Disabilities Relating to Cardiovascular Impairments

November 18, 2014

When a person has a medical problem affecting his heart or circulatory system, he may have work restrictions that prevent the ability to continue working. Depending on the severity of the heart condition, working may put a person at risk of suffering a heart attack or other life threatening cardiac event. In these situations, a person with cardiovascular impairments may qualify for short term disability benefits, long term disability benefits, and/or Social Security disability benefits.

Because a heart condition can be life threatening, it is crucial that a person with a cardiovascular problem seek immediate medical attention. When a patient presents with chest pain, palpitations, syncope, or other cardiovascular symptoms, it is common for physicians to order extensive testing. Testing for heart conditions may include echocardiograms (echo), electrocardiogram (ECG), exercise tests, drug-induced stress tests, Holter monitor tests, cardiac catheterization, cardiac computerized tomography (CT) scans, cardiac magnetic resonance imagings (MRI), chest x-rays, and blood tests.

Following the appropriate testing, treatment with a cardiologist is required to document the severity of the heart condition. If a person is required to undergo surgery, then she may have to see a surgeon specializing in heart operations. A cardiologist may only require a patient to follow-up on an annual basis, which means that it is important for the patient to also maintain treatment with her primary care provider and other doctors.

If a person undergoes a cardiovascular event such as a heart attack or surgery, but then is able to return to normal functioning, then he might only be eligible for short term disability benefits. However, if a heart condition requires the person to miss at least three months of work, then he may be eligible for long term disability benefits. To be eligible for Social Security disability benefits, the disability must last or be expected to last 12 months or longer.

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Prudential Disability Claim Denials

November 5, 2014

The Prudential Friendly Society was founded by insurance agent John Fairfield Dryden in a basement office in downtown Newark, N.J., in 1875. It was the first company in the U.S. to make life insurance available to the working class. In business for 137 years, it boast 48,000 employees worldwide.

At the O'Ryan Law Firm, we receive numerous calls a year from individuals who have become disabled, have disability coverage through Prudential, their doctor has reported to Prudential that they cannot work and Prudential denies the claim. One of Prudential's favorite reasons for denying claims is what they call a lack of "objective medical evidence." Many conditions, such as fibromyalgia or migraine headaches, result in symptoms, such as pain and fatigue, which are hard to prove objectively. There are no lab tests or diagnostic testing that are able to establish the severity of chronic pain or fatigue. Yet Prudential in these types of claims will insist on objective medical evidence to prove the disability thus making it nearly impossible to get the claim approved.

The courts have made clear in numerous cases that an insurer's refusal to honor a claim for lack of scientific data such as lab tests and x-rays is an abuse of discretion where no such data exists in medicine for the conditions at issue and where licensed physicians have provided professional opinions that the conditions are genuine and credibly disabling the claimant. See Holmstrom v. Metropolitan Life Insurance Company, 615 F.3d 758, 769-772 (7th Cir. 2010); Leger v. Tribune Company Long Term Disability Benefit Plan, 557, F.3d 823, 834-835 (7th Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).

In Holmstrom, the claimant suffered from Complex Regional Pain Syndrome ("CPRS"), a condition recognized by the medical community but for which there is no specific diagnostic test. 615 F.3d 758, 768. In that case, the plan acknowledged "Holmstrom's claims of intractable pain, significant physical limitations, and cognitive deficiency as identified by [claimant and her treating physician]," but found "that the lack of objective findings to support ongoing total disability prevented [the plan] from determining whether [claimant's] disability was genuine." Id. at 764. In finding the Holmstrom plan's denial arbitrary and capricious, the court stated that the plan "gave undue weight to the absence of objective measurements for [claimant's] impairments," reasoning that:

Subjectively painful conditions like CPRS and fibromyalgia pose difficult problems for private disability insurance plan administrators and the Social Security Administration, who understandably seek to make decisions based on the most objective evidence available. But we have rejected as arbitrary an administrator's requirement that a claimant prove her condition with objective data where no definitive objective tests exist for the condition or its severity.

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Applying for Disability Benefits Without Health Insurance

October 15, 2014

Maintaining or obtaining health insurance coverage is a common problem for those applying for disability benefits. Many Americans receive health insurance coverage through their employer. When a disability forces the employee to stop working, they are at risk of losing their health insurance coverage unless they timely pay the hefty premiums pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA). Unfortunately, not having health insurance can be very problematic for those applying for disability benefits.

If the disabled individual is able to afford the premiums for continued health insurance coverage under COBRA, then it is probably in her best interest to pay the monthly premiums and maintain her current health insurance coverage. However, many individuals are unable to afford the monthly premiums without the regular income from a job. When a disabled person cannot make these required payments, they will be forced to find new health insurance coverage or forego health insurance at all.

First of all, applying for disability benefits without health insurance coverage is challenging. Without health insurance coverage, the individual is usually unable to afford the out-of-pocket expenses required for regular medical treatment. The individual may miss out on important testing, medications, and regular examinations. Of course, if the patient is not seeing their doctor, there will be a lack of current medical records to document the patient's disability. For both long term disability claims and Social Security disability claims, a lack of ongoing medical treatment can make it much more likely that their disability claim will be denied.

Second, the claimant should do everything in his power to obtain health insurance. This includes looking for private health insurance via the federal health insurance marketplace: https://www.healthcare.gov/ If the individual cannot afford private health insurance options, they should investigate whether they are eligible for their state's Medicaid program. For Indiana residents, information about applying for Medicaid can be found at the following website: http://member.indianamedicaid.com/apply-for-medicaid.aspx. Even if an Indiana resident is not eligible for Medicaid, they may still be eligible for another state program, such as Care Select, Healthy Indiana Plan, or Hoosier Healthwise. If the individual already receives Social Security disability benefits, then they should eventually be eligible for Medicare, although there is a two year wait to qualify for Medicare.

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Insurer Must Take Into Account Award of Social Security Disability

October 1, 2014

Most long term disability benefit plans or policies require claimants to apply for Social Security Disability benefits in addition to applying for long term disability benefits. The reason being that the insurance is able to offset any SSDI award against any monthly long term disability amount that is owed to the claimant under the policy. The SSDI monthly benefit is a dollar-for-dollar offset against what your insurance company pays you in terms of a monthly long term disability benefit payment. For example, if you are receiving $2,000 a month in long term disability and you are subsequently awarded an SSDI benefit of $1,000 then your long term disability benefit payment is reduced to $1,000 according to the terms of the disability policy. Because this offset is so valuable to the insurance companies, they will be persistent in their demands that you pursue your claim for SSDI benefits.

Unfortunately, we see many individuals who are receiving long term disability benefits, are then awarded SSDI and subsequently their insurance company terminates the long term disability benefit claim. This happens despite the fact that the insurer may have hired a company, such as Allsup or the Advocator Group, to represent the claimant in the SSDI process. It seems unfair that the insurance company can represent to the Social Security Administration that you are totally disabled but then terminate your benefits claiming you are no longer disabled for purposes of the disability policy.

When we have clients in this position, we first of all point out to the insurance company that the definition of disabled for purposes of SSDI is more stringent than the definition of Disabled under the terms of the policy. The SSA defines "disability" as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §423(d)(1)(A).

Oftentimes, the insurance company will ignore the SSDI findings of total disability or fail to analyze or distinguish the SSA's fully favorable decision in any of its denial letters. The courts have held that it is improper for the insurer to ignore the SSA's decision of total disability given the fact that it is important proof that the claimant meets the definition of Disabled under the policy. "This definition is a stringent one, and an administrator's failure to address a claimant's SSA disability finding is thus especially questionable when the ERISA plan's disability definition is less exacting." Holzmeyer v. Walgreen Income Protection Plan for Pharmacists and Registered Nurses, 2014 WL 4388625, *18 (S.D. Ind. Sept. 4, 2014).

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Lupus Disability Claims

September 16, 2014

Systemic Lupus Erythematosus (SLE) is an autoimmune disorder that can affect the skin, joints, kidneys, brain, and other organs. Symptoms can vary in severity, but SLE may be severely disabling. If SLE causes disability, then it is essential for the proper documentation to be gathered in order to support a disability claim.

SLE almost always causes joint pain and swelling. Other symptoms may include chest pain, fatigue, fever, malaise, hair loss, mouth sores, sensitivity to sunlight, skin rash, swollen lymph nodes, headaches, numbness, tingling, seizures, vision problems, personality changes, abdominal pain, nausea, vomiting, abnormal heart rhythms, coughing up blood and difficulty breathing, Raynaud's phenomenon, swelling in the legs, and weight gain. If a patient only has skin symptoms, then this is called discoid lupus; not systemic lupus erythematosus.

Because of the wide range of symptoms, autoimmune disorders can be very challenging to diagnose. For a clinical diagnosis of SLE, a patient must have 4 out of 11 common signs of the disease. 11 of the common signs of the disease are malar rash, discoid rash, photosensitivity, oral ulcers, nonerosive arthritis, pleuritis or pericarditis, kidney disorder, neurological disorder, blood disorder, immunologic disorder, and positive antinuclear antibody (ANA) testing. Objective testing is available to diagnose lupus, although no single test can diagnose lupus. Testing includes antibody tests (such as ANA panel), complete blood count, chest x-ray, echocardiogram, kidney biopsy, and urinalysis. About 95% of patients with lupus test positive for ANA, although ANA testing is not conclusive to diagnose lupus.

If SLE is causing a disability, a claimant needs to see the appropriate specialist and undergo all relevant testing. Rheumatologists are the appropriate specialists to diagnose and treat lupus. If a claimant suffering from SLE applies for disability and has not treated with a rheumatologist, then it will be challenging for them to prove a disability. Even though there is no cure for SLE, regular treatment is necessary to control symptoms. If a claimant does not maintain regular treatment, then their claim may fail to show the severity of their symptoms. Therefore, it is critical for a claimant with SLE to regularly see their doctors, including a rheumatologist.

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Improper Insistence on "Objective Evidence" to Prove Fibromyalgia

September 8, 2014

The O'Ryan Law Firm has represented numerous clients suffering from fibromyalgia in the disability claims process. Usually, the client contacts our office after their disability claim has been denied and all too often the insurance company or claims administrator has denied the claim because there is "insufficient objective medical evidence" to support the claim. It is improper for your disability insurance company to insist that you produce objective medical evidence to prove that you have fibromyalgia because it is impossible to supply the insurance company with objective evidence that doesn't exist.

Fibromyalgia is a disease the Seventh Circuit has characterized as "common, but elusive and mysterious." Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996). In an evaluating fibromyalgia in the context of a disability claim, the court in Sarchet described the disease as:

Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

According to the American College of Rheumatology:

Fibromyalgia is a chronic health problem that causes pain all over the body and other symptoms. Other symptoms that patients most often have are:

• Tenderness to touch or pressure affecting joints and muscles
• Fatigue
• Sleep problems (waking up unrefreshed)
• Problems with memory or thinking clearly

Some patients also may have:

• Depression or anxiety
• Migraine or tension headaches
• Digestive problems: irritable bowel syndrome (commonly IBS) or gastroesophageal reflux disease (often referred to as GERD)

• Irritable or overactive bladder
• Pelvic pain
• Temporomandibular disorder--often called TMJ (a set of symptoms including face or jaw pain, jaw clicking and ringing in the ears)

Symptoms of fibromyalgia and related problems can vary in intensity, and will wax and wane over time. Stress often worsens the symptoms.

The American College of Rheumatology provides the following criteria for evaluating of fibromyalgia:
Criteria Needed for a Fibromyalgia Diagnosis

1. Pain and symptoms over the past week, based on the total of:

Number of painful areas out of 18 parts of the body
Plus level of severity of these symptoms:
• Fatigue
• Waking unrefreshed
• Cognitive (memory or thought) problems
Plus number of other general physical symptoms
2. Symptoms lasting at least three months at a similar level
3. No other health problem that would explain the pain and other symptoms.

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Disability Claims Denied by Sedgwick CMS

August 16, 2014

Sedgwick Claims Management Services ("CMS") is a third party claims administrator hired by insurance companies and employee benefit plans to manage disability claims. If your employee benefit plan uses Sedgwick CMS as a claims administrator, then Sedgwick CMS is responsible for deciding whether your disability claim is approved or denied. As well as processing and adjudicating disability claims, Sedgwick holds itself out as providing the following services:

The company specializes in workers' compensation; disability, FMLA, and other employee absence; managed care; general, automobile, and professional liability; warranty and credit card claims services; fraud and investigation; structured settlements; and Medicare compliance solutions (website last visited August 16, 2014).

Sedgwick CMS is headquartered in Memphis, Tennessee and is one of the largest third party administrators in the nation. Many Indiana employers hire Sedgwick CMS to serve as their claims administrator for employee benefits. Employee benefit plans that currently use or previously used Sedgwick CMS include Eli Lilly & Company, AT&T, Comcast, Walgreens, Franciscan Alliance Inc., SPX Corporation, Ascension Health, Hewlett-Packard, PepsiCo Inc., International Paper, UnitedHealth Group, and many others. If employees of these companies apply for short term or long term disability benefits, Sedgwick CMS is responsible for processing the claims and deciding whether benefits should be paid. As a third party administrator, Sedgwick CMS does not actually pay the disability benefits. Rather, the employee benefit plan or insurance company pays disability benefits if Sedgwick CMS approves the claim. Often, the employee benefit plan has little involvement in the disability claims process, if any.

Like disability insurance companies, Sedgwick initially reviews a disability claim by obtaining medical records, requiring the claimant's treating physician to complete questionnaires, and having in-house staff (nurses, doctors, vocational analysts, claims analysts) review the claimant's file. If the claim is denied and the claimant appeals, then Sedgwick's review of the appeal will likely include the use of contracted record reviewing physicians. If the claim is approved, Sedgwick may call or write to the claimant frequently in efforts to obtain more information. Sedgwick may also require the claimant to undergo an "Independent Medical Examination" or "Functional Capacity Evaluation."

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Proper Contents of a Denial Letter

August 7, 2014

The Employee Retirement and Income Security Act ("ERISA") mandates that insurance companies and claims administrators provide claimants with the specific reasons for the denial or termination of employee benefits and the reasons for the denial must be in writing. See Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 688 (7th Cir. 2004), cert. denied, 543 U.S. 869 (2004). The Department of Labor has promulgated regulations under ERISA which require certain information to be contained in a denial or termination of benefits letter. Specifically, 29 C.F.R. §2560.503(g) states:

Manner and content of notification of benefit determination.

(1)....The notification shall set forth, in a manner of calculated to be understood by the claimant -

(I) Reference to the specific plan provisions on which the determination is based;

(II) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

These requirements ensure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present his case. Halpin v. W.W. Granger, 962 F.2d 685 (7th Cir. 1992). Describing the additional information needed, as required by this section, enables a claimant to gain a better understanding of the inadequacy of his claim and to gain a meaningful review by knowing with what to supplement the record. Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir. 1983).

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Cigna Disability Claims

July 16, 2014

Cigna, headquartered in Bloomfield, Connecticut, is a global health services organization and its insurance subsidiaries are major providers of medical, dental, disability, life and accident insurance and related products and services, the majority of which are offered through employers and other groups. CIGNA is one of the top health insurers in North America, with medical plans covering nearly 12 million people. Cigna operates in 30 countries, has approximately 40,000 employees and manages around $54 billion in assets.

CIGNA is the parent company of Life Insurance Company of North America. Life Insurance Company of North America ("LINA") offers group life, accident, and disability insurance to employers. LINA was formed in 1956 by Insurance Company of North America (INA), a CIGNA predecessor company. LINA provides group disability insurance to many employers across Indiana including Toyota, the University of Notre Dame, State Farm, Sony Electronics, Covance and many others. Employees of these companies are provided short and long term disability benefits if they become unable to work due to injury or illness. LINA is responsible for processing the claims and making monthly benefit payments if the claimant proves that they are disabled and unable to return to their own occupation.

During the claims process, LINA will have a Nurse Case Manager review the medical records to determine whether an individual meets the definition of Disabled under the terms of the policy. If necessary, the Nurse Case Manager will escalate the review to a Cigna Medical Director who is an employee of Cigna. The Medical Director will also review the medical records and reports to determine whether the restrictions and limitations listed by the claimant's treating physician are supported by the medical records. It is not uncommon for the Nurse Case Manager and Cigna Medical Director to disagree with the treating physician and to find that the claimant is able to return to work despite the medical evidence supporting the claim.

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Disability Due to Spinal Injuries and Disorders

July 15, 2014

Spinal injuries or disorders may cause a great deal of pain or limit a person's movement. There are many causes of spinal conditions, including infections, injuries, degenerative bone changes, spondylitis, scoliosis, and tumors. Some of these disorders can be disabling in nature. Spinal injuries or disorders are relatively common. In fact, spinal conditions and back pain are one of the leading causes of disability.

When a back condition forces someone to miss work, it is necessary to carefully document how the back condition is disabling. First of all, objective testing is required to make a correct diagnosis and reveal the severity of the condition. Objective testing may include x-rays, MRIs, and CT scans, among other tests. One overlooked form of objective evidence is a list of signs observed by the treating physicians. Observable signs may include an abnormal gait when ambulating, pain with movement, and noted areas of the spine which are tender or painful on palpation. Range of motion testing is another type of evidence that is helpful to demonstrate disability. A range of motion test shows the degree to which a person can move each of their joints.

After objective evidence has been used to make a diagnosis, all treatment options must be considered. In most cases, conservative treatment is attempted prior to surgical intervention. Conservative treatment usually means rest, heat or ice therapy, physical therapy or home exercises, pain medications (NSAIDS and/or steroids), injections (nerve blocks and steroids), and non-traditional treatment such as massages, chiropractic adjustments, and acupuncture. If a spinal condition remains severe after conservative treatment and surgery is a possibility, a referral may be made to an orthopedic surgeon or neurosurgeon. Available surgical procedures include laminectomy, discectomy, or a spinal fusion. If surgery is not an option for the patient, then they may be referred to a specialist in pain management.

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Recent Developments in Denied Medical Claim Cases

July 8, 2014

In Kenseth v. Dean Health Plan, Inc., 722 F.3d 869 (7th Cir. 2013), Ms. Kenseth had gastric band surgery in 1987. Eighteen years later, Kenseth's physician recommended a second operation to address the severe acid reflux and other serious health problems that had arisen since the gastric band surgery. The medical policy specifically excluded treatment for morbid obesity; however, when Ms. Kenseth called to get approval for the second surgery, a customer service representative told Kenseth over the phone that the medical plan would cover the procedure subject to a $300 co-payment. Subsequently, all of the medical claims related to the second surgery, totaling approximately $78,0000, were denied by the health plan as being related to morbid obesity.

The Court was troubled by the health plan leading Kenseth to believe that the second procedure would be covered when Kenseth called for certification and then denying the claims after the surgery. The Court explained that fiduciaries have a duty to disclose material information to plan participants, which includes a duty not to mislead and an affirmative duty to communicate material facts affecting the interests of plan participants. Although negligence of the individual in supplying advice is not actionable as a breach of fiduciary duty, a fiduciary may be liable for failing to take reasonable steps in furtherance of an insured's right to accurate and complete information.

The court in Kenseth reversed the district court opinion noting that where the defendant, by encouraging plan participants to call for coverage information before undergoing procedures, by telling plaintiff that defendant would pay for the procedure, and by not alerting plaintiff that she could not rely on the advice she received, lulled plaintiff into believing that defendant would cover the costs of the procedure...and where plaintiff did not obtain alternate coverage because she believe she was covered, plaintiff could seek make-whole money damages as an equitable remedy under § 502(a)(3) if the administrator's breach of fiduciary duty caused her damages. The Court seemed most bothered by the fact that there was no warning in the medical plan to plan participants that they could not rely upon the advice given to them by the customer service representatives nor was there any clear explanation given as to how a plan participant could obtain a definitive answer on whether a particular procedure would be covered. The Seventh Circuit ended up remanding the case to the district court to determine whether there was a breach of fiduciary duty, whether the breach was the cause of any harm to plaintiff, and what form of equitable relief was appropriate in light of circumstances of case.

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Persistent Lyme Disease Symptoms May Cause Disability

June 30, 2014

The Center for Disease Control (www.CDC.gov) reported 17,730 cases of Lyme Disease in the year 2000 and as of 2012, over 100,000 cases have been reported. Lyme Disease is a growing epidemic in America and was first recognized in 1975 in Lyme, Connecticut, where the first outbreak occurred. Lyme Disease is the illness that results from the bite of an infected tick and it is the most common tick-born infectious disease in the United States.

Several related species of Borrelia cause Lyme Disease (Lyme Borrelia). Virtually all patients in the United States are infected with a single species called Borrelia burgdorferi, the spirochete that infects the deer tick and causes Lyme Disease. Worldwide, there are about 850 tick species and 30 major tick-borne diseases.

The infection usually starts with a painless, spreading "bull's eye" rash where the tick had attached itself to the skin. If you notice your tick bite right away and you are treated with antibiotics, this infection can be cleared fairly easily. If the cause is not found until later, people with Lyme Disease are more likely to feel fatigued, suffer from poor sleep, and muscle and joint pain, even after treatment. Other symptoms might be an acute fever, rash, Bells' palsy (paralysis of the face), headache, and joint and muscle pain. Some patients may complain of sensory symptoms such as burning, shooting pain or numbness. Your doctor may administer blood tests to determine if Lyme Disease is causing your symptoms and to rule out other diagnoses.

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Eligibility for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)

June 17, 2014

When applying for Social Security disability benefits, claimants should be aware of the two types of disability programs available. The Social Security Administration (SSA) offers Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).
For both programs, the SSA reviews whether the claimant meets the applicable definition of disabled. The SSA defines "disabled" as follows:

An individual shall be considered to be disabled for purposes of this title if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

On the SSA's website, the SSA further describes its standard of disability and how it decides whether the claimant is disabled. If adequate proof of disability is not provided, a claim for either SSDI or SSI benefits will be denied. If a claim for SSDI or SSI benefits is denied, the claimant has a maximum of 65 days to timely appeal.

Social Security Disability Insurance (Title II)

SSDI benefits act as a federal insurance program to workers. Taxes are deducted out of workers' payroll checks. The tax deductions serve as a premium to qualify for SSDI. If a worker has earned 20 Social Security credits in 10 years, then they will have enough work credits to be eligible or SSDI benefits. The SSA's website provides more details on how work credits are earned.

To be eligible for SSDI benefits, the claimant must also be under 65 years old. For SSDI claimants, there are no requirements that the claimant have a limited amount of resources. However, as of June 2014, the SSDI claimant cannot be earning $1070 per month in wages. Of course, to be eligible for SSDI benefits, claimants must meet all other work earnings requirements and proof of disability requirements.

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Misrepresentations in Applications for Insurance Coverage

June 2, 2014

When completing an application for life, health or disability insurance coverage, an insurance company will ask a broad array of questions designed to determine whether an individual is a good risk and the type of coverage that should be issued. It is important to carefully complete the application form to make sure that all of the answers are 100% accurate; otherwise, the insurance company may later deny your claim. Unfortunately, many people do not find out that they failed to disclose important information on the insurance application until a claim is submitted. The insurance company then denies the claim contending that the insured made a material misrepresentation in the application because the insured failed to disclose important information such as a previous health condition or by their failure to answer "yes" to questions which were answered "no." If the misrepresentation is material to the insurer issuing coverage, the insurance company has the right to deny the claim, rescind the policy and refund the premiums that have been paid.

The falsity of any statement in the application for any policy may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer. (IC 27-8-5-5(c)). False representations on an insurance application made by an insured concerning a material fact, which mislead, will void an insurance contract, just as in any other contractual relationship, regardless of whether the misrepresentation was innocently made or made with fraudulent intent. Ruhlig v. American Community Mut. Ins. Co., 696 N.E.2d 877, 880 (Ind. Ct. App. 1998) citing Watson v. Golden Rule Ins. Co., 564 N.E.2d 302, 304 (Ind. Ct. App. 1990); American Family Mut. Ins. Co. v. Kivela, 408 N.E.2d 805, 810 (Ind. Ct. App. 1980); Bennett v. CrownLife Ins. Co., 776 N.E.2d 1264 (Ind. Ct. App. 2002); Jesse v. American Community Mut. Ins. Co., 725 N.E.2d 420 (Ind. Ct. App. 2000).

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Functional Capacity Evaluations in Disability Claims

May 14, 2014

Functional Capacity Evaluations ("FCEs") are a type of test used to determine the severity of someone's physical impairments. FCEs are common in disability insurance claims, workers compensation claims, and other contexts where the level of a claimant's injury or sickness needs to be evaluated.

FCEs are usually administered by a physical therapist or physician who specializes in occupational medicine. Common measurements during an FCE include how much the claimant can lift, how much they can push and pull, how long they can walk and stand, how long they can sit, the ability to reach in all directions, the ability to grasp and manipulate with each hand, the degree to which a claimant can move all joints, the ability to squat and bend, and the ability to stoop and balance. FCEs can vary in duration: some FCEs are very brief - only a couple of hours - and some FCEs are actually performed over the course of two days.

In long term disability insurance cases, many insurance policies allow the insurance company to request that a claimant undergo an FCE at a facility of their choosing. A claimant's refusal to undergo such testing may give the insurance company grounds to deny disability benefits. Therefore, it is likely that the claimant will have to comply with the insurance company's request for an FCE. However, a claimant may want to consider the following tips before attending an FCE:

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