Applying Through your Employer’s Long Term Disability Benefits When Your MS Progresses Lisa S. Kantor, Esq. Kantor & Kantor Attorneys at Law (877) Applying Through your Employer’s Long Term Disability Benefits When Your MS Progresses Lisa S. Kantor, Esq. Kantor & Kantor Attorneys at Law (877) Multiple Sclerosis

Taking Care of Yourself Treating physician Treating physician Specialists and special tests Specialists and special tests Help at home Help at home Employer Employer Insurance Company Insurance Company

Treating physician Is your doctor qualified? Is your doctor qualified? Telling your doctor the whole truth Telling your doctor the whole truth Remember medication reactions Remember medication reactions Don’t miss appointments (without calling) Don’t miss appointments (without calling) Follow her advice Follow her advice Don’t belabor disability issues before you are ready to make a claim Don’t belabor disability issues before you are ready to make a claim

Specialists and special tests Go to recommended specialists Go to recommended specialists Take all recommended tests Take all recommended tests Follow their advice Follow their advice

Short and Long Term Disability Short Term Disability provides benefits to a person for a short period of time. The duration is usually 6 months, although this can vary somewhat from policy to policy. These benefits are provided weekly and pay a varying percentage of a person’s salary, again depending on the policy. Short Term Disability provides benefits to a person for a short period of time. The duration is usually 6 months, although this can vary somewhat from policy to policy. These benefits are provided weekly and pay a varying percentage of a person’s salary, again depending on the policy. Long Term Disability provides benefits to a person for a much longer period of time. Typically until the person turns age 65. These benefits are provided monthly and typically pay 60%, 66 and 2/3% or 50% of person’s salary. Long Term Disability provides benefits to a person for a much longer period of time. Typically until the person turns age 65. These benefits are provided monthly and typically pay 60%, 66 and 2/3% or 50% of person’s salary.

Disability Insurance Two different types: 1. Benefits you have through your Employer (even if you paid some or all of the premium) – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or “church” employees]; 2. A disability policy you purchased on your own, through an insurance agent.

Employer Benefits – ERISA ERISA is a federal law that governs your rights ERISA is a federal law that governs your rights If you are denied, you must appeal if you want to file a lawsuit If you are denied, you must appeal if you want to file a lawsuit Insurers may be given great leeway Insurers may be given great leeway No jury trials No jury trials Federal judges make decisions if you have to file suit to get your benefits Federal judges make decisions if you have to file suit to get your benefits Even if you win, you may have to pay at least some of your own attorney fees. Even if you win, you may have to pay at least some of your own attorney fees. Offsets are taken for certain worker’s compensation benefits, social security and other disability benefits Offsets are taken for certain worker’s compensation benefits, social security and other disability benefits

Individual Insurance (includes non-employer groups) Typically no appeals required before you can file a lawsuit Typically no appeals required before you can file a lawsuit Juries (not lifetime appointee judges) make the decision on your case Juries (not lifetime appointee judges) make the decision on your case If you win, your insurance company will likely pay at least a portion of your attorney fees If you win, your insurance company will likely pay at least a portion of your attorney fees Usually, no offsets are taken for social security or other disability benefits Usually, no offsets are taken for social security or other disability benefits

Important Differences Between ERISA and Individual Coverage ERISA Plans: Benefit based on % No individual underwriting Cheaper – and your employer may pay Offsets taken Remedies restricted Individual Coverage: Specific $ per month Individually medically underwritten More expensive and you pay all the premium Offsets not taken Bad faith remedies

OFFSETS ERISA disability insurance really provides only supplemental coverage ERISA disability insurance really provides only supplemental coverage Short term disability is supplemental to state disability and worker’s compensation temporary total disability (TTD) payments Short term disability is supplemental to state disability and worker’s compensation temporary total disability (TTD) payments Long term disability is supplemental to social security disability, worker’s compensation TTD payments, and other income replacement payments Long term disability is supplemental to social security disability, worker’s compensation TTD payments, and other income replacement payments

Submitting a Claim What coverage do I have? What coverage do I have? What evidence do I have? What evidence do I have? How do I communicate with the insurance company? How do I communicate with the insurance company?

What Coverage Do You Have? Read Your Plan or Policy Without it, you don’t know the rules. Without it, you don’t know the rules. If you don’t have it, ask for it from your employer or insurance company – IN WRITING – CERTIFIED MAIL, RETURN RECEIPT REQUESTED! If you don’t have it, ask for it from your employer or insurance company – IN WRITING – CERTIFIED MAIL, RETURN RECEIPT REQUESTED!

How LTD Insurers Define Disability: “Own occupation” - Typically, you will be required to prove that you are not capable of performing the material duties of your occupation due to your impairments. “Any occupation” - Usually, after a period of time (24 months is common) you will have to show there are no occupations you can do based upon your education, training and work experience.

CALIFORNIA LAW REGARDING “ANY OCCUPATION” “When coverage provisions in general disability policies require total inability to perform ‘any occupation,’ the courts have assigned a common sense interpretation to the term ‘total disability,’ so that total disability for purposes of coverage results whenever the employee is prevented from working ‘with reasonable continuity in his customary occupation or in any other occupation in which he might reasonably be expected to engage in view of his station and physical and mental capacity.” Moore v. American United Life Ins. Co., 150 Cal.App.3d 610, 618 (1984).

Common Exclusions & Limitations That Impact MS Patients “Self-Reported” Symptoms “Self-Reported” Symptoms Mental and Nervous Conditions Mental and Nervous Conditions “Objective Evidence” requirements “Objective Evidence” requirements

Self-Reported & Mental Symptoms Often, the plan will place a limitation on the amount of time a claim will be paid for mental and nervous impairments and any condition which is not “objectively” verifiable. Sample Limitation language: “Disabilities, due to a sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse, have a limited pay period up to 24 months.”

The Way Mental & Nervous Limitations Should Work The current test in the state of California is whether the cause, not the symptoms, of the condition causing the disability are physical or mental. For example, a diagnosis of multiple sclerosis would not be considered a mental illness. If this condition caused the mental illness then the disability would not fall under the limitation, even if the physical condition was not disabling. So, if the claimant was unable to work due to depression resulting from multiple sclerosis, but not from the physical limitations of the multiple sclerosis, the mental illness limitation could not be applied.

Self-Reported Symptoms Sample definition for “self-reported symptoms” : “Self-Reported Symptoms” means the manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

Objective Evidence Many LTD policies contain a provision stating that you must provide the Insurance Company with “objective evidence” of your condition or disability, or they do not have to approve your claim. Look in the portion of the policy titled “Proof” or “Proof of Loss” which explains what a claimant must supply to the Insurance Company. Sample Language: The following items, supplied at Your expense, must be a part of Your proof of loss. Failure to do so may delay, suspend or terminate Your benefits: (and then listed as one of the “items” you are required to submit would be the following) -- Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations commonly accepted in the practice of medicine, for Your disabling condition(s).

What evidence do I have? ALL Doctors’ records ALL Doctors’ records Attending Physician Statements Attending Physician Statements Job description Job description Performance reviews Performance reviews Personal Statement Personal Statement Journal Journal Careful of social medial Careful of social medial Statements from supervisor/co-worker/subordinates, caretaker, family and friends Statements from supervisor/co-worker/subordinates, caretaker, family and friends Social security award Social security award Independent medical examination Independent medical examination

LTD Insurers Can Obtain Examinations DO NOT GO ALONE! DO NOT GO ALONE! Bring records with you and give them to the doctor they pick. Bring records with you and give them to the doctor they pick. Get copy of report from insurer. Get copy of report from insurer.

How do I communicate with the insurer? NEVER, NEVER, NEVER talk to anyone from the insurance company on the phone NEVER, NEVER, NEVER talk to anyone from the insurance company on the phone Send everything in writing, by certified mail Send everything in writing, by certified mail Keep a journal Keep a journal Beware of surveillance Beware of surveillance

WHY WAS MY CLAIM DENIED? ERISA ERISA 100 legitimate claims 100 legitimate claims 70 appeals 70 appeals 30 lawsuits 30 lawsuits 10 lose 10 lose 10 settle 10 settle 10 win 10 win

THE LAW OF ERISA APPEALS There are two critical things to know about ERISA appeals There are two critical things to know about ERISA appeals The insured is entitled to a copy of the claim file – sometimes called the administrative record – before the appeal is decided The insured is entitled to a copy of the claim file – sometimes called the administrative record – before the appeal is decided The insurer or plan may be entitled to discretion in deciding the appeal The insurer or plan may be entitled to discretion in deciding the appeal 24www.KantorLaw.net

WHAT IS THE CLAIM FILE AND HOW DO I GET IT? The claim file consists of any document, record or other information that was relied upon in making the benefit decision, was submitted, considered or generated in the course of making the benefit decision, or is a statement of policy or guidance with respect to the plan concerning the denied treatment (29 C.F.R. Section (m)(8)) The claim file consists of any document, record or other information that was relied upon in making the benefit decision, was submitted, considered or generated in the course of making the benefit decision, or is a statement of policy or guidance with respect to the plan concerning the denied treatment (29 C.F.R. Section (m)(8)) The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section (h)(2)(iii)) The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section (h)(2)(iii)) 25www.KantorLaw.net

PLAN DISCRETION: THE FOX GUARDING THE HEN HOUSE Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine eligibility for benefits Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine eligibility for benefits This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct (2008)) BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct (2008)) 26www.KantorLaw.net

The fox guarding the hen house (continued) A "structural" conflict of interest introduces an element of skepticism into what would otherwise be deferential judicial review. A "structural" conflict of interest introduces an element of skepticism into what would otherwise be deferential judicial review. The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the influence of a conflict include: The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the influence of a conflict include: inconsistent or insufficient reasons for the denial inconsistent or insufficient reasons for the denial determining a material fact without supporting evidence determining a material fact without supporting evidence failing to follow plan procedures failing to follow plan procedures failing to provide a full and fair review of the denial failing to provide a full and fair review of the denial acting as an adversary bent on denying the claim acting as an adversary bent on denying the claim The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" the review The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" the review 27www.KantorLaw.net

WRITING THE APPEAL LETTER This letter is submitted in support of Jennifer’s appeal of the denial of disability benefits. We will explain the history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents Jennifer’s entitlement to benefits, you will approve Jennifer’s request. This letter is submitted in support of Jennifer’s appeal of the denial of disability benefits. We will explain the history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents Jennifer’s entitlement to benefits, you will approve Jennifer’s request. Summarize the prior letters and documents Summarize the prior letters and documents Point out the inconsistencies Point out the inconsistencies Point out the irregularities Point out the irregularities Point out the omissions Point out the omissions Enclose any new documents Enclose any new documents Conclude with specific request Conclude with specific request 28www.KantorLaw.net

WHAT TO DO IF THE APPEAL IS DENIED... Second Level Appeal Second Level Appeal Department of Insurance Department of Insurance Department of Management Healthcare Department of Management Healthcare Litigation Litigation 29www.KantorLaw.net

Multiple Sclerosis Applying Through Your Employer’s Long Term Disability Benefits When Your MS Progresses Lisa S. Kantor, Esq. Kantor & Kantor Attorneys at Law (877)