupations carriers don't and plans don't understand the three stages of a frozen shoulder. So let's talk about those and let's talk about what carriers expect to see. In stage one of a frozen shoulder, there's dull aching pain in the shoulder that can last two to nine months. Over time the shoulder becomes painful and stiffness will build up limiting the shoulder movement. At stage two of a frozen shoulder, the pain subsides in the upper arm and the shoulder, but the primary limitation is stiffness and problems with range of motion. And you might have some acute nerve pain, uh, when you're moving the shoulder. So you gotta distinguish that. Um, pain from nerve pain. Pain is one thing, nerve pain is another. And I know that you'd know when you're having nerve pain, but this stage can last four months to a year. Now during the third stage, there might be a thawing of the shoulder and the range of motion will start to return. This can take two to three years. And the disability carrier in these kinds of cases think that as soon as some degree of range of motion is restored, you're no longer disabled. But these are the kinds of cases I see and that's the 10% of the cases of frozen shoulders that don't disappear without surgical treatment. Now the problem here is that the delay or refusal and undergoing surgery can result in permanent damage to this oval joint, which in turn can result in cartilage destruction and deterioration of the joint with muscle wasting. So, you know, if you are having extensive problems with your shoulder, you want to be seeing a specialist in shoulder disorders, not your garden variety orthopedic surgeon. Once your diagnosis of a frozen shoulder been established and the disability carriers gonna go waling through your medical records, again to look at your treatment and your response to treatment, they're gonna expect that you have physical therapy, medication, non-steroidal antiinflammatories and injections. And then ultimately they're gonna expect that you see surgery or have surgery, whether as they're looking at your medical records, they're going to see whether or not there's any improvement or whether or not you are status quo. Because if you plateau and if you're at status quo, the carrier again equates that with an ability to work, which generally is not the case. So your medical records are gonna have to make it clear, uh, that even with a plateaued status, that you're still having significant dysfunction, uh, with your shoulder. Now another common shoulder condition is shoulder instability and shoulder dislocations that's generally caused by a traumatic event can be caused by overuse. Um, and what the carrier's looking for is the instability and instability is a loosening of a joint and the shoulder can feel so unstable that it feels like it's gonna pop out of the joint, but there's also multidirectional instability and that can result from chronically loose ligaments. It feels like the shoulder isn't staying tightly in position and there's this excess range of motion. Um, this sensation is known as dead arm. There's also instability Now that's commonly seen with people who have loose joints or connective tissue disorder like er danlos. On the other hand, shoulder dislocation is an injury that occurs when the top of the arm arm bone becomes disconnected from the scapula. So your upper arm bone pops outta the socket. There are three types of shoulder dislocations and carriers don't get this. So your doctor's gotta make sure that this is well documented. There's going to be an anterior or forward shoulder dislocation where the head of the humus or the arm is moved forward into the front of the socket known as the glenoid. There's also the posterior or behind, which is where the head of the humus is moved behind and above the socket. And then there's inferior where the head of the humus is moved down and out of the socket. Your medical records should be documenting based on x-rays, MRIs and physical exam, the nature and the location of the dislocation or the instability because again, the disability carrier wants to understand, uh, the nature of the the diagnosis, but they're also gonna be looking at those medical records. And I will tell you that um, you know, I'm a big skier and uh, I ski with my, one of my friends who was an ER doc and we've had some of our fellow skiers fall and dislocate the shoulder and my er doctor friend pops it back in. That's really called a fresh shoulder dislocation that obviously is not going to be disabling and you know, my friends are tough people and we just get up and we keep on skiing. But generally the you'll regain full shoulder function within a few weeks. But the problem here is that once you've dislocated the shoulder joint, it can become unstable and prone to repeated dislocations. And if your shoulder dislocates more than once, the surgical repair or tightening of the ligaments is gonna be recommended. The rotator cuff, the muscles and the tendons surrounding the shoulder joint are also likely to tear in older patients and that can make repair and lasting improvement problematic. So if you have, um, that kind of a situation where there's been no trauma, um, uh, but you're having continued shoulder problems, again your doctor needs to document that why it is you're having these problems and the nature of the problems. Cause again, disability carriers are gonna be walking through your medical records looking for a reason to deny a claim. Now that I set the stage, now that you're an expert in the anatomy of physiology of a sh of shoulders, how you, uh, understand what diagnostic studies are used and you understand the different kinds of shoulder conditions. Let's step back for a second and we're gonna talk about real life cases so you understand how disability carriers handle shoulder ca claims. Okay, let's take a break before we jump in. Welcome back to winning Isn't Easy. MetLife applies a musculoskeletal and soft tissue disorder limitation to a shoulder surgery. Long-term disability claim. Shoulder pain can be caused by fractures, tissue inflammations, tears, joint ligament instability, and even arthritis. And treatment can vary depending on the cause of the shoulder pain and can even include surgery. Did you know that there are over 2 million Americans who have shoulder problems each year and it's no wonder that shoulder problems are one of the leading causes of disability insurance claims. So before you stop work and apply for benefits, we've gotta figure out what's in your wallet. I mean what's in your disability insurance policy or plan. If you have a disabling medical condition and your doctors told you to stop work, I want you to pull out that long term disability plan or policy. I want you to read it cover to cover. Why? Well, you wanna know what benefits you might be entitled to, but you also want to know are there any limitations on how long you might get benefits? Disability carriers, uh, have written disability, uh, plans and policies to try to limit how long they have to pay benefits. And some of these policies or plans will have, uh, mental nervous policy limitations or they'll have neuromuscular, musculoskeletal or soft tissue disorder limitations. And that's exactly what came into play in a case against Turner Industries. It's the case of SCHAL versus Metro Life. It's a Louisiana case and in this particular plan there was a neuromuscular musculoskeletal and soft tissue limitation that said, look, benefits are just limited to 12 months. Um, if you have any disease or disorder of the spine or extremities and there are surrounding soft tissues including sprains and strains of the joint and adjacent muscles unless the disability has objective evidence of radiculopathy. Now radiculopathy isn't nerve impingement, tingling, numbness, that sort of thing, and disability carriers are going to want to see proof of the radiculopathy in the form of uh, MRIs and EMGs and nerve conduction study tests. In this case, Schmill injured his right shoulder while playing catch with his son. He went underwent surgery and he was paid short and long-term disability benefits. Once that one year rolled around MetLife said to schmill, Hey, your benefits are gonna expire since is subject to the 12 month lifetime maximum benefit. Now Schmill filed an appeal saying, Look, I'm mentally and physically disabled from all gainful employment to multi-level shoulder, I'm sorry, cervical spine degeneration, radiculopathy with bilateral upper extremity radicular symptoms, chronic right shoulder pain, diabetes, and I've even got some psych issues. He argued that his benefits were not limited to 12 months because he had objective evidence of radiculopathy with MRI evidence of dis bulge at C four C five C five c6. So what did MetLife do? Well, MetLife had his file reviewed by a psychiatrist, a family medicine doctor and an orthopedic surgeon. The orthopedic surgeon said there's no objective evidence of radiculopathy notwithstanding the results of the MRI and the MetLife liar for hire orthopedist criticized that cervical MRI on the basis that there was no evidence to support the cervical radiculopathy because there was no evidence of neuroforaminal narrowing or encroachment upon an existing or translating nerve root. Now what was lacking here was an EMG and nerve conduction study test, which would have proved that there in fact was electrical evidence of impingement. What's the court do? Well the court ends up agreeing with MetLife that schmid's shoulder injury and subsequent surgery were subject to the musculoskeletal or soft tissue disorder, uh, limitation. And they rejected his arguments that there was evidence of radiculopathy noting, uh, that the plan didn't specify that medical imaging confirming radiculopathy was necessary. Now the judge said even though the policy doesn't require it, you know, I'd like to kind of see it and I don't see it and therefore, um, you know, I don't think there's any objective evidence of this ridiculopathy. And as a result the court upheld the denial. So it's hard to overcome these types of policy plans or limitations if you don't have the right kind of medical evidence that should have been an mri, maybe an arthrogram, an x-ray, an EMG and nerve conduction study test cuz you want to, um, to slide into that exclusion of the radiculopathy. So it's a matter of proof. It can be hard to convince a judge to overcome these types of policy or plans limitations without the right kind of proof. Got it. All right, let's take a break.
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Nationwide ERISA Attorney Nancy L. Cavey:Welcome back to Winning Isn't Easy Medical Improvement of a laboral tear of the shoulder and termination of long-term disability benefits. What you need to know, know now, disability carriers are always looking for a reason to deny or terminate benefits. What are the prime reasons they'll use to terminate benefits is the argument that you have been at what's called maximum medical improvement and you're no longer disabled. Now disability carriers are rarely getting your medical records and they're asking your physician to complete these forms called attending Physician statement forms your records and your APS forms are then reviewed by their physicians for signs of improvement or objective medical findings on examination and testing that are consistent with what's called maximum medical improvement. Maximum medical improvement means that you've gotten as well as you're going to get. Now additionally, they ask you to complete activities of daily living forms to comment on your activity level. Now disability carriers will often equate increased activity levels as evidence of maximum medical improvement. They're gonna call you, they're gonna talk about your claim and that's not a social call. They're asking you, uh, whether you've improved, uh, whether you've increased your activity level. And you have to be careful about how you answer those questions. If you say, I'm fine, I'm improving, and they don't ask any follow up questions to kind of drag out from you the symptoms that you're having, they're going to interpret that as evidence of improvement because after all, that's what you said. So your medical records, the APS forms, uh, that your physician completes and your activity daily living forms are all fodder. They're fodder for the, uh, carrier to argue that there's been medical improvement and the basis for justifying a termination of benefits. And that's what happened in the case of hall versus at and t umbrella benefit plan. It's a case out of, um, the northern district of California Hall was a testing tech, had an impingement and a CHRO clavicular arthropathy with a labral tear in the right shoulder. Now shoulders messed up. She underwent two shoulder surgeries. She even had physical therapy. Now her range of motion improved, but she claimed that there was no change in her pain or her functionality. Her doctor said she couldn't reach at or above shoulder height. She was li limited to lifting no more than 15 pounds and she had limited ability to flex and extend her neck and couldn't work. Now part of the problem starts with the fact that her cervical spine examinations were normal, as was a cervical MRI and electro diagnostic studies known as an EMG and nerve induction study test. So from a cervical standpoint, there's not a lot there and there's not a lot that is showing up in terms of, uh, of objective evidence, if you will, of radicular symptoms. The carrier paid benefits for two years and after that they denied benefits based on a review of the medical records, they concluded that there wasn't any objective basis for the assigned restrictions and limitations. Now Hall appealed and ultimately this case ended up in front of a federal judge who noted the lack of objective findings on physical examination. Uh, other than the ranging motion and the lack of objective findings on the MRI and the negative electrodiagnostic studies, the judge ultimately agreed that there was evidence of improvement and that was sufficient to support the claims denial. But there are some lessons learned here. Um, and I think that these are important and applicable to all sorts of medical conditions, just not shoulders. When your claim is denied, you have, uh, generally 180 days in which to file an appeal. That appeal is the trial of your case. And so what you should be doing is, for example, undergoing a functional capacity exam to establish your restrictions and limitations at an objective basis of those restrictions and limitations. You want your physician to document and comment on objective findings and the diagnostic studies to support the restrictions and limitations or explain why the absence of objective findings is not the equivalent of improvement. Now, if your physician won't cooperate, won't play ball, you should undergo your own independent medical examination to address the issues. And you should only do that in consultation with an experienced lawyer who knows what doctor to send you to and a doctor that will play ball and answer questions. You should be preparing a statement that outlines the lack of your functional improvement, not withstanding the treatment that you've gotten. And ultimately, of course, we want your doctor to endorse the fce. Uh, explain the objective findings or the lack of objective findings, explain why the restrictions and limitations are still valid and rebut the opinions of the liar for hire Doctor, um, that the discipline carrier is hired for the sole purpose of terminating your benefits. And of course, you should be hiring and experienced. There is a disability attorney to document factually and medically why there has been no improvement. Remember, you've got the burden of proof and that appeal is the trial of your case. Please, please don't let the disability carrier play the maximum medical improvement game and deny your claim or terminate your benefits. I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, consider liking our page, leaving a review or sharing it with your family or friend, and you should be subscribing to this podcast. That way you're gonna get notification every time a new episode comes out. I hope you tune in to our next episode of Winning Isn't Easy. Thanks.