More on Chronic Fatigue and COVID

Welcome to Season 4, Episode 30 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "More on Chronic Fatigue and COVID." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses more about Chronic Fatigue and COVID, how they interact with one another, and with other medical conditions, and their surge in the disability claims world. While we now live alongside COVID, and are no longer in a pandemic, COVID is still wreaking havoc in the disability world. With the onset of this new and ever-changing condition, disability lawyers are seeing disability policyholders suffering from illnesses which have no preexisting disability guidelines. Join Nancy as she discusses more about Chronic Fatigue, COVID, and what you need to know if you are suffering from either, and are seeking disability. 

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

1 -  The Infamous Dr. Scott Norris, and How Disability Carriers like UNUM Deny Legitimate COVID Claims

2 - How Can You Use the Social Security Administration Regulations on How to Evaluate a Chronic Fatigue Syndrome or COVID Claim in Your ERISA LTD Claim?

3 - How Research into the Mechanisms Causing ME/CFS and Long-COVID Can Help You Get the Medical Treatment Your ERISA Disability Plan or Policy Requires  

4 - Federal Court Rules That the Claims Process for a Policyholder with Fibromyalgia, Multiple Arthralgias, and Small Fiber Neuropathy Should Not Be a Guessing Game for a Disabled Policyholder Whose Policy Has a Non-Verifiable Impairment Payment Limitation of 24 Months

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 [00:00:15]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney.
 
 Speaker B [00:00:19]:
 Welcome to winning isn't easy before we.
 
 Speaker A [00:00:22]:
 Get started, I've got to give you a legal disclaimer.
 
 Speaker B [00:00:24]:
 This podcast is not legal advice.
 
 Speaker A [00:00:27]:
 The Florida Bar association says, I have to say this, I've said it, but.
 
 Speaker B [00:00:31]:
 Nothing will ever prevent me from giving.
 
 Speaker A [00:00:33]:
 You an easy to understand overview of the disability insurance world, the games that carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now. Though we are now four years post.
 
 Speaker B [00:00:49]:
 Onset of COVID I'm still seeing it.
 
 Speaker A [00:00:52]:
 Rear its ugly head in terms of disabling medical conditions. Covid and its long Covid complications have been linked to not only certain conditions, but also have been linked to new.
 
 Speaker B [00:01:07]:
 Conditions that I quite frankly had never.
 
 Speaker A [00:01:09]:
 Heard of, such as pots or mast cell syndrome. And so we are seeing not only Covid complications, but new types of disabling medical conditions. And I also think that the world of COVID has had implications for the better, if you will, in chronic fatigue disability claims.
 
 Speaker B [00:01:35]:
 I think the attention to Covid is.
 
 Speaker A [00:01:37]:
 Making people pay more attention to chronic fatigue and to see whether or not.
 
 Speaker B [00:01:42]:
 There'S any kind of link between the.
 
 Speaker A [00:01:44]:
 Two which has helped, I think research.
 
 Speaker B [00:01:46]:
 We'Re going to talk about four things today, the infamous doctor Scott Norris and.
 
 Speaker A [00:01:50]:
 How disability carriers like Unum deny legitimate Covid claims. We're going to talk about how you.
 
 Speaker B [00:01:57]:
 Can use the Social Security Administration regulations.
 
 Speaker A [00:02:00]:
 On how to evaluate a chronic fatigue syndrome or Covid claim in your ERISA claim.
 
 Speaker B [00:02:05]:
 Three, how research into the mechanism causing.
 
 Speaker A [00:02:08]:
 Me, CFS and long Covid can help.
 
 Speaker B [00:02:10]:
 You get the medical treatment your ERISA.
 
 Speaker A [00:02:12]:
 Plan or policy requires. And four, I'm going to tell you.
 
 Speaker B [00:02:16]:
 A story about how a federal court.
 
 Speaker A [00:02:18]:
 Rules that the claims process with a policyholder who has fibromyalgia, multiple arthralgias, and small fiber neuropathy should not be a guessing game for a disabled policyholder whose policy had a non verifiable impairment payment limitation of 24 months. You can see we've got a lot of interesting topics that are applicable and impact your entitlement to disability benefits. Let's take a break before we get started.
 
 Speaker B [00:03:01]:
 Welcome back to winning isn't easy. Let's talk about the infamous doctor Scott Norris and how disability carriers like Unum.
 
 Speaker A [00:03:08]:
 Deny legitimate Covid claims. Disability carriers like Unum and disability plans have many tools in their denial claim or termination toolbox. And in my view, there are a.
 
 Speaker B [00:03:23]:
 Number of questionable practices and claims. But two of the most common tools.
 
 Speaker A [00:03:27]:
 That are used are requiring objective evidence.
 
 Speaker B [00:03:31]:
 To verify symptoms and medical conditions that.
 
 Speaker A [00:03:34]:
 Are not susceptible to objective testing. Now, one of the most common tools in a disability policy or plan demanding objective evidence is to verify symptoms in medical conditions like migraines, chronic fatigue, fibromyalgia and Covid. Claims that aren't always susceptible to objective testing or where the claim it presents.
 
 Speaker B [00:03:54]:
 With normal test results.
 
 Speaker A [00:03:56]:
 The second tool and objection I have.
 
 Speaker B [00:04:00]:
 Is the use of biased medical peer review doctors to create reasons for claims denial.
 
 Speaker A [00:04:05]:
 Now, the second most common tool involves.
 
 Speaker B [00:04:10]:
 The situation where the disability carrier plan.
 
 Speaker A [00:04:13]:
 Will use a peer review physician who is biased and who is hired to.
 
 Speaker B [00:04:17]:
 Provide a guaranteed result to the disability carrier. And Unum has been called on the carpet about this.
 
 Speaker A [00:04:22]:
 In fact, they were the subject a number of years ago of a statewide uniform attorney general settlement regarding their claims practices, part of which involved using biased providers.
 
 Speaker B [00:04:37]:
 And quite frankly, I'll tell you, they.
 
 Speaker A [00:04:38]:
 Haven'T learned their lesson and they still do it. So how do disability carriers or plans like Unum use these two questionable practices in ERiSA disability claims I'm going to.
 
 Speaker B [00:04:50]:
 Tell you the story of Doctor Sarah.
 
 Speaker A [00:04:51]:
 Whitehouse, who is victimized by Unum and this case is found is called White House versus Unum. It's a case out of Minnesota.
 
 Speaker B [00:05:02]:
 Doctor Whitehouse was a full time addiction medicine specialist at a hospital in St.
 
 Speaker A [00:05:06]:
 Paul and during COVID the hospital was.
 
 Speaker B [00:05:10]:
 A Covid-19 patient deployment center.
 
 Speaker A [00:05:13]:
 And guess what?
 
 Speaker B [00:05:14]:
 In March of 2020, she contracted Covid. Now, she did return to work shortly thereafter, but continued having difficulty with breathing and extreme fatigues.
 
 Speaker A [00:05:23]:
 These are the complications I see all.
 
 Speaker B [00:05:25]:
 Of the time in Covid cases. Doctor Whitehouse left work a second time.
 
 Speaker A [00:05:29]:
 And then was diagnosed by Mayo as.
 
 Speaker B [00:05:32]:
 Meeting the criteria for chronic fatigue syndrome.
 
 Speaker A [00:05:35]:
 And central sensitization disorder.
 
 Speaker B [00:05:38]:
 She did improve and was able to return to work on a part time.
 
 Speaker A [00:05:42]:
 Basis and subsequently, to her credit, she.
 
 Speaker B [00:05:45]:
 Was able to go back to work.
 
 Speaker A [00:05:47]:
 Full time in 2022.
 
 Speaker B [00:05:49]:
 Now, Doctor Whitehouse submitted claims for both.
 
 Speaker A [00:05:51]:
 Short and long term disability benefits under her employer's disability benefit plan, which was insured by unum.
 
 Speaker B [00:05:58]:
 Unum approved her short term claim, but only approved partial benefits for the payment.
 
 Speaker A [00:06:04]:
 Of her long term disability benefits. How did they go about doing that?
 
 Speaker B [00:06:08]:
 Well, they used the infamous doctor Scott Norris and his controversial method of reviewing medical records. Unfortunately, disability carriers use doctors like Doctor.
 
 Speaker A [00:06:18]:
 Norris to create reasons to justify a claims denial.
 
 Speaker B [00:06:22]:
 Doctor Norris is well known in the Aristodes ability world for his questionable practices in reviewing medical records and rendering opinions.
 
 Speaker A [00:06:29]:
 In favor of disability carriers. You can use Google Scholar and find.
 
 Speaker B [00:06:34]:
 All of the reported cases involving Doctor.
 
 Speaker A [00:06:37]:
 Norris so you don't have to take my word for it.
 
 Speaker B [00:06:40]:
 When Doctor Whitehouse sued Unum, the court.
 
 Speaker A [00:06:42]:
 Called doctor Norris's credibility into issue because.
 
 Speaker B [00:06:46]:
 The court had noted that he had.
 
 Speaker A [00:06:47]:
 Accepted in other cases subjective symptom reports when they favored unum and rejected subjective symptoms when they favored the claimanthenne. This is his typical mo. Again, please google him and Google scholar.
 
 Speaker B [00:07:03]:
 You can even do a pacer search. The court also took Norris to task for failing to analyze Whitehouse's symptoms, collectively focusing too strictly on a lack of.
 
 Speaker A [00:07:13]:
 Specific work restrictions and dismissing certain records as not being time relevant.
 
 Speaker B [00:07:20]:
 The court noted that this approach was hardly a full and credible evaluation of White House's claim. Further, Norris inappropriately faulted doctor Whitehouse for failing to provide objective evidence to verify the symptoms that unum defines as unverifiable. They relied on our history of normal.
 
 Speaker A [00:07:37]:
 Test results, which is common now. White House was diagnosed with a condition.
 
 Speaker B [00:07:42]:
 That accounts with individuals with normal test history.
 
 Speaker A [00:07:46]:
 It's not uncommon for people to have Covid who have had in the beginning normal COVID test results or false positives. So the court looks at doctor Whitehouse's medical records independently, and they determined that.
 
 Speaker B [00:08:03]:
 The records supported Whitehouse's claim that she.
 
 Speaker A [00:08:05]:
 Suffered from chronic pain and severe fatigue.
 
 Speaker B [00:08:08]:
 Throughout the disability period. Again, common complaints that one sees in these cases. The judge concluded that her symptoms were consistently documented. Her physicians agreed she had restrictions, limitations.
 
 Speaker A [00:08:20]:
 She complied with all of the pain, the prescribed treatment, including pain management, that ultimately allowed her to return to work.
 
 Speaker B [00:08:29]:
 The judge fortunately, saw through Doctor Norris and awarded benefits.
 
 Speaker A [00:08:33]:
 But this is the common game that.
 
 Speaker B [00:08:35]:
 Carriers play, and you should be aware.
 
 Speaker A [00:08:37]:
 Of this, particularly in these type of cases, be they migraine Covid, long Covid pots cases, MECF cases, fibromyalgia cases. It's the game they play, and every carrier plays this game. Let's take a break.
 
 Speaker C [00:08:55]:
 Been robbed of your peace of mind by 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 claims process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:09:41]:
 Welcome back to winning isn't easy.
 
 Speaker B [00:09:43]:
 How can you use the Social Security.
 
 Speaker A [00:09:45]:
 Administration's regulations on how to evaluate a.
 
 Speaker B [00:09:48]:
 Chronic fatigue syndrome or Covid claim in.
 
 Speaker A [00:09:50]:
 Your ERISA long term disability claim? Now, I do both Social Security and ERISA work, and so I'm familiar with what the Social Security administration has developed.
 
 Speaker B [00:10:02]:
 In terms of position papers or regulations.
 
 Speaker A [00:10:04]:
 To evaluate these types of conditions.
 
 Speaker B [00:10:07]:
 Many long term disability carriers who hate chronic fatigue syndrome cases do require that you apply for Social Security disability cases.
 
 Speaker A [00:10:15]:
 But then they tend to kind of ignore the results. But I think that you can shove those ERISA regulations right in their face to fight the long term disability carrier plans games when they contest the CFS diagnosis because they say there's no objective evidence to support the diagnosis. Now, in the context of a Social Security disability claim, you have the burden.
 
 Speaker B [00:10:37]:
 Of proving you have medically determinable impairment. And that's established by medical evidence consisting.
 
 Speaker A [00:10:43]:
 Of signs, symptoms, and laboratory findings in.
 
 Speaker B [00:10:46]:
 Both an ERISA and Social Security claim. That can be hard to prove since there's no gold standard test for the.
 
 Speaker A [00:10:52]:
 Diagnosis of chronic fatigue.
 
 Speaker B [00:10:54]:
 But the Social Security Administration has created SSR 1411, a regulation that addresses the.
 
 Speaker A [00:11:01]:
 Issue, and I use this regulation in my ERISA cases when there's fights about the CFS diagnosis. So what is SSR 1411 and how can it be used in an EriSA claim?
 
 Speaker B [00:11:15]:
 This regulation clarifies the Social Security Administration's.
 
 Speaker A [00:11:18]:
 Policy on developing evidence that establishes how you document a medically determinable impairment and how the Social Security Administration evaluates the CFS impairment. Now, CFS acknowledges that. I'm sorry. Social Security acknowledges that CFS is a systemic disorder and it has a complex.
 
 Speaker B [00:11:39]:
 Of symptoms that can vary in frequency, duration, and severity. The regulation reviews the history of the diagnostic criteria for CFS over the years, and it looks to the CDC criteria.
 
 Speaker A [00:11:50]:
 For the diagnostic criteria that it'll accept. And you can review this by going to the CDC site.
 
 Speaker B [00:11:58]:
 What Social Security wants to see is one or more of the following signs clinically documented over a period of at.
 
 Speaker A [00:12:03]:
 Least six consecutive months, in your medical records.
 
 Speaker B [00:12:06]:
 One, swollen or tender lymph nodes on.
 
 Speaker A [00:12:10]:
 Physical examination two, non executive pharyngitis three.
 
 Speaker B [00:12:16]:
 Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points or any other medical signs that are.
 
 Speaker A [00:12:25]:
 Consistent with medically accepted clinical practices and other evidence, such as, but not limited to, acute infections, inflammatory events that preceded the onset of CFS. Now, there are other criteria addressed in these regulations that include laboratory findings, additional signs, laboratory findings, and mental limitations, all.
 
 Speaker B [00:12:45]:
 Of which should be documented in your medical records. If your ERISA claim is denied, you're going to have 180 days in which to file an appeal. That appeal is the trial of your case, and you or your attorney should.
 
 Speaker A [00:12:56]:
 Get a copy of that long term disability carrier or plans claims file.
 
 Speaker B [00:13:01]:
 You want to closely review the medical evidence, including the peer review reports which were used to justify the claims denial on the basis that there was no.
 
 Speaker A [00:13:09]:
 Objective evidence to support the diagnosis. You also want to get the policy or plan. Does the policy or plan actually require objective evidence?
 
 Speaker B [00:13:19]:
 Now, once you understand the the policy of the plan and the basis of.
 
 Speaker A [00:13:23]:
 The peer review opinion, it can be attacked in a number of ways. And I go about this by getting.
 
 Speaker B [00:13:29]:
 A statement from the physician addressing the.
 
 Speaker A [00:13:31]:
 Diagnostic criteria they used in rendering the diagnosis and how you meet the criteria. I have the physician create a chronic.
 
 Speaker B [00:13:40]:
 Fatigue syndrome residual functional capacity form that we've developed. We Social Security lawyers have developed.
 
 Speaker A [00:13:45]:
 Now, most CFS doctors are familiar with.
 
 Speaker B [00:13:48]:
 The form because they're routinely asked to complete it by their patients who are.
 
 Speaker A [00:13:52]:
 Applying for Social Security disabilities benefits. I amend that form to ask questions about the basis of the diagnosis, questions about what the peer review doctor had to say about the diagnosis and the exam findings. And I have the doctor acknowledge SSR.
 
 Speaker B [00:14:08]:
 14 as being consistent with the diagnostic criteria and that you met that criteria.
 
 Speaker A [00:14:13]:
 When they diagnosed you to have CFS.
 
 Speaker B [00:14:18]:
 What I'm trying to do is tie together a winning argument to overcome this wrongful claim, denial or termination.
 
 Speaker A [00:14:23]:
 I think understanding Social Security rulings, knowing what's in your medical records, creating a.
 
 Speaker B [00:14:29]:
 Strategy to address the basis of the.
 
 Speaker A [00:14:31]:
 Denial, and securing a favorable and supportive CFS residual functional capacity form are really.
 
 Speaker B [00:14:39]:
 The keys to overcoming a wrongful claim denial or termination.
 
 Speaker A [00:14:42]:
 Got it? Let's take a break. Welcome back to winning isn't easy how.
 
 Speaker B [00:15:23]:
 Research into the mechanism causing me CFS.
 
 Speaker A [00:15:26]:
 And long Covid can help you get.
 
 Speaker B [00:15:28]:
 The medical treatment your ERISA disability policy or plan requires.
 
 Speaker A [00:15:32]:
 Did you know that disability insurance policies.
 
 Speaker B [00:15:35]:
 Or plans require that a policyholder or plan beneficiary get appropriate medical treatment? That's consistent with the nature of your.
 
 Speaker A [00:15:41]:
 Disabling medical condition, and that can be hard to do if you suffer from.
 
 Speaker B [00:15:46]:
 Me CFS or even long Covid. According to an article by Miriam E. Tucker, new research aims to unravel both.
 
 Speaker A [00:15:53]:
 MECFs and Long Covid in disclosures December 21, 2023 issue there was a two.
 
 Speaker B [00:16:00]:
 Day conference that was held in December.
 
 Speaker A [00:16:02]:
 Of 2023 at the US National Institutes of Health, and this conference was called.
 
 Speaker B [00:16:08]:
 Advancing MECFS research, identifying targets for potential intervention, and learning from long Covid.
 
 Speaker A [00:16:14]:
 You know, I do follow these kinds of things because I'm very interested in long Covid cases, me CFS cases, and I was really impressed to learn that this focused on topics such as studying post exertional malaise, a common and huge issue. Post exertional issues can I can really be the driving force in these types of claims? There's accelerating research to find effective treatments, and this research and the attention paid in this kind of a conference helps.
 
 Speaker B [00:16:50]:
 Put an end to the stigma surrounding these conditions.
 
 Speaker A [00:16:52]:
 Because you may have heard people tell.
 
 Speaker B [00:16:55]:
 You that it's all in your head.
 
 Speaker A [00:16:56]:
 And you can't be as tired as.
 
 Speaker B [00:16:58]:
 You say you can be, and you.
 
 Speaker A [00:16:59]:
 Can'T be sleeping all these hours. You must be playing games. One of the presenters, Doctor Mark Davis, is a professor and director of the Institute for Immunity, Transplantation and Infection at Stanford University, discussed research that suggests that women with me CFS have cellular reactive oxygen ROS levels that can be suppressed with specific drugs like metformin.
 
 Speaker B [00:17:24]:
 Other scientists reported on the role of.
 
 Speaker A [00:17:26]:
 Gut microbiomes in ME CFS, a neurovascular deregulation as a result of exercise genes that can impact the fatigability and brain inflammation. And these were, I think, just phenomenal discussions about the basis of me CFS and treatment options. There was discussions about the different trials of medication that can impact each of these common symptoms.
 
 Speaker B [00:17:52]:
 So what about treatment for me CFS and long Covid in your claim? Many carriers or plans minimize and discount.
 
 Speaker A [00:18:00]:
 Symptoms of me CFS and long Covid.
 
 Speaker B [00:18:03]:
 They often criticize the treatment that's being provided and they cherry picked the medical.
 
 Speaker A [00:18:07]:
 Records and suggested if you simply exercised.
 
 Speaker B [00:18:10]:
 You would not have post exertional malaise.
 
 Speaker A [00:18:12]:
 Of course, recommending exercise is no longer recommended as part of the treatment regimen. But that hasn't stopped disability carriers from criticizing medical records and even denying claims because there hasn't been exercise as part of the treatment regiment.
 
 Speaker B [00:18:29]:
 And carriers and plans don't understand the.
 
 Speaker A [00:18:31]:
 Physical, emotional and financial struggles for those.
 
 Speaker B [00:18:34]:
 Who have me CFS or long Covid.
 
 Speaker A [00:18:36]:
 They're always looking for a reason to deny or terminate benefits.
 
 Speaker B [00:18:40]:
 What can you do? Well, your medical record should document not only your symptoms, the nature of your.
 
 Speaker A [00:18:45]:
 Symptoms, the frequency, the duration, how those.
 
 Speaker B [00:18:48]:
 Symptoms impact your ability to function.
 
 Speaker A [00:18:50]:
 But you should document the treatment you're.
 
 Speaker B [00:18:52]:
 Receiving, your response to that treatment, to.
 
 Speaker A [00:18:54]:
 Different trials of records, I'm sorry, of treatment, and any recommendations for specialized medication trials.
 
 Speaker B [00:19:05]:
 You might want to keep a diary.
 
 Speaker A [00:19:06]:
 Of all of this because I know you're having trouble keeping track of it.
 
 Speaker B [00:19:10]:
 It's a good way to tell your story in a way that the doctors.
 
 Speaker A [00:19:14]:
 Understand and certainly can be used in your ERISA disability claim. I don't want you to be overwhelmed. However, by keeping this diary you might.
 
 Speaker B [00:19:24]:
 Have a family member or friend help you keep it.
 
 Speaker A [00:19:26]:
 It doesn't have to be detailed minute by minute.
 
 Speaker B [00:19:29]:
 It's sort of a synopsis, if you will, of your day or, if appropriate, your week. You want to document those symptoms, your.
 
 Speaker A [00:19:37]:
 Functionality, your response to treatment, so that.
 
 Speaker B [00:19:41]:
 We can read that document and picture.
 
 Speaker A [00:19:43]:
 In our own mind the nature of your symptoms and functionality. Got it?
 
 Speaker C [00:19:48]:
 Let's take a break professional with questions about your individual disability policy you need the disability insurance claims survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we are giving away free copies of the disability Disability insurance claims survival guide for professionals. Order yours Today@disabilityclaimsforprofessionals.com. doT.
 
 Speaker A [00:20:49]:
 Welcome back to winning isn't easy.
 
 Speaker B [00:20:52]:
 Federal court rules that the claims process for a policyholder with fibromyalgia, multiple arthralgias and small fiber neuropathy should not be.
 
 Speaker A [00:21:02]:
 A guessing game for a disabled policyholder.
 
 Speaker B [00:21:05]:
 Whose policy has a non verifiable impairment.
 
 Speaker A [00:21:08]:
 Payment limitation of 24 months. That's a mouthful. But it's important because there are terms in disability policies or plans that will limit the payment of benefits. And this is really crucial that you understand what benefits are available, what you have to prove to get those benefits, how long the benefits are payable before they stop work and apply for benefits.
 
 Speaker B [00:21:35]:
 And if the claim has been denied, what it is you need to do.
 
 Speaker A [00:21:38]:
 To prove that that claim denial was inappropriate and wrong.
 
 Speaker B [00:21:42]:
 So let's start out with typical ERISA.
 
 Speaker A [00:21:44]:
 Policy or plan terms. Now, often a policy or plan will.
 
 Speaker B [00:21:49]:
 Require proof that an injury or sickness prevents you from performing the material and.
 
 Speaker A [00:21:53]:
 Substantial duties of your own occupation.
 
 Speaker B [00:21:56]:
 After 24 months, the definition of disability.
 
 Speaker A [00:21:58]:
 Changes from an inability to do your own occupation to an inability to do the material and substantial duties of any occupation that you become reasonably fitted by training, experience, education, physical and mental capacity. You've got to get your own policy.
 
 Speaker B [00:22:13]:
 Or plan out to read this because this is crucial. You've got the burden to prove you meet this standard.
 
 Speaker A [00:22:18]:
 Now, it's not uncommon for a policy.
 
 Speaker B [00:22:20]:
 Or plan to have a 24 month.
 
 Speaker A [00:22:22]:
 Limitation because of mental illness, substance abuse, subjective medical condition limitations and non verifiable symptoms.
 
 Speaker B [00:22:34]:
 Any one of these can limit benefits to just two years. So what is the definition of subjective conditions or non variable symptoms?
 
 Speaker A [00:22:42]:
 It depends on what's in your policy or plan because you may be limited.
 
 Speaker B [00:22:46]:
 To just 24 months.
 
 Speaker A [00:22:48]:
 Now, one of the most common definitions of non verifiable symptoms is a subjective complaint to a physician who cannot be diagnosed of by using test procedures or clinical examinations typically accepted in the practice of medicine.
 
 Speaker B [00:23:05]:
 Such symptoms may include, but are not.
 
 Speaker A [00:23:07]:
 Limited to, disease, fatigue, headache, loss of.
 
 Speaker B [00:23:09]:
 Energy, numbness, pain, ringing in the ears. So, in other words, you're complaining.
 
 Speaker A [00:23:15]:
 But there isn't necessarily a test or a procedure or a clinical examination that.
 
 Speaker B [00:23:20]:
 Will document that, in fact, you're having dizziness or fatigue or headaches or a.
 
 Speaker A [00:23:24]:
 Loss of energy or pain or ringing in the years. So what does your policy or plan say?
 
 Speaker B [00:23:32]:
 Let me tell you about Lincoln's plan.
 
 Speaker A [00:23:33]:
 Denial of a claim and their use.
 
 Speaker B [00:23:36]:
 Of a 24 month non verifiable symptom limitation clause. Christina Conti worked as a senior radiation protection technician at Viola, North America. She became disabled because of extreme pain.
 
 Speaker A [00:23:47]:
 In multiple parts of her body.
 
 Speaker B [00:23:49]:
 Neuropathy, extreme muscle weakness, and loss of strengthen.
 
 Speaker A [00:23:53]:
 Sounds like a non verifiable symptom issue, doesn't it?
 
 Speaker B [00:23:56]:
 She was covered under her employer's arrested.
 
 Speaker A [00:23:59]:
 Disability plan through a Lincoln national life conit.
 
 Speaker B [00:24:03]:
 Rather, consulted with and treated with specialists.
 
 Speaker A [00:24:06]:
 In neurosurgery, neurology, pulmonology, endocrinology, orthopedic surgery.
 
 Speaker B [00:24:11]:
 Radiology, and even cardiology.
 
 Speaker A [00:24:14]:
 I don't think there was a doctor she missed. Of this group, only one provider restricted.
 
 Speaker B [00:24:19]:
 Her from working consistently, citing her fibromyalgia.
 
 Speaker A [00:24:22]:
 As a likely cause of her symptoms.
 
 Speaker B [00:24:25]:
 And her physical limitations. She saw this physician regularly who supported.
 
 Speaker A [00:24:29]:
 Her claim based on her pain, numbness, and fatigue. This doctor was a rheumatologist, and the.
 
 Speaker B [00:24:35]:
 Rheumatologist found that the reports of pain and fatigue were out of proportion to.
 
 Speaker A [00:24:39]:
 The physical findings, but still thought she had fibromyalgia.
 
 Speaker B [00:24:44]:
 Conti also underwent a test of her.
 
 Speaker A [00:24:46]:
 Nerves by a neurologist to evaluate her.
 
 Speaker B [00:24:48]:
 Leg pain, and that was suggestive of small fiber abnormalities.
 
 Speaker A [00:24:51]:
 So we have some beginning of objective evidence.
 
 Speaker B [00:24:55]:
 Over time, her physicians continued to note.
 
 Speaker A [00:24:57]:
 Her reports of diffuse pain, but there.
 
 Speaker B [00:24:59]:
 Weren'T major physical findings.
 
 Speaker A [00:25:02]:
 But they kind of backed into a diagnosis suggesting that her symptom complex was suggestive of fibromyalgia and small fiber neuropathy. And this is not uncommon in these types of cases. Now, Lincoln's engaged in some questionable claims handling practices. They paid short term disability benefits and.
 
 Speaker B [00:25:24]:
 Began payment of the long term disability benefits.
 
 Speaker A [00:25:26]:
 But then, of course, they had their her file reviewed by their liar for.
 
 Speaker B [00:25:30]:
 Hire, peer reviewed doctor who opined, and.
 
 Speaker A [00:25:33]:
 This is the kind of language I see all the time, that objective clinical.
 
 Speaker B [00:25:37]:
 Findings were insufficient to support a functional impairment. That would adversely affect the claimant's ability to work. Gobbledygook for there aren't any restrictions and.
 
 Speaker A [00:25:45]:
 Limitations, and now you've got a reason to deny the claim, which Lincoln did.
 
 Speaker B [00:25:50]:
 And she filed a lawsuit. This case is called Conti versus Lincoln.
 
 Speaker A [00:25:54]:
 National life out of Minnesota.
 
 Speaker B [00:25:56]:
 The court concluded that it was more likely than not that conti remained unable to perform her job in the months after her benefits were terminated.
 
 Speaker A [00:26:04]:
 Now, the court addressed a number of.
 
 Speaker B [00:26:06]:
 Factors in this case that I think.
 
 Speaker A [00:26:08]:
 Are important and relevant to similar type cases.
 
 Speaker B [00:26:11]:
 There was an alleged requirement that conti supply continuous proof of an inability to.
 
 Speaker A [00:26:15]:
 Work, and Lincoln's argument was rejected. And there was no such requirement that.
 
 Speaker B [00:26:24]:
 She continuously supply proof of her inability to work in the policy.
 
 Speaker A [00:26:27]:
 This mattered because even if there had.
 
 Speaker B [00:26:30]:
 Been, Lincoln never told her what proof of her physical limitations she had to.
 
 Speaker A [00:26:34]:
 Supply, what she hadn't supplied. And they didn't even suggest that she.
 
 Speaker B [00:26:40]:
 Undergo functional capacity evaluation or a similar examination of her physical abilities, even though.
 
 Speaker A [00:26:45]:
 The plan authorized them to have such testing.
 
 Speaker B [00:26:50]:
 So she was in the dark. And the bigger issue, of course, was the guessing game of proof. Lincoln impermissibly converted Conti's disability process into.
 
 Speaker A [00:26:59]:
 A guessing game, which was not reasonable under the circumstances and ways against denying benefits.
 
 Speaker B [00:27:06]:
 The court weighed the medical evidence and found that Conti's fibromyalgia, multiple arthralgias, and.
 
 Speaker A [00:27:11]:
 Small fiber neuropathy, and her repeated and consistent report of symptoms and limitations were.
 
 Speaker B [00:27:17]:
 Consistent with the nature of those conditions. And the rheumatologist years long acceptance of.
 
 Speaker A [00:27:22]:
 Her reports of pain as precluding her ability to work made it more likely than not.
 
 Speaker B [00:27:29]:
 Conti remained unable to work, even though.
 
 Speaker A [00:27:32]:
 The rheumatologist was a little pooh poohy about the severity of the complaints.
 
 Speaker B [00:27:38]:
 The rheumatologist consistently agreed that she was.
 
 Speaker A [00:27:41]:
 Unable to work, and that was very important. Conti's.
 
 Speaker B [00:27:47]:
 The court noted that none of Conti's.
 
 Speaker A [00:27:49]:
 Providers found her unbelievable, and none of them opined that there was any other reason that she couldn't work. So it was this continuity of treatment.
 
 Speaker B [00:28:00]:
 Continuity of complaints, and the support of.
 
 Speaker A [00:28:03]:
 A physician over time that impressed the court. The other thing that impressed the court and was, by the way, criticized by.
 
 Speaker B [00:28:14]:
 Lincoln was Conte's traveling to other states to seek medical care.
 
 Speaker A [00:28:18]:
 And Lincoln said, hey, look, that's the.
 
 Speaker B [00:28:21]:
 Equivalent of an ability to work. And, oh, by the way, yes, she went camping.
 
 Speaker A [00:28:26]:
 And they argued that that was an ability to work.
 
 Speaker B [00:28:30]:
 The court said that, look, just because.
 
 Speaker A [00:28:32]:
 She goes camping or travels to see medical providers in other states doesn't mean that she could do this on a sustained level.
 
 Speaker B [00:28:40]:
 The court also attacked the credit address.
 
 Speaker A [00:28:42]:
 Rather, the credibility of Conti's doctors and.
 
 Speaker B [00:28:45]:
 The failure of Lincoln's peer reviewed doctors to appreciate the significance of normal examinations.
 
 Speaker A [00:28:51]:
 I like this one. The court found Conti's treating physicians to be credible.
 
 Speaker B [00:28:56]:
 They had diagnosed her with severe fibromyalgia in 2019 after she reported extensive pain, and she did present with tenderness.
 
 Speaker A [00:29:03]:
 In all, 18 trigger points used to diagnose fibromyalgia. And so the court noted that there was a positive testing for fibromyalgia. But the court also noted that there.
 
 Speaker B [00:29:17]:
 Were times when the examination was normal and unremarkable.
 
 Speaker A [00:29:21]:
 And the court noted that the reviewing doctors failed to look at the totality of the evidence, the normal examinations, the unremarkable examinations that eliminated kind of any other source of her pain and discomfort, but in fact reinforced the diagnosis of fibromyalgia. And of course, Lincoln's doctors never even.
 
 Speaker B [00:29:44]:
 Considered fibromyalgia in their medical analysis. The court also considered the award of.
 
 Speaker A [00:29:49]:
 Social Security benefits and the previous payment of long term disability benefits. The court found that the disability was.
 
 Speaker B [00:29:55]:
 Supported by her award of Social Security.
 
 Speaker A [00:29:57]:
 Benefits and the fact that Lincoln had.
 
 Speaker B [00:30:01]:
 Paid benefits based on the information related to her fibromyalgia. And nothing had really changed over the.
 
 Speaker A [00:30:07]:
 Years between Lincoln's payment of benefits and.
 
 Speaker B [00:30:10]:
 Then their decision to terminate benefits.
 
 Speaker A [00:30:12]:
 I have to tell you though, the most frustrating part of this decision was despite the acceptance of condes medical records.
 
 Speaker B [00:30:19]:
 The diagnosis, and the criticism of Lincoln's.
 
 Speaker A [00:30:21]:
 Analysis, the court remanded the case back to Lincoln to determine whether or not she qualified for benefits under the any occupation standard.
 
 Speaker B [00:30:30]:
 She had been paid all of the.
 
 Speaker A [00:30:32]:
 24 months of her own occupation, and then she hadn't been paid any occupation benefits.
 
 Speaker B [00:30:39]:
 So the court sent it back for them to address those issues. And to that extent, I sort of get it.
 
 Speaker A [00:30:44]:
 But the problem, I think, is that Lincoln's going to deny this claim a second time and try to again invoke the 24 month policy limitation. I think there's a lot of great lessons in this case, and these are the kinds of strategies that Erisa attorneys such as myself, we'll employ as we.
 
 Speaker B [00:31:01]:
 Take apart these peer review reports that.
 
 Speaker A [00:31:03]:
 Are used to justify claims, denial or terminations. You can see it's all about strategy.
 
 Speaker B [00:31:11]:
 It's all about the quality and quantity of your medical records. It's all about you giving a really great interval history of your symptoms and functionality.
 
 Speaker A [00:31:20]:
 I hope that you have enjoyed this episode. Please like our page, leave a review.
 
 Speaker B [00:31:25]:
 Share it with your family or friends.
 
 Speaker A [00:31:26]:
 Please subscribe to this podcast. I hope you tune in next week.
 
 Speaker B [00:31:30]:
 For another insightful episode of Winning isn't easy.