• Cognitive Limitations Create Difficult Issues In Obtaining Disability Insurance Benefits

Is Your Disability Insurance Claim a Physical or Mental Disability Condition?

Almost every Group (ERISA) Long Term Disability Benefit Plan contains a provision which limits the length of time disability benefits will be paid for a mental/nervous or mental health condition. If a disability results from a mental health condition, benefits are typically limited to 24 months and can even be limited to just 12 months. For this reason, disability insurance companies go to extra lengths to attempt to show that a claimant’s disability results from a mental health condition (such as depression, anxiety, panic disorder, cognitive limitations, bipolar disorder, etc.) and not from a physical condition.

Recently, a Kentucky claimant, Ms. A, filed an ERISA disability lawsuit against Guardian Life Insurance Company of America (GLIC) which alleged that GLIC was incorrect in subjecting her claim to the 24 month mental health limitation contained in her Plan. Ms. A was alleged that her cognitive limitations originated due to a physical injury and, therefore, was not subject to the mental health limitation.

Background Of Ms. A’s Injury And Disability Claim With Guardian

In December 2004, Ms. A was involved in a nearly head-on motor vehicle accident. Her head hit the steering wheel and she was unconscious for a brief time. She was transported to the hospital via ambulance and was discharged the same day. She began to experience neck and back pain, dizziness and nausea. Diagnostic tests performed were all normal. However, in May 2005, she applied for long-term disability benefits due to a diagnosis of displaced cervical and lumbar disc, vestibulopathy and concussion, and symptoms of severe neck and low back pain.

Guardian began an investigation into her claim for benefits. In June 2006, Ms. A was determined to be disabled from her own occupation and eligible for benefits. In March 2007, the definition of disability, pursuant to the LTD plan, changed from “own occupation” to “any occupation”. To determine whether Ms. A was disabled from performing “any occupation”, another investigation commenced.

In August 2007, Ms. A underwent a Functional Capacity Evaluation (FCE) which concluded that she was capable of performing sedentary work. Accordingly, In September 2007, GLIC denied Ms. A LTD benefits finding that she no longer met the Plan’s “any occupation” definition of disability.

In March 2008, Ms. A appealed the denial of her claim. In support of her appeal, she included a letter from her treating physician which stated that Ms. A was totally disabled as a result of her postconcussive syndrome and the cognitive issues she suffered from as a result of the concussion. In April 2008, GLIC reversed the denial but continued to investigate her claim.

In July 2008, GLIC had a file review performed by a neuropsychological specialist who opined a probable diagnosis of malingering and found many inconsistencies in the records. In December 2008, GLIC sent Ms. A for a neuropsychological IME, and they had an additional peer record review conducted.

In January 2010, GLIC sent Ms. A for a psychological IME. The psychiatrist diagnosed Ms. A with Dissociative Identity Disorder and Borderline Personality Disorder. He stated that the origin was the significant childhood abuse Ms. A suffered. He further noted that Ms. A recovered from her concussion but continued to meet the diagnostic criteria for postconcussive disorder because the concussion allowed her personality to disintegrate. In May 2010, GLIC determined that Ms. A was unable to work to due to Multiple Personality Disorder, a mental health condition that was subject to the 24 month limitation. Accordingly, her benefits would expire on May 10, 2012.

ERISA Lawsuit – The Court Upholds the Denial

In her lawsuit, Ms. A argued that the mental health limitation did not apply because the limiting mental health condition was triggered by the 2004 motor vehicle accident. She argued that “there is ample evidence in the record that the origin of Plaintiff’s admitted disability is due to physical injuries and impact made more complex by the existence of mental problems.”

In this case, the court determined that Ms. A’s argument failed. Both Ms. A and her treating physician stated that she suffered with psychological problems prior to the motor vehicle accident. She was discharged from the hospital on the same day of the accident and diagnostic studies, x-rays and CT scan, did not show any evidence of post traumatic injury. Further, the medical evidence showed that the injuries she sustained in the 2004 accident had resolved by 2006. Only Ms. A’s one treating physician supported that she was disabled due to a physical condition. However, 5 of the 7 physician consultants retained by GLIC (4 that examined her and 3 that performed peer file reviews) concluded that she was not functionally impaired. One physician rated a minimal 5% impairment and the psychiatrist determined that she was psychiatrically impaired from gainful employment. Because the court was reviewing Ms. A’s case with the deferential (or arbitrary and capricious) standard of review, it determined that GLIC’s decision to pay limited benefits under the mental health provision of the LTD Plan was reasonable and substantiated by the medical evidence.

How Do You Show a Disability is Caused by Physical Injury and Overcome the Mental Health Limitation?

In a case that resembles Ms. A’s case, Roubal v. Prudential Insurance Company of America, the Plaintiff claimed cognitive deficits and physical limitations as a result of injuries also sustained in a motor vehicle accident. In its analysis of this issue, the court stated, “[c]ognitive disorders resulting from physical injury to the brain are exempt from the mental health limitation.”

The Plaintiff in Roubal was able to support his complaints of memory impairment and decreased cognitive function with credible medical evidence. For example, the Plaintiff was immediately flown from the scene of the accident to a hospital where he was treated for 13 days, evidencing that he in fact suffered significant injuries. Additionally, 2 examining neuropsychologists supported his impairment due to neurological issues which qualified him for benefits due to physical disability, not due to a mental health condition.

Often, if a claimant suffers from physical symptoms that are subjective in nature (such as pain, fatigue, headache, etc.), and simultaneously suffers from depression, anxiety or some other “mental health” condition, the disability insurance company will attempt to attribute the physical symptom as being caused by the mental health condition, thereby subjecting the claim to the mental health limitation. We have seen numerous instances where the insurance company “physician consultants” will conclude that the claimant suffers from “somatization” or “somatic disorder” or “conversion disorder”, whereby the mental health condition (ie, depression, anxiety, etc.) causes the individual to manifest physical symptoms which cannot be attributed to any other physical cause or condition.

This tactic can be overcome by 1) offering evidence of a physical condition/injury/illness which is the cause of the disabling symptom(s), and 2) providing evidence which shows that you have functional restrictions/limitations which prevent you from performing your job as a result of the medical condition/physical symptoms.

There is often a fine line between what constitutes a physical disability and what can be considered a mental disability. An experienced, knowledgeable disability attorney can assist you in gathering the appropriate evidence necessary to support your disability from either type of condition in order to maximize the disability benefits that you are entitled to receive. Attorneys Dell & Schaefer have extensive experience proving physical disability and overcoming the mental health limitation policy provision.

Attorneys Dell & Schaefer did not represent Ms. A in her disability claim, appeal or lawsuit. If you have questions regarding your claim for disability benefits, or if your disability claim has been denied, feel free to contact Disability Attorneys Dell & Schaefer for a free consultation.

Comments (6)

  • Kathy, I recommend you contact the Advocator Group to discuss with the person handling your case what their strategy is as it relates to the basis of disability.

    Stephen Jessup Aug 12, 2019  #6

  • How interesting! I have a history of mTBI due to sports injuries over the past 20 years. When I was younger, I recovered quickly (3weeks to 3 months); however, these were much scarier to me than the two very serious physical injuries I sustained, both of which required surgery with 6 weeks of recovery.

    I’ve been disabled for nearly 10 months from my “own occupation,” which requires a high degree of analytical skill, judgement, and decision making as my work gets incorporated into business contracts. I’ve been followed by both my PCP and chiropractor during this entire time, and have been receiving neurofeedback on temporal and frontal lobes to support the brain’s neuroplasticity and recovery from trauma. My PCP referred me to neurologist who I met with two months ago, and have a follow-up scheduled next month. He diagnosed insomnia, post-concussion syndrome, post-traumatic headache, and cognitive/behavioral changes.

    As per usual, my employer-sponsored ERISA policy, has a two-year limit on mental conditions and also requires that I file Social Security. They provide payment to The Advocator Group, who bullied me for months to file, while I was still working on returning to work. Only after my employer discharged me after 6 months on State Disability, and my PCP changed my Return to Work status as “permanent” disability per my own occupation, did we file for SSDI as required.

    I’ve had several communications with my disability claims person, and she asked if my PCP would fill out a capacity form for her, saying that she could send me out to someone else but would prefer from my treating physician. When my PCP saw the form, which was for a “mental” assessment to be signed by a Psychiatrist/Psychologist, he declined.

    I’m curious about what The Advocator Group may have submitted to Social Security, as I’ve had several discussions with both my PCP and neurologist who were screening for mental health support but I am not depressed at all. I’m still as smart as I ever was, just have these memory issues and cognitive deficits, and have difficulty sequencing tasks or accomplishing more than a single task in a day.

    If I understand the SSDI process correctly, meeting the listing for 11.02 Traumatic Brain Injury is the fast track to approval, but 12.02 Neurocognitive disorders is the fall-back position. So is my Social Security person the one who is turning this into a “mental” evaluation or did it stem from The Advocator Group? I’m well aware of the neuro-psych test but only have a “bronze” plan and would pretty much have to pay for it out of pocket. As the test is a normative test, and I do remember these from my school days when I would almost always score in the 90th percentile, and only rarely a result in the 80s, so I really don’t want to shell out $$$$ to learn that I’m still within statistical norms, when my “own occupation” is high functioning and precise.

    Thanks for shedding light on the subject. I sense the woman at Social Security wants to help me, but needs objective evidence. But I don’t want to go down a road that disqualifies me from “own occupation” insurance. Thank you!

    Kathy Aug 12, 2019  #5

  • Hello,

    My son was on LTD for schitzoaffective disorder that included psychosis, depression and anxiety. His policy may be limited to 24 months but he developed tardive dyskinesia and akathesia as a result of the anti-psychotics meds he was on. (And a neurologist deemed it might be tourette’s syndrome but his psychiatrist disagrees.) Can his disability be extended now that a physical condition has manifested as a result of treatment for a mental disorder?

    Thank you.

    Leslie Feb 3, 2017  #4

  • Teresa,

    Please feel free to contact our office to discuss your situation. Hartford is certainly reviewing the claim for a potential “any occupation” denial, but also trying to argue your claim is due to depression, which would most likely be subject to a 24 month mental health limitation.

    Stephen Jessup Jan 2, 2016  #3

  • I have been on LTD with the Hartford Insurance Co since June 17, 2014. I received a letter from Hartford about the 2 year “your occupation” vs “any occupation after 2 years” . They sent letters in the mail for Attending Physician Statement- Progress report and Attending Physician Statement-Progress Report (for mental claims). The Dr has never filled out a mental claim report before since I started disability. My diagnosis is Migraines (code 346.80) and then Depression (code 309.28). The Dr has stated on all previous reports that the depression is due to migraines. I have also been diagnosed as having migraines by University of Colorado Hospital Neurology dept and the Mayo Clinic in Scottsdale, AZ. I have also had 3 MRI’s stating I have brain lesions and may be attributed to chronic migraines. I am thinking they are going to try to limit me to 24 months LTD only because depression is secondary on previous forms the Dr filled out. The Dr has not yet filled out the latest 2 new forms yet. I am taking these forms to the Dr on Wednesday Jan 3. I need advice before I present these 2 forms to the Dr.
    Thank you for your help in the matter.

    Teresa Six Jan 1, 2016  #2

  • My son has been battle with Mental health issues since 2008 and I have recently tried to get him SSI, however, we have been denied 3x. The first time was because of our income, second not enough proof, continued and denied again. Some of the decision that were done is not agreeable. I have been taking care of son and make him go with me to work. This is to keep an eye on him due to the fact at times he can become angry and feels he would try something to hurt himself. My husband and I put him to do little things to keep him busy. Unfortunately, we have to give him breaks, due to the fact he needs to have break to relax. Most of the time he sleeps in the office. This is caused by his sleep napa. My son has been seeing Mental Health personal and taking depression medication, ashma, obesity has been a big factor in his life, which is caused by depression. I have to review the files of what the judge went by and do not agree what the doctors stated. Is there a way I should appeal or start all over. My son is 22 years old, but I am the one who does all medical, and any other information regarding his well being. He is not capable of taking care of anything, due to not understanding.

    Guadalupe Cecenas Aug 26, 2014  #1

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