Winning Isn't Easy Season 3 Episode 5: Neuropsychological Testing & Brain Mapping in Long Term Disability Claims

Winning Isn't Easy Season 3 Episode 5: Neuropsychological Testing & Brain Mapping in Long Term Disability Claims

In this episode of "Winning Isn't Easy," we delve into the world of neuropsychological testing and brain mapping in the context of long term disability claims. Nationwide ERISA Disability Attorney Nancy Cavey discusses the importance of these assessments in establishing the severity and impact of cognitive impairment in individuals seeking disability benefits.

We explore the various tests and tools used in neuropsychological evaluations, including the role of brain imaging techniques such as MRI and CT scans in identifying brain damage and dysfunction. Our guest also shares insights on how this information is used in disability claims and how it can impact the outcome of these cases.

Throughout the episode, we highlight real-life examples of individuals who have undergone neuropsychological testing and brain mapping as part of their disability claims. We discuss the challenges they faced in obtaining benefits and how the results of their assessments played a critical role in their success.

Whether you're a disability claims professional or simply interested in the science behind cognitive assessment, this episode of "Winning Isn't Easy" offers valuable insights and perspectives on a critical issue. So join us as we explore the complex world of neuropsychological testing and brain mapping in the context of long term disability claims.

Transcript

Nancy L. Cavey ERISA Attorney: 0:16

Hey, I'm Nancy Cavey, national ERISA and Individual Disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida Bar tells me that I've gotta say this before every episode. So I've said it, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Today I'm gonna talk about three things. Number one, before you file a claim for your arisa long-term disability benefits, should you get neuropsychological testing before you sh file a claim for your arisa long-term disability claim more about why you may or may not wanna get neuropsychological testing. And number three, should I get brain mapping studies for my ME CF s erisa long-term disability claim? Let's take a break for a moment before we get into this episode.

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Nancy L. Cavey ERISA Attorney: 1:40

Welcome back to Winning Isn't Easy, you're Ready to get started. I'm first gonna talk about before you file a claim for your arisa long-term disability, uh, benefits whether or not you should get neuropsychological testing. Now this is gonna be a two-part segment and the answer is going to be maybe, now that was a real smart and definitive answer, wasn't it? And the reason that it was equivocal was it really depends on the medical condition that you're claiming as the basis of your disability. And who does the testing? The wrong type of testing by a biased neuropsychologist will kill your claim. But the right testing by the right provider for the right medical condition can make your claim. The decision, in my view, to undergo a neuropsychological evaluation is policy fact and medical specific to each claim. Before we get started in greater detail, let's first talk about what is neuropsychological testing and what conditions might be, uh, susceptible to having this type of testing as a way of proving a claim. Well, there are medic medical conditions that can cause problems with your focus, your concentration, and your cognitive abilities that can make it difficult for you to perform your own or any occupation. These medical conditions can include me, c f s, chronic fatigue syndrome, Lyme, fibromyalgia, traumatic brain injury, stroke, Parkinson's, multiple sclerosis, and even heart conditions. Neurocognitive testing can be helpful because it will test your memory, your focus, your concentration and the impact of your disease on your cognitive and executive functioning. So let's say for example, you're a nurse and you have fibromyalgia, you might have problems with concentration, you might have problems remembering orders, you might have problems to dispensing medication and testing can tease out these types of problems. So I'm often asked, well, why should I have neuropsychological testing? You bought your own disability insurance policy, uh, or you may have gotten coverage through your employer and when you did that, you ensured your occupation and your inability to perform the material and substantial duties of your occupation for ultimately any occupation. Now, unfortunately, there's no uniform definition of occupation and every policy has a different definition and that's why the answer to whether you should have neuropsychological testing can be a, a bit difficult on the face of it to figure it out. Now, some policies will define occupation as how you were performing it at the time you became disabled. While other policies will define occupation as how that occupation is performed in the national economy or how it's performed pursuant to the dictionary of occupational titles. But once you know what the applicable definition of occupation is, then we've gotta work into what are the material and substantial duties of your occupation? And ultimately, of course, the question is going to be what problems are you having performing the material and substantial duties of your occupation? And why are you having those problems being something that needs to be objectively proven? So for example, you know, you might be a stock broker who's having problems remembering stock prices or doing calculations in your head or making the split decision to buy or sell stock. Your physician may suggest an MRI of the brain to determine if there's a tumor or changes consistent with MS or PD or even changes consistent with early onset Alzheimer's. Now to tie down why you're having these problems and whether these problems are consistent with the diagnosis, you might wanna have neurocognitive testing. The testing can confirm that you are in fact having organic problems that are causing the exact problems that you're complaining of. Now, the testing will also address any psychiatric cause of your problems. You can be assured that disability carriers are always looking for a way to limit their exposure to just two years under the mental nervous policy limitations. So it's really important that we understand the nature of any mental nervous policy limitations in your policy and whether or not we've got a broad, uh, mental nervous limitation. I call it the Monty Python, um, theory of mental nervous conditions where anything, uh, that's small, you know, 0.01% that contributes to your disability can limit your benefits to just two years. So we wanna be careful, of course about the neuropsychological testing and what exactly we're testing for and trying to tease out. Now, they're also are also might be a subjective medical condition limitation in the policy that will limit your benefits to just two years. If you have problems because of depression or you have problems consistent with memory loss or fatigue, and they'll use those generic terms. There are instances in which depression and other psychological problems can cause problems with memory or concentration. But we wanna tie these back to an organic cause, not a subjective cause. Clearly you've gotta know what's in your policy and these policy limitations before you stop working and apply for your benefits or appeal a wrongful denial of your claim. Now, once you have the answer to those questions, in my view, the decision about whether or not to have testing and the nature of the testing becomes clear. Let's take a quick break before we continue on this section. Welcome back to winning Isn't Easy. Now we've been talking about the need for neuropsychological testing, uh, before or during an arisa disability claim. So let's continue this discussion. One of the most important factors is who should do the testing. Now, quite frankly, I don't think you should make the decision. One, whether or not you're going to undergo testing and with whom, without consulting with an experienced arisa disability or I d i disability attorney such as myself, there really is too much at stake. Now if you choose to undergo the testing, once you understand the terms of the policy and policy limitations, your treating physician should make a recommendation and you should check out whoever your doctor is recommending before you attend the appointment. So you wanna vet that neuropsychologist to determine if they're claimant friendly, and you will can do that in a number of ways. You can actually do a search online by the doctor under a system called Pacer, or you can use Google Scholar to see if that doctor has actually been listed in cases and you'll get a sense of which way the wind blows. Again, I think that vetting is key and you should be consulting with an attorney before you set that appointment because we attorneys are very familiar with who the players are in the neuropsychological world. Now, after you vetted them, of course you need to make sure that they take insurance and that that insurance, uh, is your insurance cuz we don't want you to pay out of pocket. But you know, there are times when you have to pay out of pocket to get this information. The issue ultimately is what is the testing that the neuropsychologist is going to be using because we want them to do meaningful testing. You are complaining that you're having problems, for example, as a stock broker, uh, doing split second math calculations in your head or making decisions as to buying or selling. Those are things that have come naturally to you, but they're part of your executive functioning. And we can have the neuropsychological evaluation testing directed to those kinds of cognitive issues because ultimately we need to establish that there is an objective basis for these complaints and that the testing documents that you were in fact are having these problems and that these problems are impacting your ability to perform the material and substantial duties of your occupation. So I want you to remember that this testing will document that you have a medically determinable impairment and not just subjective complaints about your memory. Disability carriers hate subjective complaints, particularly, you know, I'm having problems with short-term memory or long-term memory, or I can't remember this or I can't remember that. So the testing is important to establish an objective basis of the diagnosis and to prove that causal relationship between the diagnosis and your inability to perform your own and any other occupation. Now, what should you do if your disability carrier has scheduled you for a neuropsychological ime? Well, first you need to understand there is nothing independent about this evaluation. This neuropsychological evaluation is being used to set you up for a claim denial or termination, and you need help. Now, what I try to do is to put limits on the liar for higher neuropsychological evaluation, and we do that by at least attempting to video the first part of the interview. Now, neuropsychologists will generally not allow the testing to be videotaped because they'll argue that it's proprietary, which I think is not correct, but in any event, course have upheld that denial or that reason, if you will, for prohibiting the, uh, videotaping of testing. So we do wanna try to video the, the initial consultation prior to the testing. But the other thing that I do quite frankly is I have a neuropsychological evaluation done prior to the disability carriers neuropsychological evaluation. Why is that? Well, for a number of reasons. One is I want to have a favorable opinion in advance of what's most likely gonna be an unfavorable opinion, but also I want specific testing done that will test what I think is important. And then thirdly, I wanna be able to argue to the carrier's neuropsychological i e, that based on recency of testing, that you shouldn't have repeat testing and that they should be evaluating the raw data of your testing. So there are at least three things that we try to do to, to protect you in a neuropsychological evaluation. So let's take a break.

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Nancy L. Cavey ERISA Attorney: 12:51

Welcome back to Winning Isn't Easy. Now, I'm often asked in the case of me c f s whether or not I should have brain mapping studies. As I've indicated in earlier episodes, there are certain diseases or medical conditions that would warrant neuropsychological testing and other testing to establish an organic basis for the complaints or to establish an organic basis or an objective basis of the nature of your complaints, the problems that you're having with your executive functioning or memory. Now, how does that work in, in the ME CF S case, particularly with brain mapping? First you have to understand that you, the policy holder or plan beneficiary have the burden of proof. You have to establish that you meet the, the basic disability policy or plan eligibility requirements. And, and part of that is to generally establish an objective basis for the diagnosis, an objective basis of any restrictions or limitations, and then a causal relationship, a link between that diagnosis and your restrictions and limitations and your inability to perform the material and substantial duties of your own occupation or any occupation. Now, disability carriers can't always require objective evidence in cases where there is no gold standard test. So for example, if you have a Parkinson's disease case or an Ms. Case, normally there are objective testing that will document the presence of an organic cause for the disease. But that's not quite this case in an ME C f S case. But having gotten past the, the requirement for, uh, objective evidence and a condition that's not susceptible of objective medical evidence of the diagnosis, the carrier kin and the course have upheld their request that you have objective medical evidence of your restrictions limitations. And if you don't, the carrier has a legitimate reason for denying the claim. So how about the brain mapping in a case of me c f s? Now, as I've said, there are some things that can be used in different medical conditions to prove a diagnosis and the world of me cfs a functional mri, a PET scan, an S P E C T scan and a Q e EEG brain mapping can be used to establish the diagnosis and to quantify, uh, restrictions and limitations. Now, the Q E E Q is a noninvasive test where electrodes are placed on your scalp and the purpose of the test is to measure electrical activation and neural activity on the cerebral cortex of your brain. These test results are compared to your age and gender for the people who, as compared to people who don't have symptoms for me, CF s and that will provide biological evidence of the diagnosis. However, you have to undergo neuropsychological assessment and testing to validate the Q E E G results. If you have me c f s, it's expected that your electrical activity will deviate from the norm for your age and your gender. There is some research that suggests that there's an association between the electrical activity in the frontal lobes and impaired executive functioning, such as planning, decision making, maintaining attention, focus, and concentration. Now, can that brain mapping help you meet the standards of disability in your policy or plan? As I've said, the test results can establish an objective basis for the M E C F S diagnosis, and these results can provide an organic medical explanation for your complaints that establish the level of your impairment. Now, disability carriers don't always use the word impairment, particularly in their definition section as a criteria for disability, but ultimately that's what you have to prove. You have to prove that you can't do the material and substantial duties of your occupation. It's the combination of the objective testing and the results of the neuropsychological evaluation that can document and explain the impaired executive functioning that's gonna prevent you from doing your occupation or any other occupation. I think that it's the combination of testing that can win the day, but I won't tell you that that's all that you need to prove because I think you ultimately have to get a vocational evaluation, an opinion to tie together the diagnosis, your occupational duties, and why from a vocational standpoint, you can't do the material and substantial duties of your own occupation or any occupation as those terms are defined in your policy. So you can see that in A B C F S case, there's a lot of proof requirements that will require, in my view, the assistance of an experienced arisa disability or ID disability attorney because we've gotta understand the policy, understand, uh, your occupation as defined by the policy, understand what testing is appropriate for the neuropsychological testing. We have to have the brain mapping done. We need a doctor to tie all that together. And then ultimately, we need a vocational rehabilitation counselor to tie it all together in a nice package with a bow on top of it. I hope that you've enjoyed this week's episode of Winning Isn't Easy. If you enjoyed this episode, consider liking our page, leaving a review and sharing it with your friends and family. Also subscribe to this podcast. That way you'll be notified every time a new episode comes out. Tune in next week for another insightful episode of Winning Isn't Easy. Thanks.