The Burden of Proof: Inside Neurological Disability Claims

Welcome to Season 6, Episode 23 of Winning Isn't Easy. In this episode, we'll dive into The Burden of Proof: Inside Neurological Disability Claims.

Disability insurance claims involving neurological conditions are frequently misinterpreted as disputes solely over medical evidence, but the outcome often hinges on how symptoms are documented in medical records and how they are interpreted and evaluated under ERISA. Conditions such as migraines, Parkinson's disease, and trigeminal neuralgia can result in profound functional limitations while leaving little objective evidence on imaging or clinical testing, creating opportunities for insurers to challenge the severity of a claimant's disability. In this episode, attorney Nancy Cavey examines three disability cases that illustrate how carriers rely on treatment gaps, reports of improvement, normal diagnostic findings, and perceived inconsistencies in medical records to deny or terminate benefits. She discusses a chronic migraine claim upheld in federal court, strategies for documenting subjective Parkinson's symptoms, and a trigeminal neuralgia case in which a federal judge rejected an insurer's demand for objective proof of debilitating pain. Together, these cases demonstrate that medical records serve as both treatment histories and the foundation of ERISA disability claims, shaping how insurers and courts evaluate eligibility for Long-Term Disability benefits.

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

One - How to Avoid Having Your Chronic Migraine Long-Term Disability Claim Denied

Two - Tips on How to Document Dizziness, Vertigo, and Balance Problems in Your ERISA Parkinson’s Case

Three - Does Trigeminal Neuralgia Qualify as a Sickness or Injury Under a Cigna Disability Insurance Policy?

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 - 00:01:04]

Foreign. Disability insurance companies and disability plans often give you hope that they will pay your disability benefits right up until you your medical records give them an excuse not to. In this episode, I'm going to break down how disability carriers or plans attack migraine, Parkinson's and chronic pain claims. By focusing on gaps in treatment, improvement in symptoms, normal MRIs, and supposedly missing objective evidence. I'm going to show you exactly how these claims are lost, how medical records are weaponized, and what federal courts look for when deciding whether a disability insurance company or plan has have crossed the line. I'm Nancy Cavie, National Harris of Disability and IDI Disability Attorney. Welcome to this episode of Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer.

Nancy Cavey [00:01:04 - 00:01:59]

This podcast isn't legal advice. The Florida Bar association says I have to tell you that. And now that I've told you that it isn't legal advice, nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games that carriers play, and and what you need to know to get the disability benefits you deserve. So off we go. Now, if you suffer from migraines, Parkinson's disease, trigeminal neuralgia, or any other neurological condition, you already know that one of the biggest problems in a neurisive disability claim is that many of your symptoms are subjective in nature. Pain, vertigo, brain fog, sensitivity to light, dizziness, cognitive slowing, fatigue. Now I know that these conditions can completely destroy your ability to work while leaving little or no objective evidence on an mri, neurological exam or clinical test. And guess what? Disability insurance companies and plans know it.

Nancy Cavey [00:02:00 - 00:03:09]

In this episode, I'm going to walk through three examples that reveal exactly how ERISA disability carriers or plans evaluate and often deny these types of claims. First, I'm going to examine a chronic migraine case where where the insurance company used medical records, treatment gaps and reports of improvement to terminate benefits, and why a federal judge upheld the denial. Then I'm going to discuss how people with Parkinson's can properly document dizziness, vertigo, balance issues, neurogenic orthostatic hypotension, and other symptoms that carriers will often dismiss as subjective complaints. And I'm going to end with a federal court victory involving trigeminal neuralgia, where a judge rejected an insurance company's attempt to argue that debilitating facial pain wasn't supported by objective evidence. So by the end of this episode, I want you to understand one of the most important truths in a risk of disability law. Your medical records are not just treatment records. They're evidence. Every symptoms you report or don't report, every treatment gap, every statement about improvement, every description of your functionality can determine whether your benefits are are approved, denied or terminated and ultimately won in federal court.

Nancy Cavey [00:03:09 - 00:03:33]

So let's dive in. I'm going to talk about three things. Number one how to avoid having your chronic migraine Long term disability claim denied 2. Tips on how to document dizziness, vertigo and balance problems in your ERISA Parkinson's case.3 Does trigeminal neuralgia qualify as a sickness or injury under a CIGNA disability insurance policy? Let's take a break before we jump into this episode.

Speaker B [00:03:34 - 00:03:52]

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.

Nancy Cavey [00:04:05 - 00:05:44]

Foreign welcome back to Winning Isn't Easy how to avoid having your chronic long term disability claim denied now, you may have purchased a disability insurance policy or enrolled in your employer's disability plan, hoping that you'd never need to file a disability claim. But what happens if you're a chronic migraine sufferer and subsequently become unable to work because of chronic migraines? What happens if your claim is denied? And what lessons can you learn from one federal judge? So let me tell you the story of a chronic migraine sufferer, Gerard Reiger, who was the Associate Director of Information and Technology, and he stopped working for his employer, Allerjohn, because of severe chronic migraines. He had suffered from migraines since age 7, and in the fall of 2020 he began to complain of sensitivity to light, smells, unbearable radiating pain, vomiting and sleep disturbance. At that point he had as many as 15 migraine days per month, which would last on average four hours. He applied for his disability benefits and Reliance Standard Life approved his claim for long term disability benefits on March 25, 2021. Now, under the terms of the disability policy, he had to be totally disabled from performing the material duties of his own occupation for 24 months and thereafter. Rather, the definition of disability changed from an inability to do any his own occupation to any occupation that he could do based on his education, training or experience, and the approval letter indicated that an investigation would be ongoing to determine his entitlement to benefits. Let's talk about the medical records that doomed the claim.

Nancy Cavey [00:05:45 - 00:07:06]

Now, on May 24, 2021, the day before the claim was approved, guess what? They did Reliance's clinical staff reviewed his pain management records from the period from September 14, 2022 through March 21, 2021, and guess what? They noted improvement in his physical functioning, sleep and overall functioning. They reviewed the records from the neurologist who noted that the MRI was unremarkable as expected. And they reviewed records from December 7, 2020 to January 19, 2021. Now, in that period of time, he had received Botox injections every three months, occipital nerve blocks and monthly AJOVI injections. It was noted that his migraine cycle was about every two weeks with nauseousness and vomiting. So, as promised, Reliance continued to monitor his condition and on October 8, 2021, continued approving his benefits until March of 2022. But I guess what they were doing, they were still reviewing the medical records and they reviewed the neurologist progress reports, did not document migraine frequency over the last three months and noted a gap of treatment from October of 2021 to February of 2022. So guess what? They began to question the frequency of the monthly oxycodone prescription and in part because Tylenol and oxycontin can cause or contribute to rebound headaches.

Nancy Cavey [00:07:07 - 00:08:09]

So they were looking for absence or treatment improvement and what could also cause the migraine headaches. And based on the available medical records and a decrease in treatment frequency, the clinical staff concluded that his migraine frequency had stabilized and it returned to baseline. They noted that the objective clinical examination did not support migraines at the level of severity to prevent or impair consistent light work function and that the current records did not document any urgent or emergency migraine treatment. And that's kind of, excuse me, language that you will see in denial termination letters. Objective evidence doesn't support migraines at the level of severity to prevent or impair consistent light work. Current records don't document any urgent or emergency migraine treatment. Those are the typical clauses or phrases that I see in these denial letters that they will conclude based on a review of the medical records. And of course they'll cite that the physical exam was normal, as one would expect in a migraine case.

Nancy Cavey [00:08:10 - 00:08:49]

And they alleged that there was no evidence of improvement of activities of daily living, including driving. Now, I don't know what he put on his ADL forms, but certainly they were going to look at those. Also, Reliance Standard had its peer reviewed doctors contact his treating physicians. None of the examinations by the physicians documented any physical functional impairment or even suggested restrictions and limitations. And they argued that his migraines were managed with Botox. His claim was ultimately denied. Ultimately, a lawsuit was filed in federal court. So what we have is a federal judge reviewing the claim file.

Nancy Cavey [00:08:49 - 00:09:41]

Unfortunately, the policy had an arbitrary and capricious standard of review, which means that the denial has to be unreasonable or unsupported by the medical records. It's a federal judge's handcuff, if you will. It's difficult for them to undo a denial. But what the court found was that longitudinally, much of Mr. Reiger's medical condition remained the same or similar, that there had been significant indications of improvement in the medical records, including day to day functioning. And the court did not like that gap in medical treatment from October of 2021 to February 15, 2022. And they did look at the medical records to look for improvement. Now, rer addressed each of these arguments in his brief, saying, look, my condition hasn't improved and I never return to the baseline.

Nancy Cavey [00:09:41 - 00:10:50]

His opening salvo was that Reliance Standard arbitrarily demanded objective proof of an inherently subjective condition. Now the court disagreed, saying Reliance Standard didn't require objective proof of the undefined disputed migraines, but what it did require and was entitled to require was objective proof of functional limitations. You as the policyholder or plan beneficiary, have the burden to prove each month that you meet the applicable definition of disability and are getting appropriate care. Now, ultimately, the court rules against RGOR because of that medical history. So in my practice, we have developed a formula that we want clients to use, and the formula is this, and let's take this in terms of migraines, for example, but it's applicable with every other medical condition. Write down the diagnosis on the top of a piece of paper on the left hand side. Write down all the symptoms you may have one, you may have 15. As you move across the piece of paper, talk about the location of each of these symptoms, talk about the duration of the symptoms, talk about the frequency of the symptoms, and give an example.

Nancy Cavey [00:10:50 - 00:12:11]

So let me walk you through this. People with migraines have possibly four stages that you might want to document. You might have a daily underlying nagging headache, so you want to document. Where's that daily headache located? How does it change in the course of the day? How long does it last? And how does that nagging headache interfere with your daily functioning? Now, phase two, the daily headache might become a migraine, but you have pre migraine symptoms. So what are they? Pressure, nauseousness, vomiting, visual issue, sensitivity to noise or lights. Where are those symptoms located? How long do those symptoms Last? What do you try to stop or minimize the migraines? Do you take medication? Does the medication work? How long do those pre migraine symptoms last before you've taken the medication and after you've taken the medication? So how does that pre migraine stage impact your functionality? In other words, what can't you do? But let's talk about stage three, the actual migraine. What are the symptoms? What do you do to deal with the migraines? How long does a typical migraine last? How often do you have a migraine and what's the impact that that migraine has on your functionality? And at a minimum, you should be giving this information to your doctor. But I also think there's a fourth stage, and that's what I call the post migraine hangover stage.

Nancy Cavey [00:12:12 - 00:13:32]

You want to describe what it feels like. Is it cognitive? Is it physical? Is it both? What are the symptoms? How long does it last? Do you do anything to try to reduce that migraine hangover? And what's the impact on functionality when you're having that post migraine headache stage? So what you're doing is giving this information to your doctor at each visit and better yet, giving that history and keeping a migraine pain diary. You want to keep a copy for yourself and you ultimately want to submit it to the disability carrier and make sure you're including your reaction response to different medication trials, including Botox. How about reporting improvement in functionality? Now, hopefully you're improving with treatment, but how do you report that improvement? What's improved? What hasn't improved, notwithstanding the improvement, what problems do you have with functionality and what couldn't you do on your own occupation or any occupation as those terms are described in your policy or plan with those improvements? I don't like the word improvement. Or better yet, the doctor asks you how you're doing and you say you're fine. That's not a description. That is a weapon that the disability carrier plan is going to seize on. So what they're looking for is stabilization and a reduction in the frequency or nature of the migraines.

Nancy Cavey [00:13:32 - 00:14:05]

But just because you're stable doesn't mean you can't work. So the report of your functionality is crucial. Even though you quote, unquote might be stable or you quote unquote might be improving. What you need to do is explain to your doctor what you can't do because of migraines or the side effects of medication. Let's also talk about gaps in treatment. I guarantee you there will be a clause in your policy that or plan that says you have to get appropriate medical treatment. And normally it will also say with a frequency that's appropriate. In Rieger's case, there was a gap in treatment that was fatal.

Nancy Cavey [00:14:05 - 00:14:45]

His attempt to justify it on the basis that there was a dispute with his health carrier about the Botox injection really didn't go so far. The court noted that there wasn't any issue with the health care carrier about his doctor's visits. And the court said, look, you might not have been able to get the Botox injections, but that isn't a reason for you to have stopped getting treatment and you could have gotten treatment that you didn't. So too bad. So sad. Now, the nature of your treatment is also an issue. Every disability policy or plan requires appropriate medical treatment. But what is appropriate? That term isn't often defined, but if it is, read that provision closely because you have to get appropriate treatment as that term is defined.

Nancy Cavey [00:14:45 - 00:16:33]

So in Rieger's case, of course, there was the issue of was the medication he was taking appropriate? Does it cause side effects like rebound headaches? Is the medication effective? What's the dosage? Has the doses been changed? What's the length of time between injections and what's your response to that injection therapy? Has the doctor changed your medication based on the Botox injections? In other words, your physician needs to document all that in detail. And of course, you should be giving history to your physician about those very things. Please keep in mind that these are the things that can make a difference between getting your benefits and meeting your burden of proof or having a federal judge uphold a claim, denial and termination. Let's take a break. Welcome back to Winning Isn't Easy. Let's talk about tips on how to document dizziness, vertigo and balance problems in your ERISA Parkinson's case. I know that dealing with a long term disability claim, a denial or termination is terrifying and frustrating. When you're unable to work because of Parkinson's, the last thing you need to do is to deal with an insurance company who's playing games with your claim, asking for more information, claiming they didn't get what you sent, cherry picking your medical records and causing you all sorts of needless stress.

Nancy Cavey [00:16:34 - 00:17:48]

So let's talk about why what's in your medical records matter. You've got the burden of proof of proving to the disability carrier that you're entitled to your benefits every month. And to do so, I think you need to understand the policy or plan definitions of disability or occupation. Now, there's no uniform definition of either and the terms in your particular policy of plan are key. Why? Well, disability carriers and plans are going to review your medical records with a fine tooth comb. They're going to look for the absence of symptoms, the improvement of symptoms, improvement in testing results, improvement in functionality, and they're going to measure all of that against the definition of disability, and they're also going to measure that against the definition of occupation. As a result of these symptoms, are you unable to do the material and substantial duties of your occupation, as that term is defined in your policy or plan? Are you unable to do the material and substantial duties of your occupation, as that term again is defined? And I know I may have repeated myself here, but you need to understand that definition. Sometimes it's material and substantial duties, many times it's essential duties.

Nancy Cavey [00:17:48 - 00:18:52]

It might be how the occupation is defined by the Dictionary of Occupational Titles. So you need to understand what that definition of occupation is and disability and understand how that plays out in a Parkinson's case. Well, how about documenting dizziness, vertigo, imbalance issues in your ERISA Parkinson's case? I often hear my clients complain of dizziness, vertigo and balance problems. And these symptoms are often caused by neurogenic orthostatic hypertension and medication. These are non movement symptoms and they're considered to be subjective in nature, unless testing will confirm vestibular dysfunction. The orthostatic hypotension, which is a drop in blood pressure, often happens when you go from a seated position where from lying down to standing. Now, when OH is related to a neurological disorder like pd, it's called neurogenic hypotension or noh. And as a result of pd, damage to your nervous system can make it difficult, if not impossible, for your body to make or release dorephyrin.

Nancy Cavey [00:18:53 - 00:19:49]

Now, that's a chemical that constricts blood vessels and raises blood pressure. That can cause dizziness or lightheadedness when you stand up. And it can cause weakness, difficulty thinking, headaches and visual issues. So I suggest that you report this to your doctor. Be screened for no H at least once a year, document your blood pressure, document that you're drinking fluids and stay hydrated, Document about the use of your bath, the bathroom, the frequency with which you're using the restroom, how long you're in the restroom, document the use of compression stockings or abdominal binders, and be evaluated for benign proximal vertigo. You should be seeing a physical therapist who is an expert in vestibular rehabilitation if you're having those issues. And of course, you want to Document your use of home exercises that you were taught for your bppv. And lastly, document the use of prescription medication.

Nancy Cavey [00:19:49 - 00:20:06]

Those are the kinds of things that disability carriers want to see that will document the nature and extent of your symptoms, the frequency of your symptoms, the efforts at treatment of those symptoms, and how those symptoms impact your ability to function. Got it? Let's take a break.

Speaker B [00:20:07 - 00:20:42]

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Nancy Cavey [00:20:47 - 00:22:13]

Foreign. Welcome back to Winning Isn't Easy. Can dry general Neuralgia qualify as a sickness or injury under a CIGNA disability insurance policy? Now, according to the National Institute of Health nih, trigeminal neuralgia is a chronic pain condition that affects the trigeminal of the nerve of the fifth crown cranial nerve and it's one of the most widely distributed nerves in the head. It can cause extreme sporadic burning and it can also cause shock like facial pain that can last for a few seconds or even up to two minutes per episode. So why is this important? So let me tell you the story of Edward Elliot, who was a vice president of a brokerage firm. He was a participant in their group disability policy issued by Lina, and he submitted a claim to them alleging he became disabled on September 5, 2024 because of trigeminal neuralgia. He was initially paid his short term benefits under a separate short term disability policy that paid benefits for three months before his claim was denied. Now his claim for long term disability benefits was denied on the basis that he hadn't satisfied the elimination period, that his trigeminal neuralgia wasn't a sickness and it wasn't an injury and and therefore it didn't meet the definition of disability.

Nancy Cavey [00:22:14 - 00:23:09]

He had filed a claim with the State of California for disability benefits under their state program. He filed a Social Security disability claim and guess what? They were approved in part based on his trigeminal neuralgia, the severe facial pain and his chronic migraines. Ultimately, he files a lawsuit in federal court regarding the disability insurance coverage and it's decided on a de novo basis, which means that the judge was not bound by the decision to deny his benefits. So the court got to determine whether he had proved that he was disabled under the terms of the policy and he wasn't. The judge wasn't required to give deference to the denial. So let's parse these defenses. The first offense is that the is what we call the elimination period defense. The policy provided that to be entitled to benefits, he had to satisfy the elimination period of 180 days if and that he had to be continuously disabled before benefits were payable.

Nancy Cavey [00:23:09 - 00:23:51]

So let's do some math and calendar work here. Elliot claimed he was disabled on September 6, 2014. Rather, I apologize, I think I earlier said 2024. But the elimination period would have ended March 4, 2015. And so the court reviews the medical records in that timeframe and says, hey, is he disabled during the elimination period? The court agrees. The second defense is the injury or sickness game. Now, he stopped working because of the pain that his treating provider attributed to the trigeminal neuralgia. Lyta argued that there wasn't any objective evidence to support the diagnosis, but he was evaluated by multiple medical specialists with worsening face pain and side effects from the medication.

Nancy Cavey [00:23:51 - 00:24:35]

He complained of explosions of electrical pain that caused right and left temporal pain. And he also complained of the sedation effects and the cognitive slowing as a result of his medication. In early December 2014, three of his physicians formally diagnosed trigeminal neuralgia after ruling out other medical conditions. Now, sign argued, look, the MRI of the brain is normal. The cervical spine MRI is normal. There's no abnormalities on clinical examination. There's no clinical data to support the presence of a neurological impairment. Now, the court noted that Lina had failed to establish the relevance of any such lack of objective findings.

Nancy Cavey [00:24:37 - 00:25:26]

The policy defines sickness as any physical or mental illness, and there wasn't any requirement limiting the scope of covered conditions to illnesses that had to be objectively documented. And the court said, look, as a medical matter, this could be caused by a blood vessel compressing the nerve. And it's, by the way, frequently a diagnosis of exclusion. And the court said, look, there's no confusion or disagreement about his doctors, about his diagnosis. And as a result, the court said Elliot had a sickness and that the trigeminal neuralgia could cause the acute pain of which he complained. Let's talk about the third game defense. And that's the standard of disability definition. Now, the policy defined disability were disabled as the inability to perform the material and substantial duties of his regular occupation.

Nancy Cavey [00:25:27 - 00:26:31]

And guess what? His occupation as a VP required the merging of both financial and IT worlds. He managed developers who tested and built software to process large financial transactions for his employer. He was also the lead project manager of eight software developers who created software for various internal business units, which required prolonged periods of focused attention. It was very cognitively demanding and there were high levels of stress. His treating physicians, the State of California and the Social Security Administration concluded he wasn't able to perform his occupational duties. Now, the court noted that for the purposes of erisa, there's no treating physician rule and that the findings of other agencies get no special weight or binding. The court noted that those opinions were nonetheless based on the acceptance of Elliot's statements regarding the frequency, intensity of his attacks and the side effects of medication. So the judge gave way to the opinions of the treating physicians who had opportunity to work with him, observe him, and found him credible.

Nancy Cavey [00:26:31 - 00:27:15]

So let's go on to that credibility argument. CIGNA said, look, his complaints are just not credible. And the court said, oh no, no. The treating physicians had an opportunity to set forth their observations and findings in detailed notes written over the course of several years. And Lina did not have the claimant undergo an IME as they could have. The court said that the type and frequency of his pain was consistent with the medical literature and his side effects were also consistent with the known side effects. The other thing the court did was look at his consistent medical history, which stopped as soon as he developed the symptoms. It was the pain and not the lack of motivation, which, of course carriers always argue that was the cause of disability.

Nancy Cavey [00:27:15 - 00:27:44]

They'll say, oh, you're not motivated. There's something happening in your life. You just don't want to work anymore. It's not the pain. What did the court do? Well, Judge Chesney rejected all those arguments made by cigna. He awarded the benefits and remanded the case back to CIGNA to calculate the amount of benefits that were owed and determine his entitlement to any occupation benefits. It was a great win. But you can see that there are consistent games that disability carriers or plans play with these types of claims.

Nancy Cavey [00:27:44 - 00:27:55]

And if you suffer from a neurological condition or a condition that is subjectively based, if you will, these are great cases to consider the lessons that were

Speaker B [00:27:55 - 00:27:55]

learned

Nancy Cavey [00:27:57 - 00:28:37]

and taught by the court. In other words, games the carriers play can come back to bite them. And, and there are lots of lessons in these cases about how disability carriers and plans are held to account. Now that's a wrap for today's episode. Thanks for tuning in. If you found this episode helpful, please like our page, leave a review, share it with your family or friends and subscribe to this podcast, please join us next week for another insightful episode of Winning Isn't Easy. Thanks for listening, Sam.