Exploring Various Occupations, and How Their Performer’s Claims Were Denied or Terminated

Welcome to Season 5, Episode 11 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Exploring Various Occupations, and How Their Performer’s Claims Were Denied or Terminated."

Join attorney Nancy L. Cavey, a leading expert in disability claims, for an insightful discussion on various occupations and the reasons behind denied or terminated disability claims. Many prospective disability applicants mistakenly believe that they are automatically entitled to benefits, regardless of their job or occupation. However, different policies and plans set varying disability thresholds depending on the occupation. In today’s session, Nancy L. Cavey will examine three distinct claims denials or terminations, each involving applicants from different occupations, to explore how (or whether) their careers impacted their claims.

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

One - Why Was Unum’s Termination of Long-Term Disability Benefits for a Johns Hopkins Nurse with Fibromyalgia and Undifferentiated Connective Tissue Disorder Upheld by a Florida Court?

Two - Blue Cross Blue Shield Senior Recovery Specialist’s Unum Disability Benefits for AION Visual Issues Reinstated by Court

Three - How First Reliance Successfully Terminated a Lawyer’s Benefits for Chronic Fatigue Syndrome

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.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

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 [00:00:00]:
 Foreign hey, I'm Nancy Cavie, National ERIs and Individual Disability attorney. Welcome to this episode of Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast isn't legal advice. The Florida Bar association says I have to say that. And 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 now. One of the primary fundamentals, if you will, of disability insurance litigation is that you, as the policyholder or plan beneficiary, have insured your occupation, not your job.
 
 Nancy Cavey [00:01:02]:
 And disability policies or plans have different definitions of the term occupations. And I have found in the course of my practice that the requirements for approving disability can vary depending on a person's occupation. In today's episode, I'm going to explore three different occupations, their corresponding claim denial or terminations. I'm going to talk about how each claim its occupation may or may not have influenced the outcome of their claims and the lessons that you can learn regardless of what your occupation might be. So we're going to talk about three things today. First, I'm going to talk about Unum's termination of a long term disability benefits for a Johns Hopkins nurse with fibromyalgia claim was upheld by a Florida court and why. Secondly, I'm going to talk about a Blue Cross Blue Shield Senior claim Recovery Specialist Unum disability claim for visual issues and how that was reinstated by the court. And lastly, I'm going to talk about how First Reliance successfully terminated a lawyer's benefits for Chronic fatigue syndrome.
 
 Nancy Cavey [00:02:17]:
 So we're going to talk about each occupation, the nature of the disease, why the claim got terminated or denied, and the lessons that can be learned regardless of what occupation you are performing. Got it? Let's take a break. Have you 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. Welcome back to Winning Isn't Easy. Let's talk about Unum's termination of a long term disability claim for a Johns Hopkins nurse with fibromyalgia and undifferentiated connective tissue disorder. I have many of these cases and I know that fibromyalgia and undifferentiated connective tissue disorder is one of the most debilitating medical conditions. In fact, my daughter has fibromyalgia, so we live with this disability.
 
 Nancy Cavey [00:03:23]:
 Insurance companies and plans will often demand objective evidence of functional restrictions and limitations assigned by the treating provider, even though the beneficiary, I mean the policyholder or the plan beneficiary, has been getting benefits for years, crazy as that may sound. So let me tell you the story of Ms. Eggleston, who was a former nurse at Johns Hopkins. She suffered from chronic pain due to arthritis, udct, and fibromyalgia. And despite getting those benefits for years, her claim was eventually terminated. Let's start out with why what's in your medical records can make or break your claim. And Unum regularly had her medical records reviewed through the eight years that it paid benefits. Now, they consistently concluded that her subjective pain prevented her from performing even a sedentary job.
 
 Nancy Cavey [00:04:20]:
 And as we know, nursing is not necessarily a sedentary occupation. But By September of 2021, her condition appeared to be stable. She had relatively normal physical examination findings and normal lab results. Now, as an aside, we know that fibromyalgia will normally present without lab findings, right? That's not the nature of the disease. It's based on physical exam findings, primarily pressure points and trigger points. The other thing that we know is that some unconnective tissue disorders do present with positive lab results. Blood work, serological type tests, but not all of them do. So we've laid the foundation, if you will, for the nature of the disabling medical condition.
 
 Nancy Cavey [00:05:18]:
 But here's the problem. As part of its annual review, Unum conducted a social media investigation. And guess what they uncovered. Posts that suggest she was involved in a catering business. She had traveled to the Caribbean, to Houston. She had attended a wedding, and this marked the end of her benefits. Now, one of the things that is crucial is that her medical records documented regular flare ups and persistent pain. But there was no change in her medication and treatment.
 
 Nancy Cavey [00:05:53]:
 And she wasn't necessarily reporting to her physicians the extent and nature of her physical activities. Her physicians relying on her said, hey, look, we think she is and remains disabled. And ultimately Unum said, no, we're not so sure about that. So they enlisted a nurse, a family medicine provider, and an internist to review her medical records, all of whom concluded that she was capable of engaging in at least sedentary work. Ultimately, this case ends up in federal court in the Southern district of Florida. Now, first off, you need to understand, it doesn't matter how long you're getting benefits. As a practical matter, you have the burden of proving your rights to benefits. I know that in some circuits the case law says, well, if you're on claim for a while, the burden sort of shifts to the carrier.
 
 Nancy Cavey [00:06:45]:
 As a practical matter, I don't find that to be true. And particularly in the 11th Circuit, we have a standard of review called arbitrary and capricious. Basically means that the carrier has the discretion to make all of the benefit terminations and it's essentially a golden handcuff on the judge. Now, the court's job, at least in the 11th Circuit, is to determine not if this decision was right or wrong, as crazy as that may sound, but whether or not there was a reasonable basis for the decision based on the information that Unum had at the time of the claims denial. Now, she had seven treating physicians who consistently reported that she was unable to return to work because of her self reported conditions, her pain levels, her physical exam findings and imaging over many, many years. She also underwent a functional capacity evaluation, which normally is considered to be a gold standard evaluation. But Unum had three medical reviewers who all reached different conclusions. Under erisa, there's no treating physician rule.
 
 Nancy Cavey [00:07:51]:
 That means that the carrier of the plan can interpret medical records differently and assign weight to different medical opinions and assess a person's ability to based on the social media post that's not considered to be arbitrary and capricious. Now let's take this apart. What the problem here was, I think is not so much her occupation. Her occupation was a nurse. That does require her ability to sit, stand, move, lift, concentrate. The problem was, in my view, the social media posts that showed that she was engaging in activity that was inconsistent with those kinds of occupational duties or duties of a sedentary nature. The other problematic concern here was I don't think, at least based on my reading of the case, that the medical evidence really tied in the functional capacity evaluation findings and explained why whatever she may have been doing on social media was not necessarily consistent with work. So number one, stay off of social media.
 
 Nancy Cavey [00:09:08]:
 Number two, make sure that you are giving an accurate history of your symptoms and functionality. The nature of flares, the frequency of the flares, how long they lasted, how they impacted the ability to function. Make sure that your doctor is doing a thorough physical exam documenting all of the objective findings. Particularly if we're dealing with fibromyalgia. There needs to be this consistent report of symptoms and functionality. It needs to be tied together with a functional capacity evaluation endorsed by the doctor and rebutting the conclusions of the peer review doctors. And then of course, what we need to do is have a vocational evaluation report that ties it all together in a nice packet. But when you have a medical condition where your physicians are relying on your subjective complaints, you need to be consistent.
 
 Nancy Cavey [00:10:01]:
 You shouldn't be doing stupid things. You shouldn't be on social media. You shouldn't be posting about traveling. You shouldn't be doing things that are inconsistent with the nature of the disease and the complaints that you're complaining of. So stay out of trouble. Don't do those things. Please. Got it.
 
 Nancy Cavey [00:10:20]:
 Let's take a break. Welcome back to Winning Isn't Easy. Let's talk about a Blue Cross Blue Shield senior recovery specialist whose Unum disability claim for visual issues was ultimately reinstated by the court. We are talking about various occupations and occupational requirements and proof requirements. We can all agree, I'm sure that reading is fundamental. It's required for many jobs, including that of a senior recovery specialist. What does a senior recovery specialist do? Well, they review and process claims. They communicate with customers.
 
 Nancy Cavey [00:11:10]:
 They analyze data, they use a computer, they handle customer correspondence. All of which requires visual acuity. So can someone perform this job if they suffer from something called anterior ischemic optic neuropathy? Aon. It's a complex neuro ophthalmological disorder that causes irregular eye movements and functional blindness. Now it should be evident that self evident that such a condition would make it impossible to perform the duties of a senior recovery specialist or any other occupation. But not to make a bad joke, Unum didn't see it that way in the case of Lundberg versus Unum. Now the Unum company had paid benefits for over three years before terminating them, saying oh wait a second, there's been significant improvement and Lundberg can work in any occupation. I will tell you that medical improvement games are common carriers and plans aren't in the business of paying lifetime disability benefits.
 
 Nancy Cavey [00:12:08]:
 They routinely have their physicians look at medical records looking for any indication or even perceived indication of improvement. Now in the 8th Circuit, courts will evaluate whether an insurer properly terminated benefits by focusing on events that occur between the initial approval and the decision to terminate benefits. In the 8th Circuit, the court noted that while disability carriers aren't required to pay benefits indefinitely, they have to have a significant basis for changing their decision. That's not necessarily true in other circuits such as the 11th Circuit. And in this case, Unum enlisted three peer reviewed doctors who misinterpreted Lundberg's medical records, downplayed the visual issues and vertigo and pointed to a road trip as posed evidence of the ability to work. Ultimately, of course, the judge saw it a different way. The judge ruled in Lundberg's favor, finding that a preponderance of evidence that his symptoms limited his ability to read for more than 5 to 10 minutes or use a computer for more than 15 minutes was compelling evidence of continuing disability. And the court also noted that Unum failed to consider his vertigo and headaches.
 
 Nancy Cavey [00:13:20]:
 What are some of the lessons learned here? Well, in the last segment of this podcast, I talked about the Johns Hopkins case out of the Southern District of Florida, where the 11th Circuit uses the arbitrary and capricious standard review. So one of the key lessons here is that every Federal circuit has a different approach to what disability carriers have to do to terminate benefits successfully. So you need to know the law in your circuit. You've got to review that denial letter. You should be obtaining a copy of the claims file and reading it cover to cover, focusing on the claim notes and peer review opinions, and review your medical records for any sign of improvement. You also want to consult with your physician and request a rebuttal letter addressing the peer review physician and as necessary, prepare a personal and family statements to counter alleged improvements. And lastly, you should be hiring a vocational evaluator so that they can provide an expert opinion about why you can't work. So let's put it all together.
 
 Nancy Cavey [00:14:21]:
 In this particular case, the visual impairments were pretty significant and they would impact any person's ability to work because of the visual issues. Number two, they were objectively defined by vision tests. There weren't necessarily a subjective basis for the diagnosis. It was objectively documented. Now, there was a subjective symptoms and those symptoms impacted a person's ability to function, but they were corroborated by objective diagnostic studies. And so again, look at that nature of the occupation. Occupations require visual acuity. There was objective testing.
 
 Nancy Cavey [00:15:06]:
 The fact that a person takes a road trip is not necessarily relevant whether they can perform any occupation. Unless, of course, they were driving when they shouldn't be driving. Again, that goes to consistency. Think about your occupational duties. Think about why you can't do those duties. Think about the objective proof that corroborates why you can't do those duties. Think about whether you've done any stupid things. And I'm sorry to be nasty about that, but stupid things that are inconsistent with what you're reporting to your doctor.
 
 Nancy Cavey [00:15:39]:
 Once again, today we had a client whose disability claim really went down in flames because of what was on social media. Please stay off of it consistency of complaints, objective findings, not doing things you're not supposed to do are key to maintaining your claim. Got it. Let's take a break. Foreign welcome back to Winning Isn't Easy How First Reliance Successfully Terminated a Lawyer's Benefits for Chronic Fatigue Syndrome now in this podcast episode we've been talking about various occupations, the proof that is required to prove that you can't do your own occupation, the importance of objective medical findings on exam and by diagnostic studies, not doing things that are inconsistent with the nature of your occupation or your complaints about your symptoms. And that's going to hold true in our discussion here about how First Reliance successfully terminated a lawyer's benefits for chronic fatigue syndrome. I will tell you that disability insurance policies or plans place the burden of disability upon proving your disability on you. They'll often require proof of total disability, regular care from a physician, completion of the elimination period, submission of satisfactory proof, and the failure to do any or all of that can result in a claims denial or termination.
 
 Nancy Cavey [00:17:21]:
 Chronic fatigue claims, fibromyalgia claims. Those are the kinds of claims that present unique challenges because generally there is no definite test for the diagnosis. Think about migraines too. There's no gold standard test for migraines, chronic fatigue syndrome. Maybe there's some objective findings, laboratory findings. Same way with fibromyalgia, but more often than not based on a physical examination that in part is based on subjective complaints. And insurers will exploit this by demanding objective evidence when in fact it doesn't exist based on the nature of the disease, but nonetheless insist by the terms of the policy or plan that it's required. And sometimes it is.
 
 Nancy Cavey [00:18:06]:
 And sometimes saying, well, there may not be an objective basis of the diagnosis, but there sure as heck is no objective basis for the restrictions limitations. So let's talk about how this plays out, particularly in the case of a lawyer. In the case of Burris versus First Reliance, an attorney claimed disability due to chronic fatigue syndrome and he provided support letters from his wife, his mother and his self assessment. What happened was that First Reliance raised the common defense that look, this diagnosis is based on self reported symptoms and the court upheld the denial saying, look, you've got to provide objective evidence of functional impairment. Now you may not have to provide functional evidence of the diagnosis, but you sure as heck have to provide evidence of the restrictions and limitations. So how do we go about doing that? Well, in the case of chronic fatigue syndrome or ME CFS or fibromyalgia, there are certain tests that you can undergo. There's a CPET test that will, for example, document the fatigue associated with ME cfs. There are physical exam findings testing called functional capacity evaluations that will measure a person's ability to engage in sitting, standing, stooping, walking, bending in the context of a migraine case.
 
 Nancy Cavey [00:19:30]:
 We also do, by the way, functional capacity evaluation tests. And I want to do them when my person is having a blinding migraine because I want a third party to potentially videotape or observe what's going on with the migraine and how the person may be vomiting, how the person may have postural issues, bending over, trying to pick something up, and they have the migraine syndrome symptoms, maybe even some dizziness or syncope. We want to have, in those instances, an objective third party presenting evidence of the functional reasons why the person has restrictions and limitations. Then, of course, we've got to tie it all together. In the case of a lawyer, you know, we sit, we stand, we walk, we bend, we pick up briefcases, we argue cases, we analyze things. And so we want to be able to document, not only physically, why we would be unable to do Those things, work 12, 14, 16, 18 hours, be in a courtroom, think, write briefs, but we want to also supplement that with, as appropriate, the testing, the ME CFS testing that shows the fatigue, the need to take naps, the functional capacity evaluation that documents the inability to sit, stand, walk, stoop, bend, to have the endurance to maintain the physical requirements of a person's occupation. I am leery about psychological testing if, particularly if the policy has a mental nervous policy limitation, but in the right cases, we'll even do neurocognitive testing to document the impact of the fatigue and other symptoms on a person's cognition. So what happens, of course, in these cases is we want to look at the definition of disability, occupation and proof requirements in the policy of the plan.
 
 Nancy Cavey [00:21:29]:
 Secondly, we want to understand policy limitations. Is there a mental nervous policy limitation, a subjective limitation? Because many times carriers will argue that these types of claims are limited to just two years. If there's a subjective medical condition limitation provision, next we want to understand what's in those medical records. Is there a great medical history of symptoms and functionality? Is there objective proof of the diagnosis, be it based on physical exam or diagnostic studies? Is there an objective basis for the restrictions and limitations that have been assigned? Is it consistent with the nature of the treatment that's being provided, with the level of complaints? Is it consistent with the lack of social media postings? Is it consistent with what family and friends are observing and saying? Is it consistent with any logs that a person might be keeping, for example, a migraine log? Is it consistent with a physician's observations when the patient presents at the doctor's office? Is it consistent with what the doctor has to say about a person's restrictions and limitations in functionality? All of this will play together in proof. So again, you've got to figure out what's the occupation as defined? What are the material and substantial duties? What's the objective basis of the diagnosis? What's the objective basis for those restrictions and limitations? How can we tie it together with proof of a lay nature? And how do we prove it objectively based on objective testing? And how do we tie it all together with vocational opinions? You can see that this is a comprehensive, strategic approach to your particular occupation, your particular disease, the particular policy requirements, and of course, whatever is going on in your particular Federal Circuit in terms of proof requirements. Got it Now I thank you for tuning in to this week's episode of Winning Isn't Easy. If you found this episode to be helpful, take a moment and like our page, leave a review, share it with your family or friends, and subscribe to this podcast. Please.
 
 Nancy Cavey [00:23:45]:
 By the way, you may note that in our show Notes we have a place where you can send us questions or comments. We might even feature your questions in a future episode. And I'm actually looking forward to doing an episode just full of people's questions because I want to make sure that you're not walking away from these podcasts with some question that's burning in your mind that you just want to know the answer to. Got it. Thanks and we look forward to hearing from you. Sa.