Back and Neck Disorders

Welcome to Season 4, Episode 37 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Back and Neck Disorders."

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, explores various back and neck disorders, including Cervical Dystonia, Lumbar Radiculopathy, and Spinal Stenosis. Back and neck disorders are commonplace in the disability world - unfortunately, many of them have elements of subjective pain, which carriers love to latch onto as a reason to justify claims denials. Host Nancy L. Cavey will also discuss tests and procedures carriers expect claimants complaining of back or neck disorders to undergo, and how they can either medically bolster a claim against accusations of subjectivity, or, on the other hand, be used against a policyholder.

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

1 -  Cervical Dystonia and Your ERISA Long-Term Disability Claim

2 - Does Your Long-Term Disability Insurance Carrier Expect You to Undergo the MILD Procedure for Spinal Stenosis?

3 - Back Pain Caused by Lumbar Radiculopathy - A Somatic System Disorder That Justifies Prudential’s Termination of Long-Term Disability Benefits?

4 - Why a Positive Waddell Sign In Your Physical Examination Can Be Used by an ERISA Disability Carrier or Plan to Deny Your ERISA Disability Back Claim

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

Nancy Cavey [00:00:16]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney.
 
 Speaker B [00:00:20]:
 Welcome to Winning Isn't Easy.
 
 Nancy Cavey [00:00:22]:
 Before we get started, I've got to give you a legal disclaimer.
 
 Speaker B [00:00:26]:
 This podcast is not legal advice. The Florida Bar association says I have.
 
 Nancy Cavey [00:00:31]:
 To say this and now I've said it.
 
 Speaker B [00:00:33]:
 But nothing will ever prevent me from giving you an easy to understand overview.
 
 Nancy Cavey [00:00:37]:
 Of the disability insurance world, the games that carriers play, and what you need to know to get the disability benefits you deserve.
 
 Speaker B [00:00:45]:
 So off we go.
 
 Nancy Cavey [00:00:47]:
 Today we're going to talk about back and neck conditions.
 
 Speaker B [00:00:50]:
 Whether they are caused as a result.
 
 Nancy Cavey [00:00:52]:
 Of an injury or they are congenital. I find that these are the basis of commonplace ERISA disability claims.
 
 Speaker B [00:01:00]:
 Now that doesn't mean that they're easy to win. Often, back and neck pain can be.
 
 Nancy Cavey [00:01:05]:
 Subjective in nature or can even be temporary.
 
 Speaker B [00:01:09]:
 That can mean difficulty improving your entitlement.
 
 Nancy Cavey [00:01:12]:
 To your disability insurance benefits.
 
 Speaker B [00:01:14]:
 So in this episode we're going to work through a number of back and.
 
 Nancy Cavey [00:01:17]:
 Neck disorders, including symptoms and treatment, and talk about how carriers handle them and what you need to do to to win your back or neck disability insurance claims.
 
 Speaker B [00:01:27]:
 So I'm gonna talk about four things today.
 
 Nancy Cavey [00:01:29]:
 Specifically.
 
 Speaker B [00:01:30]:
 First I'm gonna talk about cervical dystonia.
 
 Nancy Cavey [00:01:33]:
 And your ERISA disability insurance claim. I'm gonna talk about how your long term disability carrier expects you to potentially.
 
 Speaker B [00:01:41]:
 Undergo certain forms of treatment for spinal stenosis.
 
 Nancy Cavey [00:01:45]:
 I'm also gonna talk about back pain caused and lumbar radiculopathy and whether or.
 
 Speaker B [00:01:51]:
 Not that should be considered or would be considered a somatic that would justify a termination of benefits.
 
 Nancy Cavey [00:01:58]:
 And I'm going to talk about what.
 
 Speaker B [00:01:59]:
 A positive waddell sign in your physical examination means and how an ERISA disability carrier plan can use the results of.
 
 Nancy Cavey [00:02:07]:
 That test to deny your ERISA disability back claim. We've got a lot to cover today.
 
 Speaker B [00:02:12]:
 But before we do that, we're going.
 
 Nancy Cavey [00:02:13]:
 To take a quick welcome back to.
 
 Speaker B [00:02:33]:
 Winning isn't Easy, cervical dystonia and your.
 
 Nancy Cavey [00:02:36]:
 ERISA long term disability claim.
 
 Speaker B [00:02:38]:
 Cervical dystonia is also known as spasmodic torticollis.
 
 Nancy Cavey [00:02:43]:
 It's a disorder that's characterized by involuntary muscle contractions in the neck that will cause abnormal movements and postures of the neck or the head. The severity will vary from individual to individual, but it can cause significant pain.
 
 Speaker B [00:02:59]:
 Discomfort and limited range of motion because of the abnormal posture. I'm often asked, well, what are the causes of cervical dystonia? And I will tell you that there.
 
 Nancy Cavey [00:03:09]:
 Really is no, there's no known cause. It's classified as isolated cervical dystonia if.
 
 Speaker B [00:03:17]:
 It'S not associated with any other abnormal.
 
 Nancy Cavey [00:03:20]:
 Findings, such as spasticity, Parkinson's, or ataxia.
 
 Speaker B [00:03:23]:
 There's also something called secondary cervical dystonia.
 
 Nancy Cavey [00:03:27]:
 That can be caused by an underlying medical condition, such as a degenerative brain disease, or can be secondary to the use of certain drugs like antipsychotics or nauseousness medication that will impact or blocking activity in the neural logical system. So it can be two types of cervical dystonia.
 
 Speaker B [00:03:52]:
 But what's more important, in my view.
 
 Nancy Cavey [00:03:54]:
 Are the disabling signs and symptoms of cervical dystonia. And this is particularly true because the disability insurance carrier will be reviewing your.
 
 Speaker B [00:04:02]:
 Medical records and wants to see in.
 
 Nancy Cavey [00:04:04]:
 Those medical records signs and symptoms that are consistent with the diagnosis and signs and symptoms that can be disabling, as that term is defined by by your disability policy or plan. So what are the signs and symptoms of cervical dystonia that the disability carrier.
 
 Speaker B [00:04:21]:
 Is looking for in your records? Well, there will be a twisting of.
 
 Nancy Cavey [00:04:24]:
 The chin towards the shoulders where the hip tips forward, and that's known as enterosclerosis.
 
 Speaker B [00:04:30]:
 There's an abnormal posture where the head.
 
 Nancy Cavey [00:04:32]:
 Is tipped backwards, and that's known as retrocholiosis. There's also an abnormal posture where the head tips to one side, and that's known as lateral choliosis. Now, what's important here is that the.
 
 Speaker B [00:04:51]:
 Signs and symptoms all differ from individual.
 
 Nancy Cavey [00:04:54]:
 And individual, and it can worsen with stress or excitement. Now, it's really important, I think, that.
 
 Speaker B [00:05:01]:
 You are giving your physician a really good history of what your particular symptoms.
 
 Nancy Cavey [00:05:06]:
 Are, how they impact your ability to function, and how they may be exacerbated or even accelerated by such things as stress or excitement.
 
 Speaker B [00:05:16]:
 Also, we want to think about the.
 
 Nancy Cavey [00:05:19]:
 Secondary problems that are caused that can also be disabling. Sometimes we will see cervical arthritis, compression of the nerve roots, even cervical stenosis.
 
 Speaker B [00:05:32]:
 And so it's important that your medical records are documenting that, including an objective basis of that diagnosis.
 
 Nancy Cavey [00:05:38]:
 You probably also have pain on the.
 
 Speaker B [00:05:40]:
 Same side as the head is turned.
 
 Nancy Cavey [00:05:42]:
 With muscular pain because of the overactive muscles. And that can, in and of itself be disabling. So the question then becomes, what do.
 
 Speaker B [00:05:52]:
 Disability carriers or plans look for in your medical records?
 
 Nancy Cavey [00:05:55]:
 Now, they're obviously looking for several things. One is they're looking for your patient history.
 
 Speaker B [00:06:05]:
 They're looking for a clinical examination by a specialist.
 
 Nancy Cavey [00:06:10]:
 And I want you to remember that.
 
 Speaker B [00:06:11]:
 There isn't any specific laboratory testing, blood.
 
 Nancy Cavey [00:06:14]:
 Work, or EMG studies that will confirm the diagnosis, unless you've got radiculopathy.
 
 Speaker B [00:06:19]:
 One of the things that I always.
 
 Nancy Cavey [00:06:21]:
 Try to submit in these claims are photos or videos that illustrate not only.
 
 Speaker B [00:06:25]:
 The abnormal posture of the head, but show examples of difficulty functioning as a.
 
 Nancy Cavey [00:06:31]:
 Result of the positioning of the head.
 
 Speaker B [00:06:34]:
 The disability carrier is also going to be looking at your medical records for treatment issues. And under the terms of most disability policies or plans, you're required to get reasonable and appropriate treatment for your medical condition. So what do they want to see.
 
 Nancy Cavey [00:06:48]:
 In your medical records?
 
 Speaker B [00:06:50]:
 Now, these treatment options can be used alone or in combination or in conjunction with physical therapy.
 
 Nancy Cavey [00:06:57]:
 So if you're getting physical therapy, we also want to make sure that your physical therapy records are documenting the objective.
 
 Speaker B [00:07:04]:
 Findings that the physical therapist is noting. Also, we want to have them potentially do a range of motion measurements, and.
 
 Nancy Cavey [00:07:11]:
 We want them obviously to document the.
 
 Speaker B [00:07:15]:
 Nature of the therapy and your response to the therapy.
 
 Nancy Cavey [00:07:17]:
 So what are they looking for? Well, the carrier is looking for whether.
 
 Speaker B [00:07:21]:
 Or not you've had Botox injections and.
 
 Nancy Cavey [00:07:23]:
 Your response to those injections. They're looking for use of and prescription use of oral medications such as Baclofen.
 
 Speaker B [00:07:34]:
 And other types of medication.
 
 Nancy Cavey [00:07:36]:
 And potentially they're looking for surgery, which could be a selective peripheral denervation type surgery or a deep brain stimulation surgery.
 
 Speaker B [00:07:45]:
 Dbs.
 
 Nancy Cavey [00:07:46]:
 Now, you are not required to undergo invasive treatment, but I will tell you.
 
 Speaker B [00:07:53]:
 That disability carriers will take your claim.
 
 Nancy Cavey [00:07:54]:
 More seriously if you have that surgery.
 
 Speaker B [00:07:57]:
 Particularly if the surgery is not successful. Again, you can see it's really important.
 
 Nancy Cavey [00:08:03]:
 That you're documenting your symptoms, how those.
 
 Speaker B [00:08:06]:
 Symptoms impact your ability to function, the.
 
 Nancy Cavey [00:08:08]:
 Treatment you're getting, and the response to that treatment, and whether that response is.
 
 Speaker B [00:08:13]:
 Temporary or permanent in nature.
 
 Nancy Cavey [00:08:16]:
 Now, I want you to understand that getting the disability benefits you deserve for cervical dystonia is not necessarily easy, particularly.
 
 Speaker B [00:08:25]:
 If the cervical dystonia is well controlled by Botox injections or medications.
 
 Nancy Cavey [00:08:30]:
 I'm also going to flip this on.
 
 Speaker B [00:08:32]:
 Its side a little bit, and that is many disability policies or plans will.
 
 Nancy Cavey [00:08:36]:
 Have what's called subjective medical conditional limitations.
 
 Speaker B [00:08:38]:
 Or they'll even have mental nervous limitations that will limit benefits in both instances.
 
 Nancy Cavey [00:08:43]:
 To just two years.
 
 Speaker B [00:08:45]:
 A disability carrier just might argue if.
 
 Nancy Cavey [00:08:48]:
 There'S a subjective medical condition limitation in your policy or plan, that your cervical dystonia is subjective in nature.
 
 Speaker B [00:08:56]:
 And I know that sounds crazy, even.
 
 Nancy Cavey [00:08:58]:
 Though there's a picture of your neck, you know, fixed to one side, back or the front, they also may say, look, this just didn't come on overnight. You've had it for some time and.
 
 Speaker B [00:09:13]:
 You'Ve worked with this condition and nothing has really changed.
 
 Nancy Cavey [00:09:17]:
 So you can see that there are a number of issues that are going to be raised in these cases, and particularly if you've had it before you.
 
 Speaker B [00:09:26]:
 Or claiming you're disabled, it's really crucial that your medical records are documenting the.
 
 Nancy Cavey [00:09:31]:
 Nature and progression of the cervical dystonia.
 
 Speaker B [00:09:35]:
 Maybe changes in the range of motion, increase in spasms or muscle tone, increased.
 
 Nancy Cavey [00:09:41]:
 Physical therapy that show a progression of your symptoms that help explain why all of a sudden, and it's not really sudden, is it, that you can't work and are applying for your disability benefits?
 
 Speaker B [00:09:54]:
 You also need to make sure that before you stop work and apply for benefits that you're looking at your policy to understand if there's a subjective medical condition limitation.
 
 Nancy Cavey [00:10:02]:
 Because these limitations can be so broad as to include things like limited range of motion, pain, spasm, and disability carriers are inclined to try to argue benefits.
 
 Speaker B [00:10:13]:
 Are limited to just two years.
 
 Nancy Cavey [00:10:15]:
 You want to know that obviously before you stop work and apply for benefits so that you can speak with an.
 
 Speaker B [00:10:20]:
 Experienced ERISA disability attorney such as myself.
 
 Nancy Cavey [00:10:23]:
 So that you can be planning how you need to make the documentation, if you will, that needs to be in the medical records, the history, the diagnostic studies, the symptoms that perhaps will get you out of a subjective medical condition policy limitation argument.
 
 Speaker B [00:10:42]:
 So again, you can see this isn't.
 
 Nancy Cavey [00:10:44]:
 Particularly easy, though in my view, the condition is dramatic and is often disabling. Got it. Let's take a break for a moment.
 
 Speaker C [00:10:53]:
 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 [00:11:39]:
 Welcome back to Winning isn't Easy.
 
 Speaker B [00:11:41]:
 Does your long term disability carrier or plan expect that you undergo the mild.
 
 Nancy Cavey [00:11:47]:
 Procedure for spinal stenosis? The lumbar spinal stenosis, known as lss.
 
 Speaker B [00:11:54]:
 Is a spinal narrowing and compression of.
 
 Nancy Cavey [00:11:58]:
 The spinal cord nerves in your spine.
 
 Speaker B [00:12:02]:
 Now, the word stenosis is Greek and it means narrowing.
 
 Nancy Cavey [00:12:05]:
 And that is exactly what happens. Your spinal cord and nerves are surrounded.
 
 Speaker B [00:12:10]:
 By bones known as the vertebrae and.
 
 Nancy Cavey [00:12:12]:
 Ligaments, which are the dense bands of.
 
 Speaker B [00:12:14]:
 Connective tissue that connect bones to other.
 
 Nancy Cavey [00:12:16]:
 Bones to form a joint.
 
 Speaker B [00:12:19]:
 In a normal spine, the spinal canal is wide enough to accommodate the spinal cord nerves.
 
 Nancy Cavey [00:12:25]:
 But what happens if you have a.
 
 Speaker B [00:12:27]:
 Spinal injury, a tumor, or an injury to the ligaments or a herniated disc.
 
 Nancy Cavey [00:12:31]:
 Or even osteoarthritis what happens is that.
 
 Speaker B [00:12:34]:
 The bones and ligaments can be damaged.
 
 Nancy Cavey [00:12:35]:
 And as a result, they can be a narrowing of the spinal canal. That narrowing can put pressure on the cord and the nerves that will send.
 
 Speaker B [00:12:44]:
 Electrical signals both to your arms and to your legs. Now, as a result, you might have back pain or tingling into your lower extremities with numbness and weakness that make it difficult for you to walk, stand or sit. The pain, tingling and numbness can make.
 
 Nancy Cavey [00:13:00]:
 It difficult, if not impossible, to work.
 
 Speaker B [00:13:03]:
 Similarly, you can have the same symptoms.
 
 Nancy Cavey [00:13:05]:
 In your upper extremities, but obviously it.
 
 Speaker B [00:13:07]:
 Would impact your fingers. You might have tingling and numbness in your fingers. You might have difficulty picking up things.
 
 Nancy Cavey [00:13:14]:
 Buttoning buttons, those sorts of things.
 
 Speaker B [00:13:16]:
 Now, as this condition progresses, because it is a progressive condition, you want to.
 
 Nancy Cavey [00:13:22]:
 Make sure before you stop work and apply for benefits that you're doing a couple things.
 
 Speaker B [00:13:26]:
 First is to get your disability policy.
 
 Nancy Cavey [00:13:28]:
 Or plan out and read it cover to cover, so you understand what it.
 
 Speaker B [00:13:32]:
 Is you need to prove. You also need to understand whether there.
 
 Nancy Cavey [00:13:35]:
 Are policy limitations, such as subjective medical condition limitations, that will limit the benefits.
 
 Speaker B [00:13:41]:
 To just two years. But you also have to understand your affirmative obligation as the policyholder or plan.
 
 Nancy Cavey [00:13:48]:
 Beneficiary to get appropriate medical treatment.
 
 Speaker B [00:13:52]:
 Many policies or plans will say that.
 
 Nancy Cavey [00:13:54]:
 You are required to get reasonable and appropriate medical care. So what is reasonable and appropriate medical care in a stenosis case? The treatment options for spinal stenosis are.
 
 Speaker B [00:14:10]:
 Things that the disability carrier are going to look for to see what's been.
 
 Nancy Cavey [00:14:14]:
 Recommended and to see what your response was, because they're going to have their.
 
 Speaker B [00:14:19]:
 Life for hire peer review.
 
 Nancy Cavey [00:14:20]:
 Doctors look at the medical records and evaluate just that.
 
 Speaker B [00:14:24]:
 So what are they looking for? Well, they're looking for treatment options such.
 
 Nancy Cavey [00:14:27]:
 As a laminectomy, which is a common spinal procedure that removes a portion of the vertebral body known as the lamina. There's a laminotomy, which is spinal decompression.
 
 Speaker B [00:14:37]:
 Surgery, where only a small part of.
 
 Nancy Cavey [00:14:39]:
 The lamina is removed. There's disc replacement surgery, where the disc is replaced with an artificial disc, and.
 
 Speaker B [00:14:48]:
 There'S a decompression of the cord and.
 
 Nancy Cavey [00:14:50]:
 Nerves while they're preserving motion in the disc space. There's a lumbar or cervical fusion where.
 
 Speaker B [00:14:57]:
 The damaged disc is removed from the.
 
 Nancy Cavey [00:14:59]:
 Lumbar or cervical spine and the vertebrae.
 
 Speaker B [00:15:01]:
 Are fused together using rods and clamps. There's something called a radio frequency ablation.
 
 Nancy Cavey [00:15:07]:
 RFA that uses high energy radio frequency.
 
 Speaker B [00:15:12]:
 To remove or vaporize the damaged nerves, eliminating the sensation of pain.
 
 Nancy Cavey [00:15:17]:
 Now, except for the rfa, all of.
 
 Speaker B [00:15:21]:
 The procedures that I just mentioned involve.
 
 Nancy Cavey [00:15:23]:
 Extensive surgery and a protracted recovery.
 
 Speaker B [00:15:26]:
 During the disability.
 
 Nancy Cavey [00:15:28]:
 This disability period, carriers are going to.
 
 Speaker B [00:15:31]:
 Face an exposure for paying you benefits while you're recovering from the surgery.
 
 Nancy Cavey [00:15:35]:
 They're not necessarily in the business of paying benefits, and they're going to be looking for alternative forms of treatment that.
 
 Speaker B [00:15:43]:
 May enhance the recovery period.
 
 Nancy Cavey [00:15:46]:
 Who are alternatives to a more invasive procedure? One of the procedures is called the mild procedure.
 
 Speaker B [00:15:54]:
 Mild.
 
 Nancy Cavey [00:15:55]:
 It's primarily performed by pain management providers.
 
 Speaker B [00:15:59]:
 And if your doctor determines that your.
 
 Nancy Cavey [00:16:00]:
 Pain is caused by ligamentous issues, you just may see the mild procedure being recommended, notwithstanding the fact that the issue can be caused by the.
 
 Speaker B [00:16:12]:
 By the stenosis.
 
 Nancy Cavey [00:16:15]:
 So what is the mild procedure? It's an outpatient procedure performed through a.
 
 Speaker B [00:16:19]:
 Tiny incision in your back.
 
 Nancy Cavey [00:16:20]:
 It doesn't require any general anesthesia. It's made in your back.
 
 Speaker B [00:16:24]:
 And specialized tools are inserted through the.
 
 Nancy Cavey [00:16:26]:
 Incision that allows for removal of small pieces of bone and excess ligaments that.
 
 Speaker B [00:16:31]:
 Are causing the narrowing of the canal. Now, the purpose of this procedure is.
 
 Nancy Cavey [00:16:36]:
 To restore the space in the spinal canal and relieve the compression of the nerves, which in turn reduces the pain and restores mobility. This is done under fluoroscopy.
 
 Speaker B [00:16:47]:
 This is a procedure that's been approved.
 
 Nancy Cavey [00:16:50]:
 By the fda, so it's a recognized treatment. In any event, the disability carrier really.
 
 Speaker B [00:16:58]:
 Can'T make you undergo invasive treatment.
 
 Nancy Cavey [00:17:01]:
 And because this is sort of minimally invasive in the range of treatment options I just discussed, the disability carrier may be unhappy with the length of time.
 
 Speaker B [00:17:11]:
 Your recovery is taking place.
 
 Nancy Cavey [00:17:13]:
 And they may even go so far as to suggest to your doctor that.
 
 Speaker B [00:17:17]:
 The doctor should consider alternative methods of.
 
 Nancy Cavey [00:17:20]:
 Treatment or even recommend to you that there are other treatments that you might avail yourself of that would reduce your period of disability. Now, they're not going to say that quite that way, but they will certainly.
 
 Speaker B [00:17:34]:
 Question the length of time it's taking for you to recover. And they'll use medical duration guidelines to.
 
 Nancy Cavey [00:17:40]:
 Sort of say, well, you should have.
 
 Speaker B [00:17:41]:
 Been recovered by then. Now you isn't everyone, and everyone isn't you.
 
 Nancy Cavey [00:17:48]:
 Okay, What I mean by that is that disability carriers sometimes have a nasty habit of not looking at you as.
 
 Speaker B [00:17:55]:
 An individual and your recovery period or.
 
 Nancy Cavey [00:17:57]:
 Process and apply these.
 
 Speaker B [00:18:02]:
 Uniform guidelines to.
 
 Nancy Cavey [00:18:03]:
 These types of cases.
 
 Speaker B [00:18:05]:
 In any event, you should be considering all of your treatment options because at the end of the day, you want.
 
 Nancy Cavey [00:18:10]:
 To make the best recovery possible.
 
 Speaker B [00:18:12]:
 If you have any questions about your rights to your ERISA long term disability.
 
 Nancy Cavey [00:18:16]:
 Benefits, particularly if You've got an issue with stenosis or other spinal conditions, you.
 
 Speaker B [00:18:23]:
 Should be consulting with an experienced ERISA.
 
 Nancy Cavey [00:18:25]:
 Disability attorney who can help you plot your way through the terms of the policy and your treatment options. Got it. Let's take a break for a moment. Welcome back to Winning Isn't Easy. Is back pain caused by lumbar radiculopathy.
 
 Speaker B [00:19:17]:
 A somatic disorder that would justify a disability carrier's termination of long term disability benefits?
 
 Nancy Cavey [00:19:24]:
 Now, I have had lumbar radiculopathy and.
 
 Speaker B [00:19:28]:
 If my surgeon had not removed the.
 
 Nancy Cavey [00:19:30]:
 Fragments of the herniated disc, I probably would have killed myself. The pain was intense. It was like taking a match and putting the match underneath your finger, if you will.
 
 Speaker B [00:19:43]:
 It's incredibly painful.
 
 Nancy Cavey [00:19:45]:
 So I know how painful this condition is. But disability carriers don't always appreciate the pain and they don't appreciate the psychological problems that can be associated with radicular pain. And what they will do, sometimes, depending.
 
 Speaker B [00:20:01]:
 On the terms of the policy, is.
 
 Nancy Cavey [00:20:03]:
 To try to use policy limitations such as subjective medical condition limitations, or they.
 
 Speaker B [00:20:14]:
 Will try to apply the mental nervous.
 
 Nancy Cavey [00:20:16]:
 Policy limitations to a claim saying that.
 
 Speaker B [00:20:20]:
 The person's benefits are limited to just.
 
 Nancy Cavey [00:20:23]:
 Two years because the unrelenting pain is either a subjective condition or that you have depression or other psychological issues caused by this radiculopathy which is contributing to your disability and therefore benefits are limited.
 
 Speaker B [00:20:42]:
 To just two years. I know this sounds crazy, but let.
 
 Nancy Cavey [00:20:46]:
 Me give you an example of what.
 
 Speaker B [00:20:48]:
 A Prudential did in a case. This is the case of Cherry vs.
 
 Nancy Cavey [00:20:51]:
 Prudential Insurance Co. And Cherry was a former Microsoft software engineer in the state of Washington. He became disabled as a result of chronic and unremitting lumbar radiculopathy.
 
 Speaker B [00:21:03]:
 Now he was part of an elite team who worked on new Microsoft products. He was required to sit while working on coding issues. And as part of this highly functioning.
 
 Nancy Cavey [00:21:14]:
 Team, he had to solve problems really.
 
 Speaker B [00:21:16]:
 Quickly so that the rest of the.
 
 Nancy Cavey [00:21:18]:
 Team could perform their work. It was sort of like a conveyor.
 
 Speaker B [00:21:21]:
 Belt and something breaks down, nothing is.
 
 Nancy Cavey [00:21:23]:
 Happening and you got to fix that.
 
 Speaker B [00:21:25]:
 Problem on a conveyor belt.
 
 Nancy Cavey [00:21:26]:
 This was just with coding, if you will.
 
 Speaker B [00:21:28]:
 Now he was on call every six weeks and he would have to report.
 
 Nancy Cavey [00:21:32]:
 Immediately and then would regularly work 50 to 60 hours a week.
 
 Speaker B [00:21:36]:
 He developed back problems, as you can.
 
 Nancy Cavey [00:21:38]:
 Imagine, and he underwent spine surgery which was not successful.
 
 Speaker B [00:21:42]:
 Even after surgery he had this lumbar.
 
 Nancy Cavey [00:21:44]:
 Radiculopathy, this burning pain down his leg. And as I said, it feels like.
 
 Speaker B [00:21:52]:
 A burning match that you can't put.
 
 Nancy Cavey [00:21:54]:
 Out you can't sit, you can't stand, you can't find a comfortable position. So he filed a disability insurance claim and that was accepted on the basis of his back condition and during the.
 
 Speaker B [00:22:04]:
 Own occupation period of his benefits.
 
 Nancy Cavey [00:22:07]:
 Prudential had him undergo a physical exam and a psychiatric exam.
 
 Speaker B [00:22:14]:
 Interesting. Now what of course the liar for.
 
 Nancy Cavey [00:22:18]:
 Hire psychiatrist for Prudential said was that.
 
 Speaker B [00:22:23]:
 Cherry had a moderate somatic system disorder.
 
 Nancy Cavey [00:22:27]:
 Based on excessive thoughts, feelings, behaviors which result in a significant disruption of his daily life and interfered with his ability to complete tasks at home and work. Now the diagnosis of a somatic system.
 
 Speaker B [00:22:40]:
 Disorder does not discount the extent to.
 
 Nancy Cavey [00:22:42]:
 Which there may be a medical basis for the symptoms. And in many cases it isn't even possible to demonstrate that the subjective symptoms are inconsistent with the medical abnormalities. In other words, this guy had a.
 
 Speaker B [00:23:00]:
 Back condition for which he underwent surgery.
 
 Nancy Cavey [00:23:02]:
 And he had that burning lumbar radiculopathy as documented by physical exam findings and objective findings on diagnostic studies. Now the psychiatric test results were really.
 
 Speaker B [00:23:16]:
 Consistent with somebody who suffers from chronic pain.
 
 Nancy Cavey [00:23:19]:
 And this sounds like a perfect setup.
 
 Speaker B [00:23:22]:
 For a claim termination. If there is a two year mental.
 
 Nancy Cavey [00:23:25]:
 Nervous condition limitation in the policy. Well guess what, it was a setup in the Microsoft disability plan when the disability changed from his own occupation to any occupation.
 
 Speaker B [00:23:40]:
 Prudential took the position that the mental nervous policy limitation applied since he had.
 
 Nancy Cavey [00:23:44]:
 A somatic system disorder and that the only way it would continue to pay benefits is if Cherry was physically disabled.
 
 Speaker B [00:23:52]:
 Now every one of his physicians said.
 
 Nancy Cavey [00:23:55]:
 He was unable to work.
 
 Speaker B [00:23:56]:
 He even had a functional capacity evaluation.
 
 Nancy Cavey [00:23:58]:
 Test that documented he couldn't even work part time.
 
 Speaker B [00:24:01]:
 And that was not good enough for Prudential. They took the position based on their.
 
 Nancy Cavey [00:24:07]:
 Doctor'S physical exam findings that he could work in a part time capacity and.
 
 Speaker B [00:24:12]:
 Eventually work in a full time capacity. Say said that his physical limitations were all psychiatrically based.
 
 Nancy Cavey [00:24:21]:
 Talk about making up reasons to justify a claims denial. So you can imagine that this case.
 
 Speaker B [00:24:27]:
 Ended up in federal court in the state of Washington.
 
 Nancy Cavey [00:24:30]:
 They banned discretionary clauses.
 
 Speaker B [00:24:33]:
 These clause judges from using their own.
 
 Nancy Cavey [00:24:35]:
 Independent judgment in reviewing a disability claim is called arbitrary and capricious. And you have to prove that the.
 
 Speaker B [00:24:44]:
 Decision to deny benefits was arbitrary and capricious. And creating reasons for a denial is not necessarily arbitrary and capricious, as crazy.
 
 Nancy Cavey [00:24:52]:
 As that may sound. But in this particular case, the judge.
 
 Speaker B [00:24:55]:
 Was having none of it.
 
 Nancy Cavey [00:24:57]:
 The judge was able to independently review the entire medical evidence, including that functional capacity evaluation.
 
 Speaker B [00:25:03]:
 And the judge rejected the argument that.
 
 Nancy Cavey [00:25:06]:
 Cherry's condition was caused by a somatic disorder and that he could increase his hours. The judge said, oh, wait a second.
 
 Speaker B [00:25:15]:
 These symptoms are consistent with a person who has chronic pain and the diagnosis.
 
 Nancy Cavey [00:25:20]:
 Doesn'T discount the medical basis of his symptoms.
 
 Speaker B [00:25:23]:
 And the record does not show that Cherry's disability was due in whole or.
 
 Nancy Cavey [00:25:28]:
 Even part due to mental illness.
 
 Speaker B [00:25:31]:
 So the federal judge said, too bad.
 
 Nancy Cavey [00:25:33]:
 So sad. Prudential, we don't believe that this is. He doesn't believe that this is a legitimate basis for the denial and ordered them to pay the benefits.
 
 Speaker B [00:25:43]:
 This is a great result.
 
 Nancy Cavey [00:25:45]:
 But this sad story explains how disability carriers like Prudential will create reasons to.
 
 Speaker B [00:25:55]:
 Deny a claim when there's a change in definition.
 
 Nancy Cavey [00:25:57]:
 And obviously you want to be aware of these kinds of policy terms in your disability policy or plan. Got it. Let's take a break.
 
 Speaker C [00:26:07]:
 Professional with questions about your individual disability policy, you need the Disability Insurance Claim 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 Claim Survival Guide for Professionals. Order yours today at disability claims for professionals.com.
 
 Nancy Cavey [00:27:07]:
 Welcome back to Winning Isn't Easy.
 
 Speaker B [00:27:10]:
 Why a positive Weddell sign in your.
 
 Nancy Cavey [00:27:12]:
 Physical exam records can be used by.
 
 Speaker B [00:27:15]:
 An ERISA disability carrier plan to deny.
 
 Nancy Cavey [00:27:18]:
 Your ERISA disability claim.
 
 Speaker B [00:27:21]:
 Are you disabled as a result of a back condition? I had a herniated disc at L5S1 and ultimately underwent a surgery with fantastic results.
 
 Nancy Cavey [00:27:33]:
 But that doesn't always happen. And there may be things in your medical records that can destroy your claim. And one of those things is something called the Weddell sign test. So let's talk about the importance of.
 
 Speaker B [00:27:50]:
 Your physical exam findings and what's in.
 
 Nancy Cavey [00:27:52]:
 Your medical records when you are seeing a physician. They're going to be doing a lot of testing during the course of that physical examination. They're going to test your reflexes.
 
 Speaker B [00:28:02]:
 Remember that hammer?
 
 Nancy Cavey [00:28:04]:
 They're going to do sensory testing, which is a pinprick exam, to see whether or not there's a problem with the electrical impulses that will send signals to different parts of your back. They're going to palpitate your back for muscle spasm. So there's some of the physical testing that they're going to be doing, but they're are also a whole host of tests that the doctor can use in the course of an examination to determine if there are psychological issues.
 
 Speaker B [00:28:39]:
 Notwithstanding objective evidence of back problems.
 
 Nancy Cavey [00:28:41]:
 And one of these tests is called the Waddell sign.
 
 Speaker B [00:28:44]:
 ERISA disability carriers or plans will seize.
 
 Nancy Cavey [00:28:47]:
 On the results of this test to deny or terminate benefits. So what is the Weddell sign? Well, the Weddell's sign is this. It's not a question of whether or not you're waddling, but rather in terms of your physical exam findings, whether you have things like superficial tenderness, non anatomic tenderness, regional weakness, regional sensory changes where.
 
 Speaker B [00:29:13]:
 You overreact during the course of the physical examination. Now, sometimes you may be afraid of.
 
 Nancy Cavey [00:29:18]:
 Re injury, or you may be having.
 
 Speaker B [00:29:21]:
 Difficulty coping, or you're in pain and.
 
 Nancy Cavey [00:29:23]:
 You just don't want to be prodded or poked. Unfortunately, these test results can be misinterpreted and even misused. And they can be misused in workers comp claims, disability insurance claims, Social Security claims, personal injury claims. Often carriers will take the position that.
 
 Speaker B [00:29:41]:
 If three or more of those signs are positive, that you are malingering.
 
 Nancy Cavey [00:29:44]:
 That's not a good thing. They mean by the term malingering that.
 
 Speaker B [00:29:48]:
 You'Re faking it, you're exaggerating, and as.
 
 Nancy Cavey [00:29:51]:
 A result, you're not believable.
 
 Speaker B [00:29:54]:
 And that will give them a reason to deny or terminate your benefits.
 
 Nancy Cavey [00:29:57]:
 And they will hang that denial or termination on the results of that test.
 
 Speaker B [00:30:02]:
 Now, the Waddell's test is named after Dr. Waddell. He developed a test to help doctors.
 
 Nancy Cavey [00:30:08]:
 Determine whether or not a patient with back problems should also be seen by a psychologist.
 
 Speaker B [00:30:13]:
 He never, never intended this test to be used to determine if there was.
 
 Nancy Cavey [00:30:17]:
 Malingering, exaggeration, or just outright lying by the patient.
 
 Speaker B [00:30:22]:
 If your medical records document a positive Weddell sign, you, and most likely your attorney, should be asking for clarification from.
 
 Nancy Cavey [00:30:29]:
 Your physician as to the significance of the finding and why the restrictions and limitations the doctor assigned are still valid notwithstanding the results of this Weddell's test. Now, hopefully your doctor would be willing to answer these questions and make it.
 
 Speaker B [00:30:45]:
 Clear that the positive Weddell sign test.
 
 Nancy Cavey [00:30:48]:
 Is not inconsistent with the objective physical findings on examination or the test results.
 
 Speaker B [00:30:55]:
 Otherwise, I will tell you there's a.
 
 Nancy Cavey [00:30:57]:
 Chance that the disability carrier is going to deny your claim based on the fact that you're malingering. You're lying, you're not credible, you're not believable, you're exaggerating, and of course you're not entitled to your benefits.
 
 Speaker B [00:31:11]:
 Please don't let a positive Weddell sign.
 
 Nancy Cavey [00:31:13]:
 Test destroy your ERISA disability claim. Make sure you know what's in your medical records before you stop work and apply for benefits.
 
 Speaker B [00:31:22]:
 And make sure you're continuing to get.
 
 Nancy Cavey [00:31:25]:
 Your medical records even if you're on claim, so you know what your doctor has said about you. Got it?
 
 Speaker B [00:31:32]:
 I hope you've enjoyed this week's episode.
 
 Nancy Cavey [00:31:34]:
 Of Winning Isn't Easy. If you've enjoyed this episode, please like our page, leave a review, share it with your family or friends.
 
 Speaker B [00:31:42]:
 Please subscribe to this podcast.
 
 Nancy Cavey [00:31:44]:
 This way, you're going to get notified.
 
 Speaker B [00:31:45]:
 Every time a new episode comes out. Please tune in next week for another.
 
 Nancy Cavey [00:31:51]:
 Insightful episode of Winning Isn't Easy.