Episode 13: How Disability Insurance Carriers Will Use The Mental/Nervous Policy Limitations To Limit The Payment Of Benefits To Disabled Policyholders

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about "How Disability Insurance Carriers Will Use The Mental/Nervous Policy Limitations To Limit The Payment Of Benefits To Disabled Policyholders" and much more!

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Transcript

Nancy L. Cavey: 0:16

I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to a winning isn't easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says I have to say it. So I've said it in this episode, I'm going to be talking about how disability insurance carriers use the mental nervous policy limitation to their advantage and what you can do about it. The myths the disability insurance policy holders believe about mental nervous and substance abuse, policy limitations, and the truth. The story of how one court upheld units claimed denial in a mold toxicity case under the mental nervous policy limitations. We're going to take a quick break, but when we come back, we'll begin, stay tuned.

omotional Message: 1:11

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Nancy L. Cavey: 1:32

Ready to start how disability insurance carriers use the mental nervous policy limitation to their advantage and what you can do about it. Two of the most common provisions in a disability insurance policy that will limit how long a claim will be paid for are the mental nervous disorder and substance abuse clauses. Now, these can be traps for the unwary disabled, including medical professionals. Many times disability carriers will attempt to label a claim as a mental nervous claim, as opposed to a physical claim or they'll attempt to limit benefits based on the substance abuse provisions in a policy. So let's talk about how insurance companies weaponize these policy provisions. There is no uniform, mental nervous disability policy limitation clause. So it's crucial that you get out your disability policy before you stop working in apply for your benefits and read the policy from beginning to end. But in particular, read this provision closely. The provision may say that benefits are limited to just two years for any disability caused or contributed to because of a psychological condition. I call this the Monty Python, wafer thin claws of a metal nervous disability. So say for example, you have undergone back surgery because of a herniated disc. You become depressed because of your continued pain. If your disability policy is broadly written, uh, and you have this broadly written mental nervous, uh, clause, the carrier very well may deny your benefits after two years based on the, their claim that your disability is contributed to by your pain, that in turn causes depression. I know that's strange, but the argument is if that depression contributes just so slightly to your overall disability benefits are limited to just two years. Now. I think you need to know that in advance so that you can combat the disability carriers, mental nervous policy limitation game before your benefits are cut off. That's one provision that will truly Rob you of your peace of mind. But what you also need to know is the disability policy may have another clause called the substance abuse clause. Now that also is a tool that disability carriers will use to limit your disability benefits. To just two years, carriers will either wrap up the substance abuse policy limitation into the mental nervous disorder limitation, or they might have a separate substance abuse provision. So let's talk about how carriers weaponized these policy provisions and will deny claims for benefits. As I've said, many disability policies have mental nervous policy limitations. There's no uniform, uh, mental nervous disability policy limitation, and there is no uniform substance abuse limitation. So as I have said, it's really crucial that you get that disability policy out before you stopped working and read it. So you understand what limits there are in terms of your benefits and how you might be able to overcome that. So one of the first issues that we have in a case is, is substance abuse considered a psychological condition? Hmm, well, it might be if the policy incorporates into its definition of psychiatric conditions, the DSM, uh, for now the DSM is a manual that has been developed and used by the American psychological association to diagnose mental conditions. And it's pretty broadly written. The disability carrier might invoke that mental nervous limitation if your disability is psychiatric in nature, and the DSM can define substance abuse disorder, including alcohol abuse in addiction as a psychiatric issue as is the manifestation of an addiction caused by a physical issue. So you've had that back surgery, you become addicted to medication and the carrier is saying, okay, look, we are going to apply the metal nervous policy limitation because your addiction is included in the definition of, of, uh, of psychiatric conditions other than the DSM. So you need to understand that in advance so that you can potentially combat at Isabella carrier's misuse of the mental nervous policy limitation. Now I have to tell you if that policy limitation is in there specifically, uh, citing to the DSM, it's going to be problematic. And, and that's where I think you need the assistance of an experienced. There is a disability attorney to address how your individual case may be overcome or how you may just be limited to those two years of benefits based on your personal circumstance. Now, the disability policy may also have this substance abuse policy rider, and that is either seen, uh, in combination with, uh, a specific psychiatric, uh, mental nervous limitation and condition that specifically has mentioned of the DSM. Or you may see a very broad metal nervous policy limitation with no specific referral to the DSM, but you'll see a specific substance abuse policy limitation. Now, if your occupation involves burnout stress, or you have access to addictive medication, I think that that's a concern. If you have an individual disability policy, you might want to add a substance abuse policy rider that will limit the impact of substance abuse issues in your case. And that's particularly true. If you're an anesthesiologist pain management provider, an emergency room physician, a plastic surgeon, and even lawyers are stockbrokers because, uh, these occupations do involve not only stress, but access to, uh, addictive, um, medications and substances. This can be a minefield for policy holders. So if you're having psychological issues or substance abuse issues, I think you should be consulting. As I said, with an experienced, there is a disability attorney to know how your, your policy reads what the pitfalls are and potentially any limitations on your coverage in the next segment, I'm going to do some myth-busting. So stay tuned. Welcome back. Let's talk about the myths that dizzily and trans policyholders believe about how to continue the payment of their benefits after the carrier denies their claim based on mental nerves limitations. When they also have a disabling physical condition, my job is to be a MythBuster and address the games. The disability carriers played to deny or delay the payment of your benefits. And this is where games are definitely played. Now, disability insurance benefits can be paid for both physical conditions, psychiatric conditions, and a combination of physical and psychiatric conditions. However, many disability policies, holders believe the myth that they're entitled to continuing benefits after the payment of two years of mental nervous benefits. If their disability claim is based on both a physical and a psychiatric disability, why is this a myth? Well, disability carriers want to limit the payment of benefits to the shortest possible period of time. It's not uncommon for disability carriers to limit the payment of psychiatric claims to 12 or 24 months based on the policy terms. But what happens when the claim is based on both a psychological and a psychiatric condition, the answer and part of the myth problem here is it's going to depend on language in your policy. What is the language and the mental nervous, uh, condition, uh, clause. Now, if the language says that benefits are limited to just 12 or 24 months, when the psychiatric condition causes or contributes to the disability, it's rarely matters. In fact, I don't think it matters at all. If the physical condition is the basis of the disability, it's that contributes to language that's problematic. So even if your psychological condition contributes 1%, the way that that policy is written, the other 99% of back pain just doesn't count. What does a policy holder have to prove to establish physical disability? When the symptoms are psychiatric in nature, and you don't have that language that contributes to language. So I think that's an important issue for you to understand, because again, this all comes back to the specific policy language, let's consider the case of Miller vs Hartford life Miller work as a billing specialist and filed a disability and trust claim based on depression and non-specific psychosis, Hartford approved her claim based on mental illness. And there was no support in the medical records for any physical impairment. That was the cause of her disability. Under the terms of the disability plan, benefits were only payable for 12 months for claims based on mental nervous conditions, Miller was paid for 12 months, and then our claim was denied. She appealed, and she claimed that for the first time, her mental illness was secondary to a physical impairment. Hartford reviewed her medical records and agreed. She had a disabling physical condition based on the restrictions and limitations identified by one reviewing provider who concluded that she didn't have the capacity to do sedentary work. So that's great. Hartford reversed the claim, but reminded Miller that she had to submit continuing evidence of a disabling physical condition to continue to receive benefits. One year later Hartford learned that Miller was receiving only treatment from a psychiatrist that was a problem. And she had been given a warning that she ignored Hartford requested that she submitted information about her claimed physical disability. And once again reminded her that she had received all the mental illness benefits that were payable under the terms of the policy. Unfortunately, her treating psychiatrist, supine, that she had little to no ability to work because of her mental illness. And she submitted no evidence of physical disability. Hartford scheduled her for an independent medical evaluation, and she was diagnosed with a major depressive disorder with psychosis, which was secondary or exacerbated by a thyroid condition. Now, the examining physician upon that there was no physical impairment that would preclude her from engaging in full-time work. But noted, there was a possible link between our thyroid disorder and our psychotic episodes, Harford denied her claim and she appealed on the basis that our anti-psychotic medication caused her to suffer from side effects, such as blurred vision, tremors, muscle stiffness, and fatigue, which prevented her from working the peer review doctor, once again, communicated with a treating psychiatrist. And it was concluded that the side effects of the medication didn't preclude her from working and at no time ever. Did she provide Harford with any evidence connecting her mental illness to the thyroid disorder? Now, clearly that was a problem. What do you think the court did? Well? The court did what the court had to do. The court upheld the claim denial based on the lack of connection between the thyroid disorder and the psychiatric condition. The failure to submit this medical link was the key to the court saying, Hey, this is a valid denial because why the policy holder has the burden of submitting the necessary medical proof, not the disability insurance company. This case, I think is just one example of why you need an experienced ERISA disability attorney to help you get the benefits you deserve. Don't lose the chance to win an appeal by neglecting to provide the necessary medical evidence of the physical cause of your mental or emotional conditions. You've got to connect. The two. The truth is that the terms of the mental nervous policy limitation will determine if you have the ability to claim ongoing disability benefits. Remember there's that Monte Python contribution language that will destroy your ability to get the benefits that 1% will overcome the 99% of the physical causes for the disability. If the denial is just basically caused language. In other words, the policy says, um, benefits are limited to just two years based on a disability caused by, uh, mental issues. You're going to need to overcome that with overwhelming proof that this physical problems are the cause of the ongoing disability and not a psychiatric condition. And clearly you're going to need the help of an experienced Arista disability attorney to develop that medical and vocational evidence in the next segment. I'm going to tell you the story of how one court upheld units claim denial in a mold toxicity case under the mental nervous policy limitations, stay tuned.

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Nancy L. Cavey: 16:11

Welcome back to winning. Isn't easy. Sometimes court cases read like mystery stories. Sometimes they read like fairytales and other times they read like horror stories. I'm going to tell you the horror story of how one court upheld uniforms, claim denial and a mold toxicity claim under the mental nervous policy limitations. Now, one of the many weapons that disability carriers like Unum will use to justify a claims denial after the payment of two years of long-term disability benefits is the mental nervous policy limitation. It's a weapon that Unum uses in cases where the policy holder has both a physical and a mental basis for their continuing disability. So let's learn the tricks and trade, uh, techniques of Unum and how they use this mental nervous condition to deny benefits to a policy holder with mold toxicity. Now, I read all of the newer residents away cases every week, because I think it's a great way to learn the games of disability carriers play and how the courts react in this case is not one that has a happy ending at all. Let me tell you the story of ms. McCook. She worked as an account manager for Ubisoft selling video games to retailers. She became disabled as a result of mold toxicity. So she had environmental sensitivity, cognitive impairment and depression, anxiety. Her physicians diagnosed her with an unspecified neurocognitive disorder and an adjustment disorder with mixed anxiety and a depressed mood. Her Unum disability policy provided that after the payment of benefits for 24 months, her benefits would be limited. And that was basically going to be all that she would be entitled to. One of the most important provisions in the policy is the definition of mental disorder. Uh, and we've alluded to that in other episodes. In this particular case, the definition of mental disorder was a psychiatric or psychological condition classified in the diagnostic and statistical manual of health disorders published by the American psychiatric association. Most current, as of the start of the disability, such disorders include, but are not limited to psychotic emotional or behavioral disorders. The policy went on to provide that Unum couldn't apply the mental disorder limitation. If dementia was the result of a stroke trauma, viral infection, Alzheimer's disease or other conditions not listed, which are not usually treated by mental health providers were qualified providers using psychotherapy, psychotropic drugs, or other similar methods of treatment. So how did this play out in her case, in this case, Unum approved ms. Macaques long-term disability benefits, but only for a psychiatric impairment. Macaques treating physicians contacted Unum and said, look, reconsider this. We think environmentally susceptible patients, uh, for years have been misdiagnosed and misclassified as psychologically impaired by doctors who just don't specialize in chemical or environmental sensitivity issues. Unfortunately, her doctors did not sway units liar for hire peer review providers and Unum kept on telling McCook that our claim would be denied after two years under the mental nervous policy limitations. And in that first two years, she continued to receive treatment including psychotherapy. Now what happened just prior to the termination of benefits, she supplied Unum with attending physician statements in which she was diagnosed with toxic insulin apathy on anomic nervous symptom, dysfunction and chemical sensitivity based on her failure on a Romberg test and the results of a triple camera SPECT brain scan. Now that sounds objective, doesn't it? Her physician's a pine that her anxiety and depression stemmed from the neuro toxicity YouTube's physician dismissed all of the laboratory testing. They applied that there was no physical evidence to justify a physiological impairment and rejected the results of the brain scan. Of course her claim was denied and ultimately she ends up in federal court. In the case of macaque versus Unum life. The Louisiana court using what's called a Denovo standard of review found that she had not met her burden of establishing that she had a physiological or a physical condition. And under the Denovo standard or review, the judge can substitute their judgment for that of the disability insurance carrier. Now, the judge found that the evidence provided by ms. McCook lacked support from the scientific community as the spec test was not a reliable method of examining for toxic exposure. The court acknowledged her argument that there was no better evidence that existed other than the spec test to confirm her physiological condition. But the fact that the proper testing doesn't exist doesn't mean that carriers like Unum have to acknowledge or accept the best testing method available when that method is not scientifically reliable. So in other words, the basis for the diagnosis has to be based on objective testing, which is scientifically reliable and valid. And the federal law is very clear that that is the standard for accepting these kinds of testing. And if you don't have a reliable testing results, a viable testing results, those that are recognized in the scientific community, it doesn't matter what the testing results are. The court has the ability to reject that evidence as does the disability carrier. So what are the lessons learned here? The first is that environmental toxic toxicity cases are really tough to win. The second is that a lack of scientifically accepted supporting diagnostic testing can make it difficult to convince even the most sympathetic judge to reverse the denial. And it's clear that carriers will misuse the mental nervous policy limitations to their advantage and to deny claims well, that's it for this episode, if you like this podcast, consider liking our page, leaving a review or sharing it with your friends and family. Remember our podcast comes out weekly. So tune in next week for another episode of winning isn't easy!