Winning Isn't Easy Season 3 Episode 36: Disorders Impacting Brain Health in ERISA Disability Claims

Welcome to Season 3, Episode 36 of "Winning Isn't Easy"! 🎙️

In this enlightening episode, your host, Nancy L. Cavey, delves into the crucial topic of "Disorders Impacting Brain Health in ERISA Disability Claims." Brain-related disorders can significantly impact an individual's ability to work and lead a fulfilling life. Understanding how to navigate ERISA (Employee Retirement Income Security Act) disability claims involving these conditions is paramount.

In this episode, you'll discover:

🧠 Common brain-related disorders that can lead to disability claims.
📄 The importance of medical documentation and evidence in ERISA claims.
🤝 Tips for building a strong disability case when dealing with brain health disorders.

Nancy will share her wealth of knowledge and experience in disability law, offering valuable insights and strategies for individuals and their representatives who are pursuing ERISA disability claims related to brain health conditions.

Whether you're someone affected by these disorders or a professional assisting clients, this episode provides critical information to help you navigate the complexities of ERISA disability claims.

Tune in to Season 3, Episode 36 of "Winning Isn't Easy" to gain a deeper understanding of how brain-related disorders impact ERISA disability claims. 📻🧠

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

Transcript

ERISA Disability Attorney Nancy Cavey: 0:10

I am Nancy Cavey , national ERISA, an individual disability attorney. Welcome to this week's episode of Winning Isn't Easy. Before we get started, I have to give you that legal disclaimer that the Florida Bar says I have to say, this podcast is not legal advice. So now I've said that I wanna remind you that nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Today I'm gonna be exploring a number of medical disorders that can have a severe impact on brain health and how that can translate into a disability insurance claim. Obviously, brain and mental health are both vital to our wellbeing, but often disability carriers don't make it easy for you to get the benefits you deserve. And I'm gonna talk about three specific topics, cluster headaches and an ERISA disability insurance claim, post-stroke, cognitive impairment, and an ERISA disability claim , and REM sleep disorders, dementia, Parkinson's, and your ERISA disability claim. Got it. Let's take a quick break.

Speaker 2: 1:26

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ERISA Disability Attorney Nancy Cavey: 1:48

Welcome back to Winning Isn't Easy. Let's talk about cluster headaches and your ERISA disability claim. Now, you may have purchased a disability policy through your employer or are covered under an employer sponsored disability plan. You never thought you'd have to file a claim for disability benefits, particularly for cluster headaches. When we have a cluster disability headache claim , we start out with the disability insurance policy or plan. There is no uniform definition of disability and each policy is different as to how they define it. And so that's the key in my view, in starting to , uh, determine whether or not we've got a claim and how to submit a winning claim or deal with a denial or termination. But before we move on, let's talk first about what a cluster headache is. It's a severe form of primary and neurovascular headaches that are characterized by pain that'll occur on just one side of the head behind the eye or at the temple. Um, that pain has been described as excruciating searing, burning, stabbing, and it's one of the most painful forms of a headache. There are two types of cluster headaches and your medical records should be clearly defining which one you have and the symptoms that you have. So there is the episodic cluster headache and they're generally characterized by one to four short headaches every day. That can last 15 minutes to 120 minutes at a time. These episodes can last weeks or months and then you can be pain-free or in remission for even months. Now the disability carriers or plans tend to focus on those remissions when deni are terminating a claim. The second kind , uh, is a chronic cluster headache. Now, in that situation, you can have unremitting headaches that can last for years or more with minimal periods of remission. In my view, these can be easier claims to win because of the length of time one has a headache and the unremitting nature of the headaches. But carriers play games with these because they'll argue, well, you know, you've been functioning for years with this kind of a headache. What's changed? Again, this goes back to what is in your medical records. You know, the symptoms , uh, that you're describing that are documented in your medical records. So in the case of an episodic cluster headache, your medical records in my view, should document the following, one, the time of day that you have your headache. Two, how it interferes with your activity at the time of day that it occurs. Three, how long does that headache last? Four , where is the headache pain located? Five. What pain do you have, if any, in the eye socket or in your eyes that impairs your vision? Uh, number six, how does that pain spread? Number seven, what activity may impact that pain? Make it better, make it worse, not change it at all. Uh , next, whether you have facial sweating, drooping, eyelids, eye swelling, and how long that lasts, whether you have an aura or a visual disturbance before you have a headache, and how long that aura lasts. Again, you wanna also document how each one of these symptoms impacts your functionality, each symptom functionality, not just the whole ball of wax, if you will. The best way I think to do that is to use a , um, ch log that you can give to your physician at each visit to be made part of your medical records. Now you wanna keep a copy of it , uh, because ultimately you're gonna be submitting it to the disability carrier, but what also is key in these cases is how you're documenting the nature of any remissions in quotes and the problems that you might have during these remissions because you still may be symptomatic though not at the same level that reduced uh, symptoms and reduced functionality obviously has to be significant and severe enough to prevent you from doing, you know, your own occupation or any occupation. So it's crucial that you're just not characterizing this as being improved , uh, or you're functioning better or you know, you have good days or bad days. You have to be, in my view, pretty specific because the carrier's gonna seize on these remissions or these periods of reduced symptoms as evidence that you're not disabled and that you can work when you're having a quote unquote remission. This way . Carriers are, plans, in my experience, tend to treat everybody who has a cluster headache the same, and that's problematic because the severity of the symptoms and the impact it has on your functionality vary from person to person. Just because I may have symptoms doesn't nor not necessarily the same symptoms as you and my reaction to the symptoms may not be the same as yours. So we don't want this whole man everyday man approach. We want them to look at your particular symptoms and how those symptoms impact your ability to function. Now the carrier's also gonna be looking at the diagnostic studies used to make the diagnosis of cluster headaches as part of their evaluation. As we know, there really isn't necessarily a gold standard testing. So the diagnosis is made based on your history onset progression and symptoms, how those symptoms have progressed and impact your ability to function, including, you know, clinical testing and a workup. Um , the diagnosis is based on the criteria of the international classification of headache disorders. And I will tell you that brain imaging with and without contrast is , is generally normal and disciplinary carriers think that's a big deal and they'll say, well, your diagnostic studies are normal, therefore you can't have this. Um, the cause of the pain is thought to be due to dilation of blood vessels that create pressure , uh, on the trigenal nerve. And there are PET scans that can show the activity in the hypothalamus that is thought , uh, be the cause of ch So it might be appropriate for you to have a PET scan , uh, particularly if the disability carrier or plan is denying the diagnosis. That obviously should be, in my view, done I think before you file a claim or as the claim is progressing, because again, the carrier's gonna wanna see that and want it to make sure that the diagnostic criteria used in fact yields a diagnosis of cluster headache. Now, migraine headaches are often mistaken for cluster headaches, but there are significant differences and disability carriers or plans don't always get that. Migraines are generally only on one side. The ORs occur more frequently in migraines. Uh, and um, the other thing is , um, behavior. Now I know that sounds strange, what does , what does she mean by behavior? Well, in a migraine, you generally wanna lie down in a cool quiet room until the migraine goes , goes away, but a person with CH is gonna pace, they're restless, they're cognitively alert. And so your records, again, are crucial in terms of how you're documenting your symptoms, the diagnosis of the basis of that diagnosis, because we don't want the carrier to get all hung up, if you will, about the diagnosis. But the other game they're gonna be playing is looking at your medical records for treatment recommendations. You're required under the terms of your policy to get reasonable and appropriate medical care from a qualified physician. That's not your family doctor, your primary care doctor , um, is not an orthopedist. It could be a pain management doctor, it could be , uh, a neurologist, but I'm looking for treatment from a migraine or a CH specialist. Now, as we know, treatment can vary from person to person, but the disability carrier takes this cookie cutter approach to what to expect in terms of treatment. So what will they expect that you have undergone as they're looking at your medical records? They will expect pure oxygen inhalation at seven to 15 minutes liters, I'm sorry, seven to 15 liters per minute by facial mask. Um , subcutaneous injections, occipital nerve blocks , um, steroids , uh, anti-epileptic , uh, epileptic drugs, melatonin, lithium in the case of chronic cluster headaches, electrical stimulation of the occipital nerve , uh, deep brain stimulation, radio frequency , uh, uh, procedures. So those are the kinds of things that are gonna be looking for. If you've gotten any of those, what's just as important is your response to that particular form of treatment. Did you get any relief? How long did you get the relief? What was the nature of the relief? What was your functionality as a result of treatment? Did it improve? Did it stay the same? Did it get worse? And you should be noting that in your diary. You're not required to undergo surgery or invasive procedures such as deep brain stimulation, but if you choose not to, which is your right, your record should document why you refused that recommendation. So I want you to think about these things. Uh , as you are deciding to when to apply, how to apply and how to deal with a denied or terminated , uh, claim. It's safe to assume that disability carriers and plans don't understand the diagnosis symptoms , uh, uh, and how CH symptoms can impact a person's ability to perform their own or any occupation. And it's up to you to help them get through that. Um, they're gonna fi fixate on the lack of diagnostic studies, the subjective nature of ch they're gonna try to apply a subjective medical condition limitation. And so you have to understand these games. The games will start with the terms of your policy or plan, your medical records and the information that you are , uh, supplying to the disability carrier in terms of forms such as activity of daily living forms. You can see that you've gotta have your act together, if you will, before you apply for benefits or you deal well with an appeal. So I hope that you understand the games that are gonna be played and also consider that at some point the disability carrier may say, okay, we've paid the benefits, but we think they're psychologically based and we're gonna limit the payment of benefits to just two years. So you've gotta take a short-term view and a long-term view of CH claims. Got it. Let's take a break. Welcome back to winning Isn't Easy. Let's talk about post-stroke, cognitive impairment and a irisa disability claim. A stroke occurs when the blood supply is stopped or reduced to parts of the brain and uh , cells , uh, are , are , are deprived of oxygen and nutrients and as a result, this can cause physical or cognitive problems such as paralysis in part of the body, numbness and pain in areas of the body . Speech and language issues, cognitive issues, having problems with short-term thinking, shorter, long-term memory. And we know that any one of these problems can be disabling. Disability carriers, however, seem to have difficulty with cognitive impairment claims 'cause they say anybody can have problems with their memory . I can't remember where I left my keys and I'm working, what's your problem? Obviously you need to understand how disability carriers will, will view post-stroke cognitive impairment claims. Now, the nature of your cognitive impairment will generally depend on the nature of the stroke that you had. An ischemic stroke, for example, occurs when the blood clot blocks an artery leading to part of the brain. A hemorrhagic stroke occurs when there's bleeding in the brain. 87% of strokes are ischemic and the remaining 13% are hemorrhagic. Um, and the nature of the cognitive impairment is going to depend on the location of the stroke in your brain. Post-stroke cognitive impairment called PSCI happens at least 50% of the time. And studies show that one third of those who have a stroke will go on to develop dementia. Got all of that. So what are the things that the carrier's looking for in your medical records? Again, they're looking for objective evidence of the stroke. So they wanna see a brain MRI or a CT scan, a speech pathology testing , uh, reports regarding the existence of speech or language problems and the extent of nature of those problems. Documentation of paralysis, objective testing, cor coordinating numbness, and the impact that the numbness has on your functionality. Cognitive testing, documenting the cognitive impairment and correlation with the results of MRIs. They wanna see continued cognitive testing, documenting the progression of your cognitive impairment, and they want functional capacity testing, documenting the limitations in your physical functioning. That's all of the kinds of information that can establish that you can perform the material and substantial duties of your own occupation or any occupation as those terms are defined in your policy. Remember, you've got the burden of proof. Now, one of the things that I think is important is vocational issues , uh, secondary to a stroke. And what do I mean by that? Your medical records should document the physical and cognitive restrictions that you have, but that's not necessarily always enough to meet the standard of disability. There's gotta be a connection between whatever the physical limitations are and the cognitive limitations and restrictions. Two , your inability to do your own or any occupation. So let's say for example, you're having problems remembering new information or sequencing information. The disability carrier plan is gonna wanna see objective evidence on MRI of the injury to that portion of the brain that regulates , um, that function and then it was damaged by a stroke. And then they're gonna wanna see the results of neurocognitive testing that will correlate between your claimed impairments and the damage done as a result of the stroke. So that's sort of the medical aspect of that, but from a vocational standpoint, they are gonna get an opinion , uh, as to whether or not all of this correlates and explains the work duties that would be impacted. So you couldn't do the material and substantial duties of your occupation. I routinely use neurocognitive testing in these cases and combine it with , um, a sign off by the doctor and then we tie it together with a vocational opinion. You've got the burden to build the proof and connect the dots as to why you physically and cognitively can't do the material and substantial duties of your occupation. You can see it takes a lot of work, a lot of teamwork, and you may not be , uh, physically cognitively able to do that, or you might find the task exhausting. So don't kind of bumble along and think that the disability carrier is gonna do it for you or is gonna see why it is you're disabled and merely paid benefits. Got it. Let's take a break.

Speaker 2: 17:38

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ERISA Disability Attorney Nancy Cavey: 18:16

Welcome back to Winning Isn't Easy. Let's talk about REM sleep disorders, dementia, Parkinson's, and your ERISA disability claim. Did you know that every night you go through four to five sleep cycles that last 90 to 110 minutes? Each cycle has four stages and one of the most important stages of sleep is called rem. During rem your brain rhythms are like those you have when you're awake, your muscles will lose tone. So it's hard to move and your eyes are closed, but they can move quickly. Your respiratory rate and blood pressure fluctuate. For some of us, REM is not so peaceful, but rather it's a bit of a battle, and that's known as a REM sleep disorder. People act out violently , um, during rem uh, and they'll shout, they'll scream, they'll punch, they'll even fall outta bed. 60% of people with REM sleep disorders actually injure themselves. So what's the link between rems, sleep disorders, dementia and Parkinson's? And how can that give rise to an RIS and disability claim? REM sleep disorders have been associated with Parkinson's, multiple system atrophy and dementia. In fact, did you know that REM sleep disorder is seen in 25 to 58% of those who have Parkinson's and 70 to 80% of those people who have dementias, specifically Lewy body dementia? So how does all of this play into an ERISA disability insurance claim? Now, assuming you have an ERISA disability insurance , uh, policy or plan , um, there can be two basis for a claim. And first is the severity of the REM sleep disorder. And the second are any injuries sustained during an episode. Each individually and in combination can be the basis of a claim. Now, more often than not, I find that it's the combination of the REM sleep disorder and Parkinson's or multiple system atrophy or dementia that are the basis of , uh, the claim. Obviously, if you have a restless sleep , uh, disorder , uh, I'm sorry, REM sleepless disorder, the this way , carrier's gonna wanna see the diagnosis of that corroborated by your diagnostic studies and of course, the history of your symptoms if you've got Parkinson's. They'll also wanna see the , um, diagnosis of Parkinson's and the , um, objective Bay diagnosis. But we wanna go about filing a claim or dealing with a termination of benefits by establishing the relationship between each. We wanna talk about the Parkinson's, we don't wanna talk about the rem, but we also wanna talk about the combination of those and how it impacts your ability to do your own or any occupation. I think that in select cases, neurocognitive testing can also be helpful to document the impact of the REM sleep disorder , uh, and the impact of Parkinson's from a cognitive standpoint. Now, if you've been injured as a result of a fall, you fell out of bed and, you know, herniated a disc in your neck or dislocated your shoulder, obviously that should be part of any disability claim, particularly if you've got permanent , uh, uh, complications. It's not necessarily that they be tied together, it can help. Uh, but I will pursue these kinds of claims on the basis of the REM sleep disorder, any complications , uh, such as Parkinson's or dementia, Parkinson's or dementia individually. And then, you know, croutons on top of the soup, if you will , uh, are going to be bringing in any physical conditions or injuries caused by the REM sleep disorder. You can see we're putting this together in a nice picture for the disability carrier. I hope you understand the complexity of all of these different types of medical conditions and how disability carriers can play games , uh, with policy , uh, terms, the proof that they're required ongoing medical treatment. I hope you've 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 families and friend, and of course subscribe. That way you're gonna be notified every time a new episode comes out. Please tune in next week for another insightful episode of Winning Isn't Easy. Thanks.