Statute of Limitations:
A Case Study

September 11, 2023

As we’ve written about before, whether a disability is caused by sickness or injury can be critical in determining the duration of benefits that will be paid out under a disability insurance policy. Another component to this calculation is knowing when to sue, if your insurance company decides to classify a disabling condition as sickness versus injury.

One such example is that of Bennett v. Ohio National Life Assurance Corp[1]. Dr. Mark Bennett, an oral and maxillofacial surgeon, was injured when he was thrown from a horse in 2006, where he sustained injuries to his left shoulder and collarbone. He subsequently underwent surgery; however, he had ongoing numbness and tingling in his left hand. He was able to continue working for a while by changing operating techniques and using different tools. However, despite these changes and treatment (medications and physical therapy), he eventually developed chronic pain in his left hand. He cut down on his patient load, but then had to quit working entirely in 2014.  He filed a claim with Ohio National, stating that he was unable to work as an oral surgeon because of the physical issues he developed as a result of his 2006 accident.

Ohio National approved his benefits, but noted that it would continue to evaluate whether the cause of the disability was due to sickness or injury. In this case, the distinction was important.  Because he was over 55 at the age of filing, he would only be eligible to receive benefits up to age 65 if his condition was caused by sickness. However, if it was caused by injury, he would be eligible for lifetime benefits.

Eventually, on June 8, 2015, Ohio National notified Dr. Bennett that they had determined that his disability was caused by sickness, specifically degenerative disc disease, which was causing compression of nerve roots (leading to the tingling and numbness in his left hand). The letter indicated that benefits would terminate when Dr. Bennett reached age 65.

In September 2018, Dr. Bennett’s benefits stopped. Dr. Bennett sued for breach of contract and breach of the implied covenant of good faith and fair dealing in August 2019. Under the law, Dr. Bennett had four years to file a breach of contact claim and two years to file a claim for breach of implied covenant of good faith and fair dealing. Ohio National argued that the statute of limitations had passed. In other words, they alleged that Dr. Bennett had had waited too long after their initial determination (in 2015) that his disability was caused by sickness to bring a lawsuit. Dr. Bennett argued that the clock did not start running until the date his benefits stopped (in 2018).

The Court reviewed both sides’ arguments and decided in favor of Dr. Bennett. Whether Dr. Bennett is eligible for lifetime benefits remains pending before the Court at the time of this writing.

This case highlights the importance of understanding the terms and requirements of your individual policy.  If you have questions about whether your disabling condition is being handled as an illness versus an injury, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Bennett v. Ohio Nat’l Life Assurance Corp., No. A166049, 2023 WL 4069794 (Cal. Ct. App. June 20, 2023)

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Autoimmune Diseases

August 28, 2023

What are Autoimmune Diseases?

A normal immune system protects the body from disease and infection. With an autoimmune disease, the body’s immune system begins attacking its own organs, tissues, and cells. There are over 100 known autoimmune diseases and they can affect nearly every organ in the body, as well as many tissues. Below are common autoimmune diseases based on the area of the body they affect:

Muscles and Joints:

• Rheumatoid arthritis (RA)
• Psoriatic arthritis
• Lupus

Digestive Tract:

• Celiac disease
• Crohn’s disease
• Ulcerative colitis

Skin:

• Dermatomyositis
• Psoriasis

Endocrine System:

• Hashimoto’s
• Graves’ disease

Nervous System:

• Guillain-Barre syndrome
• Multiple sclerosis (MS)
• CIDP (chronic inflammatory polyneuropathy)

Other:

• Type 1 diabetes
• Myasthenia gravis
• Pernicious anemia

Autoimmune disorders are more common in women than men, and about 1 in 15 people have an autoimmune disease.

What are the Symptoms of Autoimmune Diseases?

Symptoms will vary based on what part of the body is impacted, but common symptoms include pain, fatigue, dizziness, headaches, nausea, malaise, and rashes.

What Causes Autoimmune Diseases?

The exact cause of autoimmune diseases is unknown, but factors include:

• Genetics
• Certain medications
• Having one autoimmune disease already
• Exposure to toxins
• Infections
• Gender (78% of people who have autoimmune diseases are women)
• Obesity
• Smoking

How are Autoimmune Diseases Diagnosed?

Autoimmune disorders often have symptoms that are similar to other diseases, or with each other, so diagnosis can be difficult. Treating providers will generally look at symptoms and health history, and may perform blood tests to look for markers that are associated with certain autoimmune diseases. Tests that may be run include:

• Antinuclear antibody test (ANA)
• Complete blood count (CBC)
• Erythrocyte sedimentation rate (ESR)
• C-reactive protein (CRP)
• Comprehensive metabolic panel
• Urinalysis

What is the Treatment for Autoimmune Diseases?

Autoimmune disorders do not have a cure, so the focus of treatment is on managing symptoms. Types of treatment include:

• Anti-inflammatory medications
• Pain killers
• Plasma injections
• Corticosteroids
• Depression and anxiety medications
• Insulin injections
• Medications to treat rashes
• Intravenous immune globulin
• Immunosuppressive medications
• Physical therapy

Autoimmune diseases can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with an autoimmune disease and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

Sources:

Cleveland Clinic

Mount Sinai

National Institute of Health

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Mental vs. Physical Condition Claims:
A Case Study

August 14, 2023

In some instances, it may not be clear whether symptoms are caused by a physical or mental disability. This distinction can be important because many policies have a mental and nervous limitation, which means that benefits for mental conditions will only be paid out for a limited amount of time (typically 24 months). It’s not surprising that insurance companies may try to argue that a condition is a mental health one, even if treating providers say otherwise, in an attempt to limit the amount of benefits they have to pay out.

One such case is that of Radle v. Unum.[1] In this instance, Radle tripped and hit his head while running, which resulted in dizziness, difficulty focusing, headaches, a “buzzed” feeling, and sensitivity to noise and light.  A few days after the fall, he went to the ER where he was diagnosed with post-concussive syndrome. A few months later, he was admitted to the hospital after another symptomatic episode. Here, he was diagnosed with a conversion disorder, which is defined as a mental condition where a patient shows psychological stress in physical ways.  A few days later, he returned for a second opinion and was again diagnosed with conversion disorder.

However, subsequently, over the course of several years, he engaged in treatment with little to no result (including physical therapy and speech therapy). Because of his progressing symptoms, Radle’s three treating providers re-diagnosed him with delayed post-concussive syndrome. In support of their diagnoses, his providers pointed to the fact that he had an EEG positive for left temporal slowing (which would suggest a brain injury), had testing which showed a visual disability, and had a cyst located near his cerebellum.

Unum’s reviewing physicians, however, disregarded these reports form treating providers and continued to claim that his condition was subject to the mental and nervous limitation of the policy, and as a result, Radle was only entitled to 24 months of benefits.

In response, Radle underwent additional assessments including an independent medical examination (IME) and a Neuropsychological Evaluation, which both concluded that his symptoms were not psychologically based. However, Unum did not accept this evidence, and also claimed that his symptoms did not prevent him from working.

The case remains pending as of this writing, but it illustrates how insurance companies may seek to classify certain conditions as mental health conditions, in order to limit the benefit amount they will have to pay out.  If you are worried about how your insurer is classifying your disabling condition and have questions, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Radle v. Unum Life Ins. Co. of Am., No. 4:21CV1039 HEA, 2023 WL 2474509 (E.D. Mo. Mar. 13, 2023)

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Filing a Claim Based on a Cancer Diagnosis:
A Case Study

August 7, 2023

A cancer diagnosis can lead to the need to file a disability claim, not just for the disease itself but often for the severe side effects that can be experienced during chemotherapy, radiation therapy, and other cancer treatment. But will your insurer recognize this and continue to pay benefits?

You may expect that this would be a straightforward disability claim and, at least at first, it likely will be. However, in our experience, we have noted that some disability insurers may cut off benefits prematurely, in an effort to push cancer survivors back to work despite ongoing medical limitations.

The case of Hardy v. Unum Life Ins. Co.[1] provides an apt example of this. Here, the plaintiff, Mark Hardy was an attorney specializing in defense of malpractice claims. He suffered a fractured pelvis in late October 2016 and later it was discovered that he also had plasmacytoma (a tumor of the plasma cells of bony or soft tissue).

Hardy went on to have surgery to remove the tumor and repair his pelvic bone in November 2016. While he completed five weeks of radiation, it was not successful and he began a course of chemotherapy which left him unable to work a full-time schedule.

According to Hardy’s complaint in this case, the side effects of chemotherapy left him with neuropathy, fatigue, nausea, diarrhea, L pubic ramus destruction, chronic pain, lack of stamina and fatigue-related memory gaps.  While he tried to return to work full-time after his initial period of disability, this became impossible and he began working part-time in February 2019, and also stopped performing the material duties of his specialty occupation (including no longer taking cases to trial). He filed a new LTD claim with Unum on February 11, 2019 and it was initially approved.

In June 2020, Unum requested updated information from Hardy regarding his work status and condition, as well as requesting an attending physician’s statement from his oncologist. On July 13, 2020, Unum recertified Hardy’s disability and let him know that they would not be reviewing his claim for another year. However, just a few weeks later, his case was transferred to a different Unum analyst for additional review. Without notifying Hardy, Unum sent another attending physician’s statement to his oncologist and began a background investigation.

As part of their investigation, Unum sought additional information from his oncologist, sent the file for a medical review, contacted his employer for a job description and had their designated medical officer review the case. They ultimately issued a letter on December 10, 2020 terminating the claim.  Hardy appealed and submitted additional evidence in support of his limitations (including the ongoing support of his oncologist, updated medical records, a vocational analysis, and declarations from other attorneys at his firm). Unum employed an additional medical review and its own vocational analysis. Unum ultimately upheld their termination of the claim and Hardy filed his lawsuit.

While the lawsuit remains pending in court, it demonstrates the difficulty that cancer patients may face when filing disability claims due to a cancer diagnosis and treatment. As in the Hardy case, most often, the primary area of contention relates to the severity and permanency of ongoing complications/side effects after the cancer is in remission. If you have a question on how your insurance company is handling your claim, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Hardy v. Unum Life Ins. Co. of Am., No. 23-CV-563 (JRT/JFD), 2023 WL 4841952 (D. Minn. July 28, 2023)

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Meniere’s Disease

July 31, 2023

What is Meniere’s Disease?

Meniere’s disease is a problem of the inner ear that can lead to vertigo (dizzy spells) and hearing loss. It typically affects only one ear. Some individuals will have single attacks of vertigo separated by long periods of time, while others may experience multiple attacks over a number of days. Sometimes the vertigo is so extreme that an individual will lose their balance and fall (called “drop attacks”).

Meniere’s disease is most common in people in their 40s and 50s. Approximately 615,000 individuals in the U.S. have a current diagnosis of Meniere’s disease, with approximately 45,500 new cases diagnosed each year.

What are the Symptoms of Meniere’s Disease?

Symptoms, can include:

• Regular dizzy spells that usually last 20 minutes to 12 hours, but no more than 24 hours
• Loss of balance
• Hearing loss
• Tinnitus (ringing in the ear)
• Feeling of fullness/pressure in the ear
• Headaches

What Causes Meniere’s Disease?

While the cause of the disease is not known, symptoms may be due to extra fluid (called endolymph) in the ear. Issues that can affect this fluid includes poor fluid drainage, autoimmune disorders, genetics, and/or viral infection.

How is Meniere’s Disease Diagnosed?

In order to meet the diagnostic criteria for Meniere’s disease, an individual must have had two or more vertigo attacks, hearing loss, and tinnitus or a feeling of pressure in the ear. Tests performed by a healthcare provider will include a hearing assessment, a balance assessment, and tests that study how the inner ear is working. Often other tests, including labs and imaging, will be used to rule out other conditions.

What is the Treatment for Meniere’s Disease?

There is no cure for Meniere’s disease and no treatment for any resulting permanent hearing loss. Treatments are instead aimed at lessening vertigo attacks and preventing hearing loss from getting worse.

Treatments include:

• Motion sickness medications
• Anti-nausea medications
• Diuretics
• Lifestyle changes including a low-salt diet, consuming less caffeine and managing stress
• Vestibular rehabilitation
• Hearing aids
• Middle ear injections
• Pressure pulse treatment
• Endolymphatic sac surgery (relieves pressure around the endolymphatic sac, which can improve fluid levels)
• Labyrinthectomy (parts of the ear that cause vertigo are removed, which causes complete hearing loss in the affected ear)
• Vestibular nerve section (the vestibular nerve is cut to block information about movement for getting to the brain, to improve vertigo)

Meniere’s disease can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with Meniere’s disease and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

Sources:

Mayo Clinic

Johns Hopkins

Cleveland Clinic

National Institute of Health

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Injury versus Sickness:
A Case Study

July 17, 2023

While it might seem like it should be easy to determine whether a disabling condition is caused by an injury or sickness, this is not always the case, especially when it comes to repetitive stress injuries.  Under some policies, the difference can be drastic in terms of how long benefits are paid.

One example is the case of Stein v. Paul Revere Life Ins. Co[1]. Dr. Stein was a specialist in interventional radiology who was diagnosed with and eventually unable to work due to spinal stenosis, lumbar osteoarthritis, lumbar spondylosis, and degenerative spondylolisthesis.  Whether or not his condition was an injury or sickness was important in this case because he was eligible to receive full lifetime benefits if his condition was caused by injury (but only a portion of his benefits for life if it was due to sickness).

While he initially filled out his application for benefits, Dr. Stein filled out the sickness portion of the form, and indicated that his occupation exacerbated his condition. However, later, Dr. Stein sought to change this classification of his disability from sickness to injury, claiming that his disabling conditions were actually the result of repetitive stress injuries (caused as a result of having to wear a heavy lead apron as part of his occupation). In support of this claim, Dr. Stein submitted statements from his treating provider and medical journal articles that showed there was evidence of a relationship between wearing leaded aprons and spinal problems.

Paul Revere had three physicians review Dr. Stein’s records, and all concluded that Dr. Stein’s conditions were due to sickness, or at the very least “cannot be ascribed, beyond reasonable doubt, to repetitive stress injury more than any of the many other proposed causes of disc degeneration.” The third reviewing doctor also indicated that the medical file did not indicate that there had ever been an accident. Dr. Stein countered that Paul Revere was misinterpreting the term accident, and failing to consider repetitive stress injuries.

The Court found that Dr. Stein’s arguments were persuasive. They noted that there was not an expectation that he could have known that he was likely to become injured (thus meeting the “accidental bodily injury” requirement of his policy), and that he was suffering from a physical condition resulting from repetitive stress injuries. In finding for Dr. Stein, the Court concluded that he was entitled to a reclassification of his total disability as due to an “injury” and thus eligible for full lifetime benefits.

However, here, the Court did not award Dr. Stein attorney fees, explaining that Dr. Stein himself had originally applied to receive benefits under the “sickness” category and that Paul Revere’s interpretation of its policy language was “reasonable.”

This case highlights the importance of understanding the terms and requirements of your individual policy.  If you have questions on how your policy works or how your claim is being administered, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Stein v. Paul Revere Life Ins., Co., No. CV 21-3546, 2023 WL 2539004 (E.D. Pa. Mar. 16, 2023)

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Complex Regional Pain Syndrome

June 19, 2023

What is Complex Regional Pain Syndrome?

Complex regional pain syndrome (CRPS) isn’t clearly understood, but it is a form of chronic pain that usually affects an arm or a leg. CRPS usually develops after an injury, surgery, stroke or heart attack. The pain is often prolonged and out of proportion to the severity of the initial injury. CRPS can either be acute (recent, short-term) or chronic (lasting greater than six months).

CRPS is divided into two groups.  The first, also called sympathetic dystrophy, develops without known nerve damage. The second, also called causalgia, occurs as a result of specific nerve damage. About 90% of cases are type 1.

While most cases of CRPS are mild and an individual recovers in a few months to a few years as the injured nerve regrows, symptoms can persist and long-term disability may result. If untreated, the disease can progress and atrophy (tissue wasting) and contracture (muscle tightening) can develop.

What are the Symptoms of Complex Regional Pain Syndrome?

Symptoms, can include:

• Continuous burning or throbbing pain, typically in an arm, leg, hand or foot (in some instances “mirror pain” may develop in a matching location on the opposite limb)
• Increased sensitivity to painful stimuli
• Feeling pain from stimuli that are not usually painful
• Sensitivity to touch or cold
• Numbness
• Joint stiffness, swelling and damage
• Muscle spasms, weakness, and tremors
• Decreased mobility in affected body part
• Swelling
• Changes in skin temperature, color, and texture
• Changes in hair and nail growth

Having CRPS is also associated with increased anxiety, depression and stress.

What Causes Complex Regional Pain Syndrome?

The exact cause of CRPS isn’t clearly understood, but it is thought to be caused by an injury to or a difference in the peripheral and central nervous system. In many causes, CRPS results after a trauma to an arm or a leg. The most common actions/activities that lead to CRPS include fractures, surgery, strains/sprains, limb immobilization (e.g., from being in cast), and lesser injuries such as burns or cuts.

Other influencing factors include poor circulation, poor nerve health, immune system involvement (for example, some individuals with CRPS have abnormal antibodies), and genetics.

How is Complex Regional Pain Syndrome Diagnosed?

There is no one test for CRPS, but the following are used in determining whether an individual may have CRPS:

• Physical exam
• Nerve conduction studies
• Ultrasound
• MRI
• Bone scans
• X-rays
• Sweat production tests

What is the Treatment for Complex Regional Pain Syndrome?

Treatments include:

• Medications (pain relievers, antidepressants and anticonvulsants, corticosteroids, bone-loss medications, synthetic nerve-block medications, intravenous ketamine, blood pressure lowering medications, topical analgesics)
• Heat therapy
• Physical or occupational therapy
• Biofeedback
• Acupuncture
• Mirror therapy
• TENS
• Spinal cord stimulation
• Intrathecal drug pumps

Outcomes for CRPS can vary widely, and early diagnosis and treatment is key. CRPS usually improves over time and goes into remission in most people; however, severe or prolonged cases can occur, and it recurs in about 10-30% of individuals.

Complex Regional Pain Syndrome can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with CRPS and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

Sources:

Mayo Clinic

National Institute of Neurological Disorders and Stroke

John Hopkins

Cleveland Clinic

Stanford

Occupation at Time of Disability:
A Case Study

June 5, 2023

Often, a definition of total disability includes a phrase along the lines of you are considered Totally Disabled “you are not able to perform all or the substantial and material duties of your regular occupation at the start of your Total Disability.” While this may seem straightforward, we’ve seen conflicts arise when it comes to defining what an insured’s regular occupation was at the start of a disability.

One such example is the case of Johnson v. Ohio National.[1]  Dr. Johnson was an OB/GYN from 1993 through May 2007, with several different employers.  However, from May to October 2007, he took time off and was subsequently not able to find work in the OB/GYN field, although he was actively looking for it.  From October 2007 through March 2008, he worked on a temporary basis at a clinic, filling in for other doctors as needed. He also worked part-time as a physician at an Urgent Care clinic (where he did no OB/GYN-related duties).

In June of 2008, Dr. Johnson saw an internal medicine doctor for joint pain, swelling and stiffness in his hands, along with a rash. Lab tests revealed significant inflammation of the hands.  Dr. Johnson was referred to and saw a rheumatologist on November 14, 2008, where he was diagnosed as having psoriatic arthritis. On December 26, 2008 he submitted a claim with Ohio National for total disability.  Although Ohio National agreed on the date of disability (June 2008) and that psoriatic arthritis prevented Dr. Johnson from practicing as an OB/GYN, they claimed his occupation at the time of his disability was that of an urgent care doctor—and that he was still able to do the material and substantial job duties of an urgent care physician.

The Courts agreed with Ohio National, finding that at the time of his disability, Dr. Johnson was working as an urgent care physician, regardless of the fact that he was a Board-certified OB/GYN and had been doing that for the majority of his career.

We’ve encountered dentists and physicians who inadvertently change their occupation by starting to work in another position or role, or otherwise modify their job duties, often as a way to accommodate a disability.  Since regular occupation is often defined along the lines of “the occupation (or occupations if more than one) in which you are regularly engaged at the time you become Totally Disabled,” insurance companies will typically ask for CPT or CDT codes to identify the specific job duties you are doing at the time your disability started. In some instances, this might allow an insurance company to claim you are not working in your specialty and try to claim you are doing the very broadest job possible (thus making it easier to say you are still able to work).

This case highlights the importance of understanding the terms and requirements of your individual policy when it comes to how total disability is defined.  If you are worried about how your insurer is classifying your occupation and have questions, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Johnson v. Ohio National Life Assurance Co., No. WD-12-029, 2014 WL 201691 (Ohio Ct. App. Jan. 17, 2014).

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Postural Orthostatic Tachycardia Syndrome
(POTS)

May 8, 2023

What is POTS?

Postural orthostatic tachycardia syndrome (POTS) is a group of disorders that have orthostatic intolerance (OI) as their primary symptom. It’s a condition that causes a number of symptoms when an individual transitions from laying down to standing up.

The primary symptom of OI is lightheadedness or fainting.  With POTS, this is also accompanied by a rapid increase in heartbeat of more than 30 beats per minute or a heart rate that tops 120 beats per minute, within 10 minutes of standing. Laying down relieves the faintness/lightheadedness.

While normally the body’s automatic nervous system balances heart rate and blood pressure, someone with POTS can’t coordinate the balancing act of blood vessel constriction and heart rate response; therefore, the body can’t keep blood pressure stable.

POTS affects about 1 to 3 million people in the United States (although experts believe this number may have risen since COVID-19), with the majority being women between 15 and 50 years old. Those who have had a significant illness, serious infections, are pregnant, have physical trauma or surgery are at a higher risk of developing POTS.

POTS can be further divided into sub-types:

Neuropathic POTS: when peripheral enervation (loss of nerve supply) leads to poor blood vessel muscles

Hyperadrenergic POTS: when the sympathetic nervous system is overactive

Hypovolemic POTS: reduced blood volume

One of the biggest risks of POTS is falling and getting injured.  In some, POTS symptoms will resolve, but they may return.  About 25% of POTS patients are disabled and unable to work.

What are the Symptoms of POTS?

Thy symptoms of PTOS vary by individual, and happen immediately or within a few minutes after sitting or standing up. Symptoms can include:

• Dizziness
• Fainting
• Brain fog
• Racing heart rate or palpitations
• Chest pain
• Fatigue
• Nervousness or anxiety
• Shakiness
• Excessive sweating
• Shortness of breath
• Headaches
• Nausea or vomiting
• Bloating
• Purple discoloration of hands and feet, if they are lower than heart level, and a pale face
• Disrupted sleep

Several conditions can worsen POTS symptoms, including:

• Being in warm environments
• Standing frequently
• Being sick
• Menstruation
• Strenuous exercise

What Causes POTS?

Its not entirely clear what causes POTS, but growing evidence suggests that POTS may be an autoimmune disease.

How is POTS diagnosed?

A tilt table test is one of the primary methods a physician will use to diagnose POTS.  It measures heart rate and blood pressure during changes to posture and position. Other tests that may help confirm POTS and/or rule out other conditions include blood tests, QSART (a test that measures the nerves that control sweating), automatic breathing tests, tuberculin skin tests, skin nerve biopsy, echocardiogram, and blood volume with hemodynamic studies.

What is the Treatment for POTS?

There is no cure for POTS, but there are recommendations that can help manage the symptoms of POTS, including:

• Engaging in exercise and physical activity
• Managing diet and nutrition (for example, for hypovolemic POTS, a dietician may recommend increasing salt and fluid intake)
• Certain medications including those that treat tachycardia, increase salt retention and blood volume) and/or cause vasoconstriction.

POTS can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with POTS and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

Sources:

Cleveland Clinic

National Institute of Neurological Disorders and Stroke

John Hopkins Medicine

Dysautonomia International

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Do I Have to Attend an IME in Person?:
A Case Study

April 24, 2023

Under many disability insurance policies, insurers can require an insured to attend an independent medical examination (IME) in order to remain eligible for benefits. While some policies may explicitly state that an IME must be in person, other are silent on this. So, what happens if you are worried about attending an in-person IME due to potential health risks and/or the COVID-19 pandemic?

One example of this scenario is the case of Masevice v. Life Ins. Co. of North America[1]. Ms. Rebecca Masevice was a marketing manager who became unable to work due to migraine headaches, cluster headaches and POTS (postural orthostatic tachycardia syndrome), dizziness, fatigue, shortness of breath and brain fog. She filed a disability claim with her insurer, Life Insurance Company of North America (LINA).

LINA requested that Masevice undergo an IME, and scheduled one.  Masevice requested that this IME be held via “telemed.”  LINA denied this request and re-scheduled the IME multiple times and ultimately denied her claim. Masevice pointed to the “extraordinary circumstances of the COVID-19 pandemic” and disputed that she didn’t cooperate with the scheduling of an IME.  On appeal, Masevice provided updated records, letters/reports from her treating provider, an FCE, a list of medications, and a vocational report.  In their decision noted that “Plaintiff’s concerns about attending the IME in person were valid, given her symptoms and her compromised immune system.”

However, the Court further ruled that more fact-finding was needed in order to determine whether Masevice was eligible for benefits. The Court remanded the case, indicating that Masevice be given the opportunity to submit additional, current medical evidence and that LINA may require that Masevice undergo an in-person IME “now that the COVID-19 crisis has been alleviated.”

This case highlights the importance of understanding the terms and requirements of your individual policy.  If you are facing an IME and have questions, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Masevice v. Life Ins. Co. of North America, Case No. 1:22CV223, 2023 WL 2534042 (N.D. Ohio March 16, 2023).

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What are “Material and Substantial Duties”?
A Case Study

March 6, 2023

Most “own occupation” disability insurance policies will address “material and substantial duties” in their definitions of total and partial disability.  The exact definition (and whether or not you need to be disabled from one or all material and substantial duties) will depend on the language of your specific policy.  However, what is and is not a material and substantial duty is not always clear-cut.

One example of this is the case of Vossberg v. Northwestern Mutual.[1]  Dr. Vossberg was a physiatrist with a speech disorder (diagnosed as dysarthria).  Dr. Vossberg filed a claim for partial disability with Northwestern Mutual, claiming that he could no longer make medical records because he was required to use electronic transcription software at his long-time hospital employer.

Under Dr. Vossberg’s policy, he would be considered partially disabled if he was “unable to perform one or more but not all of the principal duties of his occupation.”  In this instance, both parties agreed that one of Dr. Vossberg’s principal duties was to “make medical records that document his interaction with patients.”

In reviewing the case, the Court found that “using electronic transcription software is not required to be a physiatrist.”  The Court found that Dr. Vossberg had not presented evidence that his hospital employer had required the use of transcription software and pointed to the fact that he was currently working in private practice where he made his records by dictating patient notes into a tape record and having a person transcribe them.  Further, other employers that Dr. Vossberg considered applying to testified that there was no requirement for him to use electronic transcription software.  Thus, the Court concluded that Dr. Vossberg was not partially disabled under the terms of his policy.

Often, policies will even go so far to say that what is and is not a material and substantial duty is not based on what is done for any one employer, but for the national economy as a whole.  So, even if Dr. Vossberg’s employer had actually required him to use transcription software, he may still not be considered  disabled, depending on the exact language in his policy.

This case highlights the importance of carefully reading and understanding the terms of your specific policy and how it addresses material and substantial duties.  If you fee that you are unable to do the material and substantial duties of your occupation, and are considering filing a disability insurance claim, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Vossberg v. Northwestern Mutual Life Ins. Co., No. 1:22-cv-00364-JRS-KMB, 2023 WL 167460 (S.D. Ind. Jan. 12, 2023).

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Can Your Insurer Deny Benefits After Years of Paying Out Claims?
A Case Study

January 2, 2023

You’ve been receiving benefits for years—can your insurance company just change its mind and decide to suddenly deny benefits?  That’s what happened in the case of Roehr v. Sun Life.[1] Dr. Roehr was a practicing, board-certified anesthesiologist who began experiencing intermittent tremors in his hands and fingers in 2004.   While he was initially concerned that he had Parkinson’s disease, due to a family history, subsequent examinations by neurologists indicated that it was not Parkinson’s disease, rather he was diagnosed as having “a tremor of unclear etiology.”

In October 2006, Dr. Roehr stopped practicing out of concern for patient safety and filed a claim under the “own occupation” provision of his Sun Life policy.  While none of the neurologists Dr. Roehr had seen were able to give a specific diagnosis related to his tremors, he continued to receive follow up care from his primary care physician, and Sun Life paid benefits for the next ten years.  This was the case even though his primary care physician’s records failed to sometimes note an observation of tremors (usually when the record was dealing with a separate medical issue).  Over these ten years, Sun Life occasionally requested medical updates from Dr. Roehr’s primary care physician.

In 2017, Sun Life retained a neurologist to review Dr. Roehr’s claim.  The neurologist confirmed that Dr. Roehr did not have Parkinson’s disease and questioned whether Dr. Roehr’s condition might not have improved, based on the available medical records.  Sun Life subsequently terminated Dr. Roehr’s benefits and upheld this decision on appeal in 2018.

In its review, the court acknowledged that review of the case was complicated by the facts that Dr. Roehr’s tremors were unexplained, his physician had observed temporary improvement in his condition, and he had not completed neuropsychological or other testing that had been suggested early on by a neurologist.  However, the court ultimately sided with Dr. Roehr, indicating that Sun Life had not conducted an assessment by a neurologist/movement disorder specialist, even though their reviewing neurologist had recommended it.  Further, the court explained that “Sun Life relied on virtually the same medical records for a decade and has pointed to no information available to it that altered in some significant way its previous decision to pay benefits.”

While Dr. Roehr was successful, the case had to proceed to costly litigation in order for him to prevail.  The case is an example of why it is important to have carefully detailed medical records that clearly document a disability and stands as an important reminder that insurance companies are often looking for ways to deny claims, even those they have been paying out for years.

If you are on claim and feel that your insurance company has begun questioning your claim, please feel free to reach out to one of our attorneys directly.

[1] Roehr v. Sun Life Assurance Co., No. 21-1559, 2021 WL 6109959 (8th Cir. Dec. 27, 2021)

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Traveling for Treatment
A Case Study

December 19, 2022

What if you have to travel for treatment? Can your insurance company use that to question if you really are disabled?  That is exactly what happened in the case of Sherrell v. Sun Life.[1] Sherrell was a research coordinator who filed for disability with her insurer, Sun Life Assurance Company of Canada, based on anxiety, depression and agoraphobia.

Shortly after filing for disability, Sherrell began receiving electroconvulsive therapy (ECT).  In order to participate in ECT, Sherrell traveled to Minneapolis to stay with her daughter while receiving treatment, as she would not be able to drive while receiving the ECT treatments.

Sun Life denied Sherrell’s claim, indicating that they did not believe she was unable to work.  In part they based this decision on a medical review they sought out by a physician certified in psychiatry and neurology.  As part of his review, this doctor indicated, in part, that it was “inconsistent” that Sherrell was able to travel to Minnesota despite her condition.   The original report also incorrectly stated that Sherrell had traveled “back and forth” to Minnesota.

The Court found this argument to be less than persuasive, stating that it failed to see how someone traveling to get needed medical treatment suggests that she is able to perform the tasks of her job.

We’ve seen insurance companies often overemphasize travel or other non-work-related activities in their denial of claims.  If you feel your insurance company has overstressed your activities, such as traveling for treatment, in assessing your claim, please feel free reach out to one of our attorneys directly.

[1] Sherrell v. Sun Life Assurance Co., No. 20 C 7519, 2022 WL 474206 (N.D. Ill. Feb. 16, 2022)

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Multiple Disabling Conditions:
A Case Study

November 7, 2022

It is not uncommon for individuals to have multiple disabling conditions that contributes to their need to file a claim.  But will your insurance company take each diagnosis into consideration when determining eligibility for benefits?

One such case is that of Sorensen v. Hartford[1]. Ms. Sorensen sued Hartford after being denied long-term disability benefits.  She suffered from a multitude of conditions, including (but not limited to) chronic fatigue syndrome, fibromyalgia, chronic pain and dysphasia, cervical and lumbar spine degenerative disc disease, Hashimoto’s thyroiditis, prediabetes, irritable bowel syndrome, rheumatoid arthritis, depression and anxiety.  For these conditions she saw numerous medical professionals, many of whom had contact with Hartford during the claims process, whether via interviews or submitting an attending physician’s statement. The Social Security Administration awarded Ms. Sorensen disability benefits for multiple conditions, both physical and mental.

After having their own doctors review Ms. Sorensen’s medical records, Hartford determined that Ms. Sorensen met the definition of disability based on a mental illness and awarded benefits for 24 months (because her policy had a mental illness limitation on benefits).  However, in their findings, these reviewing doctors concluded that any restrictions and limitations of her medical conditions would not prevent her from working in “any occupation”.

Upon review, the Court found that Hartford had erred in its denial for several reasons.  In part, the Court criticized Hartford for not completing an in-person medical evaluation, especially given that many of Ms. Sorensen’s health conditions were not “susceptible to objective verification” (such as fibromyalgia).  Further, a Hartford reviewing doctor cherry-picked medical records, looking at five office visits rather than the entire medical file, and was never given a copy of the SSA’s decision granting Ms. Sorensen Social Security benefits in order to distinguish his conclusions.

If you feel that your insurer is not fully considering your disabling medical conditions, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Sorensen v. Hartford Life Ins. Co., No. 4:21-cv-00286, 2022 WL 2135811 (D. Idaho June 14, 2022).

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Rescission: A Case Study

October 24, 2022

Recently we’ve seen that insurance companies are conducting more rescission reviews.  Rescission is a legal principle where insurance companies can avoid payment and even void a policy if there were any misstatements made in a policy application.  We typically see this happening when it comes to the health questionnaire portion of policies.  Insurance companies may even sue a policyholder in order to rescind a policy, and seek attorney fees and costs.

One such example is the case of Principal v. Hill[1]. Principal sued Ms. Hill seeking to rescind her deceased husband’s life insurance policy, after Principal discovered that the husband had made material misrepresentations and omissions on his life insurance application within the policy’s two-year contestability period.  As part of the application, Mr. Hill was required to submit a Statement of Health. According to Principal’s complaint, Mr. Hill did not disclose consultations with physicians, tests, treatments, medications, symptoms and medical conditions. The Statement of Health also contained language to the effect that, by signing it, the Hills were confirming that the answers “were complete and true to the best of my knowledge” and that “any false statements, omissions or material misrepresentations regarding age or health information could cause coverage, if issued, to be cancelled as never effective.” Principal asked the Court to rescind the policy as to amounts over the guaranteed issue amount of $20,000.00, stating that it had relied on these misrepresentations when it issued the policy.

In this instance, the policy was an ERISA policy, and ERISA law allows for the rescission of insurance contracts entered into under false representations of health.  Here, the Court found in favor of Principal and rescinded the policy.  The Court also awarded attorney fees and costs, as Principal had demonstrated that they achieved “some degree of success on the merits” of the case, including that they had shown a valid basis for rescission.

While this is a life insurance case, we often seen similar situations when it comes to disability insurance cases.  More and more, insurers are going through policy applications with a fine-toothed comb, looking for any misrepresentations.  They may even request medical records from decades earlier in an attempt to find discrepancies.  The takeaway is that it is imperative to be careful and accurate when filling out applications, or you may find yourself without coverage when needing to file a claim.  If your insurance company has mentioned rescission, it is important to speak with an experienced disability insurance attorney right away.

If you have questions regarding how rescission works, or fear your insurance company may be seeking to rescind your policy, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Principal Life Ins. Co. v. Hill, No. C21-1716 MJP, 2022 WL 2718087 (W.D. Wash. July 13, 2022).

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Feltington v. Hartford – Internal Guidelines

October 10, 2022

The internal working of insurance companies, especially when it comes time to adjudicate a claim or navigate an appeals process, can be a mystery—in fact some insurance companies can go to great lengths to actually hide their internal guidelines and procedures.  One such example of that is the case of Feltington v. Hartford Life Insurance Company.[1]

In this matter, Feltington is suing Hartford based on their denial of her long-term disability benefits under a private-employed sponsored disability policy (an ERISA policy).  The case is in its seventh year of litigation.  One major area of contention was the production of Hartford’s internal procedures related to receiving post-appeal information.

Hartford eventually released a heavily redacted portion of its claims manual, discussing its process for receiving additional information/issues submitted after an appeal decision.  The excerpts indicated that it was Hartford’s policy to uphold the appeal decision by issuing a letter explaining that the administrative remedies had been exhausted.

The Court added, “[i]n elevating the Hartford Life’s closing of the record to the level of the sacrosanct, the Company misses a fundamental feature of human nature: we all make mistakes.”

Even further, the excerpts of the policy also explained that all post-decision information received is to be sealed in a specially-marked envelope which “should not be re-disclosed.”  The purpose of this appears to be to exclude any additional information from the administrative record, and thus make it unavailable to insureds, their counsel, and the courts.

This court case shows just how far insurance companies, specifically Hartford, will go to stand by its denial determination.  If you are engaged in litigation with your insurer, feel free to reach out to one of our attorneys directly.

[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 2022).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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Feltington v. Hartford – Delay Tactics

September 26, 2022

When claims denials end up going to litigation, they can be both costly and time consuming to both sides involved.  One example is the case of Feltington v. Hartford Life Insurance Company.[1] Lisa Feltington, a quality assurance coordinator, filed a claim with her disability insurance carrier, Hartford Life Insurance Company.  These benefits were terminated and eventually she filed a lawsuit against Hartford.

The lawsuit has now entered its seventh year of litigation, with over 100 entries on the docket and a 1,000-page administrative record.  This drawn-out lawsuit has drawn consternation from the judge, who harshly criticized counsel, saying “[t]he result has been a mind-numbing elevation of for over substance which had devolved into a conflagration that all but extinguished the search for truth.”

Arguments included whether a magistrate judge could rule on certain motions, including a motion to expand the administrative record.  At issue was a Functional Capacity Examination (FCE) that was performed on Ms. Feltington on May 16, 2014.  According to Hartford the document was unsigned and they stated the author was anonymous.  According to Hartford, they attempted to contact Best Physical Therapy Associates and then ultimately concluded that the FCE was less than objective.

Despite these statements, a letter from a Susan Greenberg was written explaining that she was the one who had performed the FCE and explained that she had returned the call of Dr. Small from Hartford.  Years later in litigation, the judge ruled that “the Greenburg letter, which clarifies these seemingly critical concerns (and was ignored by Hartford) must be considered in connection with this matter.”

Further, arguments in the case arose regarding the disclosure of a small portion of Hartford’s claims manual—including multiple rounds of discovery and court orders.  Hartford began its effort to avoid discovery outside the administrative record in 2015.  After being ordered to do so by the judge, Hartford released an initially heavily redacted portion of its claims manual in April 2016.  This excerpt remains central to the case, and was discussed in length in the judge’s recent 2022 ruling.

As stated above, the judge in this matter harshly criticized Hartford for its delay tactics in this case; however, these long delay tactics by insurance companies’ counsel are not uncommon.  Insurance companies have greater financial resources and time than insureds, and use this to their advantage when a lawsuit arises.  This case highlights the importance of filing strong claims from the outset, to avoid lengthy litigation later down the road.

If your insurance company is employing delay tactics, please feel free to reach out to one of our attorneys directly.

[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 2022).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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