Finally, the court rejected Guardian’s contention that there was inadequate evidence that Dr. Weisman was disabled before he quit his job because he was self-evaluated (and treated) up to that point and only went to the specialist after he stopped working. This ERISA claim turned on whether he was covered under the policy even though he sold his business as of the date of his disability. .

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

Accepting that you are disabled can be very difficult and uncomfortable. This is especially true for our skilled and/or high-level professional clients such as doctors, lawyers, and corporate executives. It often feels easier to tell patients, clients, and employees that you are “retiring”, rather than admit you can no longer perform the job and need to step away. Many of our clients wonder, does it really matter what word is used? As recently seen in Cameron v. Sun Life Assur. Co. of Can., the answer is a resounding yes. 2022 U.S. Dist. LEXIS 200078 (C.D. Cal. Nov. 2, 2022).

In Cameron, the plaintiff was a radiology administrator who became disabled by a cardiac condition. He returned to work for a short period time, then determined that he would need to stop permanently due to the stressful nature of his job, which was impacting his health. Instead of returning to his doctor to address his ongoing symptoms, he “retired” from work. Months later, his condition continued to progress and manifest symptoms supporting his decision to stop working.

His employer’s long term disability insurer SunLife was solely interested in whether there was a medical record indicating that his disability continued as of the date that he stopped working. (resigned from work) Unfortunately, there was no such record because his doctor had simply noted that he was retiring due to the impact of work stress on his heart condition. The Court determined that his doctors’ notation of “retired” instead of “could not continue working due to the exacerbation of his cardiac condition due to work stress” “establish[ed] the end date of [his] entitlement to benefits.” Once he retired from work for his employer, he was no longer insured under his employer’s policy. In reality, he stopped working because of his medical condition!

We also face an uphill battle with insurers when we step in to represent individuals who already filed their claims, and noted that they “retired”, rather than to admit they were unable to continue working due to a disability. Once that message is conveyed to the insurer, it takes a lot of effort to convince them that this was not a choice to stop working, but a necessity due to functional physical or mental impairment.

If you are disabled, we suggest that you do not ever use the term “retired” to explain your absence from work, not just with your doctors but also in your statements and documentation to your insurance company. Do not indicate, either verbally or in any forms that you complete, that you have retired. Instead, be sure to note that you stopped working due to a medical condition. An experienced attorney can help guide you through this process.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

Our clients ask us whether they need to suspend all of their social interactions, and give up gym memberships, etc. because they have a pending claim. The answer is a qualified “no”. However, your activities post-disability must match your declared limitations. For example, if you claim that you cannot sit for long durations, traveling by air to Hawaii would create a question related to your ability to sustain siting.

In a case currently under review in our office, an individual suffering from Long COVID attended a family wedding, as noted by her doctor in her record. The company denied the claim for several reasons, including its allegation that our client could not be that disabled since she went out and socialized. What they intentionally left out is the doctor’s note that indicated that our client was terribly fatigued for days after the wedding. We represent another individual whose insurance company incredibly asserted that his disability could not be that bad because he was able to attend doctor and therapeutic visits.

A recent Court example involves a physician who could no longer able to perform the specialty duties of her occupation, but could participate in social and recreational activities. Kieserman v. Unum Life Ins. Co. of Am., 2021 U.S. Dist. LEXIS 233200 (W.D. Wash. Dec. 6, 2021). As this case demonstrates, if the policy provides coverage for the claimant’s “own occupation”, then her activities outside of the demands of her profession should not matter.

Dr. Kieserman was an emergency physician disabled by the symptoms and treatment side-effects of Stage IV metastatic breast cancer. Unum alleged that since she was “able to vacation in Europe skiing in the Alps with [her] family”, and had been “exercising and doing sweaty Yoga[.]” her claims of fatigue interfering with her work were not supported. The District Court for the Western District of Washington disagreed, finding Unum’s focus on Dr. Kieserman’s activities to be “misplaced.” The Court noted that Dr. Kieserman had been instructed to exercise by her treating physician “in order to achieve optimal treatment outcomes” and found that her activities did not contradict her claim that she could not return to work full time.

If you are currently receiving disability benefits, or are thinking about filing a claim, stay mindful of your policy and adhere to the restrictions and limitations set by your treating physician(s). Refrain from posting your activities on the internet.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

We typically think of an “injury” as occurring during an event such as a fall-down or motor vehicle accident. However, that is not necessarily the case. It is common, for example, that professionals such as dentists, physicians, and chiropractors can develop debilitating injuries over time from the repeated physical maneuvers required of their work. We represent many clients who have obtained lifetime disability benefits for such injuries, which can include carpal tunnel syndrome, ulnar nerve entrapment, and serious cervical spinal issues.

An example of this type of case can be seen in Chapman v. Unum Life Ins. Co. of America, 2021 U.S. Dist. LEXIS 155798 (D. Minn. August 18, 2021). Dr. Chapman, a practicing endodontist, had become disabled due to degenerative arthritis in her hands. Her condition was caused by the repetitive stress injuries she sustained in her decades-long dental career. The claim forms completed by Dr. Chapman, and the certifications of her treating providers, all indicated that her disability was the result of an injury. Nevertheless, Unum approved her claim as a “sickness” (thus limiting her benefits) because it had not been caused by one specific traumatic event.

The Court disagreed, finding that Dr. Chapman’s disabling arthritic condition was an injury notwithstanding the fact that it had developed gradually. It explained that “in the course of one’s ordinary duties injuries may occur daily which cause minimal damage, the cumulative effect of which in the course of time may be as injurious as a single traumatic event.” In the Court’s view, there was no substantial difference between an injury sustained instantly or over time. Accordingly, there was “no good reason for [injury-based] benefits to be paid in one instance and not in the other.”

The Court placed great weight on the fact that Dr. Chapman and her physicians had documented her claim as an injury from the very beginning. If you are considering submitting a claim for disability benefits, or are currently in the process of doing so, it is imperative that you thoroughly understand the nature of your condition and coordinate with your treating providers to ensure your claim is prepared and presented in the best possible way. While this can be an overwhelming and arduous process, an experienced attorney can help you.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

If the claim was made under an ERISA plan, the denied claimant is entitled to request a complete copy of their claim file, which will contain “all documents, records, and other information” relevant to his or her claim. 29 CFR 2560.503-1(h)(2)(iii). It should include any and all internal notes, memos, correspondence, and reviews/reports by third parties, allowing the claimant to thoroughly understand the insurer’s decision-making. The insurer has a continuing obligation to provide an updated claim file on request throughout the appeal process.

Although ERISA regulations define “relevant” broadly, insurers frequently take it upon themselves to decide which documents do, and do not, need to be shared. Most of the time, the documents they withhold are helpful to the claimant. The recently-decided case of Jette v. United of Omaha Life Insurance Company, 18 F.4th 18 (U.S. 1st Cir. 2021) provides one example.

During the appeal of Jette’s long-term disability claim, United required her to undergo an in-person examination with a doctor of their choosing. United’s doctor agreed with Jette’s treating physician, and issued a report that supported her ongoing disability. United ignored his report and upheld the denial of Jette’s claim. She did not receive a copy of the report until after the final denial, when she no longer had the right to respond to it.

Jette filed a lawsuit. United defended its decision to withhold the report, claiming that it was not “relevant” because they had not relied upon it in deciding to deny her benefits. The First Circuit Court of Appeals disagreed.

The Court noted that the statutory definition of “relevant” includes anything that was “submitted, considered, or generated in the course of making the benefit determination”, regardless of whether the insurer relied on it. 29 CFR 2560.503-1(m)(8)(i)-(ii). Because the report was generated in the course of United’s determination, Jette was entitled to review and respond to it as part of her “meaningful dialogue” with her insurer.

Disability insurers have a legal obligation to perform their duties “solely in the interest of the [plan] participants and beneficiaries” and for the “exclusive purpose of providing benefits [to them.]” 29 U.S.C. §§ 1104(a)(1)(A) & (B). When an insurer withholds documents which would tend to support the disability claim, they act wrongfully to their own benefit. The Jette decision makes clear that insurers cannot unilaterally decide what information and/or documents are relevant for inclusion in the claim file. If it exists, it must be disclosed.

If your claim is denied, you should be sure to obtain your entire claim file and review it carefully to confirm that it contains every document relevant to your claim.

Handing a disability claim can be very difficult. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

Medical reviewers often work as independent contractors for many different insurance companies, and frequently earn more reviewing cases than they would treating patients. As their livelihood depends on providing reports that will please the companies that retain them, they simply cannot afford to be impartial. Insurance companies rely on reviewers’ opinions over the treating physicians who confirm that the claimant is disabled.

We know that treating physicians have far more information about their patient’s condition and functional abilities than insurance doctors. Their experience personally examining the patient, making their own clinical assessments, and engaging in discussions with the patient all provide information that is not available just by reading the records. Most treating doctors take the time to develop a formidable basis to decide what restrictions and limitations are appropriate.

If your insurance company has involved a reviewing physician in your claim, it may seem like the deck is stacked against you. However, as a claimant, you are far from powerless. When you understand the issues that are common to reviewing physician opinions, you can take proactive steps to avoid them. Based on our decades of experience with these issues, we recommend strategies below that you can use to ensure that a reviewing physician does not deprive you of benefits you are entitled to.

Maintain Your Own Records

Insurance companies (and their reviewers) are legally required to consider all of the medical evidence when making their decision. If they deny the claim, they must explain their reasoning and support it with references to the records. If your denial is based on an insufficient medical review, there are steps you can take to refute it including, in some cases, filing an ERISA appeal.

It is important for you to keep your own copies of all the records, forms, and physician certifications submitted in support of your claim, particularly if you’re not represented by counsel. This will enable you to fact-check the insurance company, point out important information that was overlooked, and persuasively establish your entitlement to disability benefits.

Manage Your Insurer’s Contact with Your Doctors

Insurance companies often insist that claimants sign a form giving them unrestricted authorization to communicate directly with their treating physicians. If a reviewer disagrees with the claimant’s treating physicians, they are generally required by the insurance company to contact the physician to address their difference of opinion. It is important that your doctor be able to interact with the insurance company to clarify records and/or restrictions and limitations as needed. However, we frequently see deceitful and confusing tactics by the reviewing physicians when such follow-up takes place.

We advise our clients to instruct that their doctors not communicate with the insurance company or its reviewers by phone. The discussion usually turns into a battle of words in which the reviewing physician attempts to induce statements from the treator that can be used against the claimant. Instead, treating physicians should request that the insurance company submit their questions in writing. Insisting on written communication allows the treating physician to take time to carefully consider the questions and review their clinical notes before answering.

It is important to keep in mind that even written communication can be misleading, as the questions asked will be designed to undercut the treating physician’s opinion. If you are represented by counsel, your attorney can review the questions with your physician and help facilitate their responses to ensure nothing is said to jeopardize your claim.

It is ultimately the insurance company’s responsibility to thoroughly investigate both the integrity of their reviewers and the validity of their reports. Your insurer has a fiduciary duty to ensure that claims are fully and fairly decided based on consideration of all of the available evidence. As our Courts have held, insurance companies breach this duty when they adopt and rely on the uninformed or skewed analysis of a reviewing physician.

If your claim is denied based on a reviewing physician’s report, it is imperative to thoroughly review and assess the adequacy of their review, the basis of their opinions, and the legitimacy (or lack) thereof. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

MS is an autoimmune disorder that attacks the central nervous system – the part of your body that controls your ability to walk and think. It causes unpredictable symptoms such as pain, fatigue, impaired balance and walking, issues with memory and cognition, mood changes, blindness and/or paralysis. Although there is no cure for MS, there are therapies and medications available to treat its symptoms, reduce the frequency and severity of attacks, and to slow the progression of the disease.

MS affects everyone differently, and the nature and severity of its symptoms will vary by patient. Many people who have been diagnosed with MS can continue to work for years before their ability to complete their job duties is impacted. We’ve previously shared examples of the types of accommodations that can be requested when that happens. Once symptoms have progressed to a point where accommodations are no longer enough, it may be time to submit a disability claim.

Although our Courts have recognized that MS is a totally disabling disease, it takes more than a diagnosis of MS to succeed on a disability claim. Proving that that your particular MS symptoms, (and the severity of those symptoms) prevent you from working can be harder than you think. Insurance companies will often disregard self-reported MS symptoms and deny claims based on the stability of MRI imaging, the presence of “normal” neurological exams, and/or the treating physician’s failure to fully establish their patient’s impairments during the claims process.

Insurance companies will require a claimant’s treating physician to complete forms documenting their patient’s symptoms and particular restrictions and limitations. These forms were designed by the insurance company, and are not specific to MS. As a result, they often include questions that do not apply to MS claimants and leave out important clinical information. A doctor who is unfamiliar with the disability claims process might incorrectly assume that the insurance company is asking for all of the information that is needed, and might not realize that they are permitted to supplement it with additional reports and/or different forms.

In the face of these pitfalls, having the collaborative support of doctors (and attorneys) who are experienced in navigating MS-based claims can make all the difference.

I was selected to consult on a project with the National Multiple Sclerosis Society to create a comprehensive new form, the Universal Attending Physician Statement, to address these issues and assist MS patients with their private disability claims. This form was specifically created with MS patients in mind, and has been tailored to fit their specific needs. The National MS Society suggests that the Universal APS be utilized instead of the forms designed and sent by the insurance companies.

The Universal APS is just one tool available in the National MS Society’s Guide for People with MS and Their Healthcare Providers. This valuable resource includes an explanation of Key Concepts in Private Disability Insurance, a Glossary of Disability Insurance Terms, Frequently Asked Questions, a Physician’s Checklist, and a MS Symptom Tracker for patients. If you or a loved one is interested in or currently pursuing a disability claim as a result of their MS symptoms, it is important to review this information and discuss it with the doctors who will be involved in the claim. It is up to claimants and their doctors, together, to make sure the insurance company has as much evidence as possible to have their claim approved.

An attorney can help by acting as a liaison between claimants, doctors, and insurance companies. Experienced disability attorneys take the lead in screening and facilitating the exchange of information to protect their client’s rights, ensure that their clinical information is presented in the most compelling way possible, and allow claimants to focus on their much-needed medical care. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

Secondly, Unum claimed that even if the condition was caused by injuries, it was not an accident, imputing knowledge to Dr. Chapman that she was highly likely to suffer this injury by her work. The court disagreed, explaining, that it “strains credulity to conclude that any endodontist views the possibility of disabling arthritis simply by practicing endodontia as highly likely. If this were the case, the dental field would be suffering a severe shortage of endodontists.”

The court considered the reasonable expectation of the insured:

“Finally, as a matter of logic and common sense, disabilities caused by repetitive trauma, are often termed repetitive stress injuries not repetitive stress sicknesses. An ordinary plan participant would likely expect that an insurer would cover a repetitive stress injury under Provident’s definition of an accidental bodily injury.”

This important analysis applies to many professions commonly exposed to repetitive stress to the body in the workplace. If you are disabled due to a condition that originates or is worsened by repetitive exposure to the causative agent (constant use of hands, heavy lifting objects) read your policy carefully and determine if your claim is based on sickness or accidental injury because this may impact the maximum duration of your claim.

We have handled appeals for clients who suffer from chronic pain but are able to mow their lawn, or clean their own home, or care for children. Hartford, Cigna, Unum and Prudential often deny claims of individuals whose lives outside of work appear to be too busy or too “normal” to justify a disability claim. However when rushing to deny a claim, the insurer does not ask how often the person is able to perform these activities, or under what conditions. We have successfully appealed cases where the insurers have challenged our client’s claim because they admit to using a computer or smart phone. The insurer simply concludes that the person surely can perform the duties and demands of their sedentary job which requires sitting at a computer during the normal work day. We have established the key difference between using a mobile device and computer periodically to check emails, or the news, and functioning in an executive capacity, performing cognitive demanding, time sensitive work duties on a daily basis. We advise our clients to be careful when completing insurer forms and to place their acitvities into the proper context.

A recent case by a Software engineer, disabled by cognitive and depression symptoms outlines the courts analysis on this issue. In Chapin v. Prudential Ins. Co. of Am., Prudential alleged that Mr. Chapin was not disabled due in part to his doctor’s noting that he continued to exercise, ski and hike. The court noted “Being able to ski, hike and work out in no way transfers into or supports performance as a software engineer.” Evidence supported that he was disabled from his cognitively demanding occupation despite his continued attempts to remain physically active.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking income replacement long term disability benefits and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

The lesson of this case is, to stay on top of your medical proofs, be sure that you keep up with periodic medical evaluations and provide your doctor with all of your symptoms and continuing medical problems so their records are complete. Do not assume that since you have been on claim for a long time, the insurer will just put your file away and not question your disability in the future.

We at Bonny G. Rafel LLC monitor our clients’ cases to be sure that their medical proofs remain supportive of their disability. We are prepared to update the disability insurers periodically to advocate for our clients, as the Voice of The Disabled.

Even with the safety equipment provided by employers, must all employees return to the workplace? Would disability cover the class of workers who are at high risk of contracting the COVID? Individuals with conditions that place them in a risk of severe medical illness from COVID may qualify for disability insurance since they need to remain sequestered until the risk of the virus passes. The Centers for Disease Control and Prevention have identified certain conditions that warrant such restrictions, such as severe asthma, lung conditions, heart disease, people who are immuno-compromised, and several others. These claims have not been litigated yet, and you can be sure that the disability insurance companies are deep in discussions on how to limit these claims. There is some precedential decisions in this area of the law, mostly related to individuals with a high risk of severe medical complications such as a person with severe cardiac disease who risks heart damage including a heart attack, if exposed to high work stress.

Medical practitioners will be facing new challenges as their patients seek their support for seeking disability benefits. What patients will be eligible to continued disability benefits because their medical health does not warrant them returning to the workforce? We have helped many offices address this issue, and come up with a viable strategy when facing their dual roles as treating physician supporting and as a specialist advocate for their patient remaining out of the workforce.

Medical personnel who are treating the sick, have significantly increased risks of exposure to someone who has COVID-19 and if their underlying condition warrants extra precautions, they deserve protection and may be able to make a viable claim for disability benefits.

There is a large category of doctors who are paid partial disability benefits due to their inability to work full time or to perform some of the material duties of their occupation. These claims are paid on a monthly basis depending on the amount of income earned by the doctor each month. A doctor whose monthly income has been reduced because his/her office is closed, or opens on a reduced basis, will suffer a much higher income loss. Will the insurer pay this claim or counter a defense alleging the closure of the office or reduction in hours is due to a “legal” cause, not a medical cause?

Our firm specializes in handling disability claims continues to represent individuals seeking coverage for their illnesses and fighting for the rights of those denied their legitimate claims. See www.disabilitycounsel.com

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A, all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notice (the “Outbreak Period”)⁸ for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503-1(h),

This important Federal Regulation protects claimants under ERISA disability plans who have received denials of their claims. The deadlines for filing an appeal of a long term disability claim under ERISA is 180 days, but due to this statute, the period from March 1 until 60 days after the end of the “Outbreak Period” does not count. We have encountered many individuals facing denials of their claims, but cannot interface with their doctors to obtain the medical support necessary to contest the disability insurance company’s denial. Fortunately, with this extension, ERISA claimants will have more time to seek counsel, and collect evidence to prove their entitlement to LTD benefits. If you are facing a deadline to file your appeal, I suggest that you send a letter to the disability insurer, reciting this Federal Regulation, and confirming that the deadline has been tolled. We at Bonny G. Rafel LLC handle short and long term disability claims. We will gladly speak with you regarding your disability claim. Call us. (973)845-2600.

A common thread in disability denials is the company’s decision that the insured can perform “sedentary work” despite their restrictions and limitations. Sedentary work, simply considers the physical condition of the person- can they sit most of the time, and walk or stand for brief periods of time. The DOT definition for sedentary work conveniently focuses exclusively on the physical demands and disregards any other aspect such as cognitive.

In Smith v Reliance, Reliance paid LTD benefits out for several years to an executive who had strokes and suffered from heart problems. Reliance then reversed course and concluded Mr. Smith could return to work, alleging he had to prove that he could not perform sedentary work due to a physical limitation on, for example, sitting, typing, or speaking. The court disagreed, holding that if someone had to prove they could not sit, speak or type, in order to receive disability benefits, “such a rule would erase disability eligibility for all but the bedridden. Some serious diseases are debilitating because of their effect on the mind or because they worsen with stress.” Smith v. Reliance Standard Life Ins. Co., 2019 U.S. App. LEXIS 18518, at *14 (4th Cir. June 20, 2019)

The insurer must consider the actual duties of the individual’s regular occupation when deciding whether to approve of the disability claim. Not only must they review the physical nature of the job, but the intellectual, the cognitive elements.

Another recent tactic by insurance companies such as Cigna, Prudential, Hartford, Unum and Reliance Standard is to ask the treating doctor whether their patient can work if they are provided with “standard breaks” to “reposition” themselves. This type of question is misleading because it suggests that the only problem the individual has is related to moving about in the chair. Our clients that have back problems, for example, cannot merely shuffle in their chair to get out of pain. They must change their position from sitting to laying down, to reduce their symptoms. Chronic pain often interferes with concentration and focus, requiring frequent rest periods.

A recent example of an insurer denying a claim based on an assertion that the disabled person can “change positions” is McIntyre v Reliance Standard. Ms. McIntyre, a former nurse was found eligible for long term disability benefits for the initial period because Reliance agreed that she could not perform the duties of a nurse. But Reliance Standard eventually denied the claim, concluding that she could perform other sedentary occupations because occupations “allows for breaks.”

The source for the allegation that she could perform sedentary occupations was a question to her treating doctor as to her general abilities unrelated to a workplace setting. Her doctor noted that she could sit for thirty minutes before needing a position change; and continued to maintain she could not return to work in any capacity. The insurance medical examiner alleged that she could perform sedentary work. Using this manufactured evidence, Reliance concluded that Ms. McIntyre could return to work in a sedentary capacity because she could potentially sit for thirty minutes and then change position.

The court saw through Reliance’s illogical conclusion. The court held that “given the realities of full time work, the court has difficulty imagining occupations that would consistently allow McIntryre to take a break every half hour.” The court reasoned that “even if McIntyre took only 10 minute breaks after every half hour she worked, she would be breaking for at least 80 minutes for every 8 hour workday, totaling nearly 7 hours a week. McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28, 2019).

The insurance companies overlook multifactorial elements of full time work. Most of us can sit for durations. But an individual suffering from pain, side effects of the medications, and physical fatigue cannot predictably sustain work on a regular reliable basis. We at Bonny G. Rafel LLC navigate through these difficult roadblocks to achieve a fair and just result for our disabled clients.

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019). The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.” Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference. Hankins v. Std. Ins. Co. 677 F.3d 830 (8^th Cir. 2012).

Another example concerns the occupation of an attorney. The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018). The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.” The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

Unfortunately, the Fifth Circuit departs from the reasonable analysis set forth by the Third Circuit and Tenth Circuit, using a framework that does not account for actual job duties. In Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802 (5th Cir. 2019) the Appellate Court reversed an LTD benefits award to a 62-year-old disabled woman who inspected chicken in sub-forty degree temperature poultry coolers for a living. She could not continue working due to her illness, Reynauds Syndrome. Reliance identified her occupation as ‘sanitarian’, which generally does not include a designation of any particular work environment. The court relied on the national generic definition of this occupation, thus removing the necessity to work in freezing temperature as material to her performance. Her claim was denied on appeal.

We investigate our client’s actual job duties from our initial representation and stress the materiality of each duty that illness or sickness impairs. It is vital to integrate this analysis from the onset of each case, so the disability insurance companies, always looking for reasons to deny valid claims, must fairly and fully evaluate each case. We rely on vocational consultants regularly to independently assess the job duties and integrate our client’s specific symptoms that interfere with physical and cognitive functionality. Bonny G. Rafel. www.disabilitycounsel.com.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days. In our experience, insurance companies regularly ignore these deadlines. They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination. The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands. Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline. Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors. We object to our clients having such an exam during the appeal. It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned. Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier. We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline. Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

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.

The incompatibility of these two situations clash when the insurer to your disability claim requires “appropriate treatment” for the disabling condition in order to continue the claim. The recent court decision in Griffin v. Hartford Life & Accident Ins. Co., 898 F.3d 371 (4th Cir. 2018) makes clear that continuing medical visits are necessary. Griffin stopped working due to pain from a herniated disc and saw his medical provider from September 2011 to June 2013. Since there was o feasible medical treatment to improve his condition, he stopped active treatment. Griffin explained to Hartford that he was unable to afford continuing visits to his medical provider, yet Hartford still required that a physician remark on functionality in order to continue paying Griffen long-term disability benefits. Since no treating physician could speak confidently on Griffin’s current disability the court upheld Hartford’s denial of Griffin’s long-term disability claim despite his contention that he remained disabled.

I advise all clients experiencing a chronic medical condition to remain under the care of a physician with at least quarterly visits, even if the physician maintains that the condition remains unchanged. Clients should have disability claim forms completed by their treating provider and keep up to date with any necessary claim materials, so that disability is continuously supported. While it may seem unnecessary to spend resources on visiting a provider when no tangible benefit comes from doing so, previous cases such as Griffin v. Hartford Life show that courts are likely to view, as insurance companies do, a lack of continuing medical history as congruent with improvement in one’s condition or absence of disability altogether.

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors: (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.” Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012). The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.” Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)

A recent case highlights this issue. In Pogue v. Northwestern Mutual Life Insurance Company, 2018 WL 1189415 (D.C. Ky March 7, 2018), Dr. Pogue alleged that he surrendered his medical license when he believed he had become mentally unable to continue working due to a total nervous breakdown. Yet as he was making his disability claim, the Board of Medical Examiners suspended his medical license due to improperly prescribing controlled substances. Northwestern defended the claim, asserting that his disability was caused or contributed to by the suspension of his medical license. Since the court agreed that his disability was brought about in whole or in part by the suspension of his professional license, he could not recover under the policies. It is apparent that this case was all about the timing. Had Dr. Pogue initiated his disability claim when he was suffering from the psychiatric condition, but well before his license was suspended, the outcome may have been different.

Where a professional becomes unable to work due to psychiatric impairment prior to revocation or suspension of his or her license, the professional has a legitimate disability claim. For example, where a physician suffering from early onset dementia is suspended from practice due the risk that he may harm a patient, one could argue that the true cause of the disability is the psychiatric impairment (factual disability) which preceded the legal disability. In that setting it is unlawful for an insurer to deny such a claim. Professionals must be aware of this fine line- because they risk becoming ineligible for disability coverage under their policy if they become legally unable to work simultaneous with a physically/mentally disabling condition. We at Bonny G. Rafel LLC (www.disabilitycounsel.com) help protect our clients who face both medical impairment and legal difficulties in overcoming the insurance companies’ attempts to categorize factual disabilities as legal disabilities and deny legitimate disability claims.

We have handled many long term disability cases involving “failed back syndrome” where our clients have neuro-stimulators permanently installed in their backs to help them manage pain. Despite that evidence of the severity of their despairing condition, the absence of an “objective” test showing the precise cause of the spinal dysfunction was used to deny their claim.

Fortunately, the 7th Circuit Court of Appeals recognized the significance of various elements of proof establishing the existence of a neuromuscular disorder which qualifies under the exceptions to the MetLife limited coverage. While MetLife emphasized that there were some equivocal test results showing ongoing radiculopathy (an exception to the limit), the Court of Appeals considered the clinical examination results of the claimant’s own specialists, ongoing consistent testing which aligned with the disorder and past positive EMGs as the objective evidence MetLife arbitrarily disregarded. They reversed the District Court in Hennen v. Metro. Life Ins. Co., 2018 U.S. App. LEXIS 26114 (7th Cir. 2018). This decision fortifies that the insurers must not require only a certain “objective evidence” to establish the necessary proofs.

The Court went further to point out the consistency in the evidence supporting the impairment, particularly troubled by MetLife’s failure to consider that “every physician who examined Hennen after her 2012 spine operation concluded that she had radiculopathy.” Id. at *16 and criticized MetLife’s self-serving gamesmanship by selecting only their physician who favored their position.

We are pleased that the Seventh Circuit saw through the veil of MetLife’s allegations that Hennen no longer qualified for disability. We see all too often that insurers latch onto one piece of evidence, ignoring all else, as they rush to deny bonafide claims of the disabled. We are constantly in the trenches with the insurers, advocating for their fair consideration of all of the evidence that we present on our clients’ behalf. They must be held accountable to their fiduciary obligation to each of our clients.

Thank you for reading our post! We report on interesting developments in the law of disability. See www.disabilitycounsel.com for information on our New Jersey disability law firm.