Exploring More on Multiple Sclerosis ERISA Disability Claims

Welcome to Season 3, Episode 23 of Winning Isn't Easy, the podcast that delves into the intricacies of disability insurance claims. In this episode, we continue our exploration of a critical topic: "Exploring More on Multiple Sclerosis ERISA Disability Claims."

Join us as we dive deeper into the complexities of Multiple Sclerosis (MS) ERISA disability claims. Our expert host, Nancy L. Cavey, a seasoned disability attorney, provides further insights, strategies, and guidance for individuals navigating the challenging landscape of MS-related disability claims under ERISA.

Through in-depth discussions, we'll cover key aspects such as the evolving nature of MS symptoms, the importance of accurate medical documentation, and the nuances of dealing with insurance companies. We'll also address common issues faced by claimants and offer effective strategies to advocate for your rights and secure the disability benefits you deserve.

Whether you're currently pursuing an MS ERISA disability claim, or looking to enhance your understanding of the process, this episode equips you with valuable knowledge to navigate the complexities and challenges with confidence.

Tune in to empower yourself to effectively navigate the intricacies of securing the disability benefits you need.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.   

Transcript

ERISA Disability Attorney Nancy L. Cavey: 0:15

Hey, I'm Nancy Cavey , national ERISA and Individual Disability Attorney. Welcome to this week's episode of Winning Isn't Easy. Now, in this , uh, episode, we're going to be , uh, talking about multiple sclerosis. But before I get started, I have to give you a , uh, legal disclaimer. This is podcast is not legal advice. The Florida Bar says I have to say it, and now I've said it, but nothing will prevent me from giving you easy to understand information about the disability insurance claims process, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So, off we go. As I said, we're gonna be talking about the , the multiple sclerosis, the disease, how it interacts as the disease progresses, and how you can get the disability benefits you deserve. Now, specifically, I'm going to be talking about predicting long-term disability in MS with the use of an M R I biomarkers and the two implications of those biomarkers on your ERISA disability claim. Next, I'm going to be talking about what your disability carrier doesn't understand about the stages of multiple sclerosis. And lastly, the importance of documenting your use of disease modifying therapies in your Ms Eris of disability claim. Time for a break before we get started with these great topics,

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ERISA Disability Attorney Nancy L. Cavey: 2:08

Welcome back to Winning Isn't Easy. Let's first talk about predicting long-term disability in MS with the use of an M R I biomarkers and the two implications of the biomarkers on your ERISA disability claim. Now, you may have purchased a disability insurance policy or plan , uh, thinking that you'd never have to use it, but you've been diagnosed with ms. And let's talk about , uh, the use of MRIs as a diagnostic tool. The M R I is a common study that is used in the workup of ms. It images the brain and the spinal cord that can show damage to the myelin, which is known as , um, white matter. These white matter lesions in an M R I in certain parts of the brain can be consistent with and confirm the MS diagnosis, but it also can , uh, document the location of the lesion, which is predictive of disability. There is a recent study , uh, that I wanna talk about called predictors of Long-term Disability in Multiple Sclerosis patients using routine , uh, magnetic resonance data. It's a 15 year retrospective study that was published in the Neuroradiology Journal. It confirms that there are two M R I biomarkers that are linked to the worsening of , uh, your disability. They are I c D in inner clot eight diameter and T V W third ventricular width. Now, the measurements can predict the course of the disease and your response to treatment. These early M R I biomarkers were linked to worsening disability over a 10 year period of time. The two implications of these biomarkers and your ERISA disability claim I , I think, are something that we need to discuss in greater detail. I think that there are two implications in an ERISA disability , uh, insurance claim. Now , many disability policies or plans have a preexisting condition clause that indicate that if a person files a claim for disability benefits within a certain period of time becoming covered or enrolled in the disability claim , uh, coverage rather that the diagnosis potentially of a disabling medical condition , uh, can be denied. Uh , if the person got evaluation or treatment or should have gotten evaluation and treatment in what's called the lookback period, this can be be problematic. If you have , are changing jobs and you , uh, began to get treatment during the lookback period, ultimately, the new carrier can say, look , uh, we are not gonna pay these benefits because you actually got treatment or should have gotten treatment or evaluation, including an M R I , uh, during the lookback period. So if you are thinking about changing disability , uh, employers, which will result in a change in your disability carrier, you want to consider whether or not as you make that change and be insured in a new disability policy or plan, that coverage is gonna be denied under the new policy or plans pre-existing condition clause. So if you've, if you had an M R I and the study didn't necessarily show lesions, the disability, new disability care for your new employer may say, look, you had the M R I , it didn't really show anything, but under the terms of our disability policy or plan, if you got evaluation or treatment, and then subsequently you become disabled by this condition, too bad, so sad. So they'll say, look, you got this M R I , um, nobody thought you'd had , uh, MS until it was , uh, diagnosed after you've got our new policy. But the fact that you had that diagnostic study is enough for us to deny the claim. Now, the other thing that we need to potentially discuss as a second consideration is the idea that a person is working while they're disabled. As your progress of , of the , uh, MS is documented by the M R I and your medical records, and you have an opportunity to pick the date you're going to become disabled, that can be important. Normally what I'm doing is I'm looking at the medical records of a client and say, look, your disease is progressing. You're having trouble at work. You're having difficulty doing your own occupation. This is the day that you need to pick to be disabled, but we need to clean up your medical records because if you look at it, there's no reason why you were able to work today and not work tomorrow. So we've got to get your medical records cleaned up to show a nice progression as you're leaving work. If you, on the other hand, think you're going to get fired, or there's been a layoff coming or a rift that's being announced, you might have some time to clean up these medical records. But if you get inkling that you're gonna get fired next week, you need to get yourself to the doctor. Now, you know , it doesn't, and I don't, I mean, like a walk-in clinic or an emergency room or something that's will allow you to get a note that says you should stop working. You shouldn't be working. So you've got documentation that you were disabled before you get terminated. Otherwise, what's going to happen is you may be working full-time, even though you're really symptomatic, you're having trouble, but you're a trooper. You're not gonna let the team down, but the team lets you down and fires you, and then you apply for your disability benefits. The carrier's gonna say, look, you may have been working while you were disabled, but you didn't have the requisite loss in hours or loss of pay. So too bad, so sad, sad . That's why I like to work with my clients who have progressive medical conditions to try to pick a date sometime in the future as the date that they're going to . We're gonna file a claim to be disabled so that we can , uh, document the necessary elements to establish that . In fact, you were disabled. So you might have difficulty with your vision as a result of ms. You might have problems with fatigue, you might have problems with concentration , uh, you might have motor issues. So we wanna be able to document the impact of those on the , your ability to work and the progression of the disease. So you may have , uh, to cut down the number of tasks that you're doing. You may have to cut down the hours that you are doing. Uh , you may have to, you know, ultimately give, give notice and say, I'm gonna have to stop working as of this date because my doctor says that I'm unable to work. So you can see that there's gotta be some proof that has to be developed, and we don't want the lack of proof to result in a claims denial because you were , were working while disabled, and then you got fired and don't meet the necessary , uh, proof re requirements. Now, as the M R I document progression, I think it's really important that you are consulting with an experienced m ms ERISA disability attorney who can review your disability insurance policy, look at your medical records , uh, and look at your pay stubs to determine , uh, when you should be filing a claim, and basically creating a strategy to preserve and protect your ERISA disability rights. And additionally, as I've said, you don't wanna be changing jobs in this particular scenario because if you do change jobs, you think you're gonna get fired. And so the way to protect yourself is to go find a new job. You've gotta deal with the preexisting condition limitations in that new policy . And they're so broadly written again, that if you've gotten a treatment or evaluation and treatment, most likely your claim is subsequently gonna be denied under the preexisting condition clause. Sometimes these lookback trades will say, you shouldn't or couldn't have gotten treatment or evaluation or, you know , diagnostic studies for at least a year prior to the onset of your disability. So you have to go a year without getting evaluations or treatment, which is absolutely crazy given this progressive nature of the disease. So you might think that you're gonna save yourself by finding a new job. You've just created a bigger problem. The wiser solution is to be planning if you can, as you know, a gradual exit , uh, from your current , uh, employment, saying, I'm picking this data as I'm going to be disabled, and then you can do whatever you wanna do with me after the fact I've filed my claim. Or if you think you're gonna get fired tomorrow, you better get yourself to the emergency room or a walk-in clinic and get a doctor to take you outta work so that you can say you were disabled prior to you getting terminated. Got it. Let's take a break.

Speaker 1: 11:24

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ERISA Disability Attorney Nancy L. Cavey: 11:41

Welcome back to witting . Isn't Easy. What your disability carrier plan just doesn't understand about the stages of multiple sclerosis and what multiple sclerosis can do to your body. Multiple sclerosis is an autoimmune disorder that progresses over time, and your immune system mistakenly attacks the healthy cells in your myelin. I like to think of myelin as the , uh, covering on an electric cord. It's , um, the coating around the wires, if you will, that protect the nerves , uh, in your spinal cord in your brain. So I think like an electrician. Now, what disability carriers don't understand in addition to what MS is, is the stages of ms. And we have a number of stages. Let's talk about the preclinical stage. MS will begin to , uh, make changes in your nervous system, and the earliest symptoms can be numbness and tingling, weakness, maybe some visual problems, maybe even some cognitive issues or balance or coordination issues. This is called the preclinical stage. And often, you know, it's not disabling, but it's important that your medical records are documenting the nature of your symptoms and the impact that those symptoms might be have having on your ability to do your own occupation. Now, once a person is diagnosed as ms, the disease is going to take a course and it generally will go one or a a a second direction. There is relapsing and remitting ms and there is progressive MS relapsing and remitting MS is known as R M R S , and it's characterized by an acute attack of symptoms that can come and go, but over time, the symptoms become worse and the period of time between the attacks will shorten. Uh, on the other hand, in a progressive uh, Ms. Case, the symptoms are continuous and they get worse over time. Now, that's important because disability carriers like to play games with , uh, our M r s cases , uh, and they don't necessarily play those same games in a progressive Ms. Case. Let's explore that a little further by talking about the effect of MS on your body. As the MS progresses, the pain, the numbness, the gait, the balance problems, the fatigue, the visual issues, the cognitive impairment all worsen. And these increasing symptoms will have an impact on your ability to work again, which should be documented in your medical records. Now, in the case of R M R S, what's important is the episodes of of relapse and then the periods of remission. Disability carriers will play games here because they will say, look, you know , you may be disabled while you've relapsed, but as soon as the relapse ends , um, you know, and you're sort of quote unquote stable, you're not disabled. And what's important here is that when you're having those episodes, you're documenting the extent and nature of your, your symptoms, and then the progression of the symptoms between the episodes. Now, you may not have any symptoms, but it's important for you to document the difficulties that you, that you may be having. And then when you have your next episode, if that episode lasts longer, has new symptoms or the symptoms that you've had have gotten worse, it's really crucial that you're documenting that so that you can argue , uh, that when you have the episodes that they are completely disabling. And then certainly as the time between these episodes get , uh, gets shorter , uh, that you can argue , uh, that, that that progression in and of itself is disabling, or that that the symptoms have gotten worse or you've gotten new worse , uh, new symptoms. So notwithstanding the fact that there might be some time between each episode, the symptoms are actually worse and are , uh, impacting your functionality. In the case of the continuous ms, obviously what's key here is documenting the continuing symptoms , uh, and how those continuing symptoms individually and then collectively impact your ability to do your own occupation. But there's a third thing that we need to consider. MS can interact with other comorbidities that you might have, like high blood pressure or diabetes. And this interaction can not only contribute to ms, but it also can contribute to the comorbidity. And then there could be a progression of the MS or a progression of the comorbidity or a progression of it all together in a big pot, if you will. So if you have comorbid medical conditions, your medical records should be speaking not only to that comorbid condition, but to the ms, and then the combination of the comorbidity and the MS and how it's impacting them. I know it's complicated, but that's the point. Disability carriers don't take into consideration the complicated nature of , uh, R M R S and uh , progressive ms, and then the interaction with any comorbid problems. They're more interested in looking for a reason to deny the claim than they are to understanding the nature of ms. Let's take a break.

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ERISA Disability Attorney Nancy L. Cavey: 17:44

Welcome back to Winning Isn't Easy. Let's talk about the importance of documenting your use of disease modifying therapies in your ms. ERISA disability insurance claim. MS is a progressive disease that can over time rob you of your ability to work and to support your family. If you've got that disability insurance policy and you've applied for your benefits, one of the obligations you have under the terms of the policy is to get regular and appropriate medical , uh, treatment. Sometimes the disability policy will also , uh, require you to see a uh , specialist. Now the medical care generally will include for MS disease modifying therapies. DMTs and DMTs are medications that slow the progression of ms. In fact, there are more than a dozen DMTs for relapsing and remitting , uh, MS that work to reduce the immune activity, and that in turn reduces the inflammation. A disability carrier or a plan will regularly review your medical records to determine what treatment you are getting, your response to that treatment at your functionality, and any side effects of the medication. I think that one of the key ways to assist your physician in documenting this is to keep an MS diary of your symptoms, your functionality and medication usage. This diary should be consistent, of course, ultimately with your medical records and what you're saying on the , uh, activity of daily living forms, I want you to pay particular attention to documenting the frequency and nature of the relapses and the impact the treatment is having on your symptoms before, during, and after a relapse. Now, compliance is also an issue. Um, the display carrier plan expects that you're compliant with treatment, that you document any side effects that you might be having. Now, you might be tempted to stop the therapy or treatment because of the side effects of the DMTs. Please do not do that. If you are having problems with the DMTs, you don't like the way it makes you feel or you're having other side effects, then you need to be going back to your doctor and explaining that to see what other alternatives that they may have , uh, to offer you for your treatment. You reasonably should be going through different types of medications or DMTs to obviously manage your disease, but the disability carrier's also gonna expect that you are doing that because their argument's gonna be either you're not disabled because you're not taking the medication and you know, if you really were disabled, you would be taking the medication. So you're not taking the medication, you're not disabled, and if you were taking the medication, you wouldn't necessarily be disabled. And that's both a violation, both scenarios or a violation of the , the terms of the disability policy or plan. So they try to get you coming or going, you didn't take it, and if you would take it, you wouldn't be disabled. And just because you stopped taking it means you're not disabled. So you don't wanna place yourself in that catch 22 scenario. You should be getting regular medical treatment , uh, for your ms not only because you need it, but because your policy requires it. This is an easy win for the disability carrier if you're non-compliant with the terms of the policy because they don't even get to the question of disability. They'll say, look, under the terms of the policy, you have a duty to get treatment reasonable and appropriate treatment. You need have to be compliant with the treatment and you're not. So guess what? You violated the terms of the policy. We're gonna deny the claim and they never get to address whether or not you are disabled as a result of the ms. So it's an easy win and courts will uphold a denial or termination of benefits based on this easy win unless there's a really, really, really, really, really good reason for you not getting medical treatment or being non-compliant. So please don't put yourself in that position. Got it. Well, I hope you have enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please like our page, leave a review, share it with your friends and family. Please subscribe to this podcast. That way you're gonna get notified every time a new episode comes out. Thanks for tuning in and take care.