More on Multiple Sclerosis, P4

Welcome to Season 4, Episode 35 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "More on Multiple Sclerosis, P4."

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, continues to explore the intricacies of ERISA (Employee Retirement Income Security Act) disability claims, today with a specific focus on Multiple Sclerosis (MS). 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 ERISA disability claims linked to Multiple Sclerosis.  

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

1 -  What Your Disability Carrier or Plan Doesn’t Understand about the Stages of Multiple Sclerosis, and What Multiple Sclerosis Can Do to Your Body

2 - Predicting Long-Term Disability in Multiple Sclerosis with the Use of MRI Biomarkers, and Two Implications of Biomarkers on Your ERISA Disability Claim

3 - How AT&T Justified the Disability Claim Denial of a Multiple Sclerosis Patient’s Subjective Pain

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

Transcript

Nancy Cavey [00:00:15]:
 Hey, I'm Nancy Cavey, a national ERISA and individual disability attorney. Welcome to winning isn't easy before we get started, I've got to give you a legal disclaimer. The Florida bar tells me that I have to tell you that this podcast is not legal advice. So now that I've said it, 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. So off we go. Multiple sclerosis is a debilitating disorder that impacts the central nervous system. It can cause vision problems, balance problems, difficulty walking, loss of sensation, fatigue, cognitive issues, and we here at KV Law encounter this disorder so frequently in our claims that this is our fifth episode surrounding this disorder. Join us in talking about applying for disability benefits if you're suffering from multiple sclerosis, and you might want to look at some of our earlier episodes so that you're literally on the same page with us.
 
 Nancy Cavey [00:01:21]:
 But today I'm going to talk about three things, what your disability carrier plan doesn't understand about the stages of miss and what MS can do to your body. Two, predicting long term disability and MS with the use of MRI biomarkers and two, implications of biomarkers in your ERISA disability claim. And then lastly, how at and t tried to justify a disability claim denial of an MS patient's subjective pain and complaints. Got it? Let's take a break before we get started on this insightful episode of MS and disability insurance claims.
 
 Speaker B [00:01:57]:
 When 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.
 
 Nancy Cavey [00:02:21]:
 Welcome back to winning isn't easy what your disability carrier or plan doesn't understand about the stages of miss and what MS can do to your body. MS is an autoimmune disorder that progresses over time. Your immune system mistakenly attacks the healthy cells in your myelin. I like to think of myelin as the electrical coating on a wire around the nerves in your spinal cord in your brain. That's the image I've always had of myelin. One of the things I have found in my many years of practice is that disability insurance carriers and plans don't understand the stages of multiple sclerosis. So let's review those. There is the preclinical multiple sclerosis stage.
 
 Nancy Cavey [00:03:04]:
 Now MS will begin to cause changes in your central nervous system. The earliest symptoms can include numbness, tingling, weakness, vision problems, cognitive issues, balance, and coordination issues. This is called the preclinical stage, and I will tell you that often it is not disabling. Once a person is diagnosed with miss, the disease will generally take one or two directions. The first is the relapsing remitting rmrs, and it's characterized by acute attacks of symptoms that can come and go. Over time, the symptoms become worse, and the period of time between the attacks shorten. Now, this can be difficult for a disability carrier to understand because they will generally take the position that when you have an episode where you are symptom free or your symptoms have stabilized, that you can work. It's not until the episodes become worse or closer in time, or both, that the disability carrier starts to take the rmrs seriously.
 
 Nancy Cavey [00:04:20]:
 And I find that it's very important. In fact, I think it's crucial that you're doing a fantastic job of documenting with your doctor the nature of these episodes, what happens during the episodes, what symptoms you have, what new symptoms you have, how long the gap is between these episodes, and you're documenting the impact that these episodes are having on your functioning. Now, the other type of miss is progressive miss, and that's pretty easy to understand. The symptoms are continuous, and they get worse over time. But again, I think it's really important that you are documenting the extent and nature of your symptoms and the functionality. So let's talk about that. What is the effect of MS on your body as the MS progresses? The pain, the numbness, the gait issues, the balance problems, the fatigue, the visual issues, the cognitive impairment, all of the common symptoms of MS can worsen. These increasing symptoms and the frequency of these symptoms can have an impact on your ability to perform your own or any occupation.
 
 Nancy Cavey [00:05:27]:
 And again, it's really, really crucial that you are documenting this in your medical records. You may want to keep an MS log. Now, I'm not a big fan of daily logs. I think that can be depressing. But a weekly log, I think, is more helpful, where you're kind of summarizing exactly what the symptoms are and then giving an example of how that symptom impacts your ability to function in your occupation. If you're still working, and certainly at home, I really think that it is crucial that your medical records be reviewed, preferably by an ERISA disability attorney, before you stop work and apply for benefits. Often, I'll find that the medical records really don't tell the story that needs to be told and disability carriers will say look they worked the day before, why did they stop working this day? Because we can't see why that might be the case in the medical records. So that the tail, if you will, of your MS symptoms, its progression and its impact on your functionality really needs to be told in your medical records.
 
 Nancy Cavey [00:06:32]:
 But theres another story that needs to be told and that is if you have comorbid medical situations like high blood pressure or diabetes or any other disease, there can be an interaction between these diseases and your MS and it can kind of go both ways. The interaction can contribute to the MS. Potentially the MS can worsen some of these other comorbid conditions and so your medical records should speak not only to your MS, but to any comorbid medical conditions you have and how those comorbid conditions impact your ability to function. But then we wanna talk about the combination. So we wanna talk about the MS, we wanna talk about the comorbid situations individually and then we want to talk collectively about your symptoms and functionality, making sure that your medical records once again are telling the story of your disability and why you can't perform your own or any occupation. Got it? Let's take a break. Back to winning isn't easy want to talk about predicting long term disability in MS with the use of MRI biomarkers and the two implications of biomarkers in your risk of disability claim. Now you may have purchased a disability policy or plan, never thinking that you would have to apply for disability benefits as a result of miss.
 
 Nancy Cavey [00:08:31]:
 As we know, mris are common studies that are used in the workup of MSDEV and the MRI. Images of the brain and the spinal cord will show the damage to the myelin. They're known as white matter lesions. The presence of the white matter lesions on the MRI in certain parts of the brain or the spinal cord can confirm the MS diagnosis. And I will tell you that disability carriers are looking for that in your medical records to confirm the basis of the diagnosis. Interestingly, the number and location of lesions can also be predictive of disability. There was a recent study called predictors of long term disability in multiple sclerosis patients using routine magnetic resonance data, a 15 year retrospective study. It was published in the neuroradiology journal and it confirms that there are two MRI biomarkers that are significantly linked to worsening long term disability.
 
 Nancy Cavey [00:09:31]:
 They are called ICD, intercautate diameter and TVW, the third ventricular width. These measurements can predict the course of the disease and the response to the treatment these early MRI biomarkers were linked in this study to worsening disability over a ten year period of time. So as I looked at this, I was thinking, well, what are the implications of these biomarkers in an ERISA disability claim? And I think that there are two implications. Now, many disability policies or plans have a pre existing condition clause that will provide that if a person files a claim for disability benefits within a certain period of time after they've enrolled in a disability policy, the claim can be denied if they were diagnosed or treated for that disabling medical condition. So let's say you have changed jobs, you've enrolled in a disability plan or policy, and you are now diagnosed with MSDHdHDeme. If you got treatment during what's called the look back period before you actually became covered, your claim is going to be denied. So before you change jobs, if you are having symptoms of miss or have been diagnosed with Miss, you may not want to change jobs simply because if you change jobs and get a new job with a new policy, there's going to be a look back period and the carrier can deny your claim based on the fact that you were diagnosed or or had symptoms of or gotten treatment for the MS during this looked at back period. So you may have to stay with your employer.
 
 Nancy Cavey [00:11:08]:
 You may have to see whether or not you can convert that policy. The conversion is not going to be cheap, but you won't be able to find a disability insurance policy that's going to cover you. Now, again, if you want to enroll in your new employer's disability plan, you need to understand what the look back period of time is so you're not getting treatment for that. That can be impossible and again, just another reason why you may not want to change jobs. The second implication, in my view, is something called working while disabled. As your disease progresses, as documented by the MRIs and the medical records, you have to decide when to stop work and apply for benefits. I found that picking the wrong date can be a disaster if your records don't document the progression of your symptoms and why you can't do your occupational duties. Now that can be a problem if you're working and you're trying to hide your medical condition.
 
 Nancy Cavey [00:12:10]:
 If you get terminated, you're going to lose your coverage as of the date of your termination generally, but sometimes it can be like at the end of the month. But if you lose your coverage and you've been working while you are disabled and not losing time from work or wages, you may not have a disability insurance claim at all. Now, if you have that situation, it can be really hard to get your doctor to say, hey, you know, you're actually working while you're disabled. But even if you do, there's a policy term in that plan or policy that may make that impossible to get your benefits. Sometimes the policy will or plan will say, look, if you're working and you're earning 80% less than what you were making at the time you became disabled, called pre disability earnings, then you're eligible for the benefits. But if you didn't lose any money and you're still working while you're disabled, too bad, so sad. So you can see that that can be problematic. My recommendation is that as the MRIs document progression or you're having increased symptoms, you should be consulting with an experienced ERISA disability attorney such as myself.
 
 Nancy Cavey [00:13:28]:
 Because we're going to be looking at your policy or plan. We're going to review your medical records and we're going to help you determine what date to stop work and file your ERISA disability claim so that neither of these situations occur. You terminate your employment, find a new job, and you file a claim for disability benefits only to have it denied under the pre existing clause. Or you're working, you're disabled, and you get terminated and you have no disability claim because you didn't have the applicable lost wages. This is something that you need to take seriously because we see this in our MS claims. We don't want your claim to be denied because you weren't prepared and addressed these issues before either your employer made the decision to terminate your benefits or you decided to change jobs without understanding the implication. Got it? Let's take a break.
 
 Speaker B [00:14:24]:
 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're giving away free copies of the disability insurance claims survival guide for professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:15:24]:
 Welcome back to winning isn't easy how at and t justified a denial of an ERISA disability claim of a multiple sclerosis patient because of their subjective pain. MS can damage the myelin sheath of a nerve, and it can cause acute or chronic neuropathic pain. I think of the myelin as the basic electrical insulation on nerves, if you will. So when you think of electrical wire, it's got this insulation. If you peel back the wire. It's a live wire. Same way, I think, in the context of MS. Now, this chronic or acute neuropathic pain can feel like cramping, squeezing, pulling, burning, stabbing, and it can also be musculoskeletal nature and it can be spasmatic.
 
 Nancy Cavey [00:16:20]:
 It can involve every part of your body, including your eyes. According to research, at least 75% of patients with MS will suffer pain and that's also treated with antidepressants, anticonvulsants and other medication. These complaints are considered subjective in nature. So how do disability carriers or plans evaluate subjective multiple sclerosis pain? And answering that question, I'm going to tell you the story of Imran Khan, who worked as a customer service representative as at and t. He was covered under their disability plan. He filed a short and long term disability claim because of the pain associated with Miss. His claim was denied on appeal and he submitted an affidavit from his treating physician who opined that the subjective complaints did not and severity of his pain didn't really equate with the physical findings. But the doctor felt that the multiple sclerosis was a contributing factor in the severity of his pain and he had the symptoms that could be consistent with miss.
 
 Nancy Cavey [00:17:32]:
 Now that wasn't particularly helpful. What the doctor should have said is, look, he does have subjective complaints and the severity of the pain may not necessarily be consistent with the physical findings, but we don't necessarily expect that in MS cases. We do think that MS is a contributing factor or the cause of his disability and his inability to do his own occupation. And weaving into that letter the other symptoms of MS that were consistent with the diagnosis and objectively found on examination, such as spasm. Now, notwithstanding that not so helpful opinion, the doctor also opined that he was completely and totally disabled. That doesn't necessarily help because the disability carrier wants the doctor to fill out AP's forms to document the actual restrictions and limitations, not that the person is disabled. So the AT and T plan had his medical records reviewed by a consulting physician who of course opined Kahn was not disabled and said, look, there are not enough significant clinical findings to support the restricted work activity or even the opinion that he's unable to work and there's no evidence of impingement. Now, you wouldn't necessarily see evidence of impingement in an MS case.
 
 Nancy Cavey [00:18:56]:
 You might see impingement if you have a herniated disc where the disc is impinging or pressing on a nerve root, and you can actually document that by having an EMG and nerve conduction study test. Now in this case, Kahn continued to get medical treatment and he continued to complete plane of problems, including problems with his spine. So he got worked up. The MRI was normal. The physical exam didn't show evidence of limited range of motion, decreased strength or mobility issues consistent with a spinal condition. So once again, at and t peer reviewed doctors noted that while Kahn had subjective complaints of pain that caused functional limitations, objectively he didn't have neurological deficits or specific findings on physical exam. Ultimately, the case ends up in front of a federal judge who notes that Kahn has the burden of proof. Now, what did the federal judge do? Well, Kahn argued that the plan didn't consider his pain associated with the MS and as a result, the decision was arbitrary and capricious.
 
 Nancy Cavey [00:20:04]:
 But the court said, well, we can't accept that argument because the AT and t physicians explicitly acknowledged his subjective complaints of pain. But across the board found that the objective evidence didn't corroborate his reported pain and functional limitations. In other words, there was a failure of proof and the denial was upheld. Now, I will tell you that part of the problem in this case was that Kahn didn't submit the right proof from the right doctor. What do I mean? So what proof should Kahn have submitted? Part of the problem was that he was seeing a primary physician and not an MS specialist who could have had him undergo the MRI to confirm the MS diagnosis and correlate the lesions with the complaints. There are protocols in testing to objectively document Ms neuropathic pain, which wasn't done by cons physicians. So one of the articles that we will submit in MS cases, if there's this issue, is an article found in neuropathic pain in multiple sclerosis, current therapeutic intervention in future treatment perspectives. It's found in a November 27, 2017 publication, and I'm not going to go through who the editors were, but in any event, the publication talks about how physicians will typically assess an MS patient's pain through medical history, conduct a physical exam, and the article suggests quantitative sensory testing pain, including evoked potentials and skin biopsies, to diagnose and document the neuropathic pain.
 
 Nancy Cavey [00:21:44]:
 The article also suggests that there is a three level grading system to document the neuropathic pain. First, the physician is to assess the possibility of neuropathic pain by taking a history from the patient who has to have a history of irrelevant neurological lesion or disease that is confirmed generally by an MRI, and the pain distribution reported by the patient has to be consistent with a suspected lesion or disease. You need the MRI you need the lesions and you need to have the lesions correlate with the location and nature of the pain that's being reported. Next, the article suggests that there has to be a physical exam of sensory function to ensure that the pain associated with the sensory signs are in the same neuroanatomic distribution. Now, this exam should document musculoskeletal pain and functional restrictions. So in other words, in essence, in English, you got to start connecting the dots. And then third, the patient should undergo the diagnostic studies to confirm the disease or lesions and the neuropathic pain. Again, another objective way to connect the dots.
 
 Nancy Cavey [00:22:56]:
 Since Kahn was not seeing a specialist, none of this was done and there was no pathology to correlate with the severity of pain defense that should have been addressed by Kahn's physicians. You can see that before you stop working. Apply for benefits because of miss you really should be reviewing your medical records and the policy of the plan to understand what proof needs to be submitted. It might be that you have to delay your application so that the medical proof can be properly developed so your claim isn't denied like Mister Kahn's was. Again, we analyze the medical records, the policy, and the plan, and we come up with a strategy to make sure that we are addressing the potential objections that a carrier might have or a plan might have because of the lack of medical documentation of the diagnosis, the lack of medical documentation that correlates the symptoms with the diagnosis, the lack of medical documentation that explains functionally why the neuropathic pain or other complaints are consistent with the diagnosis and the level and severity of the impairment. You can see it takes a teamwork to get your benefits. I hope you've enjoyed this week's episode of winning isn't easy. If you've enjoyed the episode, please like it, leave a review, share it with your family or friends, and please subscribe to our podcast.
 
 Nancy Cavey [00:24:23]:
 That way you're going to be notified every time a new episode comes out. I hope you tune in next week for another insightful episode of Winning isn't easy. Thanks.