When our client first contacted our office and spoke with Attorney Stephen Jessup her claim for long term disability benefits had been approved by Unum under the 24 month mental health limitation contained in most Unum group disability policies. Despite our client’s attempts to prove to Unum that she was suffering from epileptic seizures, which were the true cause of her inability to work, Unum held fast to its position that our client did not suffer from epileptic seizures and that her condition was the result of psychogenic pseudoseizures and therefore her problems were mental in nature – or essentially – her issues were all in her head.
Unable to get anywhere with Unum she retained Attorney Jessup to fight on her behalf. When Attorney Jessup began representing her in mid-2018, Unum was not only applying the 24 month mental health limitation, it was also questioning whether our client was in fact disabled from a mental health condition. At that time Unum had been paying benefits to our client under “reservation of rights,” which is a way of saying that in a showing of good faith Unum would pay benefits while they continued their review of the claim and by making these payments under reservation of rights they were not admitting liability under the policy. The positive was Unum was paying the benefit while conducting its review, but the overwhelming concern as to a complete and total denial was very real.
With assistance from her treatment providers Attorney Jessup was able to overcome the first obstacle and get Unum to admit full liability under the policy and lift the “reservation of rights” payment status. Unum had fully determined that our client was disabled from performing the duties of her pre-disability occupation, which was a step in the right direction, but Unum was still holding firm to the belief that our client’s seizure condition was somatic in nature and therefore a mental health condition.
The 24 Month Review and Denial
For the better part of a year Attorney Jessup worked with our client’s neurologist to document her claim so that disability would be supported. As is often the case with people suffering from seizures it is not always easy to definitively document the problem by way of EEG testing as an EEG only captures a moment in time. Unum used this fact to argue that there was a lack of objective evidence to support the presence of a physical medical condition that would support the inability to work. Despite Unum’s continued arguments, enough medical information was provided to establish our client’s condition that it prompted Unum to respond by requesting our client undergo an Independent Medical Examination (IME).
The IME doctor found that our client did not suffer from epileptic seizures, stating that inpatient video of EEG abnormality did not equate to definitive diagnosis of seizures in “absence of EEG abnormalities occurring in relationship to purported seizures.” He went on to opine that our client likely had psychogenic pseudoseizures. A large problem with this logic, as Attorney Jessup would argue in his appeal, was that all the psychological reviews performed by Unum did not find any evidence of a psychological condition that would account for the problems are client was experiencing. Nevertheless Unum had the opinion it needed to terminate benefits.
As noted above, the denial of benefits was predicated on the IME doctor’s opinion that our client suffered from psychogenic seizures and that the lack of a definitive underlying EEG abnormality was required in order to make the diagnosis of epilepsy. Attorney Jessup argued in his appeal that EEG evaluations typically only record a 30 minute snapshot of the brain’s activity and that the sensitivity of the EEG, that is, the likelihood that the test will pick up an abnormality, is not always present. Even with long term monitoring, as our client underwent, one would not necessarily expect to see definitive EEG seizure activity, contrary to the IME doctor’s assertions. Attorney Jessup, through support from our client’s doctor argued that epilepsy is a clinical diagnosis that is made on the basis of history and examination and that an EEG is just one piece of the puzzle and does not replace careful medical evaluation.
During the course of representing our client, Attorney Jessup also worked in coordination with our client’s Social Security disability advocate to present her claim to the SSA as one based on epilepsy and not on account of mental health related condition. This coordinated effort paid dividends as prior to submitting her appeal with Unum our client learned that her claim for SSDI was approved by the SSA on account of epilepsy. Attorney Jessup obtained a complete copy of the SSA claim file as further evidence of our client’s entitlement to continued long term disability benefits.
Despite Unum having performed an IME and ultimately having strong legal basis to apply the 24 month mental health limitation, Attorney Jessup was confident that the information presented in the appeal would establish with Unum’s appeal department that the claims department had erroneously terminated benefits. In what was one of the quickest appeal reviews Attorney Jessup has had, Unum overturned its denial of our client’s claim in just ten days after receiving the appeal.
What’s to come?
Now that our client is back on claim Attorney Jessup is working with Unum as it relates to the overpayment resulting from receipt of SSDI benefits and in doing so is laying out the foundation of securing a lump sum settlement of our client’s case. This case serves as a reminder that Unum will look to take a physical medical condition and try to twist it to make it appear somatic in nature in an attempt to fit it into its 24 month mental health limitation.
It is important to remember that even if Unum, or any insurance carrier for that matter, approves your claim solely on a mental health condition that you are not barred from being able to continue to argue entitlement to benefits on account of physical medical conditions.
If Unum applies a mental health limitation to your claim and you are suffering from physical medical conditions that prevent you from working please feel free to contact Attorney Jessup or one of our other disability attorneys to discuss your claim.