Most professionals will attempt to make accommodations or adjustments to their practice in order to remain at work as long as they can before beginning the process to file a disability claim. Steps taken might include relinquishing certain work duties/procedures that exacerbate the condition, reducing or eliminating hospital or emergency call, and reducing patient care hours. The medical professional may refer difficult cases out to other colleagues. These are all prudent and reasonable accommodations to make but they often lead to a significant loss of income over time.

Stoic individuals that continue to work despite brewing disability are essentially “working while disabled.” In these instances, we take the time to determine when exactly the disability began, and when did it interfere with the established duties of the occupation. The reason for this analysis is to evaluate whether we can date the claim to a time period even before the client meets with us. Why does this matter? Three incentives: establish a claim earlier so the waiting period for benefits has already occurred; establish a loss of earnings from the “working while disabled” period of time so that benefits can begin; and thirdly establish a basis for calculating a loss of earnings when the professional was earning the most in his/her profession.

By way of example, I provide information gleaned from recent cases we have handled. For example, a medical professional had developed a neurological condition causing tremors in both of his hands and arthritic changes affecting his dexterity. At our initial meeting, he expected to file the claim some time in the future, but he had recently already given up much of his work duties and reduced his hours to a part-time schedule. His disability insurance policy included coverage for partial disability if his reduced work capacity was the result of his medical condition. We collected relevant data to analyze his duties, the change of duties necessitated by his medical condition, and loss of income. It seemed clear to us that he was in fact already “working while disabled.” Three categories of documents were needed to establish that his condition was impairing his work ability. In this article, we cover the “financial evidence” and the “medical evidence, and follow with an article on the “occupational evidence” in detail. Every case has its own challenges along the way and below we highlight a few of the key factors.

Financial Evidence Needed for Success- In any case, we need to confirm our client’s earnings before the start of disability, through tax returns and documentation of average monthly income. Some clients are self- employed, and lack financial software such as QuickBooks that can generate monthly reports. An option thus would be to assemble records the professional’s medical billing company and then create our own income and expense spreadsheets. This information is crucial to establish the significant income decline or losses in the months the professional was working while impaired.

Medical Evidence- What Do The Medical Records Show Regarding Initial Impairment The insurance policies require the insured be under regular medical care for the disabling condition at the time disability is alleged. In a recent case, a delay in coming under medical care pushed the start date of disability over a time-sensitive threshold, thus limiting our client’s lifetime benefits. Aside from a visit with a medical professional, remaining on medication is helpful to establish the timing of the claim. It is important to discuss work difficulties with some medical professional. But be careful, because if the professional advises his doctor that he is having difficulty performing his duties, what if a patient under his care alleges that he should not have performed the procedure? There is a fine line to walk in these circumstances. When our client declares themselves limited in work ability, we counsel them to stop performing procedures that are impacted by the impairment.

Submission of The Claim- We submit the comprehensive claim submission for our clients, explaining our client’s specialty occupation and how the evidence proves his/her case. We endeavor to provide the insurance companies with all the proof they need to say “Yes” without protracted delays.

There are decisions to make when a disabling condition emerges, we often are able to initiate a disability before our clients initially thought possible, thus obtaining benefits for them sooner than they expected. If you or someone you know is in a similar situation we would welcome the chance to speak with you and work with you to get the outcome you deserve.

In 2007 Ann-Marie was diagnosed with breast cancer during a routine mammogram. She underwent surgery and chemotherapy and returned to work. For the next six years, she saw her doctor for bi-annual cancer screening and received monthly adjuvant hormonal therapy purely as a preventative measure, because the breast cancer had a large number of estrogen receptors. The treatment reduces the body’s own production of estrogen. Ann Marie changed jobs last year and received new group long term disability benefit coverage with Cigna.

Our client had symptoms of metastatic cancer four months after she began her new employment and Cigna denied the claim, asserting that her treatment of Zoladex in the three months pre-employment qualified as “treatment for cancer”. We appealed the denial, arguing that there is no evidence that Ann-Marie had cancer during the three month pre-existing time period and since she did not have cancer, she could not have received treatment for a sickness that she did not have.

She had no sickness for which medical treatment, care or services was provided She was not treated for metastatic breast cancer She received no care for metastatic breast cancer She received no services for metastatic breast cancer She received no diagnostic measures for metastatic breast cancer She received no prescription drugs or medicines for metastatic breast cancer No prescription drugs or medicines for metastatic breast cancer were recommended to her.

By the very terms of the Policy, Ann-Marie was not sick at the time, did not take medication for a sickness, did not treat or consult with a physician for a pre-existing sickness, because she was not sick. She took hormone drugs to prevent cancer; it was not FOR cancer. She could not have taken medication or received treatment during the pre- ex period FOR a sickness that she did not have and her physicians do not claim she suffered from.

We were notified just before Christmas that Ann-Marie’s claim was approved!

If you have a claim pending for disability and the insurer has applied the pre-existing limiting provision to your case, we suggest that you consult with an attorney to review the medical records that exist during the crucial three month period of time before you became insured under the policy. We at Bonny G. Rafel can help. Bonny G. Rafel, LLC we advocate for patients with disabling conditions. We may be able to assist you in getting the benefits you deserve.

The Court was particularly interested in considering whether it would be appropriate to remand the case to Sedgwick to reconsider the ongoing claim. They determined, ” if Sedgwick were ordered to take another look at the claims in light of favorable SSA decision Sedgwick could and probably would treat the SSA findings as simply something else to discount in comparison with its “independent, non-examining medical experts.” Assuming the court had the power to remand the case to the Sedgwick Briar Patch, that Briar Patch is one in which Sedgwick is accustomed to navigate.”

Commenting on the conflict of interest, “If the Supreme Court’s Metlife v. Glenn made nothing else clear, it made it absolutely clear that a conflict of interest always exists under circumstances like these and that the conflict is a substantial factor that must be considered in evaluating, even if the denial was arbitrary and capricious. Although, Sedgwick may argue that it itself is not obligated to pay benefits that the plan may be obligated to pay to Ms. May, it is clear that its loyalty is to the owner of the pocket from which those benefits would be drawn. If any proof were needed of the fact that for ERISA purposes, Sedgwick is the alter-ego of the funding entity, it is the fact that the decision maker and the payer are represented by the same lawyers. They are all in this together”.

The court found Ms. May credible and stated, “We find that she suffered from the debilitating pain she sought to have corrected by surgery. Her claims were of such small amounts that they cannot suggest a motive for fraud or misrepresentation. No sane person would submit to two dangerous surgeries just to obtain small amounts of disability benefits”.

We at Bonny G. Rafel LLC recently won a Judgment against Liberty Mutual, the claim administrator and the employer, Santander Holdings USA, for wrongfully denying a STD and LTD claim and putting its own financial interests ahead of those of its employee.

At Bonny G. Rafel we establish a good working relationship with our client’s treating doctors to facilitate the exchange of information the insurance company is often lacking during their initial review.

Our team of lawyers and paralegals sat with him and together we prepared his submissions to the insurance company. He now enjoys the peace of mind that his claim has been approved, his life long professional practice ended respectfully and he has our firm as his liason with the insurance company so that he can focus on improving his health and daily life as much as possible.

If this story sounds like your own, don’t let the fear of procedural hurdles and insurance company tricks prevent you from getting what is rightfully yours. Remember, this isn’t charity, these are benefits that you rightly deserve, and even more importantly, have been paid for. If the prospect of dealing with insurance companies has left you wary of filing a claim for benefits even in the face of a disabling condition, hire a professional who has experience that will impact the outcome of your claim. A qualified attorney can take care of all the hurdles and roadblocks the insurance company puts up for you and make sure that you get the benefits and the quality of life that you deserve. Check our website, Bonny G. Rafel LLC