Disabling Neuropathy

April 15, 2014

As type II diabetes becomes more and more common, many people suffer from peripheral neuropathy, which is a result of nerve damage. Neuropathy may cause weakness, pain, or nubmness in the hands and feet, although it may occur in other parts of the body. Sometimes this nerve damage becomes so severe that it prevents people from maintaining their normal lifestyle, including the ability to work.

If neuropathy forces someone to stop working and they apply for disability benefits, there are some important tips to help document the disability. First, establishing treatment with a neurologist is very important. A Neurologist is the appropriate specialist to diagnose and treat neuropathy. If a person does not properly document their neuropathy, they will face a tough challenge in having their disability claim approved. Diagnosis requires considering full medical history, neurological examination (such as checking reflexes, sensation, and coordination), physical examination, and appropriate testing. The testing most commonly used for diagnosing neuropathy includes electromyography, nerve conduction tests, nerve biopsy or skin biopsy, blood tests, MRIs or other medical imaging tests, and lumbar puncture (or spinal tap).

Second, it is necessary for the disability claimant to maintain regular treatment with their neurologist and other medical care providers. If it is shown that the disabled person has not complied with recommended treatment, then disability benefits may be denied.

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The Impact of Surveillance on Disability Claims

March 19, 2014

Disability insurance companies may look to more than just medical records and reports when determining whether a claimant qualifies for disability insurance benefits. Insurers have long used private investigators to perform surveillance of claimants in order to obtain additional information regarding the claimant's restrictions and limitations. Oftentimes, the private investigators are asked to document their observations with video to provide tangible evidence of the claimant's daily activities and abilities. Depending on the information gathered, reports from the investigators' surveillance and the associated video evidence can lead to a denial of disability benefits. Generally, when courts review video evidence they look at whether the observations in the surveillance video are consistent with the claimant's reported restrictions and limitations.

A common strategy for disability insurers is to schedule surveillance at a time when the claimant has a scheduled appointment with their doctor or a previously scheduled medical examination. This provides the private investigators with a known opportunity to observe the claimant outside of their home. Inevitably, this allows the surveillance team to observe the claimant driving or riding in a vehicle. In Mote v. Aetna Life Insurance Co., 502 F.3d 601 (7th Cir.2007), Aetna's decision to deny the plaintiff's disability benefits was upheld by the court. Aetna based their decision in part on video surveillance showing the plaintiff running errands, driving to medical appointments, and loading groceries into her car. This evidence was used to establish that the plaintiff could work in "any occupation." However, video surveillance in Gessling v. Grp. Long Term Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F. Supp. 2d 856, 864 (S.D. Ind. 2010) only showed that the claimant was capable of driving a little longer than the fifteen minutes he reported to a Hartford Life representative. The court in Gessling found that this video evidence "says nothing useful about (the claimant's) ability to work in his own occupation."

Similarly, the Northern District of California found that surveillance evidence depicting a plaintiff "walking, driving and doing errands ... for a couple of hours ... does not mean that [that p]laintiff is able to work an eight-hour a day job." Thivierge v. Hartford Life & Accident Ins. Co., 2006 WL 823751, at *11 (N.D.Cal. March 28, 2006). The Eastern District of California reached the same conclusion in a case where Hartford procured surveillance video of the plaintiff driving to the store, visiting a friend, carrying a small bag, and sitting through an interview while taking numerous breaks. Leick v. Hartford Life & Acc. Ins. Co., 2008 WL 1882850 (E.D. Cal. Apr. 24, 2008). The court determined that the plaintiff's documented activity on a "good day" did not contradict that the plaintiff was unable to perform a full-time sedentary job. Id. See also Hunter v. Life Ins. Co. of N. Am., 437 F. App'x 372, 378-79 (6th Cir. 2011) (surveillance of a plaintiff driving to her functional capacity evaluation, as well as other activities of daily living, did not indicate that Hunter can perform all the physical duties of her former occupation).

Key considerations when reviewing surveillance evidence of driving include how long the claimant is operating the vehicle and where they are driving to during the surveillance. Courts seem to understand that driving only 15 or 20 minutes does not reveal much about a person's ability to work in a full-time job. Moreover, if the claimant is driving to a place where they are required to attend, like a doctor's appointment or a trip to the grocery store, then courts have often found this type of activity to be reasonable unless the claimant has reported that they are unable to drive at all.

There have been occasions where a court reviews surveillance evidence of a claimant engaging in activity that is physical in nature. One such case is Holoubek v. Unum Life Ins. Co. of Am., 2006 WL 2434991 (W.D. Wis. Aug. 22, 2006). In Holoubek, Unum obtained surveillance showing the plaintiff engaging in activity including (1) driving an automobile, (2) operating a forklift at a construction site, (3) lifting various objects, (4) walking and bending forward at the waist; and (5) leaving his apartment on four continuous days. In this case, Unum was determining whether the plaintiff could return to his job as a materials manager. Unum terminated the plaintiff's benefits and in the district court's decision, the judge found that Unum's four days of surveillance "is of little value because it fails to demonstrate that plaintiff could sustain such a level of activity on a continuous basis." While relying on the case of Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir.2003), the Holoubek court found that the plaintiff was in a desperate situation and forced "himself to work despite an illness that everyone agree[s] [is] totally disabling." While the court in Holoubek admitted that the surveillance video showed activity inconsistent with the plaintiff's claimed restrictions and limitations, the court ruled that Unum's termination was arbitrary and capricious because Unum failed to explain how plaintiff's observed surveillance activities established that he could perform the material and substantial duties of a materials manager.

Another case examining surveillance footage showing physical activity is Cross v. Metro. Life Ins. Co., 292 F. App'x 888 (11th Cir. 2008). The surveillance footage showed the plaintiff occasionally bending at the waist, squatting, carrying equipment of an unknown weight, and coaching baseball. MetLife characterized the plaintiff's observed activity as "pitch[ing] baseballs to a player in the batting net", although the court's review found that the plaintiff was merely "sitting on a bucket next to a batter and tossing baseballs a few feet up in the air for the batter to hit." MetLife also attempted to bolster its argument by pointing out what the plaintiff was not doing in the video, namely not using braces or supports, not limping, and not exhibiting signs of impairments or pain. Id. The court decided that the surveillance footage is only a "snapshot of Cross's activities throughout the day" and "these snapshots do nothing to disprove Cross's reports of pain." The court noted that the plaintiff increased his dosages of pain medication during his coaching activities since these activities caused him more pain. Even considering MetLife's surveillance video, the Eleventh Circuit held that MetLife's determination that plaintiff is capable of performing his prior occupation is not supported by reasonable grounds.

One case involving Liberty Mutual included three occasions of surveillance video over a four year period. Minix v. Liberty Life Assur. Co., 2005 U.S. Dist. LEXIS 15309 (N.D.Ind.. July 22, 2005). In 1999, the plaintiff, who suffered from ulcerative colitis, was observed performing activity at a horse farm. The surveillance showed Minix enjoyed riding and showing horses on good days. In 1999, Liberty Life did not change its determination that Minix was totally disabled. Id. Again in 2000, the Liberty Life performed surveillance of the plaintiff and he "was observed driving his truck, moving hay, unloading his truck, and sitting in a parking lot for two hours and forty minutes." Id. Still, Liberty Life did not change its opinion that Minix was totally disabled. Yet again in 2002, Liberty performed surveillance and observed Minix riding a "horse for approximately one hour and twenty minutes, walking around, bending at a 90 degree angle to pick up sticks, and sitting on the porch for approximately forty minutes." Id. After the third surveillance period, Liberty terminated Minix's disability benefits claiming that he could return to work in an occupation other than his regular occupation. The court found that the surveillance video did not prove that Minix can return to work and reasoned:

Minix's ability to bend over and pick up sticks, however, is not determinative of whether he is able to perform any occupation. Simply put, ulcerative colitis does not affect these capabilities. Rather, it is Minix's sudden pain and urgent need to use the bathroom which cause interruptions of his work.

In another case involving Hartford Insurance Company, the court reviewed video surveillance of the claimant, among other things, walking for about a mile on five occasions for approximately half an hour. Hanusik v. Hartford Life Ins. Co., 2008 WL 283714 (E.D. Mich. Jan. 31, 2008). Hartford terminated the plaintiff's disability benefits based on this level of activity. The court pointed out that the activities performed by the plaintiff were not ones the Plaintiff alleged she was disabled from performing. The court in Hanusik recognized that the surveillance did not reveal that the plaintiff could perform any single or combination of activities for an eight or four hour period, or strenuously exert herself in consecutive days. The court also did not find the surveillance video reasonably reliable to determine the extent of the plaintiff's fatigue symptoms. Further, the court did not find the surveillance video as credible factual support for Hartford's decision to terminate benefits and therefore the court ruled that the Hartford's determination was wrong.

If your disability claim has been denied in whole or part due to surveillance captured by the insurance company, contact the O'Ryan Law Firm toll free at (855) 778-5055.

Social Security Disability Claims at the Appeals Council and District Court

March 17, 2014

Applying for disability benefits from the Social Security Administration is a layered process. If a claimant is denied initially, then they must file a request for reconsideration. If their request for reconsideration is denied, then they must file a request for a hearing before an Administrative Law Judge. Claimants should be aware that each of these appeals must be filed within 60 days of receiving a denial letter.

At the hearing level, the claimant's chances of success improve. However, even strong claims can be denied by an Administrative Law Judge for a variety of reasons. It is a nationwide trend that more Social Security disability cases are being denied.

Appeals Council

When an Administrative Law Judge denies a claim, then the next step is to request a review from the Appeals Council. This request must be made within 60 days of the denial notice. The Appeals Council is located in Falls Church, Virginia and performs a review of the claimant's evidence. There is no hearing at this stage, and requests for review must be made in writing. Unfortunately, the time it takes for the Appeals Council to make a decision is extremely long. The Social Security Administration's website states that "the average processing time was 395 days" for the period of October 2011 - September 2012.

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Disability Coverage through Liberty Mutual

March 6, 2014

Based in Boston, Massachusetts, Liberty Mutual employs over 50,000 people in more than 900 locations throughout the world. As of December 31, 2012, Liberty Mutual Insurance had $120.1 billion in consolidated assets, $101.5 billion in consolidated liabilities, and $36.9 billion in annual consolidated revenue. The company, founded in 1912, offers a wide range of insurance products and services, including personal automobile, homeowners, workers compensation, commercial multiple peril, commercial automobile, general liability, global specialty, group disability, fire and surety.

Liberty Mutual Group Benefits department provides mid-sized and large businesses with short- and long-term disability insurance products and group life insurance. Many Indiana employers, such as Dow Chemical and Subaru, have purchased short term disability group coverage and long term disability group coverage through Liberty Mutual. Although, oftentimes Liberty Mutual is only the claims administrator for the short term disability coverage and does not insure the short term disability benefits. By issuing the short term and long term disability policies, Liberty Mutual agrees to pay income replacement benefits to employees who become disabled due to injury or illness.

On their website Liberty Mutual notes that as far as Long-Term Disability:

• Between ages 35 and 65 seven in ten employees will be disabled for five weeks or longer.
• Only 15% of LTD claims last longer than five years.
• 98% of Liberty Mutual Insurance's eligible claimants were approved for Social Security Disability Insurance benefits in 2010.

The O'Ryan Law firm has represented numerous clients in short term and long term disability claims which are insured by Liberty Mutual. If you have submitted a claim to Liberty Mutual for disability benefits, it is important to collect all of your medical records and submit them to Liberty Mutual to insure that Liberty Mutual has all of the critical documentation of your disability. Also, it is extremely helpful to have your physician, therapist, or nurse practitioner write a detailed letter to Liberty Mutual explaining how your medical conditions prevent you from returning to work. Letters from friends, co-workers and supervisors can also be helpful in establishing the extent of your restrictions and limitations due to your impairing medical conditions. If Liberty Mutual insists on denying your disability claim, please contact the O'Ryan Law Firm toll free at (855) 778-5055 to further discuss your disability claim with Liberty Mutual. We represent individuals throughout the State of Indiana in Liberty Mutual disability claims including all of the major cities such as Indianapolis, Bloomington, South Bend, Fort Wayne, and West Lafayette.

Disability and the Family Medical Leave Act

February 19, 2014

When a disability causes someone to stop working, they may be unsure of their rights to employee protections or insurance benefits. One common question for disabled employees is whether or not the employer can terminate the employee's job due to a disability. For some employees, they may have limited protection under the Family and Medical Leave Act (FMLA).

Under FMLA, eligible employees can take up to 12 workweeks of unpaid leave a year. FMLA also requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. After the employee has exhausted 12 workweeks in one year, they are entitled to their same or an equivalent job if they are able to return to work. Unfortunately, if the disabled employee is still unable to return to work after exhausting their leave of absence under the FMLA, the employer may legally terminate his or her employment. More details can be found on the Department of Labor's website.

It is very important to recognize that not all employers are required to provide FMLA protection. FMLA applies to all public agencies (including local, state, and federal employers, and local education agencies) and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Therefore, if your workplace includes less than 50 employees and your employer is private, you may not receive FMLA protection.

Additionally, employees must satisfy several requirements in order to take an unpaid leave under the FMLA. First, they must work for a covered employer as explained above. Second, they must have worked 1,250 hours during the 12 months prior to the start of leave (with special hours of service rules for airline flight crew members). Third, they must work at a location where the employer has 50 or more employees within 75 miles. And fourth, they must have worked for the employer for 12 months.

If a disabled employee is eligible for FMLA protection, they can apply for an unpaid leave of absence due to a "serious health condition." The FMLA defines a "serious health condition" at Title 29 of the Code of Federal Regulations §825.113 as a condition involving inpatient care or continuing treatment by a health care provider. In addition, the Department of Labor commented on the meaning of a "serious health condition" in a 1996 opinion letter and stated that "'eligible employees' may take leave for, among other reasons, their own serious health conditions that make them unable to perform the essential functions of their position.

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Madison National Disability Claims

January 29, 2014

The O'Ryan Law Firm has represented several clients in disability claims against Madison National Life Insurance Company. Most of these clients have been teachers or other former employees of school corporations located in Indiana. Madison National has issued disability coverage to numerous school corporations across the State of Indiana committing to provide income replacement benefits to Indiana teachers who have become disabled due to an injury or illness. We have represented several teachers who have had a stroke, suffer from bipolar disorder, or who have been diagnosed with fibromyalgia, among other medical conditions, in disability claims denied by Madison National.

Madison National has been headquartered in Madison, Wisconsin since
1961. They are a wholly-owned subsidiary of Independence Holding Company, a NYSE listed corporation with principal interests in the life and health insurance business. Madison National is involved in several lines of life, health and disability business including Group Life, Short-Term Disability and Long-Term Disability for both public and private sector employers across the country.

Madison National's Group Long Term Disability Plans typically provide the following:

Income replacement from as low as 40% to as high as 70% of pre-disability earnings;
A range of replacement options to help tailor a plan to fit an employee benefit budget;
A wide variety of elimination periods are available;
Benefit waiting periods can be as short as fourteen days to as long as one year and can be designed to coordinate with an existing sick leave and/or Short-Term Disability plan;
Benefits are most commonly paid until retirement age, but can also be shortened for a more economical plan;
Various definitions of disability are available;
Partial or Residual definitions allow an employee to return to work on a part-time basis and still continue to receive a benefit;
Limited durations are available for more economical plans;
Benefits for disabilities due to drug/alcohol, mental/nervous, and/or self-reported conditions can be limited to reduce the cost of the plan;
Many optional plan provisions are available.

In claims with Madison National, it is important to make sure you submit all of your medical records to Madison National and that you have your physician clearly and adequately explain your restrictions and limitations to Madison National. It is important to maintain a regular treatment plan with your treating physicians and to diligently pursue your treatment plan. Otherwise, Madison National may find that your disability claim is not supported and they will readily deny the claim. If your disability claim has been denied by Madison National, please contact the O'Ryan Law Firm at (855) 778-5055.

Disability and Retirement Benefits under the Indiana Public Employees' Retirement Fund (PERF)

January 16, 2014

If a disability forces someone to stop working, he or she may be unsure of available disability benefits. In Indiana, some employees may be eligible for the Public Employees' Retirement Fund (PERF) and Indiana Public Retirement System (INPRS). Indiana employees who may be eligible for these benefits include those working at public universities, school corporations, municipalities, and state agencies.

Disability Benefits under PERF

As of January 2014, the PERF Employer Handbook is available online at the following link: http://www.in.gov/inprs/2416.htm#. According to the PERF Employer Handbook, employees are eligible to apply for disability benefits if they meet the following criteria:

Have five or more years of creditable service under PERF before the termination of salary, or employer provided income protection benefits (disability insurance), or leave under the Family and Medical Leave Act (FMLA), or worker's compensation benefits,

Are determined by the Social Security Administration to be disabled, and

Are receiving salary, or employer provided income protection benefits, or are on leave under the Family and Medical Leave Act (FMLA) as of the onset date established by the Social Security Administration.

If an employee is eligible for PERF disability benefits under the above criteria, they should apply for disability benefits as soon as possible. As mentioned in the first requirement, the employee may first receive "employer provided income protection benefits" or disability insurance. Employer provided income protection benefits differs from PERF disability benefits and requires a separate disability application - usually this application should be filed as soon as the employee stops working due to disability.

Even though the PERF Employer Handbook sets out the above criteria, Indiana Code actually lists an additional requirement once PERF disability benefits have been approved: "at least once each year until the member reaches age 65, PERF verifies the member's continued disability." Ind. Code 5-10.2-4-6. If an employee is approved for disability benefits, then they will continue to receive benefits until age 65 so long as the Social Security Administration continues to approve disability and the employee provides the appropriate information to PERF.

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Understanding the Requirements of your Long Term Disability Policy

December 16, 2013

When a person with a disability is completing his or her application for long term disability benefits, they may not realize the terms they must meet in order to receive disability benefits. While long term disability policies can vary greatly, there are some common provisions found within the policies. The below provisions are commonly found in long term disability policies, but please carefully review your policy to learn the specific requirements of receiving long term disability benefits.

Definition of Disability
Every long term disability policy will include a definition of Disability or Total Disability. It is common for this definition to be broken into two parts. Often, the first part defines disability as an injury or illness that prevents the claimant from performing the duties of his or her own occupation. The second part pertains to the disability after a set time period, such as 24 months. This second part defines disability as the same injury or illness that prevents the claimant from performing the duties of any occupation.

It is also worth noting that there can be important terms within the definition of disability. For example, some definitions define "own occupation" as one that is performed in the national economy and can be found in the Dictionary of Occupational Titles. Another example is the definition of "injury" or "illness", which may exclude conditions such as alcoholism or injuries from self-harm. The term "any occupation" may be defined as an occupation that the claimant's experience and training reasonably allows. Because of the important terms within the definition of disability, you will want to carefully review the policy's definition of each term, so that you fully understand the requirements within the definition of disability.

Elimination Period and Other Requirements
Many definitions of disability include more requirements than those mentioned above. One of the most common additional requirements is that a claimant meets an elimination period. An elimination period is usually defined as a set amount of time (such as 180 days) that a claimant must prove to be disabled before becoming eligible for long term disability benefits. An elimination period is important in two ways: 1) a claimant must provide medical documentation showing that they were disabled during this time frame and 2) a claimant will not receive long term disability benefits until the elimination period is exhausted.

Because so many variations in the requirements of disability exist, it is crucial to examine the entire long term disability policy carefully. One common requirement in disability policies is that the insured's disability prevents him from earning 60% or more of his previous earnings (this provision may also allow a person to work part-time, but still qualify for long term disability benefits). An insurance policy could require that a claimant maintains regular treatment with his physician. Other policies may even require that a disability be supported by objective evidence, such as blood tests, x-rays, or MRIs. Some policies may require that a person be approved for disability benefits by the Social Security Administration.

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Disabling Chronic Pain

November 22, 2013

One of the most disabling symptoms for our disability clients at the O'Ryan Law Firm is chronic, severe pain. The type of pain that keeps you awake most of the night or forces you to lay down most of the day in order to alleviate the pain just a little bit. The pain that results from degenerative disc disease, fibromyalgia, neuropathy and failed back surgeries among other medical conditions. Disability insurance companies are loath to pay disability benefits when the most significant symptom is disabling pain. Oftentimes, the insurance company will discount considerable evidence that the chronic pain is a significant factor in the disability claim because many of the objective medical testing is "normal." There are no x-rays, MRIs or CT scans that are able to document chronic, severe pain. However, many courts have held that a disability claimant can prove the severity of their pain by showing, with their medical records, repeated attempts to treat the pain including steroid injections, prescription medications, surgery, physical therapy and acupuncture. These treatment methods can show that a claimant is suffering from severe pain.

In this area, when there is an absence of testing to establish the source of pain, a claimant can show that they are disabled by chronic pain by proving that the claimant has diligently sought out treatment for the pain. The Seventh Circuit Court of Appeals has held that "medical science confirms that pain can be severe and disabling even in the absence of 'objective' medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the [plaintiff]." Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.2004). Thus, while objective medical evidence must support a finding of an underlying impairment, subjective evidence can be used to demonstrate that the pain associated with that condition is disabling. Carradine, 360 F.3d 753; see also Hawkins v. First Union Disability Plan, 326 F.3d 914, 919 (7th Cir.2003) "Taken in the light most favorable to the plaintiff, the evidence of [plaintiff's] repeated attempts to seek treatment for his condition supports an inference that his pain, though hard to explain by reference to physical symptoms, was disabling." Diaz v. Prudential Ins. Co., 499 F.3d 640, 645 (7th Cir. 2007). In Sandell v. Prudential Ins. Co., 2007 WL 4404487, *7 (S.D. Ind. Dec. 13, 2007), the court found that a record review commissioned by the plan administrator was not persuasive, in large part because the reviewing physician failed to consider the claimant's subjective pain symptoms or address whether the claimant's pain made it impossible for the plaintiff to hold full-time gainful employment. Similarly in Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856, 866 the Court held:

The record here also shows that Gessling aggressively pursued for several years a range of therapies for his pain, including the rhizotomies, acupuncture, epidural injections, and even hypnosis. Those efforts are hard to reconcile with a theory that Gessling was exaggerating or lying about his pain. See Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 646 (7th Cir.2007) (reversing summary judgment for plan
under de novo review; efforts at therapy supported credibility of claimant's complaints of pain); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.2004) (remanding denial of
Social Security disability benefits based on subjective pain complaints where claimant had undergone extensive, varied, and intrusive pain therapies).

Also, in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7, the Court found an insurer's discounting of the plaintiff's subjective pain and resulting limitations to be unreasonable:

Here, Hartford unreasonably discounted Anderson's subjective complaints of pain and the resulting limitation on her activities. None of Hartford's reviewing physicians acknowledge Anderson's repeated complaints of pain or her treatment for such pain. Instead, all three physicians emphasize the lack of objective physical evidence of disability. See Record at 376 (Dr. Willis' opinion); id. at 150 (Dr. Marion's opinion); id. at 134 (Dr. Topper's opinion). This discounting of Anderson's subjective pain and the resulting limitations on her activities based on a lack of objective evidence was erroneous. See Hawkins, 326 F.3d at 918-19 (7th Cir.2003) (reversing termination of benefits where reviewing physicians discount pain based on lack of objective evidence).

It is improper for insurance companies, such as Cigna, Unum, Prudential, Sedgwick, Madison National, Liberty Life or Lincoln Financial, to deny a disability claim while ignoring and dismissing a claimant's repeated and continuous reports to his or her doctor of severe pain or the extensive treatment that the claimant sought for his or her condition. This supplies the very objective evidence that the insurance company may complain is lacking in your case. If you are suffering from chronic pain and your disability claim has been denied, contact the O'Ryan Law Firm today to discuss your disability claim further.

Disabling Headaches

November 15, 2013

Headaches are an uncommon occurrence for most people. For some people, though, headaches occur frequently, and can be so severe and intense that they are debilitating. When headaches occur frequently, they can force a person to stop working altogether.
Disabling headaches are a non-specific symptom and may be caused by a range of conditions. Therefore, it is crucial for a person to seek medical treatment to learn the cause of their headaches. If a family doctor cannot diagnose the condition causing headaches, then the patient will likely be referred to a neurologist.

Objective testing that explains the cause of the headaches may strengthen the disability claim, so it is important for the patient to undergo any sort of applicable testing. However, the cause of headaches is often not detectable in CT scans or other testing. If the headaches are not explained by test results, then the patient should work with their physicians to determine if any environmental factors are contributing to their headaches.

In cases where the headaches are severe, a patient may be experiencing migraine headaches. Migraines are characterized by moderate to severe headaches along with some of the following symptoms: photophobia (sensitivity to light), phonophobia (sensitivity to sound), pulsating, pain on one side of the head, and nausea/vomiting. Again, it is essential for a patient to explain his or her symptoms to their physicians so that the best course of treatment can be planned. Treatment for migraines may include prescription medications, injections, and attempting to remove trigger sources.

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Lack of Examination In Denying a Disability Claim

November 6, 2013

If your short term or long term disability benefits have been denied or terminated chances are high that the insurance company has utilized a record reviewing physician to review your medical records and conclude that you are not disabled, without having ever examined you in person. The utilization of record reviewing physicians has become the favorite tactic to deny claims by many of the disability insurance companies such as Cigna, Prudential, Hartford, Sedgwick, Liberty Mutual, Unum and Lincoln Financial. For many of our clients, there are significant medical records and reports from their treating physicians supporting their disability claim yet the insurance company denies the claim because a doctor, who never spoke to or examined the client, says that the client is not disabled and can return to work.

Over the past few several years, the courts have become less tolerant of claims administrators utilizing a bunch of record reviews to deny legitimate claims. Two recent cases from the Southern District of Indiana followed this trend and rejected the opinions of several record reviewing physicians while reversing the denial of benefits. In Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856 (S.D. Ind. 2010), Judge Hamilton held that three paper reviews were insufficient to overcome the medical records and reports from the plaintiff's treating physician. Specifically, Judge Hamilton found:

At the very least, a mere record review is not sufficient to provide a reasonable basis for discounting Dr. Walker's and Gessling's accounts of his pain and resulting limitations. The court does not mean to suggest that it is reviving any requirement of special deference to a treating physician. Far from it. See Nord, 538 U.S. at 825, 123 S.Ct. 1965 (holding that ERISA does not require plans to provide such deference). But to disagree with an apparently sound opinion of a treating physician, a plan administrator needs something much more solid than the consulting physicians provided in this case. See id. at 834, 123 S.Ct. 1965 (reminding courts that plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including opinions of a treating physicians). The medical records did not show that Dr. Walker and Gessling must have been correct--the problems of subjective pain and resulting limitations are difficult to evaluate based on records alone. But after reviewing the records, the reviewing physicians failed to come to grips with the real problem, the whole person, and the history that corroborated his complaints of pain. For these reasons, the records reviews in this case did not provide a reasonable basis for denying the disability insurance benefits for which Gessling and his employer paid substantial premiums to
Hartford Life.

Similarly in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7 (S.D. Ind. Sept. 10, 2010), Judge Lawrence rejected the opinions of three record reviewers to reverse Hartford's denial of disability benefits and held:

Furthermore, Hartford's reviewing physicians never examined Anderson. All three physicians relied on treatment records supplied by Hartford. The Court is not suggesting that it is recognizing a treating physician rule in the ERISA context. However, for Hartford to disagree with the apparently sound opinions of Anderson's treating physicians, it needed to rely on something more solid than the opinions of the consulting physicians. See Nord, 538 U.S. at 834 (2003) (cautioning plan administrators that they may not arbitrarily discount a treating physician's opinion). In short, the reviewing physicians "failed to come to grips with the real problem, the whole person, and the history that corroborate [her] complaints of pain." Gessling v. Group Long Term Disability Plan for Emps. of Sprint/United Mgmt. Co., 693 F.Supp.2d 856, 866 (S.D.Ind.2010) (Hamilton, J.). Accordingly, the reviewing physicians' opinions and their record review did not provide a reasonable basis for denying Anderson's application for disability benefits.

Likewise, an Indiana jury has rejected an insurer's attempt to terminate a legitimate disability claim based on a bunch of record reviews. In Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 698-701 (Ind. Ct. App. 2007), the plaintiff filed an action against her long term disability insurer, in Marion County under state law, alleging that the insurer wrongfully terminated her disability benefits. In terminating the claim, Lumbermens relied upon the opinions of six record reviewing physicians to reach the conclusion that the plaintiff was no longer disabled. The jury rejected the opinions of all six of Lumbermens' record reviewing physicians to conclude that Lumbermens wrongfully terminated the plaintiff's disability benefits and breached the insurance contract as well as Indiana's covenant of good faith and fair dealing. As damages, the jury awarded the plaintiff $22,583 on the breach of contract claim and $1,500,000 for the defendant's breach of the covenant of good faith and fair dealing.

Indiana courts, and an Indiana jury, have found that record reviews are not sufficient to overcome the medical records and reports from treating physicians who have the opportunity to observe, examine and treat the claimant. If your disability benefits have been denied or terminated without a medical examination, contact the O'Ryan Law Firm for further assistance and advice.

Disabilities Caused by Mental Health

October 15, 2013

Some may associate disability with physical impairments like the inability to walk or stand. However, disabilities are not limited to physical ailments and many people suffer from disabling mental health conditions. Proving that a mental health condition is disabling can be challenging because disorders like major depression and bipolar disorder may take time to conclusively diagnose.

In order to prove that a mental health condition is disabling, a person's medical treatment must document the severity of symptoms over an extended duration. This requires that the claimant regularly treat with a psychiatrist and/or licensed psychologist. Although a therapist or counselor may treat someone for mental health problems, the Social Security Administration and long term disability insurers give more weight to the opinions of licensed psychologists and psychiatrists rather than therapists or counselors. Generally, the Social Security Administration affords more weight to the opinions of accepted medical sources, like a treating psychiatrist or psychologist, while long term disability insurance companies more freely pick-and-choose which medical opinions they rely upon to make a determination.

Severe mental health problems can also be evidenced by visits to the hospital and inpatient treatment. Some mental health listings under the Social Security Administration require episodes of decompensation. Medical records of a hospitalization can serve as strong evidence of an episode of decompensation. Moreover, the opinions from third parties, like a family member or friend, may help show episodes of decompensation. Any person who has been able to observe the claimant's personality or behavioral health over time can provide relevant evidence revealing the severity of the claimant's mental health condition.

Continue reading "Disabilities Caused by Mental Health" »

Disability Claims with Lincoln Financial

September 25, 2013

We have represented numerous clients in short term disability and long term disability claims after Lincoln Financial, also known as Lincoln National, has denied or prematurely terminated the client's disability benefits claim. Lincoln traces its origin to June 12, 1905, in Fort Wayne, Indiana, as the Lincoln National Life Insurance Company. Perry Randall, a Fort Wayne attorney and entrepreneur, suggested the name "Lincoln," arguing that the name of Abraham Lincoln would powerfully convey a spirit of integrity. In August, 1905 Robert Todd Lincoln provided a photograph of his father, along with a letter authorizing the use of his father's likeness and name for company stationery and advertising.Lincoln 3.jpg

Lincoln National Corporation is a Fortune 250 American holding company, which operates multiple insurance and investment management businesses through subsidiary companies. Lincoln Financial Group is the marketing name for LNC and its subsidiary companies. LNC was organized under the laws of the state of Indiana in 1968, and maintains its principal executive offices in Radnor, Pennsylvania
In 1928, LNC president Arthur Hall hired Dr. Louis A. Warren, a Lincoln scholar, and in 1929, LNC acquired one of the largest collections of books about Abraham Lincoln in the United States. The Lincoln Museum in Fort Wayne was the second largest Lincoln museum in the country. The Abraham Lincoln Presidential Library and Museum in Springfield, Illinois is now the world's largest museum dedicated to the life and times of Abraham Lincoln, after the closing of the Fort Wayne Lincoln Museum June 30, 2008.

Lincoln National issues group disability policies, and individual disability policies, to provide income replacement benefits to residents of the State of Indiana who are forced to stop working due to injury or illness. At O'Ryan Law Firm, we have received numerous calls from individuals who were promised disability benefits under a Lincoln National policy yet those benefits were denied by Lincoln despite medical proof establishing that the definition of "Disabled" had been met under the terms of the policy. Several of our clients who are insured by Lincoln National were teachers who had taught for many years until reaching the point where they were no longer able to keep teaching because of medical conditions.

We have successfully resolved disability claims with Lincoln Financial, either during the appeal stage, or if we are forced to file a lawsuit, after the lawsuit is filed with the court. We have developed a good working relationship with the legal staff at Lincoln Financial and have settled several cases with them after a lawsuit was filed. If you have a disability claim against Lincoln Financial, or their subsidiary Lincoln National, and they are refusing to pay your monthly disability benefits, contact the O'Ryan Law Firm at (855) 778-5055 or visit our website at oryanlawfirm.com to find out more information about our services.
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The Importance of Objective Evidence in Your Disability Claim

September 12, 2013

Most disability insurance policies do not explicitly require that a claimant provide objective evidence to support their disability. Yet, it is all too common when a claimant receives a denial letter in the mail from their insurance company claiming that disability benefits have been denied due to a lack of objective evidence. Unfortunately, many courts have determined that insurance companies are permitted to rely upon objective evidence when making a determination of disability.

Objective medical evidence is documentation from tests including but not limited to: medical resonance imaging (MRIs), x-rays, blood tests and other chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), and psychological tests. Unfortunately, not all medical conditions are detected in these various types of objective testing, which can put some disability claimants in a challenging condition. For example, someone with fibromyalgia may not be able to produce traditional objective medical evidence of their condition. For more information about fibromyalgia, see this entry: Fibromyalgia Disability Claims.

In order to improve the chances of being approved for disability insurance benefits, a claimant should make sure that their treating providers have ordered all of the necessary tests to properly diagnose their condition. Without objective documentation, the insurance company is much more likely to deny benefits. For example, a claimant with Multiple Sclerosis should undergo any applicable testing, like an MRI of the brain, a spinal tap, and tests measuring electrical activity in the brain. For more information about Multiple Sclerosis, see this entry: Multiple Sclerosis Disability Claims.

Continue reading "The Importance of Objective Evidence in Your Disability Claim" »

Doing Housework Does Not Equate with the Ability to Work

August 14, 2013

For several of our clients, their insurance company has denied or terminated their short term or long term disability benefits for a strange reason: housework. Just recently we represented a client in a Unum case where Unum terminated our client's monthly disability benefit payment, in part because they claimed "[y]ou have reported a significant level of housework at home." Oftentimes, you will receive a call from your disability benefits claim specialist asking you several questions about your activities of daily living or you may be required to complete forms regarding your daily activities. On occasion, the insurance company may send a field investigator to your home to interview you about your daily activities and to observe what you are able to do over the course of the interview.

Some of the insurers will take reports about housework and utilize this information to deny benefits claiming that vacuuming, doing laundry and preparing meals indicates that an individual is able to work. Several courts have rejected this as a reason for denying disability benefits. For instance in Hawkins v. First Union, 326 F.3d at 918, the Seventh Circuit specifically rejected this type of reasoning finding that as a matter of common experience an individual's ability to do some activities at home did not establish that he could do a full-time job. The court noted, for example, that "when one is working at home it is easier to interrupt one's work every few minutes if need be than to do so at the office." The court concluded that engaging in a certain amount of activity at home simply "does not prove" that a person is not disabled.

Similarly, in the case of Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) the court reasoned that "[D]isability claimants should not be penalized for attempting to lead normal lives ... Many home activities are not easily transferable to . . . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.' . . . Only if the level of activity were inconsistent with the Claimant's stated limitations would these activities have any bearing on Claimant's credibility." Further, as stated by the court in Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), participation in everyday activities of short duration, such as housework or fishing" does not disqualify a claimant from disability and does not establish that a claimant can perform sedentary work. Lastly in Gentle v. Barnhart, 430 F.3d 865, 867 (7th 2005), the judge found that equating household work to work in the labor market is not appropriate.

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If your monthly disability benefits have been denied or terminated because you reported doing housework, chores or lawn care, please contact the O'Ryan Law Firm for a free consultation. Some level of activity at home is appropriate even if you are disabled. Don't let the insurance company defeat you just because you are able to vacuum or fix dinner. You can reach us at www.oryanlawfirm.com or toll free at (855) 778-5055.