Monday, May 25, 2015

Newtown Officer Must Get Disability Benefits for PTSD

Many individuals who contact our office seeking the assistance from a long term disability lawyer, seem to be unaware that most disability plans have a limitation on payments for claimants who suffer from mental health conditions.  Unfortunately, they assume that disability benefits will continue to be paid until age 65 or 66, regardless of whether their disabling condition is caused by mental health or not.

As part of my practice, I must constantly remind clients and prospective clients that most group insurance policies only pay benefits for a period of 24 months if their inability to work was caused by a mental health condition.  It appears, that town officials in Newtown, Connecticut also overlooked the 24 month mental health limitation provision when they negotiated the collective bargaining agreement with the police union.  

As part of the police union contract, the town of Newtown agreed to provide members of the police department with disability benefits.  The union contract that was signed did not contain any limitation for the payment of benefits for mental health conditions.  However, when the town proceeded to purchase a group disability policy for the union members, they bought a "standard a group policy" that has a 24 month limitation for mental health.  As a result of the purchase of this type of insurance policy, the town has been left with the responsibility of paying from its own funds for any claims for disabling mental health conditions that last more than 24 months.  

This past Friday, the Connecticut State Board of Mediation and Arbitration ruled that Newtown must pay a police officer who hasn't worked since 2012 due to PTSD that was caused by his involvement in the horrific Sandy Hook Elementary School massacre.  The three member panel ruled that the town was contractually obliged to pay disability benefits under the union contract, without being subject to the two year limitations contained in the LTD insurance policy.  For a copy of the Arbitrator's decision click here.

Monday, May 18, 2015

FedEx LTD Denial Subject to De Novo Review

On May 5, 2015 the United States Court of Appeals for the Fourth Circuit ruled against the Federal Express Long Term Disability Plan in its denial of LTD benefits to one of its former employees. This decision is great news for  disabled FedEx employees.  FedEx was unsuccessful in convincing the Circuit Court to apply an abuse of discretion standard to review the denial of benefits. Instead, the court determined unanimously that the denial was subject to a de novo review.  See Bilheimer v. Federal Express Corporation Long Term Disability Plan, No. 13-1859.  

Long term disability attorneys must deal, on a regular basis, with the issue of what standard of review a court must apply when reviewing a denial of benefits.  Under ERISA case law, a court may review a denial of benefits using one of two standards: 1. an abuse of discretion standard or, 2. a De Novo review.  Under an abuse of discretion standard a court will not reverse a denial of LTD benefits if the denial "was reasonable" even when the court "would have reached a different decision". Therefore, as long as the denial is grounded in some "principled reasoning process" it will not be reversed.  However, under a "de novo" standard a judge can review the record and make a decision without any deference to the denial by the insurance company or plan administrator. Obviously, the de novo standard is much more beneficial for disabled individuals and is the standard that plaintiffs' lawyers always want.

In the case of Bilheimer, which was decided just a few weeks ago, the Fourth Circuit Court of Appeals had the opportunity to decide whether FedEx had discretion in denying LTD benefits to one of its employees.  The Circuit Court ruled that the denial was subject to a de novo review because the FedEx LTD Plan did not properly delegate its final decision making authority to Aetna.  The court found that FedEx could not outsource its discretionary duties to Aetna without first amending its long term disability plan documents.  RamosLaw is currently representing another  disabled FedEx employee whose LTD benefits were also denied.  The case involves the same standard of review issue as Bilheimer and is pending before the Connecticut District Court.  Although the Fourth Circuit decision is not binding in our case, (Connecticut is on the Second Circuit) we are confident that the Court will reject the abuse of discretion standard also, and review the case de novo.   

Monday, May 11, 2015

Put on Purple! Raise Awareness for Lupus

May is lupus awareness month.  During this month there will numerous events throughout the world seeking to raise awareness of lupus and show solidarity for those living with the disease.  There are many ways that you can participate.  This Friday May 15th you can sport your favorite purple wardrobe and ask your friends and co-workers to join you.  Wear purple with pride and tell people why!  You can also use #PutOnPurple on social media to share your support.

On Sunday, May 17th in Blue Back Square in West Hartford, Connecticut, join the Lupus Foundation of America, Connecticut Chapter at the "Walk to End Lupus Now!

The Walk to End Lupus Now is probably the most important event of the Lupus Foundation of America, Inc.  Around 50 different walks will be celebrated across the United States.  Thousands of people will walk and raise funds for research, education and support services. 

Monday, May 4, 2015

The Importance of VA Ratings in SSD Cases

Veteran's Administration rating exam reports and disability ratings can be extremely persuasive in a Social Security Disability hearing.  However, strictly speaking, these determinations are not binding on the SSA.  Pursuant to the regulations, the Commissioner of Social Security must make its own independent finding of disability.  (20 C.F.R. §  404.1504) and (SSR 06-3p)  
Nonetheless, regulations also provide that decisions pertaining to disability by another agency, such as the VA, are considered to be "evidence" in Social Security Disability cases.  More importantly, SSR-06-3p states that Social Security judges must consider the ratings made by the VA and explain the consideration given to the VA determination in the notice of decision.  This means that in all cases where a claimant has received a rating from the VA, the ALJ must make specific findings in the the decision.  If you have received a VA rating and the Social Security Judge has failed to mention it, you probably have grounds to reverse the judges determination.  In addition, the judge is required to explain what weight if any is given to the VA's determination.
Determinations by the VA are particularly persuasive when the veteran has received an "unemployability rating".  This rating is received by the veteran when the VA determines that he or she is  unable to secure or follow a substantial gainful occupation as a result of service connected disabilities.  This standard is obviously very similar to the standard used by Social Security in determining whether a claimant is disabled.  
Due to the similarity between the Social Security rule and the VA rule, four Circuit Court of Appeals have determined that VA disability ratings are entitled to "great weight".  VA disability determinations are entitled to great weight in the 9th, 5th, 11th, and 4th circuit court of appeals.  Moreover, the 3rd Circuit Court of Appeals has stated that VA disability ratings are entitled to "substantial weight".     
The Second Circuit Court's ruling with regarding this issue has not been as categorical as the rulings from the five Circuit Courts mentioned above.  In Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), the Second Circuit observed “[b]y in effect ignoring the VA’s determination of disability, the ALJ disregarded our suggestion in Cutler v. Weinberger, supra, 516 F.2d at 1286, that ‘(w)hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered.’” Id. at 896-97, citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).

Monday, April 27, 2015

New Ruling on Interstitial Cystitis (SSR 15-1p)

The Social Security Administration has issued Social Security Ruling (SSR) 15- 1p, which became effective immediately upon publication. 80 Fed. Reg. 14215 (Mar. 18, 2015). This ruling replaces  SSR 02-2p, which became effective in 2002. 

The new ruling describes interstitial cystitis (IC) as “a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region.” Some medical providers and organizations, including the American Urological Association, consider the disease synonymous with “painful bladder syndrome” and “bladder pain syndrome.” The SSR states that although it uses the term IC, it is designed to address other medical conditions. IC more prevalent in women.  It can happen at the same time as other diseases including fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome, inflammatory bowel disease, vulvodynia, chronic headaches, Sj√∂gren’s syndrome, endometriosis, or systemic lupus erythematosus. The most common way of diagnosing this condition is by a process of elimination of  other disorders with similar symptoms. Tests used to determine a diagnosis are part of a complex ruling-out process. Tests include urinalysis, urine culture, cystoscopy, biopsy of the bladder wall and urethra, distention of the bladder under anesthesia, and culture of prostate secretions. Doctors are able to treat the symptoms of IC in some patients only.

Much of the SSR applies existing SSA policy to IC. For example, it states that when adjudication occurs less than 12 months before a claimant’s alleged onset date, SSA will use “information about the person’s treatment and response to treatment, including any medical source opinions about the person’s prognosis at the end of 12 months, helps us decide whether to expect an MDI of IC to be of disabling severity for at least 12 consecutive months.” Also, once an individual is found to have an MDI of IC, the adjudicator must proceed through the sequential evaluation process, determining whether the MDI is “severe,” whether the claimant meets or equals a listing (there is no listing for IC itself), and if not, what the claimant’s residual functional capacity is and whether is allows a return to past or other work.

Monday, April 20, 2015

Sheltered or Subsidized Work

In order to win a Social Security Disability case, a claimant must show that he or she is not engaging in a substantial gainful activity (SGA).  The SGA threshold for 2015 is $1,090.  If a claimant makes more than this amount, he or she will be found to be engaging in a "substantial gainful activity" and will be determined to be ineligible for Social Security Disability.

However, one of the exceptions to this general precept is known as the "Sheltered"or "Subsidized" work rule.  Sheltered or subsidized work is work performed by individuals who work under a special program with special rules.  For example, if a person who is disabled, works for a family member and is given great leeway in determining work schedules and tasks, he or she may be found to be working in a sheltered environment.  This situation often happens when the family is fully aware of the employee's medical condition and decides to provide the family member with extra compensation for their work and/or additional flexibility in performing the demands of the job. Under these circumstances, Social Security does not have to adhere strictly to the specific monetary threshold for SGA and may find that the claimant is eligible for benefits despite the actual amount of dollars earned.  

Another common situation involving sheltered work occurs when the military pays wages to a solider who is disabled and unable to work.  This is prevalent among claimants who are assigned to a "Warrior Transition Unit" while they wait for military discharge.  The discharge process might take many many months and, in many instances, the disabled soldier is not required to work at all.  Under this scenario, the SSA will not count the pay received by the soldier as SGA. 

Convincing Social Security that a claimant is working in a sheltered environment can be a difficult task.  Whenever I have a client who I believe has been working in a sheltered work environment, I obtain letters from co-workers and supervisors stating the specific circumstances under which the claimant performed his or her duties.   It is also advisable to gather evidence such as time sheets, work schedules and pay stubs in order to succeed in a case involving sheltered work.  Never assume that the claimant's statements or testimony are sufficient evidence to win this type of claim.  In this day in age when Social Security is under constant scrutiny, ALJ's and SSA adjudicators feel a lot more comfortable in granting a case where extensive documentation has been submitted by the claimant and his or her attorney.

Monday, April 13, 2015

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