Winning Isn't Easy: Long-Term Disability ERISA Claims

Winning Isn't Easy Season 3 Episode 7: The Sedentary Employment Game

March 23, 2023 Nancy L. Cavey Season 3 Episode 7
Winning Isn't Easy: Long-Term Disability ERISA Claims
Winning Isn't Easy Season 3 Episode 7: The Sedentary Employment Game
Show Notes Transcript

Winning Isn't Easy: The Sedentary Employment Game (Season 3, Episode 7)

In this episode of "Winning Isn't Easy," host Nancy L. Cavey delves into the challenges faced by disabled workers who work in sedentary jobs. Drawing on her own experience and expertise as a disability attorney, Nancy explores the physical and mental health risks associated with sedentary employment and offers practical strategies for protecting your health and your rights under ERISA.

Throughout the episode, Nancy shares insights and stories from her own practice, highlighting the obstacles that disabled workers face and the strategies that have helped her clients succeed. She discusses the importance of ergonomic workspaces, regular exercise and movement breaks, and the need for employers to make reasonable accommodations for disabled employees.

Tune in to this episode of "Winning Isn't Easy" to learn more about the sedentary employment game, and how you can protect your health and your rights as a disabled worker.

"Winning Isn't Easy" is a podcast dedicated to exploring the complexities of the Employee Retirement Income Security Act (ERISA) long-term disability world. Each episode, we delve into the challenges and triumphs of navigating this intricate landscape and bring to light the key issues affecting disabled individuals seeking benefits under ERISA. Get ready to listen in on a captivating listen as we uncover the truth behind "Winning Isn't Easy."

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/

Dr. Braun's Website and Information: https://www.bayareaorthofl.com/david-t-braun/

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Nancy L. Cavey Disability Attorney:

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 isn't legal advice. The Florida Bar Association says, I've gotta say that. So I've said it, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance company world, the games the carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Disability carriers will do about anything to deny a claim, even a legitimate claim. Now they're going to play dirty and one of the games and tricks they use is what I call the Sedentary Employment Game. And this episode I'm gonna walk through the rules of the game and how you can fight back. We're gonna talk about three things today. One, understand how the terms occupation and sedentary are meaningful. Two, has your disability insurance company denied your claim on the basis that you can sit all day and do a sedentary occupation? And two things that you can do to prove that you can't do a sedentary occupation. Got it. Let's take a break for a moment before we get started,

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Nancy L. Cavey Disability Attorney:

Welcome back to Winning Isn't Easy. Ready to Get Started. Let's first talk about the terms occupation and sedentary and why they're meaningful in your disability claim. Now I'm gonna set the stage here. When you are transitioning from own occupation to any occupation, there are lots of games that are going to be played. You're probably still disabled and you probably have been awarded your social security disability benefits. But what's gonna happen is normally after 24 months, benefits are going to be reexamined by the disability carrier. Your standard of disability has changed from an inability to do your own occupation to an inability to do any occupation. And more often than that there's going to be a denial of your claim. So here's how the typical policy defines the term. Any occupation we consider you to be disabled. If after 24 months you're unable to perform the duties of any gainful occupation for which you're reasonably fitted by education, training, or experience. Now that's crucial. Let's take apart this definition. The first part of the definition provides that you are entitled to your disability benefits if you can't perform the material and substantial duties of your occupation. Now, if you've got a sedentary occupation, the disability carrier can deny or terminate your claim on the basis that you can still sit on the your rear end and do your sedentary occupation. The second part of the definition provides that on the 25th month, the bell will toll and the definition of disability is gonna change from own occupation to any occupation. This is an opportunity for the disability insurance carrier to deny your benefits on the grounds that you can perform a sedentary occupation. And as a result, you no longer meet the definition of disability. Now many disability insurance carriers are gonna target claims for an any occupation investigation at about nine to 18 months of own occupation benefits. You may get a letter saying, look, we're gonna investigate your claim to determine whether or not you are going to meet the any occupation definition. The bells should be going off here. Disability insurance companies know to the penny how much they have to pay you in disability benefits. And it's a safe bet to say that the carrier wants to save as many pennies as possible. So the carrier is going to begin an investigation. The sole purpose of this investigation is to deny your benefits on or about the time the definition changes from your own occupation to any occupation. So now let's talk about the any occupation analysis. When the definition of disability changes from own occupation to any occupation, the goal of the disability carrier is to show that based on your training and experience you can perform any other occupations. So how does that happen? Well, first, the disability insurance carrier will n normally notify you by letter that they're going to begin that investigation beyond the 24 months. The letter's gonna quote from the policy's definition of disability and remind you that there's a change now from own occupation to any occupation. Again, bells should be gone off and it's time for you to um, hire and experienced a risk and disability attorney cuz your benefits are at risk. Next, you probably are gonna get a letter in the mail from them asking you to provide updated medical information and complete what's called a training education and experience form. It's called a TE and e form. The form will be used as ammunition to deny your claim for any occupation. So you need to complete the TE and e accurately. Now as you're doing this, we also want you to understand what the definition of sedentary occupation is. Because if the disability carrier says, look, you've got training and education and skills that will transfer to a sedentary job, benefits are going to be terminated. Okay, now the disability insurance, uh, company is going to then basically had your file reviewed by their lawyer for higher medical review doctor and who does a hocus-pocus saying you can do sedentary work. Then they're gonna send your file to their in-house lawyer for higher vocational evaluator. That person is gonna identify occupations that are both substantial meaning in terms of tasks and gainful in terms of pay. Now these alternative mythical hypothetical, not real world gainful, substantial sedentary occupations are gonna be the basis for terminating your employment. Now it doesn't matter that no employer would hire you to perform any of these occupations. It doesn't really matter cuz this is hypothetical, mythical not real world. So what does the term sedentary mean? Well, let's go to the dictionary of occupational titles. This dictionary of occupational titles is an old department of labor publication hasn't been updated in a bazillion years, but this is the definition that is commonly accepted by disability carriers and courts. Sedentary work is lifting no more than 10 pounds at a time, occasionally lifting or carrying articles like dockets, files, ledgers, small tools and sitting and occasional walking and standing. And normally it's sitting at least six out of eight hours. Now you are gonna be headed for a claims denial if your physician says you can do sedentary work or the liar for higher disability carriers says that you can do sedentary work or the IME provider they send you to, which is a not so independent medical examination or a functional capacity evaluator says that you can do sedentary work. Now if your schedule for an IME or an fce, again the warning bell should be going off. This is set up for a claim denial. So you need to have the protection of an ERISA disability carrier. Now I want you to also remember that your doctor is being sent attending physician statement forms to fill out regarding your restrictions and limitations. Have you ever looked at them? Look at'em closely. You'll see that they don't even offer the doctor an ability to say that you can do sedentary work or lessen sedentary work. They don't ask the right questions cuz they don't wanna know the right answer. So communication with your doctor is key. Your physician has to understand what does sedentary employment mean and what are you capable of doing or not doing? So you wanna be able to explain to your doctor, but you have difficulty sitting more than 45 minutes or an hour or that you have to get up and move around or change positions where you have tingling and numbness in your legs and back that make it difficult to do things or that you have trouble using your upper extremities, uh, in a bilateral fashion or that you've gotta take frequent breaks. Anything that will erode your ability to do sedentary work is something you need to be talking to your doctor about. If the APS form doesn't ask the right questions, I supplement the APS form with an applicable social security disability claim. What? Well, I'm also a Social Security disability attorney and I find that the Social security disability residual functional capacity forms ask the right questions about your particular medical condition. So I always attach that to the carrier's APS form because I want the carrier to have meaningful information. If they're not gonna ask the right questions, I'm gonna make sure the right questions are being asked. Okay? Got it. So let's talk next about what you should do if your disability carrier has denied or terminated your benefits on the basis that you can do sedentary work. But let's take a break first. Okay? Come back to winning isn't easy. Now let's talk about what you should do if the disability carrier has denied or terminated your disability benefits on the basis that you can do sedentary work. And I'm going to tell you potentially some tricks of the trade here. Okay? Now what's important here is that, that there are many people who are knowledge workers or systems engineers or computer coders or csit C-suite executives. They all have occupations that require them to sit all day and a job is sedentary if you have to sit for more than six hours a day. So if you are any one of those jobs, uh, do any of those occupations, many disability carriers are gonna deny a disability claim on the basis that you can still do your own job or that you've had this condition for years and nothing has changed, or that you have great skills that you've learned as a systems engineer or computer computer coder or a CSU suite executive that you can take to other sedentary occupations. So they're gonna use your experience in training against you. Now, if you aren't a knowledge worker or someone whose job is primarily sedentary, the disability carrier is going to create an opinion from their life for higher doctors that you're capable of sedentary work and they'll have their vocational evaluator corroborate that. There's other work that you can do with sedentary nature and view of your age edu I'm sorry, in view of your education and skills. Age is not a factor in an ERISA discipline case. So if you now get a denial letter, I want you to think about some of the reasons why they denial might be wrong. In fact, I think there are five reasons why that denial might be wrong. The first reason that the denial might be wrong is that your, the discipline carrier has misclassified your occupation as sedentary when your occupation in fact requires activity that's non sedentary. So for example, if you have to travel as part of your occupational duties, that occupation is not sedentary. Now, they also may have misclassified your occupation as sedentary when your occupation requires you to get up and change positions. Frequently the disability carrier commonly ignores cognitive requirements of your occupation and your medical condition that can impact your cognitive functioning. And that means in all three of those situations, uh, you don't necessarily, uh, have skills that would transfer to other types of sedentary work. Now, fourth, the disciplinary care can ignore or dismiss your complaints of pain, fatigue and the side effects of medication. In fact, it's common that they don't even mention them. And the fifth mistake is that they dispute your symptoms and the impact those symptoms on your ability to do the material and substantial duties of your occupation. So if you have a sedentary occupation to begin with, these are some of the five things that carriers will do to say you can still do sedentary work and you've got enough skills and you can take those skills to other sedentary occupations. Now, there are also several reasons why the denial on the basis so you can do sedentary work might be wrong. If in fact your past occupations have not been sedentary in nature, the carrier will still misclassify your occupation as it relates to the skills that you might have. That's important because your skills have to transfer in terms of the work from whatever work level you did. Maybe it was medium or light to sedentary. And so a lot of skills that you might have just wouldn't transfer because of the nature of your occupation and the nature of your restrictions, limitations. And additionally, um, carriers continue to ignore, particularly if you have back issues, um, any requirement or need for you to get up and change positions frequently, they always ignore cognitive functioning. They never discuss pain, fatigue, side effects of medication. Uh, and they really dispute, as I've said, the the nature of your restrictions and limitations. Cuz their goal is to say, look, yeah, in fact you can do light work and even if you can do sedentary work, any of these claimed need to alternate sitting and standing just doesn't impact your ability to do the material and substantial duties of other occupations. So we've got a five standard reasons I think that the disability carrier is wrong in this argument that you can do sedentary work. But the ultimate issue, of course is what proof do you have to submit to overcome this sedentary occupational denial? I think the proof takes five forms. First, I think there should be an affidavit from you that's drafted in consultation with an experienced a risk and disability attorney that addresses not only the physical and cognitive material and substantial duties of, uh, the term as that's defined in your policy, but explain how your symptoms, uh, impact your ability to do each one of those duties. So I have my clients make a list of the duties, their symptoms, and the impact on the functionality. Secondly, I think you have to have a functional capacity evaluation to establish objectively the physical restrictions, limitations, and your inability to do sedentary occupations. And as part of that, you want your FCE provider to address the liar for higher insurance company doctor's opinions about your restrictions and limitations and why their conclusion that you can do sedentary occupations are wrong if you're having cognitive issues. Secondly, you want, or thirdly, you wanna have a neuropsychological evaluation and testing to address your cognitive problems and why you can't do the cognitive aspects of your occupation or any other occupation if you are still at the own occupation stage. We wanna get a letter or affidavit from your doctor that outlines an endorses the restrictions and limitations and the functional capacity evaluation and tie that together with a vocational evaluator's opinion that establishes why you can't do not only your own occupation, but any sedentary occupation. We also want to have that vocational evaluator tie up what the material and substantial duties might be of your occupation or any dumb occupations that the carrier's ve has concluded that you're capable of doing. Because more often than not, the disability carriers liar for hire VA misapprehends the physical requirements or the cognitive requirements or the social behavioral requirements of the dumb jobs that they have identified, uh, as being alternatives. And more often than not, they also don't understand that the the sedentary nature of these alleged jobs is in fact hypothetical and mythical and not really as how the occupation, uh, potentially is performed. So we wanna be able to establish the medical reasons why you are functioning at less than sedentary. We want that based on objective findings of a functional capacity evaluation. We want that corroborated by your report of symptoms and functionality and we want that all tied together in a big bow, if you will, in the box with the opinion of a vocational evaluator. As you can see, this proof takes teamwork and the leadership of an experienced ERISAa disability attorney who isn't really afraid of disability carriers and knows how to take on disability carriers, particularly this bogus sedentary occupation denial. Got it. Let's take a break. Bring,

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Nancy L. Cavey Disability Attorney:

Welcome back to Winning Isn't Easy. What are the two things that you can do that would prove that you can't do a sedentary occupation? Number one, undergo a functional capacity evaluation. That's an objective measure of your ability to sit, stand walks, to bend, lift, and engage in repetitive activities. What's crucial here is that your FCE provider understand the definition of disability and understand where you're at. Are we at an own occupation stage or in any occupation stage? Because they want to be measuring. If you're at the own occupation stage, your abilities to perform the physical duties of your own occupation is it's defined in your disability policy. So many times I'll ask my FC provider to simulate the different kinds of work activity that my client would be doing as part of performing their occupation. Now, if the policy defines occupation as performed by the employer, then obviously I want more specific information from my client to the VA about how their occupational duties are performed. If it's the generic performed in the national economy or pursuant to the D O T I always supply my FC provider with that documentation so they understand what the accepted occupational duties are so that when the FCS performed, that can be objectively tested. Now the second thing you can do, particularly if you have an M E C F case or any case involving uh, fatigue issues, endurance issues, uh, is to undergo what what's called a CPE examination. Uh, a CPE examination is a cardiac pulmonary exercise test and it can be used to document not only the physical impairment in terms of fatigue, but the cognitive impairment that can come as a result of the fatigue. Now there are two kinds. There's a one day cpe, there's a two day cpe. Each has advantages in disadvantages and each unfortunately can be hard to obtain. A one day CPE test can be done by a cardiologist or an exercise physiologist. I'm really leery about having a cardiologist do this cuz they don't get what the purpose of this test is as it relates to a disability. So I would prefer that you either have an exercise physiologist or a, um, a company that actually specializes in performing CPE tests. Now, unfortunately, a one day CPE test doesn't always address the common issues in, in an me CFS case, and that's typically fatigue or the post exertional malaise issues. That's why I think you're unfortunately better off to get the more expensive two day cpe. There are places in New York, Washington State, California, and even Florida who do this testing. And if you don't live in those states, that obviously adds up in terms of the expenses. If you have a a chance, as I said, I would like to see you have a two day C PET test because if you don't pass the first day, they probably aren't gonna recommend that you do the second day. And if you pass the first day, then the second day testing is gonna document the fatigue and the cognitive issues. The import here is that a CCP can objectively document not only the physical functional findings you have, uh, but can document the cognitive issues that you have performing the material and substantial duties of your own occupation or any occupation. Now, I also want you to, to remember that if you have an me CFS type situation or any other situation where you're getting this CPE test or you're having a functional capacity evaluation, we want the doctor to sign off on these results. Now, don't be surprised if the disability care asks for the raw data so that their liar for higher doctors can review and comment on the results. But I want you to understand that I think having your doctor sign off on this can be helpful. I have never seen a written judicial opinion of rejecting the results of a CPE test as they seem to be recognized by the court as the gold standard for testing. I have however, seen courts reject functional capacity evaluations when the functional evaluation is inconsistent with reported activity, either on an activity of daily living form statements made to doctors or statements made to the disability carrier. Obviously you have the burden to prove that you can't do even sedentary work. That means that you can only lift a maximum of 10 pounds at a time that you can't sit more than six hours and you can only occasionally walk and you can stand two hours in an eight hour day. We want to make sure that ultimately the FCE or the c p exam is addressing your ability to do sedentary work and explain why it is you're unable to do the material unsubstantial duties of your, uh, own occupation or any occupation. Now, that isn't to say that there aren't other ways that we can get about this and show that you can't do even sedentary work. There are non exertional limitations and if you have a sedentary residual functional capacity evaluation, but if you have to alternate sitting and standing, if you have to go to the restroom, if you have to take frequent breaks, your R F C, your residual functional capacity is going to be eroded to less than sedentary. We wanna make sure, of course, that those complaints are documented in your medical records and there's an objective basis of that, but we also want your doctor, uh, to address those non exertional restrictions, limitations. Potentially they could be also addressed in a FC if you've gotta use the restroom, um, frequently. But again, I think those non exertional impairments need to be addressed by your, by your physician. Got it. Those are the two ways that you can try to overcome a lessen, I mean, sedentary rather restrictions and limitations and make it less than sedentary, making it more difficult for the carrier to prevail on a wrongful denial. Got it. Okay. I hope you enjoy this week's episode of Winning Isn't Easy. If you enjoy this episode, consider liking this page, leaving a review, or sharing it with your friends and family, please subscribe to this podcast. That way you're gonna get a notification every time a new episode drops. I hope you tune in next week for another insightful episode of Winning Isn't Easy. Thanks.