Winning Isn't Easy Season 3 Episode 38: Neuropathic Disorders, Disorders Causing Pain or Neuropathic Pain, P1

Welcome to Season 3, Episode 38 of "Winning Isn't Easy"! 🎙️

In this compelling episode, your host, Nancy L. Cavey, delves into the intricate world of "Neuropathic Disorders, Disorders Causing Pain, or Neuropathic Pain, Part 1." Neuropathic disorders can have a profound impact on an individual's life, often causing debilitating pain and discomfort. Understanding how these disorders intersect with disability claims is vital.

In this episode, you'll explore:

🩺 An overview of neuropathic disorders and the pain they can cause.
📋 The importance of medical documentation and evidence in disability claims involving neuropathic pain.
🤝 Tips and strategies for building a compelling disability case when dealing with these challenging conditions.

Nancy will leverage her extensive expertise in disability law to provide valuable insights and guidance for individuals and their representatives who are navigating the complexities of disability claims related to neuropathic disorders and pain.

Whether you or someone you know is affected by these conditions or you're a professional assisting clients in similar situations, this episode offers essential information to help you advocate effectively.

Tune in to Season 3, Episode 38 of "Winning Isn't Easy" to gain a deeper understanding of neuropathic disorders and their implications on disability claims. 📻🩺

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/

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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: 0:15

Hey, I'm Nancy Cavey, national Erisa, an individual disability attorney . Welcome to this episode of Winning Isn't Easy. Before we get started, I've gotta give you that legal disclaimer. The Florida Bar tells me that I have to tell you that this podcast is not legal advice. All right ? I've done that, and nothing will 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. Now, today I'm gonna be talking about exploring the world of neuropathic disorders, and these are disorders that cause neuropathic pain, and those of you who have neuropathic pain know how painful it is, how these disorders can sometimes overlap with other pain centric disorders like LER Danlos syndrome. And we're even gonna walk through a case study. So you can see firsthand how disability carriers handle pain and neuropathic pain based claims. We're going to discuss three specific topics. One is going to be neuropathic , uh, ocular pain, and your ERISA disability claim. I'm gonna talk about the similarities between ELOS Danlos syndrome complex and I'm sorry, and complex regional pain syndrome and an ERISA disability claim. And I'm gonna talk about how an ERISA claims administrator like Sedgwick will try to get away with a denial based on a non-specialty, IME in neuropathic or RSD claims. All of this is really relevant to your ERISA claim, regardless of whether your , uh, particular disorder is neuropathic in nature because many basis of disability claims have a pain component. So this is something that's relevant for every ERISA disability claim. Let's take a break before we get started.

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ERISA Disability Attorney Nancy Cavey: 2:37

Welcome back to Winning Isn't Easy. Let's talk about neuropathic ocular pain and an ERISA disability claim. Your cornea has significant sensory innervation and it can produce pain that obviously can result in a disability claim. Now, neuropathic ocular pain known as NOP is a constellation of persistent ocular pain syndromes. You might have burning. You might have increased sensitivity to lighter wind shooting pain in one or both eyes, and that may or may not be present , uh, on examination with an ocular surface abnormality. In other words, you can have pain without actually having an ocular surface abnormality. It can be caused , uh, by , um, a number of conditions , uh, anatomic abnormalities, environmental exposures, even nerve dysfunction of the peripheral and central nerves that connect the cornea , uh, to the conjunctive , uh, uh, of the brain. Uh , and these are incredibly painful , uh, conditions that interfere obviously with visual , uh, acuity , um, distance , um, peripheral vision. Um, but more importantly, it , um, as I've said, is incredibly painful. So let's start out by talking about what disability carriers are looking for in a disability claim. Uh, they're gonna start out by getting your medical records. They're gonna be looking for a thorough history of your ocular problems, how they develop, how they impact your ability to function , uh, and they're gonna look for the results of physical examinations and diagnostic studies. What's important in my view is that you understand that NOP can be present in one or both of your eyes. It can start spontaneously. It can start , uh, after trauma. It can even start after surgery. There can be very few physical signs of ocular damage , uh, uh, you know, based on physical examination. Uh, and there can also be some problems with , uh, examinations, results, and with diagnostic studies. So at a minimum, the disability carrier is going to expect that you ha are going to be seen by somebody other than your general practitioner. In other words, they wanna see examinations by eye care providers and eye pain specialist. It can be very difficult to diagnose, and that will sort of play into the disability carriers games because they wanna see a concrete diagnosis. Another problem here is that NOP symptoms don't always correlate , uh, with the actual physical findings. And many patients are dismissed. Pain patients are dismissed all the time as being drug seeking or anxious. And your medical records, regardless of what we're talking about, NOP or any other pain condition should be addressing these issues. So what, what are your symptoms? How do those symptoms begin? Uh, how do those symptoms impact with your ability to function? What are the physical exam findings? What are any diagnostic findings? Um, if they are inconclusive or potentially quote unquote inconsistent, your medical records should be addressing this and explain why you may not present with all of the , uh, expected physical findings. But nonetheless, you have this diagnosis of NOP and your medical records should document whether or not you're drug seeking or whether or not this is all psychiatric, if you will, in your head, because either are the common things that disability carriers will seize on. Now, what else do they wanna see in your medical records? They wanna see that you got appropriate medical treatment and that involves , uh, you getting dry eye treatment , uh, therapies and treatment to correct ocular surfaces , uh, surface abnormalities, pain management. They wanna see that and they wanna see your response to this particular type of , uh, treatment. Now, obviously, they're going to be looking at your medical records and they're gonna be looking at your activity of daily living forms and the a PS forms that your doctors have completed. There has to be consistency between your history of the symptoms , uh, the impact that you're demon or complaining of in terms of your , uh, ability to work. But there also has to be consistency here between what you're reporting in terms of your activities of daily living. So if you say, for example, you know, wind , uh, makes your symptoms worse, but you're out on the golf course playing golf , um, that potentially can be a problem. So your activities need to be consistent with , uh, the aggravating factors that cause the , uh, NOP symptoms. Now, think about that. Uh, think about that also in terms of what you're doing, if anything on social media, because I promise you , uh, as part of the evaluation of an NOP claim or any claim, quite frankly, the carrier is going to be looking at your activity of daily living forms. Your medical records gonna be looking at the a PS form that the doctor has completed, and they're gonna be looking at your social media accounts to determine whether or not they actually believe the diagnosis, whether they believe that the symptoms impact your ability to do your own or any occupation and whether or not the medical treatment that you're getting rises to the level of care that is expected in the case. And understand overlaying all of this is going to be your social media report , um, on any kind of social media site. Are you doing something that's inconsistent with a diagnosis with your reported symptoms or your inability to work ? Consistency is the key. Got it. All right , let's take a break. Welcome back to winning Isn't Easy. Let's talk about the similarities between Ellers Danlos syndrome and complex regional pain syndrome and an ERISA disability claim. Now, those of you who suffer both from both medical conditions, are saying, why on earth is Nancy Kavi asking? You know, are there similarities? 'cause I don't really think there are any similarities , um, based on my symptoms. So let's answer that question. Let's start out with a proposition that disability insurance companies hate cases like LER standalone syndrome and complex regional pain syndrome because of the absence of objective diagnostic testing, overlapping disease symptoms, and their own particular bias about the nature of these diseases. Now, as I've said before, this is applicable regardless of whether you have LER Danlos or complex regional pain syndrome. This is the approach that disability carriers take. But for the purposes of this discussion, let's consider the nature of both diseases. So let's talk first about complex regional pain syndrome or CRP. It's an acquire acquired neuropathic pain syndrome. It's diagnosed by using what's called the Budapest criteria. There's no gold standard test to diagnose this disease, and it has its own classifications. There's type one, which is without the presence of a nerve injury, which is more common. There's type two , which is the presence of a nerve injury. And both types one and two are systemic diseases that can impact any organ or any symptom. And it's also thought, by the way, to have a genetic component. So now we get the basics, if you will, of uh, complex regional pain syndrome. Let's contrast that with LER Danlos syndrome. LER Danlos also has a genetic component. In fact, it's a genetic connective tissue disorder that's caused by defects in the collagen that can lead to joint hypermobility and laxity in the skin, ligaments, joints, eyes, bones and blood vessels, and even internal organs. It's characterized as chronic pain syndrome is by chronic pain. It's diagnosed by using the brightened diagnostic criteria as be as there is no gold standard test. The lack of objective testing and the use of diagnostic criteria that doesn't rely on gold standard testing makes these types of disability claims suspect in the eyes of the disability carrier or a planned administrator. So your medical records, just like in any other medical condition, have to explain the basis of the diagnosis, be it , uh, CPR or , uh, LER standler syndrome. So let's talk about the overlapping symptoms. The diagnostic criteria for both , uh, CRPS and EDS Stanler Syndrome are in part based on your subjective symptoms. And guess what visibly carriers or plans are gonna question not only the existence of, but the severity of your symptoms. In the case of , uh, of these diseases, it can include something called allodynia, which is even air or light touching will cause extreme pain, hyperalgesia, tremors , um, or myoclonus heightened sensitivity to light sounds, touches and odors, poor concentration, poor short time memory, chronic pain, headaches, GERD and IBS symptoms, urological issues, skin issues, tinnitus, thyroid dysfunction, a whole host of , um, symptoms, some of which overlap , uh, with , uh, with , uh, uh, chronic regional pain syndrome. And I will tell you regardless of, of either the disciplinary carrier's gonna look at those medical records for the symptoms. And it's important in both instances, both diseases to document the frequency, nature and intensity of your symptoms and do that with particular detail about how these symptoms impact your ability to do your own or anti occupation . Now, one of the other things I think both of these diseases have in common when it relates to an ERISA disability claim is the in disability insurance carrier or plan bias. Many carriers or plans have position papers on how they view these types of diseases and explicit instructions for how a claim is to be evaluated. And these position papers become the roadmap to a claim denial or termination. The decisions that they make are bolstered by the carrier's plan , uh, uh, or the , the carrier or the plan's use of biased medical peer review doctors who I call them liar for hires. Now, many times what happens is that these medical reviewers don't even believe in L or uh , C-C-R-P-S , the diagnostic criteria or the idea that it can be disabling. And they kind of poo poo EDS claims on the basis that notwithstanding all of the symptoms, including laxity dislocation, that you ought to be able to do something because you've got a brain. Now, they will often question the restrictions and limitations assigned by your physicians. So the carrier's going to question the diagnosis question, whether or not the condition is disabling question, the restrictions limitations. And in doing so, as I've said, they're going to be relying on these position papers that they've created. They're going to rely on liar for hire doctors who in turn are gonna rely on unre reliable , um, uh, medical journals and reports to substantiate the ultimate conclusion that they make. And they're gonna stack all of this medical documentation and the carrier's gonna say, Hey, either we don't accept the diagnosis or, yeah, we accept the diagnosis, but it doesn't , uh, your symptoms aren't consistent or your symptoms do not rise to the level of severity that will result in disability. So what should you do if your claim has been denied or terminated? You need to understand that the , under the ERISA law, you're only gonna have 180 days in which to file an appeal. And if you don't file an appeal, you're giving the disability carrier a easy win. You can see that these claims , uh, CRPS claims, EDS claims are medically, factually and legally complex. It's a , a very , uh, difficult area, if you will, because of the carrier's position papers and their bias. Now, these denials and terminations can be overcome, but as you can see, it's gonna take a lot of work and documentation . Got it. All right , let's take a break.

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ERISA Disability Attorney Nancy Cavey: 16:47

Welcome back to Winning Isn't Easy. Can an eris a disability claim administrator like Sedgwick get away with a denial based on a non-specialty? IME in an RSD claim will . Unfortunately, we have case law that addresses this issue, and I'm gonna talk with you about a sixth circuit , uh, case , uh, called Avery versus Sedgwick. Um, and I think the court got it wrong. Um, so let me tell you about this story and I'm gonna make some observations about , um, this case and make some recommendations for how you should be handling your claim or a denial or termination. Ms. Avery developed advanced peripheral , uh, demyelinating , uh, uh, polyneuropathy of the her lower legs as a result of an ankle fracture. Her disability policy was administered by Sedgwick and Sedgwick's known for their bias claims administration. Now, she was paid two years of benefits using the standard of disability , um, which was a disability. Uh , uh, she would be disabled if she was unable to do her own occupation. That definition of disability changed from own occupation to something called any occupation. Now, the games the disability carriers play at this stage is great medical evidence , uh, that you can do sedentary work, notwithstanding what your physician has to say. They're gonna use liar for hire doctors who will review the medical records, or they'll use not so independent medical evaluators to give them an opinion that you can do at least sedentary work. Then of course, the game is you've gotta appeal , uh, that wrongful denial or termination. And if you're not successful, you have to file a lawsuit in federal court. And generally you have to overcome an arbitrary and capricious standard of review under the ERISA regulations. Um, unfortunately you don't have a lot of protection, if you will. Um, but there is something called , um, there's something called the substantial compliance test. Again, the ERISA statute is a, is a statute that has been interpreted by the court. And this substantial compliance test in determining whether or not the disability carrier plan is right or wrong , uh, is a test that has no basis in the regulations. It's something the court made up. And so in Ms . Avery's case, Sedgwick had her undergo a liar for hire IME with a physician who was not a neurologist, and then had the IME report in her medical records by neurologist who opined she could do sedentary work. So what the Sixth Circuit did is they said, okay, well, you know, Sedgwick had a paper review , uh, and they didn't really rely on that paper review. Um, and um, but they still had a neurologist review it. Um, they had this non-specialty IME and you know, we get that that's not kind of, you know, the thing to do. But after this non IME specialist, we had it re meaning Sedgwick had it really re re-reviewed, if you will, by neurologist. And so they may not have gotten it right the first time. They , um, uh, had a non specialty IME and they didn't really kind of rely on that, but they did it right the last time when they had all of this re-reviewed that in their opinion was substantial compliance. Now, I don't really think that's right for a number of reasons. One of the things that the regulations do say is that the disability carrier has to give you an explanation and produce documents , uh, which is the basis of the denial. And I don't think the denial letter in this case really set forth all the game playing that went on in this particular case. The other thing that I would have done , um, and I'm not criticizing Ms. Avery or her attorney, would have been to get what's called a functional capacity evaluation to document her functional restrictions and limitations with the polyneuropathy. I would've been attacking the basis of the opinion that she was capable of doing , uh, sedentary work. Sedentary work does require sitting, and if you've got peripheral neuropathy issues, you have a painful condition and you've gotta get up and move around. And this is, this analysis is applicable in all sorts of cases, be they LERs , Danlos cases, complex regional pain cases, fibromyalgia cases. If you have symptoms , uh, that prevent you from engaging in sedentary employment, those wanna be emphasized in your medical records. Now, part of sedentary employment also involves bilateral manual dexterity because you're sitting and you're doing something with your hands. That can be problematic obviously in a peripheral neuropathy case if it just involves the lower extremities. But the fact that you would have to get up and move around can impact your ability to do sedentary work and meet the pace and production requirements. So I really been going after that. Also, I would've tried to tie it in with a vocational opinion that would've addressed why based on even sedentary potential restrictions, limitations. Uh, you couldn't do full-time sedentary work on a competitive basis, meaning the pace and production requirements. And so I think the court got it wrong for a lot of reasons. They didn't really thoroughly look at the quote unquote analysis, the disability carrier or plan. In this case , uh, administrator Sedgwick did. Um, and they kind of used this substantial compliance argument as a way to dust this decision off, if you will, with the , some of the problems and say, well, it ultimately, at the end of the day, they substantially complied when in fact they did. Um, I would hope that courts , uh, would give cases like this closer consideration , uh, because the ability to do sedentary work can be significantly impacted by any , uh, neuropathy based claim. Got it. I've hopefully given to you a roadmap as to how disability carriers or plans look at these painful condition claims , use position papers , uh, use liar for hire IME doctors, change their reasons for denial, and then hope that the court will uphold a denial. I hope you've enjoyed this episode of Winning Isn't Easy. Please subscribe. Uh , please tell your friends and family about it , and I look forward to talking with you in our next episode of Winning.