Mental Disorders and How to Collect Your Long Term Disability Benefits

Hi, I'm attorney Gregory Dell joined by attorney Rachel Alters and we're going to talk about mental disorders and how to collect long-term disability insurance benefits. Rachel, as you know, mental nervous disorders are probably the most common type of disability claim, but along with that comes the most commonly denied type of long-term disability insurance claim. And why is it, Rachel, that the mental nervous disorders are most commonly denied by long-term disability companies? Well, Greg, a mental nervous disorder, usually not always, but most of the time, it's a subjective type of disorder where there aren't many tests that prove that you're mentally disabled. And it's really hard to measure at what level, you know, the depression, the anxiety, or the bipolar disorder is. So it's very difficult for a physician to put in a medical record or in a medical test, you know, to show that, hey, this individual is completely disabled as a result of depression, anxiety, schizophrenia, bipolar, whatever the mental disorder may be, it's a very difficult disorder to measure. So, you know, there's not really a test that you can hook your up to and say this person is severely depressed. It's mainly, you know, observing the patient and the complaints from the patient and, you know, all of that is a way that the doctor is diagnosed. So it's a very difficult disability to actually, you know, not necessarily diagnose, but to show that it's severe enough to prevent a claimant from being able to do their job. And how will a disability insurance company go about determining if a claimant has met their burden of proving they're disabled by a mental nervous condition? Oftentimes what they do, Greg, is they rely on the medical records from the therapist and a psychiatrist to determine whether or not the insurance carrier believes that the claimant has met the threshold for being disabled from their occupation. It's a not like it's cut and dry where somebody who has Parkinson's disease, you know, and they can't use their hands to type, it's more of a, you know, functioning, whether the claimant is able to go to work and function on a daily basis. And what the carriers, I often find, they require is that the claimant is treating often, frequently with their therapist and their psychiatrist. They want to see that the claimant is getting, you know, a continuity of care, which is treatment usually, you know, at least once a week or several times a week if the condition is severe enough. Because if the carrier sees that, oh, you know, this claimant claims they're so depressed, they're so anxious, they can't go into work, they can't function, yet they're only going to see their therapist or their doctor maybe once a week or once a month, they're going to determine that it's not severe enough to prevent them from being able to perform the material substantial duties of their job. So I always tell my clients, make sure that you're treating very often with your therapist and your psychiatrist and make sure that they're documenting all the issues that you're having and the reasons why you're not able to work. It's very important that this is all put on paper, because if it's not, then it doesn't exist. And Rachel, you mentioned several times psychiatrists, while a claimant can be treating with a social worker, a psychologist, or a psychiatrist, but the psychiatrist is the one who's the medical doctor. Is it essential for a person seeking approval to be treating with a psychiatrist, or could they just have a social worker or just a psychologist? It depends. Every case is different, but I usually recommend for my claimants, to my clients, to see both a psychiatrist and a therapist, whether that therapist is a social worker or whatever their specialty is, because oftentimes the insurance carriers will look at somebody who's just treating with a therapist and say, well, they're not treating with a medical doctor. We don't believe that the condition is severe enough that they need to be disabled, because if it were, they'd be treating with a medical doctor such as a psychiatrist. They also want to see that somebody is prescribing medication and a social worker is not allowed to prescribe medication. That's only done by a psychiatrist. Now, does the claimant actually have to take the medication? That's completely up to the claimant, but the carrier likes to see that there's well-rounded treatment. And a lot of times, some of these policies do require that you're treated by a medical doctor. And if they're only treating with a therapist or somebody who is not trained and doesn't have a medical degree, that may not qualify them for the disability benefit of the policy. So I always kind of try and stress to my clients that, yes, it's very important that you treat with both. A psychiatrist you can treat less often with than a therapist. The therapist is somebody who you may want to treat several times a week with, and a psychiatrist you may see once a month. But it's very important, in my opinion, to have both. A lot of claimants falling under the mental nervous disorder are also substance abuse disorder type claims or mental nervous type conditions that require some kind of inpatient type treatment. And very often, Rachel, we see that someone goes in for a residential treatment, whether it's two weeks or six months, and then they get out of the therapy or treatment facility, and the disability carer says, oh, you're cured now. You can go back to work. How do you handle those types of cases? I usually will speak with my clients at length about their stay at the inpatient center and make sure that the doctors at the inpatient center recommended some care once they get released. So for their sake, as well as for the sake of their disability claim, it's important for them to follow up on a regular basis with a therapist and a psychiatrist once they're discharged from the facility. Because like you said, the carrier is going to look to say, oh, if they were in for substance abuse and we had them in the facility for two weeks, they're cured, now they can go back to work, go back to real life. Well, that's not really the case because there's a lot of triggers in the workplace and in real life that can cause somebody to relapse. So it's really important that the claimant will have some care to follow up outside of the inpatient care to make sure that they don't relapse. Also just to make sure that they don't have further issues such as anxiety and depression, which can be caused by the substance abuse as well. So we'd like to make sure that we get them followed up also maybe by their primary care doctor just to make sure that they're doing okay. And usually these policies will pay for up to 24 months of benefits for claimants who have substance abuse issues or mental nervous disorders. So we want to make sure that that care at least continues throughout that 24 month time period. And Rachel, when you just mentioned, which was going to be my next question, you said about paying 12 months or 24 months, that's known as what's called a mental nervous limitation. And that's one of the most common limitations that we see in these disability policies because of the fact that disability carriers know that they're more often than not going to see a mental nervous type claim. And because of that, they want to limit benefits to 12 to 24 months. There's not many other limitations in a policy for any other medical conditions other than mental nervous that limits your claim to 12 to 24 months. But Rachel, along the lines of the mental nervous limitation, a lot of people have anxiety or depression or some type of mental nervous disorder that's secondary to a physical condition that they've been diagnosed with and been suffering with. Will a person that has a secondary diagnosis of a mental nervous disorder be subject to that mental nervous limitation? Unfortunately, the insurance carriers try and create a situation with most of the claimants trying to turn a physical condition into a mental nervous condition so that they can limit the policy payments to 24 months. This happens almost every time there's a physical condition that is followed by depression or anxiety because when somebody suffers from a lot of pain, whether it's from a back condition or a neck condition or fibromyalgia, the person tends to become depressed because they can't do the things they used to be able to do. So what the carriers always tend to do is they look at the medical records. They will say, oh, well, look, this person's treating for depression and anxiety, or it's mentioned in the medical records that they're suffering from this. Therefore, this must be the reason why they're disabled. Now, obviously, it's not the reason and the carriers usually know that. But unless it's documented pretty carefully in the medical records that the depression and anxiety is a secondary condition to the primary physical disabling condition, such as the back issue or the neck issue or the fibromyalgia, if it's not documented in such a way, they will use it to their advantage to try and limit the benefits to 24 months. So what I tell my claimants all the time, and I try and explain to them how important it is to explain to their doctors when they go into the doctor's office visit, is when they do mention that there's depression and anxiety, and that's a normal thing that occurs when people are feeling pain. I don't want them to hide that from their doctors, but I want them to make sure the doctors are documenting that this is a secondary issue, that this depression and anxiety is caused by the fact that they're in such severe pain. That way, it's easier for us to fight the claim when the insurance carrier tries to say, okay, well, we're going to deny this claim because we've already paid it for 24 months under the mental nervous limitation. We're now going to deny. We have ammunition to fight back and say, well, this is not the disabling condition. The disabling condition is the physical condition, which is not limited under the policy. Therefore, you can't just cut them off after 24 months. And you know, I make this argument over and over because the insurance carriers try and take advantage of it. Those are great points, Rachel. And that's a very common argument that we try to, you know, the disability companies make, and we try to keep our clients from being subject to that limitation because it's an easy and often, I think, unreasonable argument for the disability carriers to make saying that they're mentally disabled and not physically disabled. The other and last issue, Rachel, that I want you to discuss is that these types of mental disorders are almost always based upon subjective complaints, meaning there's no machine that's going to say you're depressed or you're not, or you have a mental condition or you don't, subject to having a brain injury, obviously, where we could look at an MRI of the brain and see that you have brain damage. But there are tests out there known as a neuropsychological testing, which is used as an objective tool, even though it requires subjective diagnosis and subjective input from the tester and from the person taking the test. How is neuropsychological testing used to prove a person has a mental nervous condition and limitations associated with their condition? Greg, we usually will advise our clients, depending on the severity of their condition or what their cognitive issues are, to undergo a neuropsychological test, which is a very extensive, long test that can take sometimes up to two days of full testing in order to get the test complete. And what these tests do is they sit you down and they test you for depression, anxiety, whether there's memory issues, executive functioning issues. All of these things are tested to determine whether there's a cognitive issue. And a lot of times, the insurance carriers, they'll say, well, there's no objective proof of the fact that this person is having cognitive dysfunction, whether it's depression, anxiety, memory issues, whether it's executive functioning, being able to multitask, being able to concentrate. All of those issues are hard to measure, but they can be measured in a neuropsychological evaluation if they're done the right way. Obviously, some of these tests will come out and show that there is no cognitive dysfunction, and other tests will show that there's severe cognitive dysfunction and severe executive function limitations. So we do tell our clients, yes, these are tests that can be very helpful and useful to submit to the insurance carrier to prove or provide an objective testing format to prove that they have cognitive issues. Otherwise, like you said, a lot of the diagnoses are made with subjective complaints. And unfortunately, there's no way to measure other than how the claimant is feeling and expressing themselves to their physician. So this is a really good tool. It's not cheap. It's expensive. Usually, it can cost upwards of $6,000, and it's not always covered by insurance. But it is sometimes a very important tool that we use in order to get our clients on claim and to keep them on claim throughout. So it's good to know that that's an available option. And the test is administered by a neuropsychologist, which is a separate board certification. So if you're a claimant treating with a social worker or a psychologist or psychiatrist, and you think you've had that test already because your doctor is saying they gave it to you, they really haven't. They might have given you an MMPI test, which was 500 multiple-choice type questions or something of that nature, or they did a few minor tests with you. But it's not the same as the full-blown one full day or day and a half, two-day neuropsychological evaluation that's performed by a neuropsychologist. So it's important that if you're going to get a neuropsych test that you do it the right way and that you're doing it for the right reasons to support your claim. Rachel, we've just scratched the surface here on the mental nervous conditions, and there's so many of them, and many of them have different severity levels and how they affect people, as well as the organic brain disease type mental nervous disorders that we've dealt with that we often tend to prove are physical conditions and not psychiatric conditions, such as the bipolar and schizophrenia and other conditions like that. So we encourage you, if you have a mental nervous condition, to please contact any of our lawyers for a free initial consultation. We will need a copy of your disability policy or a copy of your denial letter if you've been denied. We'll immediately review it with you and let you know how we think we can help you. We also encourage you to take the time to search your disability company on our website, where you'll find lots of helpful information. You're going to also find reviews about your company and questions and answers that all of our lawyers have answered over the past 20 years from claimants like you that have been asking us questions. And we really want you to have all this information because it's going to put you in the best position to understand how disability companies handle these claims, and by understanding how the disability insurance companies act and behave with the handling of these claims, you're going to be in the best position to get your benefits approved. So no matter where you live in the country, we invite you to contact us for a free consultation and we look forward to the opportunity to assist you.