Myelopathy: Part 2

In Part 1 of this post, we listed some of the symptoms and potential causes of myelopathy.  In Part 2, we will discuss some of the methods used to treat myelopathy.

Methods of Treating Myelopathy

  • Avoidance of activities that cause pain;
  • Acupuncture;
  • Using a brace to immobilize the neck;
  • Physical therapy (primarily exercises to improve neck strength and flexibility);
  • Various medication (including nonsteroidal anti-inflammatory drugs (NSAID), oral corticosteroids, muscle relaxants, anti-seizure medications, antidepressants, and prescription pain relievers);
  • Epidural steroid injections (ESI);
  • Narcotics, if pain is very severe;
  • Surgical removal of bone spurs/herniated discs putting pressure on spinal cord;
  • Surgical removal of portions of vertebrae in spine (to give the spinal cord more room); and
  • Spinal fusion surgery.

Conclusion

Myelopathy can be severely debilitating, particularly for doctors and dentists. Obviously, any physician or dentist who is experiencing a loss of motor skills, numbness in hands and arms and/or high levels of chronic pain will not be able to effectively treat patients.

If you are experiencing any of these symptoms, you may want to ask your doctor to conduct tests to see if your spinal cord is being compressed. If you have myelopathy and the pain and numbness has progressed to the point where you can no longer treat patients effectively or safely, you should stop treating patients and consider filing a disability claim.


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Myelopathy: Part 1

In previous posts, we have discussed a number of disabling conditions, such as Parkinson’s disease, essential tremors, carpal tunnel syndrome, and fibromyalgia. In this post, we are going to talk about another serious condition that can severely limit a physician or dentist’s ability to practice—myelopathy. In Part 1, we will discuss some of the causes and symptoms of myelopathy. In Part 2, we will discuss some of the methods used to treat myelopathy.

What is Myelopathy?

Myelopathy is an overarching term used to describe any neurologic deficit caused by compression of the spinal cord.

The onset of myelopathy can be rapid or it can develop slowly over a period of months. In most cases, myelopathy is progressive; however, the timing and progression of symptoms varies significantly from person to person.

What Causes Myelopathy?

There are several potential causes of myelopathy, including:

  • Bone fractures or dislocations due to trauma/injury;
  • Inflammatory diseases/autoimmune disorders (e.g. rheumatoid arthritis);
  • Structural abnormalities (e.g. bone spurs, disc bulges, herniated discs, thickened ligaments);
  • Vascular problems;
  • Tumors;
  • Infections; and
  • Degenerative changes due to aging.

Symptoms of Myelopathy

The symptoms of myelopathy will vary from case to case, because the nature and severity of the symptoms will depend on which level of the spine is being compressed—i.e. cervical (neck), thoracic (middle), or lumbar (lower)—and the extent of the compression.

Some of the symptoms of myelopathy include:

  • Neck stiffness;
  • Deep aching pain in one or both sides of neck, and possibly arms and shoulders;
  • Grating or crackling sensation when moving neck;
  • Stabbing pain in arm, elbow, wrist or arms;
  • Dull ache/tingling/numbness/weakness in arms, hands, legs or feet;
  • Position sense loss (i.e. the inability to know where your arms are without looking at them);
  • Deterioration of fine motor skills (such as handwriting and the ability to button shirts);
  • Lack of coordination, imbalance, heavy feeling in the legs, and difficulty walking;
  • Clumsiness of hands and trouble grasping;
  • Intermittent shooting pains in arms and legs (especially when bending head forward);
  • Incontinence; and
  • Paralysis (in extreme cases).

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Case Study: Mental Health Disability Claims – Part 2

In Part 1 of this post, we started looking at a case involving a mental disability claim where the court reversed Unum’s claim denial under ERISA de novo review. In Part 2, we are going to look at how the same court determined the extent of claimant’s benefits.

Turning back to the Doe case we examined in Part 1, after the court reversed the denial, the parties could not agree on the amount of benefits claimants was entitled to. In previous posts, we have discussed how many policies have a mental health exclusion that limits recovery to a particular period—usually 2-3 years. Unfortunately for our claimant, he had such a provision in his policy, which provided that his “lifetime cumulative maximum benefit period for all disabilities due to mental illness” was “24 months.”[1]

Not surprisingly, Unum invoked this provision and asserted that it only had to pay benefits for a 24 month period. The court agreed, for several reasons:

  • To begin, the policy defined “mental illness” as “a psychiatric or psychological condition classified in the [DSM], published by the American Psychiatric Association, most current at the start of disability.” All of claimant’s conditions (major depression, OCD, ADHD, OCPD, and Asperger’s) were classified in the DSM-IV.
  • Claimant attempted to assert that his disability was not a “mental illness” because it was “biologically based.” Id. While this type of argument had been accepted by some other courts, the court in Doe determined that it was not convincing in this particular instance because the claimant’s policy expressly defined “mental illness” as a condition classified in the DSM-IV. The court also noted that DSM-IV itself notes that “there is much ‘physical’ in ‘mental’ disorders and much ‘mental’ in ‘physical’ disorders” Id.
  • Accordingly, the court concluded that because the policy was “concerned only with whether a condition is classified in the DSM,” whether claimant’s conditions had “biological bases” was “immaterial.”

Thus, even though the Doe claimant was successful in obtaining a reversal of the claim denial, in the end, he only received 24 months of benefits due to the mental health exclusion.

If you are purchasing a new policy, you will want to avoid such exclusions where possible. If you have a mental disability and are concerned about your chances of recovering benefits, an experienced disability insurance attorney can look over your policy and give you a sense of the likelihood that your claim will be approved, and the extent of the benefits you would be entitled to.

[1] See Doe v. Unum Life Ins. Co. of Am., No. 12 CIV. 9327 LAK, 2015 WL 5826696 (S.D.N.Y. Oct. 5, 2015).

 


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Case Study: Mental Health Disability Claims – Part 1

In a previous post, we have discussed how ERISA claims are different from other disability claims. We have also looked at an ERISA case involving “abuse of discretion” review. However, there is another type of review under ERISA—“de novo” review. Unlike abuse of discretion review, under de novo review, the court assesses the merits of the disability claim without affording any deference to the insurer’s decision. Whether your claim is governed by abuse of discretion review or de novo review will depend on the terms of your plan. An experienced disability attorney can look at your policy and let you know which standard will apply.

In this post, we will be looking at two things. First, we will be looking at a case where the court reversed the denial of benefits under de novo review. Second, we will be looking at some of the issues that commonly arise in mental health disability claims. In Part 1, we will be looking at the initial determination made by the court regarding whether the claimant was entitled to benefits. In Part 2, we will be looking at how the court determined the amount of benefits the claimant was entitled to.

In Doe v. Unum Life Insurance Company of America[1], the claimant was a trial attorney with a specialty in bankruptcy law. After several stressful events, including his wife being diagnosed with cancer, claimant started experiencing debilitating psychological symptoms. The claimant was ultimately diagnosed with anxiety, major depression, obsessive compulsive disorder (OCD), attention deficit hyperactive disorder (ADHD), obsessive compulsive personality disorder (OCPD), and Asperberger’s syndrome. He filed for long term disability benefits, but the insurer, Unum, denied his claim. The court reversed Unum’s claim denial under de novo review, for the following reasons:

  • First, the court found the opinions and medical records of the claimant’s treatment providers to be “reliable and probative.” Id. More specifically, the court determined that claimant’s conditions fell within the expertise of the treating psychiatrist and that the psychiatrist’s conclusions were corroborated by neuropsychological testing.
  • Second, the court determined that the opinions provided by Unum’s file reviewers were not credible or reliable. The court noted that while Unum’s in-house consultants claimed that the neuropsychological testing did not provide sufficient evidence of disability, the single outside independent reviewer hired by Unum concluded the opposite and determined that there was no evidence of malingering and that the tests were valid.
  • Finally, the court rejected Unum’s argument that claimant’s psychiatrist should have provided more than a treatment summary. The court determined that this was “a problem of Unum’s own making,” because the evidence showed that Unum expressly stated in written correspondence that it was willing to accept a summary of care letter in lieu of the claimant’s original medical records.

Stay tuned for Part 2, where we will look at how much benefits the claimant actually ended up receiving.

[1] No. 12-CV-9327 LAK, 2015 WL 4139694, at *1 (S.D.N.Y. July 9, 2015).


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Mind Your EIQ

In our last post, we talked about PDQ and why it matters. In this post we are going to be talking about another important calculation—EIQ.

What’s EIQ?

EIQ stands for “earnable income quotient.” Your EIQ estimates how much income you will earn before you retire.

Why Does EIQ Matter?

Many young doctors and dentists are understandably hesitant to go out and purchase disability insurance right away. Adding another insurance premium to the mix is often not very appealing to a young doctor or dentist facing substantial student loan debt and other expenses.

As time goes on, it is easy to forget about disability insurance. Once income is on the rise, many doctors and dentists raise their standard of living proportionally, without giving much thought to what might happen if that income suddenly disappeared.

Consequently, many doctors and dentists have not set up a safety net (such as disability insurance) to cover their expenses if they become disabled. Calculating your EIQ can give you a sense of how much income you are placing at risk by not having disability coverage. Depending on your salary and years remaining until retirement, the number may surprise you.

Once you know your EIQ, you will have a better sense of the amount of disability coverage you will need to maintain your standard of living and meet your goals for retirement. Remember that should you become disabled, your expenses will not simply go way. If anything, they will likely be higher due to medical bills and other out-of-the-ordinary costs that are necessary to accommodate the disability, so be sure to also factor such expenses into your level of coverage.

How Do I Calculate My EIQ?

The Council for Disability Awareness also has an online EIQ calculator. All you have to do is input some basic information about your annual/hourly/weekly income, expected salary increases, and retirement age and the EIQ calculator will estimate how much you will make before you retire.


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Mind Your PDQ

What’s PDQ?

PDQ stands for “personal disability quotient.” Your PDQ estimates the likelihood that you will become disabled during your lifetime, based on a number of lifestyle and health factors.

Why Does PDQ Matter?

Many young doctors and dentists think that because they are young and healthy, they do not need disability insurance, but this can be a dangerous way of thinking. In the first place, many disabilities are caused by unforeseen accidents, not poor health.  Additionally, the odds of becoming disabled are much higher than you might think. The Social Security Administration estimates that a 20-year old entering the workforce has a 1 in 4 chance of becoming disabled before retirement.

Still, each person is different. Your lifestyle, occupation, or medical history may place you above or below the average risk for disability. This is where your PDQ comes in. While your PDQ obviously will not be able to predict what will happen to you with 100% accuracy, it can help you have a better sense of your personal level of risk for disability.

How Do I Calculate My PDQ?

The Council for Disability Awareness has an online PDQ calculator that you can use to find out your PDQ. All you have to do is input some basic information about your age, height, medical conditions, and the kind of work you do and the PDQ calculator will tell you your chances of being disabled before you retire. The PDQ calculator will also tell you the chances of your disability lasting 3 months or longer, the chances of your disability lasting 5 years or longer, and the average length of a long term disability for someone like you.


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Case Study: Abuse of Discretion Under ERISA

In previous posts, we have discussed how it is oftentimes harder to collect under ERISA policies. One of the primary reasons ERISA claims are more difficult is the fact that in most ERISA cases courts are required to defer to the insurer’s decision unless the insurer “abused its discretion.” Under the abuse of discretion standard, an insurer’s decision is only reversed if the claimant can demonstrate that the insurer’s actions were “arbitrary and capricious.” This is a high standard to meet.

While ERISA claims can be more difficult, particularly under the “abuse of discretion” standard, they are not impossible. Sometimes a court will determine that the insurer did, in fact, abuse its discretion. In this post, we will be looking at the recent court case Jalowiec v. Aetna Life Insurance Company[1] to illustrate some of the things that a court may find to be an abuse of discretion.

In Jalowiec, the claimant suffered from chronic migraine headaches, dizziness, nausea, vertigo, insomnia and fatigue after suffering a blow to the back of his head at a Tae Kwon Do event. After over a year of testing and treatment, the claimant was initially diagnosed with postural orthostatic tachycardia syndrome (“POTS”). Later on, claimant was diagnosed with an “unspecified disorder of autonomic nervous system.”

The insurer, Aetna, initially awarded the claimant short term disability benefits, but subsequently denied claimant’s claim for long term disability benefits. Ultimately, the court determined that Aetna’s denial of long term disability benefits was an abuse of discretion, for the following reasons:

  • Aetna changed the classification of claimant’s occupation multiple times throughout the claims process, from “sedentary” at the short term disability phase, to “light’ at the initial stages of the long term disability claim, and then back to “sedentary” in order to deny the claim.
  • Aetna relied on file reviews conducted by reviewers who were relying on incorrect and incomplete information about the claimant’s job classification (i.e. that the job was “sedentary,” not “light”).
  • Aetna relied on file reviews conducted by reviewers who did not have the proper expertise to review claimant’s diagnosis of “unspecified disorder of autonomic nervous system.”
  • Aetna relied on file reviews that were not based on informed consultation with the claimant’s treating physicians.

These are just a few examples of things that courts have found to be an “abuse of discretion” under ERISA. Remember, the law in each jurisdiction varies, so the courts in your state may not necessarily agree with the court in this case. An experienced disability insurance attorney should be able to give you a sense of whether a court would uphold or reverse your claim denial, under ERISA or otherwise.

[1] No. CV 14-4332 (DWF/LIB), 2015 WL 9294269, at *1 (D. Minn. Dec. 21, 2015).


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Know Your Limits: How Issue and Participation Limits Affect Your Coverage

Recently, several insurers have decided to raise their Issue and Participation (I&P) limits. In this post we will discuss some of the potential ramifications of increased I&P limits.

What are Issue and Participation Limits?

The Issue Limit is the maximum amount of liability a single insurer will cover for a particular individual. The Participation Limit is the maximum amount of total coverage an insurer is willing to provide after factoring in the coverage that the individual is already receiving from other insurance companies. Usually your maximum monthly benefit is determined by your income, but some insurers allow professionals, such as physicians and dentists, to apply for default rates based on other factors such as occupation, years of experience, etc.  Usually, an insurer’s I&P limits permit coverage in an amount that is approximately 40-65% of your actual monthly income.

Essentially, insurers use I&P limits to make it possible to collectively provide higher total benefits to high income earners, while at the same time ensuring that they are not over-insuring an individual.

What are the Ramifications of Higher Issue and Participation Limits?

In previous posts, we have talked about how in the 1980’s and early 1990’s, disability insurers aggressively marketed policies to doctors, dentists, and other high income earners. We’ve also discussed how, due to the emergence of managed care, doctors and dentists saw a significant decrease in income. The end result was that disabled doctors and dentists had policies that promised benefits that were equal to, or greater than, their modified salaries. When the insurance companies had to start paying the benefits they had promised, they lost hundreds of millions of dollars. This in turn led to insurance companies taking an aggressive stance toward claims involving high paying policies. Most insurers also stopped offering policies with high benefit limits.

Now, it appears that at least some insurance companies have come full circle and are once again marketing policies with high benefit limits. What does this mean? Now that insurers are beginning to raise I&P limits, it may be possible for you to obtain benefit amounts that are closer to your actual monthly income. Remember, as with any insurance, generally speaking, a higher benefit also means higher premiums. However, if you can afford it, it is usually better to have as much coverage as possible.

If insurers end up providing higher benefits again, it will be interesting to see if there is another corresponding spike in claim denials. If you do end up purchasing a high benefit policy, be sure to look it over carefully and make sure that there is not anything in it that would allow the insurance company to limit or deny your claim later on down the road. If you are unsure about whether you are being offered a good policy, an experienced disability attorney can review the policy and explain any complex provisions.

References:

http://www.virtual-strategy.com/2015/10/21/secura-consultants-highlights-new-benefit-levels-disability-insurance-coverage#axzz3ptYLroMT.


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Build Your Own Insurance: What to Look for in a Policy

Recently, insurers have started to allow consumers to build and personalize their own insurance policies online. For instance, Guardian recently announced the launch of its online insurance quoting tool. According to Guardian, the tool “educates clients on the costs for various options based on age and occupation, demonstrates how adding or removing certain options affects pricing, and shows how to create the plan that best matches their individual needs.”[1]

If this “build your own insurance” concept catches on, consumers may have much more control over the terms of their policies than they have had in the past. Accordingly, in this post we are going to talk about things to look for in a policy, and some things to avoid in a policy.

Things to Look for in a Policy

Generally speaking, here are a few things that you will want to look for when selecting a policy:

  • Make sure that the policy provides for lifetime benefits.
  • Try and find a policy with a COLA (cost of living adjustment) provision. This provision will increase your potential benefits by adjusting for inflation as time passes.
  • Make sure that you get the highest benefit amount you can afford. Remember, if you’re unable to practice, your monthly disability payments may be your only source of income.

Things to Avoid in a Policy

Generally speaking, here are a few things that you should avoid when selecting a policy:

  • “No Work” provisions that only provide benefits if you are unable to perform the material and substantial duties of your own occupation and you are not working in any other occupation.
  • Substance abuse exclusions.
  • Provisions requiring you to apply for Social Security benefits.

Remember, purchasing disability insurance is no different than any other significant purchase.  Be sure to take your time and obtain quotes from multiple insurance companies before making a final decision.

For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.

[1] See http://www.businesswire.com/news/home/20151028005074/en/Guardian-Empowers-Consumers-Build-Disability-Insurance-Coverage.


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Case Study: The Importance of Proper Documentation

In previous posts, we have discussed the importance of properly documenting your claim. From the moment you file your claim, most insurers begin collecting as much documentation as possible in the hopes that they can use the documentation to deny your initial claim, or terminate your benefits later on.

Oftentimes, benefits are terminated without warning. For example, an insurance company may conduct covert surveillance over an extended period of time, and then suddenly terminate your benefits once they feel that they have sufficient footage to assert that you are not disabled. If you are not consistently documenting the ongoing nature and extent of your disability, you may find yourself lacking sufficient evidence to contest a denial or termination of benefits.

For example, in the recent case Shaw v. Life Insurance Company of North America[1], the insurer refused to pay claimant her disability benefits. Although claimant saw multiple doctors and psychiatrists for PTSD and depression before filing her claim, the court ultimately found that the medical records she submitted were deficient, for several reasons.

First, even though claimant was asserting mental health claims, the claimant’s primary treatment provider was a family practice physician, not a psychologist or psychiatrist. Additionally, the court observed that the family practice physician’s records were “cursory, and contain[ed] minimal documentation of the frequency or intensity of [claimant’s] symptoms.”  Id. To make matters worse, the claimant only saw the psychiatrists for a period of a few months, and the psychiatrists’ records showed that claimant had refused to follow the recommended treatment plan, which included both psychiatric medication and cognitive treatment.

The claimant attempted to supplement her medical records using a narrative letter she wrote describing her symptoms, along with several letters from family and friends. However, the court ultimately found the narratives unconvincing because there was a “significant potential for bias,” the severity levels described in the narratives conflicted with the psychiatrists reports, and claimant’s friends and family were not medical specialists or care providers and therefore could not diagnose claimant’s medical condition or assess claimant’s functional capacity. Id.

In the end, the court affirmed the denial of benefits, even under de novo review. Id.

What could the claimant have done better to avoid the denial?  For one, she could have used a psychiatrist or psychologist as her primary treatment provider. She also could have followed the treatment plan recommended by her psychiatrists. Finally, she could have asked her physician to provide more thorough documentation.

Remember, courts will generally want to see medical records, not statements from friends and family. While such statements can be a useful way to provide background information, a court will want to see documentation of diagnosis and treatment by a health care provider. An experienced disability insurance attorney can help you review your medical records and determine if they are sufficient in comparison to the documentation that the insurance company will almost assuredly be collecting.

[1] No. CV1407955MMMFFMX, 2015 WL 6755187 (C.D. Cal. Nov. 4, 2015).


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