Articles Posted in Short Term Disability

According to the Centers for Disease Control and Prevention[1], Chronic Fatigue Syndrome (CFS) is described as follows:

Chronic fatigue syndrome, or CFS, is a devastating and complex disorder. People with CFS have overwhelming fatigue and a host of other symptoms that are not improved by bed rest and that can get worse after physical activity or mental exertion. They often function at a substantially lower level of activity than they were capable of before they became ill.

Besides severe fatigue, other symptoms include muscle pain, impaired memory or mental concentration, insomnia, and post-exertion malaise lasting more than 24 hours. In some cases, CFS can persist for years.

O’Ryan Law Firm, on behalf of Plaintiff, Denise D., recently filed a lawsuit against The Prudential Insurance Company of America (“Prudential”).   Plaintiff was employed by Advance/Newhouse Partnership, which made her eligible for the Advance/Newhouse Partnership Short Term and Long Term Disability Plans, which were administered and insured by Prudential.

Facts of the Case Against Prudential

Plaintiff was employed by Advance/Newhouse Partnership from 2012 until she became disabled in February 2016 and was unable to work due to lupus, fibromyalgia, migraines, spondylosis and radiculopathy. Plaintiff’s treating physicians provided objective medical proof that the Plaintiff was unable to continue working due to these serious illnesses.  Her physicians also confirmed that she was unable to perform the material duties of her job thus meeting the definition of “Disabled” under the Prudential policy.

O’Ryan Law Firm recently settled a lawsuit against American United Life Insurance Company (“AUL”) on behalf of a client whose long term disability benefits were prematurely terminated by AUL.   AUL is headquartered in Indianapolis and has their main office in downtown Indianapolis in the AUL building.  The client, Candace, is actually a New Jersey resident so naturally it would make sense to file the claim in New Jersey.  However, the O’Ryan Law Firm was able to represent Candace in Indiana because of the fact that AUL is incorporated under Indiana law.  As a result, AUL may be sued in Indiana and the lawsuit was therefore filed in the federal district court for the Southern District of Indiana.

Case Against AUL

Candace was employed as an accounts manager for an insurance brokerage company from 2008 until she became disabled in December 2012.  She became unable to work due to lumbar radiculopathy and moderately severe cervical stenosis, both of which resulted in chronic pain and fecal incontinence. Her treating physicians provided objective medical proof that the she was unable to continue working due to these medical impairments.

It’s never too early or too late to hire an attorney to represent you in your disability case. You do not have to wait to be denied by your insurance company before talking to an attorney. We offer several services that can protect your interests. Here are some examples of how we can help:

  • Assist you with your initial application for Long Term or Short Term Disability benefits.
  • Help manage your monthly Long Term Disability benefits.

At the O’Ryan Law Firm, we have represented several clients who have become disabled due to the severe symptoms of Scleroderma.

According to the American College of Rheumatology:

WHAT IS SCLERODERMA?

Digestive disorders can cause a wide range of symptoms including abdominal pain, fatigue, diarrhea, vomiting, nausea, and weight loss. Inflammatory bowel disease (“IBD”, not to be confused with Irritable Bowel Syndrome, IBS) may be responsible for such symptoms. IBD includes, but is not limited to, Crohn’s disease and ulcerative colitis. When these conditions are not controlled, symptoms may become so frequent and severe that work is not possible.

Testing and Treatment

To assess IBD, the patient should seek treatment with a gastroenterologist. A gastroenterologist (GI) is the appropriate specialist to determine which testing is needed, and which treatment options are available. Available tests include endoscopy/colonoscopy, biopsy, blood tests, stool tests, and small intestine imaging. These tests may need to be repeated on occasion to determine how the disease is progressing.

Treatment options for Crohn’s disease and ulcerative colitis vary patient to patient. Some GI specialists may present surgery as an option, although conservative treatment will be attempted first. Typically, adjustments to diet and medications will be offered first. Types of medication options are aminosalicylates, corticosteroids, immunomodulators, antibiotics, and biologic therapies. A high percentage of Crohn’s disease patients will have surgery, although surgery does not cure Crohn’s – it can only conserve portions of the gastrointestinal tract.

Maintaining Treatment and Recording Gastrointestinal Symptoms

Disabled patients should make sure they maintain treatment with GI specialists, follow their prescribed diet, and follow their doctors’ treatment plans as best as possible. Often, patients will only see their GI specialist on a quarterly basis. Due to the chronic nature of IBD and the possibility that symptoms may wax and wane, it is not possible for patients to see their doctor every time there is a slight change in their condition. Therefore, it is advisable for disabled IBD patients to keep a log of their gastrointestinal symptoms. The log should indicate which days the patient is experiencing gastrointestinal symptoms, how long the symptoms last, and which symptoms are occurring. The patient may also want to note any other important data, such as abdominal pain level (rated on a scale of 1-10), what may have caused the symptoms (such as a stressful situation or a change in diet), and medication taken. For computer and smart phone users, there are options to easily record gastrointestinal symptoms such as GI Buddy App (available for iPhone and Android users). IBD patients should provide copies of their GI logs to treating doctors.
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Many Indiana employees receive group disability insurance coverage through Aetna. Headquartered in Hartford, Connecticut, Aetna is a large disability insurance company that is currently in the Fortune 100. O’Ryan Law Firm has successfully represented many clients whose disability insurance benefits have been unfairly denied or terminated by Aetna.

Short Term Disability Benefits

Aetna’s short term disability coverage pays benefits after a short elimination period (often a week long). Short term disability benefits usually last three to six months. During Aetna’s investigation of the short term disability claim, it is common for Aetna to gather medical records, gather information about the claimant’s job, require statements from treating providers about the claimant’s ability to work and expected duration of disability, and have internal medical consultants review all medical evidence. If the individual is approved for short term disability benefits through the maximum duration of the policy, then they may apply for long term disability benefits.

Long Term Disability Benefits

After an elimination period that is typically the length of the short term disability period, the claimant may apply to Aetna for long term disability benefits. When a claimant receives long term disability insurance through a private employer, their claim is usually governed by the Employee Retirement Income Security Act (“ERISA”).

In addition to information already gathered during the short term disability claim, Aetna will request updated medical records and statements from treating providers, may perform a vocational analysis, and may have internal medical consultants or external medical consultants review the medical evidence. It is very common for long term disability policies to require that the claimant prove disability from their own occupation for the first 24 months of long term disability benefits and then require that the claimant prove disability from any occupation after 24 months of long term disability benefits.

During the long term disability claim, it is more common for Aetna to utilize claim review tactics such as referring the claimant for an Independent Medical Examination (“IME”), contracting private investigators to perform surveillance of the claimant, contracting peer reviewing physicians to review evidence and call the claimant’s doctors, and perform a Transferable Skills Analysis to see if the claimant can return to work in a different job. If a claimant is approved for long term disability benefits, it is likely that Aetna will urge the claimant to apply for Social Security disability benefits. Aetna may even refer the claimant to one of its vendors to represent them in their Social Security disability claim.
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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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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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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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