Monday, February 8, 2016

Social Security Retirees and the Worker's Comp Offset

Social Security Disability Claimants also qualify for worker's compensations benefits.  When a worker is injured on the job, he or she receives periodic checks or a lump sum amount as compensation for his or her injuries.  However, by law the total amount received in SSDI benefits is offset by the amount received in worker's comp payments.   Under the law, the combined amount of worker's comp and Social Security Disability benefits cannot exceed 80% of the worker's earnings prior to his or her disability.  This reduction in benefits is commonly referred to by Social Security Disability Lawyers as the "Worker's Comp Offset" ("Offset").  
Up to now, the the Worker's Comp Offset applied only to disability benefits, not to retirement benefits.  Historically the offset ended at age 65 when the worker reached retirement age. However, as a result of a new law passed by Congress in order to keep pace with the new retirement age, Congress recently increased the age at which the offset will end. PL 113-295, Section 201 (December 19, 2014) amended 42 USC 424a to provide that, effective December 19, 2015, SSDI benefits will be offset until the worker reaches full retirement age. This provision applies to any individual whose DI benefit is currently offset for WC/PDB and who attains age 65 on December 19, 2015, or later.
This change is yet another reason why worker's comp claimants need to discuss their case with a lawyer who is well aware of Social Security laws and its complex regulations.  Unfortunately, I have met many worker's comp claimant's who hire lawyers that do not understand the how the offset works.  There are several ways in which a lawyer who knows Social Security laws can help you reduce any potential worker's comp offset.  For this reason, if you are currently considering settling your worker's comp case, you should insist that your lawyer include language in the settlement agreement that reduces your offset in the future.  Failure to include this language in your settlement agreement can be a fatal mistake that cannot be corrected later on with an amendment.   

Monday, February 1, 2016

The "Mental Illness Limitation Clause" in Long Term Disability Policies

If you are covered by a long term disability policy, it is very likely that your policy contains a limitation as to how long you can be paid benefits when your disability is caused by mental illness. Most disability insurance policies contain a standard provision that states that if your disability is caused by a mental health problem, the maximum period for which you can receive LTD benefits is 24 months.  However, the length of the limitation for mental illness might vary depending on the language on your particular policy.
It is extremely important to check your long term disability policy to determine the exact term of the limitations for mental illness.  In some rare cases, policies don't contain any limitations for disability claims based on mental health. 
Generally, limitations for claims based on mental illness have been held to be legal.   In my opinion, clauses limiting the payment of disability benefits for mental illness are extremely unfair. Moreover, such actions by insurance companies show a clear bias against persons who suffer from mental disabilities.  A mental health condition can be just as disabling as a physical one.  About a year ago, I participated in a disability law conference where a guest speaker, who was a psychiatrist, explained that science now believes that most mental health problems have a psychical cause inside a persons's brain and that it is erroneous to think that mental illness is caused by environmental or emotional factors.
One legal issue that comes up very frequently is whether the cause of a person's disability is a mental health condition or a physical illness. Take for example the case of someone who has suffered a stroke.  Many times stroke victims suffer from symptoms that go beyond physical limitations.  For example, after a stroke some patients suffer from severe depression symptoms.  Such cases are generally decided on a case by case basis. The determination as to whether the mental health exclusion applies or not depends on the exact language used in the policy as well as the specific facts of the case.  For example, if the language of the mental health limitation clause is expressed in very general terms and the claimant never had a history of depression before the stroke, it is possible that the person might have a good argument against the application of any limitations due to mental health.
If you are currently receiving disability benefits or have recently applied an you suffer from mental and physical health limitations, it is good idea to consult with a long term disability lawyer.  A lawyer can determine whether any limitations for payment will apply.  Moreover, an attorney can assist you in developing a claim strategy that makes it difficult for the insurance company to limit your disability benefit payments to 24 months or less. 

Monday, January 25, 2016

Myasthenia Gravis and Social Security Disability

Myasthenia Gravis (MG) is a disabling neuromuscular disease that causes the muscles to become very weak when they are being used.  It is considered to be an autoimune disease and it breaks the communication between nerves and muscles.  MG has its own listing provided by the Social Security Disability regulations under the Neurological disorder Section 11.00.

Specifically , Social Security Listing 11.12 sets forth that the following conditions must be present in order to meet the listing:
A. Significant difficulty with speaking, swallowing, or breathing while on prescribed therapy; or B. Significant motor weakness of muscles of extremities on repetitive activity against resistance while on prescribed therapy.
Most Social Security Disability claimants do not have conditions related to MG that are severe enough to meet the listing.  However, due to the serious nature of the physical and mental limitations of the disease, they might not be able to work.  

With the help of a competent Social Security Disability Lawyer, a person with MG might be able to prove to the Social Security Adminstration that given his or her age, education and skill level there are no jobs that he or she can perform in the economy.  Social Security rules are very complex and there are many ways in which a person can prove his or her case.  A particular diagnois of a chronic condtion is not enough to win disability.  What really matters is being able to show the specific level of physical or mental limitations caused by the illness.    

Monday, January 18, 2016

Social Security's Use of CDI Units in Disability Cases

Social Security Disability Lawyers and their clients must be made aware of the increasing use of Cooperative Disability Investigations ("CDI") units by the Social Security Administration in disability cases.  CDI units have been created by the Federal Government to investigate allegations of fraud in the disability programs.  CDI units work with the Office of the Inspector General (OIG), state DDS and local and state law enforcement agencies.   It is important to take note of the new role of CDI units and its impact on pending SSDI cases.
Referrals to CDI units are typically made by DDS or SSA staff.  There is no clear guiding criteria for a referral.  Referrals can also be made by the hearing offices ("ODAR"), by private citizens or anonymous sources.  CDI units can investigate a case at any step of the disability process: at the initial application stage, at reconsideration, while a hearing is pending or while a claimant is receiving on-going benefits.  Once the CDI unit makes findings, it can send a report with the evidence gathered to DDS or to the ALJ.  DDS and the ALJ can rely on evidence gathered by the CDI unit to make their determinations.
Another very important aspect to note is that, upon referral, CDI staff will conduct a search of the claimant's social media accounts for evidence of fraud, including Facebook, Twitter and Google +. This is a clear departure from  the way that SSDI claims have been reviewed in the past few years. DDS and the Administrative Law Judges (ALJ's) do not look at social media accounts however, CDI units can.  If the CDI unit searches social media then, their findings can be turned over to DDS or to the ALJ.  For this reason, Social Security Claimants must be very careful with their social media postings and the privacy settings on their social media accounts.  CDI units will also interview claimants, talk to third parties and conduct surveillance of the claimant.    
As you all know, I practice Social Security Disability Law in Connecticut and Massachusetts. (Jurisdictions located within the 1st and 2nd Circuit Courts of Appeals.)  Issues involving CDI units have begun to arise in these two circuits.  For example, Donnelly v. Commissioner, 49 F. Supp. 3d 289 (E.D.N.Y. 2014) is probably the first case that discusses the use of evidence from a CDI unit in a Social Security Disability claim.  In Donnelly, the ALJ decided the case based on a report from a CDI that alleged that the claimant was able to move with normal gait an that she was able to move in and out of a car without any difficulty.  The District Court agreed with the ALJ that the CDI unit surveillance showed that the claimant's allegations were not credible.  The Second Circuit Court of Appeals upheld the district court's decision.  Another case in the District Court of Massachusetts that also also discusses the role of CDI Units is  Altman v. Colvin, No 14-CV.301-KAR (D.Mass Sept 1, 2015).
The rise of CDI units is part of an ongoing  Congressional effort to prevent Social Security disability fraud. The  bipartisan budget passed on 2015 specifically requires the SSA Commissioner to expand CDI units throughout the Nation.
If you or your lawyer becomes aware of a CDI unit investigation, you must demand that the agency provide you with a copy of the report.  The claimant must be given the opportunity to comment on the findings made by the CDI unit.  Failure to provide such an opportunity is a violation of a claimant's due process rights.  

Monday, January 11, 2016

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. 

Monday, January 4, 2016

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.

Monday, December 28, 2015

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 214672015 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.