What is the Elimination Period in a Long Term Disability Policy?

In a long term disability claim, the elimination period is the period of consecutive days that a claimant must be disabled in order to begin receiving monthly benefits.  Typically the elimination period is 90 or 180 days.  Sometimes the elimination period is also known as the waiting period.

Some employer provided disability plans also provide for short term disability (STD) benefits.  If your benefit plan also provides STD benefits, then the elimination period will last the same amount of time as the STD benefits.   

The elimination period is partly a cost saving measure created by the insurance industry, but also, its purpose is to allow a period of time to determine whether the claimant is likely to improve his  or her medical condition.

Just a few weeks ago, the Second Circuit Court of Appeals had the opportunity to issue a decision dealing with the question of whether a claimant had satisfied the elimination period before he could become eligible for benefits.  In Sobhani v. Reliance Std. Life Ins. Co., 2015 U.S. App. LEXIS 22041 the Circuit Court held that it was reasonable for Reliance Standard to require the the Plaintiff to show that he had "completed the Elimination Period".  In fact, the evidence on the administrative record showed that Sobhani had worked between 30 to 35 hours a week for several weeks during the elimination period.

Unfortunately, many long term disability claimants are not fully aware of what an elimination period is and engage in conduct during this period of time that clearly contradicts their allegations of disability.  Some claimants are not mentally or financially prepared to go unpaid during this period of time.  This is one of the many reasons why claimants must read their LTD plan carefully and consult with a disability lawyer before filing an application for benefits.  A careful reading of the plan with the assistance of a lawyer can prevent many mistakes frequently made by claimants during the initial application process. 

Winning SSDI / SSI with Inflammatory Bowel Disease (Crohn's and Ulcerative Colitis)

The term "inflammatory bowel disease" (IBD) is used to describe a group of gastro-intestinal diseases. Crohn's disease and ulcerative colitis are the most common forms of these conditions. Crohn's disease typically affects the large and the small intestine.  However, it also affects the mouth, esophagus, stomach and the anus.  Ulcerative colitis, on the other hand, affects mostly the rectum and the colon.

The Social Security Administration examines disability claims for Crohn's and ulcerative colitis under the same listing of disabling conditions: Listing 5.06 (Inflammatory Bowel Disease).  To be entitled to Social Security Disability Benefits pursuant to this listing a person must have a medical diagnosis of a condition that is classified as IBD and suffer from the following conditions: 

• Untreatable anemia
•  Bowel obstruction
• Abscess or fistula
• Significant weight loss of more than 10% of a claimant's body weight
• A tender abnormal mass with pain or cramping

Moreover, the conditions described above must also exhibit the specific complications described in listing 5.06.

If a claimant does not meet the listing, he or she can still win Social Security Disability if it is demonstrated that the limitations caused IBD prevent him or her from performing any occupation in the national economy.  It is important to keep in  mind that most Social Security Disability cases are not won because a claimant meets a Social Security Disability listing.  Instead, most cases are won by showing that the physical and/or mental limitations caused by a medical condition don't allow a person to perform any type of work.  For this reason, it is a mistake for claimants to place too much emphasis on trying to meet the listing.  Instead, claimants who suffer from Crohn's or ulcerative colitis need to concentrate on explaining how their condition imposes limitations on work like activities.  Some of these limitations might include frequent absences from work, frequent breaks and loss of concentration due to pain and fatigue.     

With the help of a competent Social Security Disability lawyer a claimant can present a compelling story of how IBD prevents him or her from working.  A lawyer can assist in explaining to Social Security how the claimant's age, work skills and education factor in the disability determination process.  Moreover, a good lawyer can also assist in explaining how other co-morbid conditions cause other work related limitations.

Hewlett-Packard (HP) and Sedgwick Lose in the 6th Circuit

A notable ERISA Long Term Disability case decided just a few weeks ago is that of Godmar v. Hewlett-Packard Co., 2015 U.S. App. LEXIS 21467, 2015 FED App. 0801N (6th Cir.)  This decision is notable because it provides some interesting commentaries regarding credibility determinations in long term disability cases and it also comments on the role of doctors hired by plan administrators to conduct paper reviews.

In Godmar, the plan administrator claimed that the plaintiff was not credible because his claims were subjective and could not be corroborated with objective tests.  As we all know, this is  standard language used by many disability insurance companies in their denial letters.  Fortunately, the Sixth District Court of Appeals found that making “credibility findings concerning [the claimant’s] pain without the benefit of a physical exam” would “support the finding that [the administrator’s] determination was arbitrary.”  In other words, the Court of Appeals found that the plan administrator determination could not make a credibility determination regarding the plaintiff's condition without conducting an actual physical exam.  The Court noted that although there is nothing inherently wrong with a paper review of a claim file, it is "particularly troubling" when the plan administrator makes "critical credibility determinations".   

The case is also notable because it "picked apart" the opinions of consulting physicians who offered conclusive statements without any specific discussions of the basis for their opinions.  This is a common practice by doctor's hired by insurance companies and plan administrators.  The 6th Circuit stated:

Sedgwick's decision-making process is difficult to parse. Its final denial letter offered little analysis of Godmar's medical records. Most of the letter is a rote recitation of the records Sedgwick received and the steps taken by its consulting physicians. The letter then provides a  brief summary of the medical documentation—including "chronic nerve pain," "ongoing pain management," and "opioid dependence with substantial limitations"—and offers a conclusory assertion that this evidence is insufficient to support disability benefits.

This case is a great victory for long term disability claimant's and their lawyers because it does not not allow plan administrators and insurance companies to shield themselves with a blanket "abuse of discretion" defense.  Instead, it forces those who deny ERISA long term disability claims to explain the actual basis for their determinations.

Happy Holidays from RamosLaw!

The Holiday season is a perfect time to take a well deserved break and reflect on all the blessing bestowed upon us.  We would like to thank all of our wonderful clients for giving us the opportunity to serve them.  We also would like to thank you for keeping us in mind when a family member or a friend with a long term disability, social security disability or personal injury case needs a lawyer.

We hope that you are enjoying precious memories with your loved ones, particularly the children.  

Be safe this holiday season.  No drinking and driving or, texting while driving.

Merry Christmas
Happy Hanukkah
Happy Kawanzaa
and Happy New Year!

As you relish the good food, decorate your home and sing and dance until the wee hours, may the joy of the season continue to radiate into the new year.  May the holiday season bring more compassion, clarity of mind and a better sense of justice to all of those in charge of adjudicating and administering the disability benefit claims of all of those who suffer from chronic illness or serious injuries.  

Medical Expert Testimony in Social Security Disability Hearings

In certain cases, a medical expert (ME) is asked to testify during a Social Security Disability hearing. This testimony should not be confused with the written medical opinions provided by treating physicians or, confused with the written opinion of doctors hired by the agency to make a paper review of the claim file or conduct a consultative examination of the claimant.  ME's are different in that their testimony is provided during the hearing stage of a case and at the request of an administrative law judge (ALJ).

ME testimony is governed by Hallex I-2-6-70, I-5-34 and I-2-5-39.  ME's are seldomly used by ALJ's in hearing offices in Hartford, Springfield, MA (which includes Worcester) or New Haven. I am aware of an ALJ in Providence who uses ME's on a frequent basis. 

ALJ's may elect to ask an ME to testify under the following circumstances: 

• In order to determine whether a claimant meets or equals a listing
• Determining side effects of medication
• Determining whether a claimant is following prescribed treatment
• Determining a claimant's functional capacity
• Determining the onset of an impairment 

 In the following instances, ALJ's are required to obtain an ME opinion:

• When the Appeals Council or the Federal Court orders it
• To evaluate or interpret a medical test
• In order to consider if a claimant medically equals a listing 

Prior to the hearing, the ALJ must request the ME to examine all the pertinent evidence in the case in which he or she is going to testify.  Moreover, the ALJ must notify the claimant and his or her lawyer of the ME's testimony and provide them with copies of all relevant correspondence.

Section A of Hallex I-2-5-39 requires that the ALJ make a specific opening statement prior to any hearing in which a ME will testify.  The ALJ must explain to the claimant and his or her lawyer why ME testimony is necessary.  The ALJ must also ensure that: the ME has reviewed all the medical evidence, that the ME's professional qualifications are on the record and, must also provide a summary of the the testimony to the ME, if the ME was not able to hear it in person.

During the hearing, claimants or their lawyers can cross examine the ME.  ME's are specifically forbidden from making any physical or mental status examinations during hearings.  Moreover, ME's cannot provide testimony or answer questions on nonmedical matters or make statements outside of their medical and scientific expertise.  

New Claim Procedure Rules Proposed for ERISA Disability Plans

The Employee Benefits Security Administration (EBSA) of the Department of Labor recently proposed new regulations regarding claim procedures for plans providing disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA).  For a copy of the proposed regulations click here.

The amendments are intended to strengthen the current rules and adopt certain safeguards already made part of the Affordable Care Act.  Interested parties may submit comments to the proposed changes in the regulations.

The proposed changes codify many legal standards that are already being implemented by some Federal Courts.  Here is a summary of the proposed changes:

• New procedures must ensure independence and impartiality by those who make decisions regarding long term disability and short term disability claims.  For example, insurance companies handling disability claims cannot provide bonuses to their employees that encourage denials.
• Denial letters must fully discuss the basis for the decision and provide a full discussion of the standards used.  Letters must explain why treating doctor's opinions are not being followed. Moreover, if a claimant has been granted Social Security Disability benefits, the denial letter must also explain why the Social Security decision is not being followed.
• Claimants should be provided with a full claim file and denial letters must contain a provision advising of the right to obtain the file.
• Notice must be given to claimants regarding any new evidence before the claim decision is made.  The claimants must be given an opportunity to respond to the new evidence.
• Final denials at the appeals stage cannot be based on new evidence or new rationales without first giving the claimant a chance to respond.
• Letters from disability insurance companies and plan administrators "must be written in a culturally and linguistically appropriate manner".  If a claimant's address is in an area where 10 percent or more of the population is literate only in the same non-English language  then, denial letters must contain a sentence regarding the availability of translation services.  Such services must include: oral language services, such as a telephone hotline, written notices upon request in a language other than English and, the answering of questions and assistance with filing claims and appeals in any needed non-English language. 

Long Wait Times Prompt Lawsuit in Miami

Disabled claimants are tired of waiting.  In Connecticut and Massachusetts it takes an average of 12 to 14 months to see a judge once a hearing has been requested. 

Its a long time and its not fair to make some of our most vulnerable citizens go through such an ordeal. 

If you think that Connecticut and Massachusetts wait times are bad, take a look at Miami.  In the Sun City, the average wait for a hearing is 22 months!  This situation has prompted the Miami Law School Legal Clinic to file a lawsuit on behalf of 12 indigent and disabled individuals who have been waiting as long as 26 months to get a hearing before an administrative law judge. 

"The delay defeats the Social Security’s purpose of helping to keep people from poverty, and, in the case our clients, has the harshest impact on the poorest population. Miami has one of the highest poverty rates in the country, which makes the extreme delay in Miami that much more unfair,” said JoNel Newman, Director of the Miami Law Health Rights Clinic.

It is not clear what result this legal action will have, however it is clear that it already has had the effect of bringing awareness regarding some of the injustices in the Social Security Disability system. At least two New England newspapers, the Boston Globe and the Portland Press Herald, have covered the news story.  Moreover, since Florida is such an important state in the upcoming Presidential election, the issues raised by the lawsuit hopefully will be brought up during debates concerning Social Security. 

There are other cities in which waits are almost as bad as Miami.  Brooklyn, N.Y., Spokane, Wash., Fort Myers, Fla, and Milwaukee have a 20-month wait time.  Atlanta, Charlotte, N.C., Cincinnati, Baltimore and Chattnooga, Tenn. have a 19 month wait.