Migraine - Covering What You Need to Know about This Common, Yet Disabling Medical Condition

Welcome to Season 4, Episode 11 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Migraine." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses chronic headache and migraine claims. While commonplace, headaches and migraines can be severe enough to be disabling. Disability carriers will fight tooth and nail to prevent policyholders with migraines from receiving disability benefits. Because migraines are often subjective in terms of pain level and severity, can wax and wane regarding flare-ups, and do not often have objective diagnoses, carriers love to claim that they are not disabling. In this episode of Winning Isn't Easy, host Nancy L. Cavey walks through all the information you need to know regarding a migraine disability claim, and how to fight against these preconceived notions.

In this episode, we'll cover the following topics:

1 - Migraine 101

2 - Court Rejects Met Life’s Demand That Policyholder with Chronic Headaches Produce Objective Evidence of Disability 

3 - Migraine Long-Term Disability Insurance Claims and the Subjective Medical Evidence Trap

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


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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Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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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

Speaker A [00:00:11]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to winning isn't easy before we get started, I have to give you a legal disclaimer. The Florida bar has said, I've got to tell you that this is not legal advice. So I've done my due diligence, 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. Today I'm going to talk about chronic headache claims. Now, I get a lot of chronic headache claims, and I want to make sure that before you stop working, apply for benefits or you deal with a wrongful denial of your claim this that you understand some basics. So I'm going to talk about migraine 101. I'm going to talk about how the court rejected MetLife's demand that a policyholder with chronic headaches produce objective evidence of disability.
 
 Speaker A [00:01:06]:
 And I'm going to talk about migraine long term disability insurance claims and the subjective medical evidence trap that's waiting for you in your disability insurance claim. Let's take a break for a moment before we get started.
 
 Speaker B [00:01:20]:
 Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:01:41]:
 Welcome back to winning isn't easy and migraines 101 disability insurance companies don't make it easy for policyholders who have headaches or migraines to get the disability benefits they deserve. You can count on that from the very beginning of your claim. There are lots of reasons why disability carriers deny these claims, and I'm going to be talking about those. One of the first reasons why claims get denied is that they'll claim that there's no objective testing to support the diagnosis. Yet we know that headache and migraine claims are often denied because of the fact that there's no gold standard for the diagnosis of a headache or a migraine, and oftentimes ct scans and mris are normal. In fact, we know that based on the diagnostic criteria recognized by physicians, that the diagnosis is really made on the basis of subjective complaints. What they're looking for is a history of a recurrent headache with sensitivity to light, sensitivity to sound, sensitivity to movement, nauseousness, vomiting, auras and visual disturbances. Now, the International Headache Society has created a table with diagnostic criteria that's often used to explain the basis of that diagnosis.
 
 Speaker A [00:03:00]:
 I think you should get yourself a copy of it. One of the ways that I begin to try to overcome the carrier's arguments is to make sure that at every visit, my client is giving an interval history of their symptoms and how those symptoms impact their ability to function. Now, legally, a carrier can say that there isn't any basis for the restrictions, limitations, and they may do crazy things like assign investigators to film you outside your house and say that you can work notwithstanding your headache. So as a result, I think that there are ways that you need to buttress, justify, help explain the basis of the restrictions and limitations that your physician has assigned. One of the primary ways to do that is a headache diary. And you can be very sophisticated and use an excel spreadsheet. You could write it on your calendar. I don't care how you do it, but I think that you should be documenting, as I've said, your symptoms and how those symptoms impact your ability to function.
 
 Speaker A [00:04:04]:
 How many headaches are you having? When did they start? How long did they last? What is it that you did to try to control those headaches? You want to make sure that that is a part of your chart because the disability carrier is going to get a copy of it. And please, please keep a copy of it because I want to use it in any sort of claim denial or termination appeal. Now, another tip is to take pictures as appropriate, documenting your vomiting. I know that's gross, but it is what it is. Or if you are in pain, you're in a cool, dark room, you have compresses on your head. Get somebody to take a picture of it. Now, I think that that is the kind of information in combination with a diary that will help a doctor address the objective basis for the restrictions and limitations. Now, one of the other things that I think is crucial is that you need to get treatment by the right type of doctor.
 
 Speaker A [00:04:59]:
 Often disability carriers will say, look, your GP, your PCP, your ob GYN, whomever is not qualified to render an opinion about your claim. Cause you're not seeing a neurologist, or you're not seeing a neurologist who specializes in headaches or migraines. And in some cases, you're not even seeing a pain specialist who might do occipital nerve blocks or other forms of treatment that would address your migraines. So those are the kinds of problems that we can see just right out of the box and some practical solutions to those defenses. Now, I think it's also important you understand how they view. How do carriers view headaches and migraine claims? Now you are going to be faced most likely with the argument that you've been working for years with these problems. Nothing's changed. You worked yesterday, you should be able to work today.
 
 Speaker A [00:05:55]:
 So it's crucial that your medical records develop the progression of your symptoms. And that again is, I think done by doing a pain headache or diary that basically establishes the frequency of your headaches, the length of your headaches, what it is you try to do to control those headaches, and if there are specific things that will bring on the headaches. Another thing that you should reasonably anticipate is if you've recently gotten your disability insurance policy. The carrier may argue that coverage is excluded under the pre existing condition clause, or if they decide to pay the claim, then they're going to pull out another tool from their defense carrier toolbox. And that's the subjective medical condition limitation. The subjective medical condition limitation clause may say, hey, benefits are just limited to two years for conditions that are based on your subjective complaints of pain, headaches, visual issues. So you need to understand that going into the claim, there are certain things I think that you need to do before you stop work and apply for your disability benefits. And I also think these are potentially applicable if your claim is being denied or is being terminated.
 
 Speaker A [00:07:15]:
 But the starting point from my perspective is that you should get a copy of your disability policy because we want to understand how the policy defines the term disability occupation. Is there a self reported condition limitation? You need to understand what it is you need to prove. The second thing we've got to do is get a copy of your medical records. Is there an objective basis for your doctor's diagnosis using the recognized headache diagnostic criteria? You also want to see if your records are reporting your symptoms and your functionality. We also want to make sure that you get a copy of your personnel file. Now why would you want to do that? We want to see whether or not in that personnel file there's a history of you having problems performing the material and substantial duties of your occupation because of the headaches. How has it impacted your work performance? Get a copy of your occupational or job description. Because ultimately we have to prove you can't do the material and substantial duties of those occupations.
 
 Speaker A [00:08:19]:
 And we want you to explain in writing to your physician what those duties are, what problems you're having, whether or not there's been any modification. Because ultimately your doctor is going to be rendering an opinion about the diagnosis, the restrictions, limitations, your ability to work, and if the doctor doesn't understand your occupational duties, doesn't have your pain diary. It's going to be kind of hard for them to do that. Now, that diary, as I said, I think is really crucial. And there are times when I have to tell my clients I don't want to file this claim right yet, because I want you to start keeping the diary and I want you to maintain that diary even after we apply for benefits. These are complex cases. You need the assistance of an experienced disability train to analyze the policy, your medical records, your occupational description, make sure that the necessary proof is there before you stop work, and certainly if you are being set up for a claim denial or termination to make sure that the applicable and relevant evidence is being developed to assist you in your disability claim. So now that you've got a sense of headaches 101, let's take a break and we'll move on to our next segment, and we will be talking about how a court rejected MetLife's demand that a policyholder with chronic headaches produce objective evidence of disability.
 
 Speaker A [00:10:03]:
 Welcome back to winning isn't easy. I'm going to talk about how a court rejected MetLife's demand that a policyholder with chronic headaches produce objective evidence of disability. Now, facts matter, as does policy language matter. Many disability policies will have subjective medical conditions, such as chronic headaches, and you need to understand that a chronic headache is considered to be subjective. There's no objective diagnostic testing or gold standard to, in fact, diagnose a chronic headache. Many courts will acknowledge that a chronic headache and migraine pain is the type of medical condition that's difficult to diagnose through scans or other diagnostic studies. Yet many times disability carriers insist on objective or clinical evidence as a prerequisite for disability, even though the policy may not even require objective proof. And that's what happened in the case of hamid versus metLife.
 
 Speaker A [00:11:07]:
 Mister Hamid was the enterprise retail sales manager at the bank of America. He managed the mortgage department for eight bank of America branches, and he managed ten to 15 employees. He had had headache issues as early as 2000. He'd seen a dozen different doctors for these problems. He had seen ents, neurologists, allergists, rheumatologists, pain doctors. He had undergone both conservative and invasive treatment. He had multiple nasal surgeries, botox injections. None of it was successful.
 
 Speaker A [00:11:39]:
 His medical records documented chronic head and face pain, which was corroborated by family members and coworkers. Ultimately, he had to stop work because of his frequent migraines and the persistent pain that he had he had pressure in his face, pressure in his head. He had fatigue, he had mental fogginess. And all of that was disabling. So, of course, what did Metlife do? What you would expect Metlife to do. They denied both his short and long term disability claims on the basis that there was not enough clinical or objective evidence to substantiate his subjective complaints. They even complained that he was exaggerating his symptoms because his doctor had, at one point, had commented that his symptoms were out of proportion to the exam findings and objective findings. So in reams of medical records, they seize on that comment.
 
 Speaker A [00:12:34]:
 Now, every one of their liar for hire doctors opined that there was insufficient evidence of impairment, and Metlife denied the claim. He appealed, and ultimately he filed a lawsuit in federal court. So what did the judge do with the evidence? The judge said it was clear that MetLife had improperly conditioned benefits on the existence of objective evidence, even against the backdrop of his consistent and corroborated reports of chronic pain. So I think this case is important because you'll get a sense of how the court analyzes these types of claims. The first thing the judge did was look at the totality of the evidence and found that Hamid's complaints were credible. The judge, to his credit, noted that the same treating doctor who had commented that his symptoms were out of proportion continued to recommend treatment, including surgeries that he underwent. So the judge reasoned that the continued recommendations for treatment supported the veracity of his symptoms, the extent and nature of those symptoms, the frequency of his symptoms, and the impact that they had on his ability to function. Now, the judge also found objective evidence of disability because there were supporting letters from his training physicians and statements from family, friends, and even coworkers.
 
 Speaker A [00:13:56]:
 These documents established that Hamid was honest about the nature of his symptoms. After the judge found that his symptoms were credible, then the judge closely reviewed the medical records. The judge was looking to see whether there was objective evidence of disability. Now, the judge took Metlife to task, noting that they had misconstrued his lengthy medical history and failed to to credit the numerous objective indicators of pain. The judge was also impressed that Hamid had gone to great lengths to relieve his symptoms. He had sought out and gotten pain management treatment from several different kinds of medical specialties. He had undergone botox injections, allergy injections, multiple surgeries. He had taken powerful medications, including opioids and ketamine.
 
 Speaker A [00:14:45]:
 The judge said that the nature and frequency of this treatment were objective evidence of his disability and his impairment. And as a result, the judge found that his symptoms were credible credited him with the lengths to which he had gotten treatment and the nature of the treatment, and awarded not only short term disability benefits, but 24 months of own occupation benefits. So the lessons to be learned here are that your medical history counts, the medical treatment that you're getting counts. Statements of your physician's count and statements about the nature and frequency intensity of your symptoms from family members, friends and coworkers count. You can see it can be complex to develop the necessary objective evidence that establishes disability in a chronic migraine claim. Let's take a break, and in our next segment, I'm going to talk about how disability carriers will use the subjective medical evidence trap to try to justify a claims denial.
 
 Speaker B [00:15:53]:
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 Speaker A [00:16:29]:
 Welcome back to winning isn't easy I'm going to talk about how disability carriers will use the subjective medical evidence trap as a way to limit or even deny terminate disability benefits for migraine headaches. There are a ton of evidentiary traps in migraine claims, and I don't want you to think just because your doctor diagnosed you as having migraine and said you were unable to work, that the carrier is going to FedEx you a check for your disability insurance benefits. They're more than happy to correct to collect your premium. But like Scrooge, they don't want to pay a dime to pay you the disability insurance benefits you deserve. They often will deny a claim on the basis that there's no objective basis of the diagnosis. But if they are so gracious as to accept that you do have migraines, the next line of defense is to argue that your symptoms are not severe enough and they're not disabling enough to justify the restrictions and limitations that have been assigned. And I think that it's crucial, before you stop work and apply for benefits, that you understand how carriers can use their policy or their plan to try to bludgeon you into a claims denial or a claims settlement. So the most important clause in one of these cases, I think, is the subjective medical condition clause.
 
 Speaker A [00:17:57]:
 You need to get out your disability policy or plan because there's no uniform language in a policies in the United States. Open up the policy. Look at the definition section or the limitations section. You're looking for the subjective evidence section of the policy. So let's talk about this. What is subjective evidence? Now that's a bit of a strange question because the answer is right there. It's subjective. When you see the doctor, you complain of symptoms that are consistent with the diagnosis, but you may not present at the time of the examination with a migraine, or you may have other symptoms that are in common with a migraine.
 
 Speaker A [00:18:35]:
 There is no objective gold standard testing on examination that will quantify the severity of your symptoms, how those symptoms impact your functionality. You could complain of a headache, eye pain, dizziness, nauseousness, vomiting, fatigue, or problems with concentration. And your doctor may have a hard time finding evidence, objective evidence on examination that supports the level of your complaints, but nonetheless, your doctor believes you and supports your claim. Now group disability carriers, Arista disability carriers like Cigna, standard and private disability carriers like unum or northwestern disregard or even discount your subjective complaints in deciding to pay or even terminating your benefits. I think that it's crucial that the medical evidence be there, but that you also have statements of friends and family members that objectively quantify the nature, extent, duration and free of your migraine symptoms. Now why would I say that? Disability carriers are going to often minimize the complaints of migraines and they're going to try to use the one size fits all analysis for a migraine claim your level of pain, your discomfort, your disability are personal to you. They can vary from day to day, week to week, month to month. So keeping a pain diary is one way to document, explain and quantify your symptoms.
 
 Speaker A [00:19:57]:
 Your subjective complaints can also be quantified by statements of your family and friends that document the nature, extent and frequency of your symptoms, and sometimes even video can document the severity of your symptoms. Your physician has got to provide support by explaining why your subjective conditions are consistent with a diagnosis and they need to complete not only attending physician statement forms, but what I call the migraine residual functional capacity form. I'm a Social Security attorney also, and so I use the residual functional capacity forms in Social Security cases in my Arista disability cases because they ask the right question. Now, there are also times when I want functional capacity evaluations or neurocognitive testing because that provides objective evidence of your functional restrictions and limitations and how those functional restrictions might meet the policy or plan definition. But what are we going to be faced with at the end of the day. If your policy has a subjective medical condition clause, your benefits can be limited. They can be limited to just 24 months. Now, because there's no uniform policy or plan, you got to get it out.
 
 Speaker A [00:21:10]:
 We got to read it. And the policy may say that medical condition that's subjective in nature or characterized by pain, fatigue, headaches, or problems concentrating are per se subjective and limited to just two years. And worse yet, and much harder to get around is the policy or plan that says migraines are limited to just two years of benefits. If that's the case, then we may have a tough road here. But you can see that you need to understand the policy limitations that can impact your claim. You have to have support for your claim and a plan to try to maximize and extend your benefits beyond two years if there is a subjective medical conditional limitation. Wow. A lot of stuff we covered, and I hope you understand the significance of understanding what's in the policy.
 
 Speaker A [00:22:00]:
 Your medical records, developing a plan and working with an experienced arrested disability attorney who also does Social Security disability benefits I hope you've enjoyed this week's episode of winning isn't easy. I'm sure you've enjoyed this episode, so, like our page, leave a review and share it with your family and friends. And of course, subscribe to this podcast. You'll be notified every time a new episode comes out. I hope to see you next week and tune in for another insightful episode of Winning isn't easy. Thanks.