Winning Isn't Easy: Long-Term Disability ERISA Claims

Breast Cancer and Disability - Understanding the Condition, Its Impact, and Your Claim

Nancy L. Cavey Season 5 Episode 34

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Welcome to Season 5, Episode 34 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Breast Cancer and Disability - Understanding the Condition, Its Impact, and Your Claim."

Most people assume that a breast cancer diagnosis automatically guarantees Long-Term Disability benefits, but in ERISA claims, it’s rarely that simple. Insurance companies often downplay symptoms, ignore treatment side effects, or misclassify your job duties to deny or terminate benefits. The truth is, even early-stage breast cancer can cause lasting physical and cognitive challenges that make full-time work impossible, and your paperwork must tell that story clearly. In this episode of Winning Isn’t Easy, disability law expert Nancy L. Cavey explains what it really takes to win a breast cancer Long-Term Disability claim. You’ll learn how insurers evaluate cancer-related claims, what evidence they find persuasive, and how to document limitations such as fatigue, pain, cognitive changes, and immune issues so your claim stands strong. We’ll also cover how your cancer stage, treatment plan, and occupation affect an insurer’s decision, and share a real-world case where benefits were cut off too soon and what it took to fight back. If you or someone you love is facing breast cancer while protecting your financial future, this episode offers the knowledge, strategy, and confidence to take control of your claim. Because in disability law, telling your story the right way isn’t just important - it’s essential. Winning Isn’t Easy, but with the right guidance, it can be done.

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

One - Breast Cancer and Its Symptoms

Two - How Breast Cancer Can Be Disabling

Three - Case Example – Lessons From the Kiersman Case

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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Nancy Cavey [00:00:00]:
 Foreign hey, I'm Nancy Cavey, 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. This podcast is not legal advice. The Florida Bar association says I've got to say this, but now that I've said it, nothing will 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. Today I am going to be diving into a topic that has touched hundreds of thousands of Americans every year, especially when it comes to the impact on your ability to work and your rights under the long term disability insurance policy or plan that you might be covered under.
 
 Nancy Cavey [00:00:56]:
 And it's breast cancer. For some, a diagnosis comes with a clear treatment plan and a good prognosis. For others, it can mean aggressive therapy, long recoveries, and complete rethinking of what daily life and even work looks like. Even in the early stages, treatment can have lasting side effects, including fatigue, pain, swelling, cognitive changes, and even a weakened immune system. And for those with advanced disease, the impact of the disease and the treatment can not only be profound, but permanent. And that's where long term disability insurance is supposed to step in and protect your income when the disease or its treatment keeps you from performing your own or any occupation. But if you've ever tried to file a claim for breast cancer, you already know that it's not as straightforward as it should be. Insurance companies may downplay your symptoms, may misclassify your job, cherry pick moments of activity, or even argue that your remission means that you're capable of returning to work to do your own or any occupation.
 
 Nancy Cavey [00:02:02]:
 And that's the case even when the reality is far different. In today's episode, I'm going to walk you through what you need to know about breast cancer and long term disability insurance claims. We're going to cover the stage and type of cancer and what impact that might have on your ability to work, what symptoms and treatment, including side effects that insurers should take seriously, and how to document your claim to avoid the common pitfalls that we see in these types of claims. And then I'm going to look at a real world case where the insurer cut off benefits too soon and what it took to fight back. If you or someone you love is navigating breast cancer while trying to protect their financial future, this episode is for you. So let's get going. I'm going to Talk about one, breast cancer and symptoms. Two, health, how breast cancer can be disabling.
 
 Nancy Cavey [00:02:49]:
 And three, I'm gonna give you a case example of what one of these ERISA disability cases look like and how it can play out. Got it. All right, we're gonna take a break for a moment. Before we get started, have you been.
 
 Speaker B [00:03:02]:
 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 [00:03:36]:
 Welcome back to winning isn't easy. Breast cancer and its symptoms. Now, the Cleveland Clinic of Florida estimates that breast cancer affects over 200,000 women each year in the United States. And while it's more common in women, men can also have breast cancer. The type, location and spread of cancer are all going to play a role in how it's treated and whether ultimately it might become disabling. Treatments often include radiation therapy, chemotherapy, hormone therapy, targeted biological agents, surgery, or a combination of all these approaches. The goal obviously is to stop the cancer growth, prevent its spread, and to improve survival rates. But we know that the process is grueling.
 
 Nancy Cavey [00:04:20]:
 I want to start out by talking about the six stages of breast cancer and how disability carriers or plans may view the claim based on the staging. Now, while not every stage is immediately disabling, the stage of the cancer diagnosis often dictates the treatment plan and recovery timeline. And I think that knowing the differences can help explain why some people can't work for months or even years. So stage zero cancer cells are inside the breast duct. There's no invasion into the surrounding tissues. This stage is often referred to as ductal carcinoma. In sutai dcis, while the progress is excellent, treatment can still involve surgery and radiation, which which can have lasting side effects. And it's the surgery and the radiation which potentially will give rise to a long term disability claim.
 
 Nancy Cavey [00:05:13]:
 Stage one is tumor size. It's under 2cm and is confined to the breast. Now, this may require a lumpectomy or a mastectomy, often followed by radiation or chemotherapy to ensure that no microscopic disease remains. Stage 2A is where there is no tumor that's found but in the breast itself. But the cancer cells are detected rather in axillary lymph nodes, basically under your arms. Surgery plus systematic treatment are often necessary. And I find that there are many complications that can result in a disability claim as a result of treatment of the lymph nodes. Stage 2B, the cancer has reached the chest wall or the skin of the breast and has spread to the auxiliary lymph nodes.
 
 Nancy Cavey [00:05:59]:
 Recovery generally requires multiple surgeries, radiation and extended chemotherapy cycles, again giving rise potentially to a claim for disability benefits. Stage 2C is where the cancer is spread to the chest wall, to skin, the axillary nodes and lymph nodes near the breastbone and the collarbone. This is considered to be a locally advanced disease and often requires aggressive treatment. And then stage three four is a different ball game. And stage three indicates that there is an extensive spread and to the regional lymph nodes or the chest structures. And stage four means that the cancer has metastasized to distant sites like bones, liver, lungs or the brain. Now, these stages are typically disabling both from the disease itself, but from the ongoing effects of the treatment. Now we've established the basics.
 
 Nancy Cavey [00:06:50]:
 Let's talk about the common symptoms of breast cancer. And it's really important that you are documenting in your medical records the nature of your symptoms and how those symptoms impact on your functionality. We know that symptoms can vary from person to person. Some people will notice a physical change before the diagnosis. Others will discover the cancer only during routine screening without any signs or symptoms. But let's talk about the common signs and symptoms. First would be swelling or part of all the breasts, even without a distinct lump. Second is going to be skin irritation, redness or dimpling that may resemble an orange peel.
 
 Nancy Cavey [00:07:31]:
 Next, pain or tenderness in the breast or nipple. Next, a lump in the breast or in the underarm area. Next, the nipple turning inward, which is called retraction, or a sudden change in its appearance. Red, dry, flaky or thickened skin on the nipple or breast. Next, a nipple discharge that is not breast milk, that's sometimes tinged with blood, or an enlarged lymph node under the arm or or near the collarbone. So those are the basic symptoms. But now let's talk about why those symptoms matter in a long term disability claim. From a long term disability insurance standpoint, and even from a Social Security standpoint, the severity, frequency and persistence of the symptoms should be documented.
 
 Nancy Cavey [00:08:13]:
 Even early stage cancer can be disabling if the treatment side effects cause pain, swelling, limited range of motion, all of which can impact your ability to perform not only key duties of your job, but key activities of daily living. In other words, swelling and tenderness in the chest or the underarm can make lifting, reaching, or even sitting at a desk difficult and painful. The dimpling of the skin or the skin thickening can seem cosmetic. But it can indicate deeper tissue involvement that can require aggressive treatment. Can also pain impact or impede your range of motion. It is really important that you are documenting these symptoms not only at your original visit, your initial visit with your provider, but at each subsequent visit. They're called interval visits. What happens is that we want to make sure that your medical records are documenting the symptoms, the nature of those symptoms, the frequency of those symptoms, how those symptoms impact your ability to function, not only at work or at home.
 
 Nancy Cavey [00:09:20]:
 And to the discuss if there are any side effects of treatment at that stage and how those side effects impact your ability to function not only at home but at work. As you are preparing what I think you should be doing a document for your doctor giving them the interval history. I want you to think backwards. Think about this period of time between your visits and what's occurred to you and give real life examples of the problems you are having at home or at work. It may be that you have problems with fatigue, problems with concentration, problems with swelling of your arms because of lymphedemia or difficulty using your arms or shoulders in front of you, whatever the difficulty might be. You should also be explaining that to your doctor and give some good examples. I suggest that you give that document to your doctor and ask that it be made part of your record. But you need need to keep a copy of that document because it will be used later in your long term disability claim and potentially your Social Security disability claim.
 
 Nancy Cavey [00:10:24]:
 Got it. Let's take a quick break. Welcome back to Winning isn't Easy how breast cancer can be Disabling the diagnosis, unfortunately, as you know, is just the beginning. Many people will underestimate the toll the treatment takes on their body and their mind. Even early stage cancers can lead to significant disability depending on the intensity of the treatment and the side effects. So let's talk about the physical and cognitive side effects of treatment because I think this is crucial to document in your medical records. The common long term residual effects of the treatment can include chronic pain and that can be from the surgery, from the radiation, or even the cancer itself. You will have fatigue and extreme exhaustion that rest does not resolve.
 
 Nancy Cavey [00:11:24]:
 So we want to document the nature of that fatigue. Naps that you might want to be taking, for example, or have to take how long those naps last and how you feel after those naps. You might have lymphedema, which is swelling caused by the removal of or the damage to the lymph nodes. It might be that you have significant swelling of your arm and that still occurs Even while you're using a compression stocking on your arm, the swelling and the use of the compression stocking can impede your ability to use your arm and your hand. Of course, there's the chemo brain and there's cognitive impairment that affects memory, focus and processing speed. I will tell you the disability carriers do not understand chemo brain. You may go in and see the doctor and the doctor asks you basic information and you're oriented to place, location and time. Disability carriers will seize on that to say, hey, there's no cognitive issue.
 
 Nancy Cavey [00:12:20]:
 Many times you should consider having neurocognitive testing to document the extent and nature of the memory, focus and processing speed issues. But be careful. Many disability carriers have plans, policies or plans that have mental health nervous limitations in them. Let's say if your disability is caused or contributed to, and is that contributed to language, then benefits are limited to just two years. Obviously you have good reason to be depressed and if you're having any psychological issues, they can impact not only the results of the cognitive testing, but can lead to a diagnosis of depression, which in turn, depending on the terms of your policy, might lead at the end of two years for the disability carrier plan to say, hey, your disability is contributed to by your depression and your benefits are limited to two years. And we'll talk about that more. But I want you to be aware of that. The chemo brain is a normal side effect, unfortunately of treatment, but that can play out both ways.
 
 Nancy Cavey [00:13:26]:
 In a disability claim, you might have neuropathy, which is numbness or tingling from chemotherapy. And I see this a lot, not only in the lower extremities, but in the upper extremities. Most work these days requires bilateral manual dexterity, the ability to use your hands. If you've got tingling or numbness and you have difficulty feeling gripping things, turning things, that's really important because that can impact your ability to do your own or any occupation. You might also have weakened immune system and that could make it unsafe to work in certain environments. And unfortunately, disability carriers don't always take that problem very seriously, particularly in the day and age of the ability to work at home, where you're working in a remote location and you're not being exposed to individuals that might pass on to you certain illnesses or diseases that would be devastating because of your compromised immune system. Now, from a long term disability perspective, your disability carrier plan should consider all of these symptoms. Not only the physical symptoms, but the cognitive symptoms, so long as they are backed up by objective medical evidence.
 
 Nancy Cavey [00:14:35]:
 That's why I think treatment from your medical providers is so critical. Let's take a break for a moment because then I'm going to come back and talk about triple negative breast cancer and long term disability claims. So let's talk about triple negative cancer and long term disability claims. About 10 to 20% of breast cancer are triple negative, meaning that they lack estrogen receptors, progesterone receptors, and an excess HER2 protein. Now, this type of cancer is more aggressive and more likely to reoccur and it's more challenging to treat because the hormone therapy and HER two targeted drugs can be ineffective. Triple negative breast cancer is often seen in women younger than 40 and it can be linked to genetic mutations. But the symptoms are the same, if you will, in terms of other types of breast cancer. You can have swelling, lumps, pain, skin changes and lymph node enlargement, but the treatment is often more intense and the side effects are more severe.
 
 Nancy Cavey [00:15:48]:
 If your treatment, regardless of the nature of your cancer, causes disabling symptoms, whether it's physical limitations, cognitive issues, or immune suppression, you can potentially qualify for your disability benefits. But it's going to be a matter of let's talk about the long term disability claim perspective so you understand some challenges that you might face. And I want you to understand them now because they're going to arise not only at the initial application stage, but in the life of this particular claim. Now, from the long term disability claim perspective, the disability carrier is going to want to see a diagnosis and the objective basis of the diagnosis based on testing and staging. They also want to understand what your physical or cognitive or even psychological restrictions and limitations might be. Because ultimately it's your burden of proof to prove that that you can't do your own or any occupation. Your doctor is going to be asked to complete some forms called activity of daily living forms. I don't think they ask the right questions.
 
 Nancy Cavey [00:16:55]:
 So in the breast cancer cases that I handle, we supplement that APS form with a Social Security disability breast cancer residual functional capacity form. And I would hope that you would also be applying for Social Security disability benefits at the same time as your long term disability claim is pending. You can use that residual functional capacity form in both claims. But the point I'm trying to make is that the residual functional capacity form really asks the right questions about your functional restrictions and limitations because ultimately you have the burden to prove this causal connection between your restrictions and limitations and your inability to do your own or any occupation, depending on the stage of your claim. Remember, you're also going to be required to be continuing to have medical care even when you are in remission. I will tell you that insurers will often challenge claims if you appear to be too active in your daily life. They're going to be checking your social media. Now.
 
 Nancy Cavey [00:17:57]:
 They also will play the game of misclassifying your job, particularly when you may be quote unquote in remission. And they're going to say, well, because you're in remission, you can go back to whatever your job might be and we're going to misclassify it so it's actually easier than how you may have performed it. That's another game you need to be aware of. Again, that's something that you are going to want to challenge if that's happening to you. They're also going to be looking closely at your medical records. They're going to be looking for that connection between your symptoms, the restrictions and limitations, and an inability to do your own occupation. So that's why I am always harping on giving that really good interval history of symptoms and functionality so that the carrier, as they read your medical records, can see not only the story of your medical condition, but can also see the story of your functional restrictions, limitations, and why you can't do your own or any occupation. Got it? Let's take a break.
 
 Speaker B [00:19:00]:
 Are you a 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 are giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order your yours today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:19:49]:
 Welcome back to Winning Isn't Easy. Let's talk about a case example involving a breast cancer case and how one disability carrier screwed it up. But this is typical of what happens in a breast cancer claim and a disability claim. So I want you to understand the games that are being played. The case is Kiersman v. Unum Life, and it serves, in my view, as a clear example of how disability carriers will often minimize or distort the realities of breast cancer recovery. Now, Dr. Kirsman was an emergency room physician.
 
 Nancy Cavey [00:20:20]:
 She was diagnosed with stage four metastatic breast cancer, meaning that the cancer had already spread to her liver and her ribs. Her treatment included chemotherapy, a lumpectomy, hormone therapy, and a liver ablation. She took a full year off of work to focus Entirely on her treatment and recovery. When she returned, her oncologist approved her to work only 50% of her previous schedule with no night shifts. And that was done to help her manage her severe fatigue and to limit her exposure to infections. Now, having been in the emergency room many times, I know that it's a physically demanding and cognitively intense job. Every shift involves a very quick decision making process, prolonged standing and exposure to all sorts of diseases. Despite this, Unum initially paid her residual disability benefits for the reduced hours and then abruptly terminated them, saying miraculously she could go back to full time duties.
 
 Nancy Cavey [00:21:22]:
 I want to talk with you about Unum's five arguments because these are common arguments that we see in every type of disability claim, not just a breast cancer claim. So number one, job misclassification. They incorrectly labeled the emergency room physician work as light duty. Emergency room medicine requires continuous high stress, high intensity performance, not only physically but cognitively. Number two, they discredited her oncologist. They claimed that her physician fabricated restrictions after benefits were denied despite previously accepting those same restrictions. That's disgusting. Number three, activity misinterpretation.
 
 Nancy Cavey [00:22:06]:
 They argued that doing yoga, doing light exercise and taking family vacations were inconsistent with her disabling fatigue, disregarding the fact that this occasional light activity doesn't equate with working 12 hour ER shifts and is not the same physically or cognitively in terms of the demands. Number four, they ignored treatment side effects. This is something I see all the time. They dismissed her documented fatigue, her nauseousness, her cognitive slowing and the pain from the chemotherapy and hormone therapy. And number five, they overlooked the infection risks. Now again, this is one that disability carriers or plans will play. They will often ignore heightened dangers of working around contagious patients who are in contagious situations where an immunocompromised person can ultimately contract something that can result in further illness or even their death. As I've said before, sometimes disability carrier or plans will say, well, this is an occupation that could be performed remotely and therefore you have no exposure.
 
 Nancy Cavey [00:23:20]:
 Whether they can say that or not really depends on the terms of the policy, of the plan, and of course the facts of each case. But that's the five games that I will normally see in a disability claim. Now, what did the court say? Well, the court sided with Dr. Kirsman. The judge rejected Unum's reasoning, noting that occasional personal activity does not prove that somebody can perform the material and substantial duties of a high demand medical role. The court found that Unum's dismissal of the medical evidence and her mischaracterization of her job were unreasonable and benefits were reinstated. So congratulations to Dr. Kurzman.
 
 Nancy Cavey [00:24:00]:
 So what are the key lessons here? One challenge wrong disability carrier plan job analysis. You want to make sure that the occupational classification reflects your actual duties and not some watered down version or an imagined version of what they may think your the material and substantial duties of your occupation are. Number two, ensure that your physician's statements are detailed. Medical opinions should directly connect your symptoms to your inability to perform essential job tasks. That's why we like to use that Social Security breast cancer residual functional capacity form because it really highlights the functional, physical and cognitive problems that most breast cancer patients and policyholders or plan beneficiaries will suffer from as opposed to that generic APS form that asks questions that really aren't relevant. Number three. Explain your activity limitations. Now if you are able to do personal activity like yoga, like taking a family vacation, you want to explain how you were able to accomplish that, what accommodations may have been required and and the price that you paid for doing that activity, you might have worn yourself out and be less functional or non functional for a week, two weeks or even longer.
 
 Nancy Cavey [00:25:13]:
 So you want to explain the activity limitations and how that activity impacted your ability subsequently to function. Number four, Document please every treatment side effects. Now, side effects are not extra symptoms. They are the symptoms that you are having not only as a result of your underlying medical condition, but as a result of the treatment. So I want you to think about them separately, but then I want you to think about them combined. Because it's in my view the combination of these situations, these treatment side effects and the underlying medical condition that explain why you can't engage in work and full time work. Number five, address workplace safety issues. If your immune system is compromised, working in certain environments can put you at life's risk and you want to have your doctor comment on that.
 
 Nancy Cavey [00:26:06]:
 So what are the broader implications here? I think that this case highlights the larger truth that long term disability claims for breast cancer often fail not because you aren't disabled, but because the insurance company reframes the narrative. They create your own curated reality. They'll focus on snapshots of activity rather than sustainability. They'll use incomplete job descriptions. They'll ignore the realities of cancer recovery. So proactive documentation, detailed physician support and anticipating insurer tactics can be the difference between an approved claim and a drawn out legal battle. And as part of that battle, we do need to understand that many times there are the disability insurance policies or plans. This mental nervous policy limitation that says benefits are limited to just two years if your disability is caused or contributed to by a psychological condition.
 
 Nancy Cavey [00:27:05]:
 Now, not every plan or policy has this contributed to language, but I want you to understand that that can play a role when there's a transition from own occupation to any occupation or when they might have the ability to apply that two year mental nervous policy limitation. Obviously and realistically, depression is part of the process of breast cancer and its recovery, its treatment, your reality. But we need to make sure that the medical provider is documenting that while you might have depression or anxiety, that that does not contribute to your disability. So you can see that careful planning is really important in a breast cancer disability claim. Got it. Well, thank you for tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review, and share it with your family and friends. Share and of course, subscribe to our podcast.
 
 Nancy Cavey [00:28:09]:
 You'll get notification when every new episode drops. I also want to ask you to make a comment because I love commenting about questions that people have about our episodes and I love featuring them in future episodes. So we want this to be a dialogue. Please join us next week for another insightful discussion. Thanks for listening, Sam.