Brain Injury - What You Need to Know Regarding Traumatic Brain Injuries and Disability

Welcome to Season 4, Episode 19 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Brain Injury." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses brain injuries and brain injury claims, giving you invaluable insight into brain injury basics, as well as the handling of traumatic brain injury disability claims. Brain injuries, on their surface, may sound like easy disability claim wins; however, by now you should know that isn't necessarily the case. Disability carriers handle brain injury claims much the same as other illnesses or disease; with gloves, and with every intention of denying a rightful claim. Today, host Nancy L. Cavey will discuss everything you need to know to prepare yourself if you're a brain-injured policyholder who is seeking disability.

In this episode, we'll cover the following topics:

1 - Brain Injury Basics

2 - Utah Federal Judge Upholds United of Omaha’s Denial of Disability Benefits to Brain-Injured Policyholder

3 - How Does a Brain Injury Impact the ERISA Lawsuit Statute of Limitations Period

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:15]:
 Hey, I'm Nancy KV, national EriSA and individual disability attorney. Welcome to winning isn't easy before we get started, I've got to give you a legal disclaimer. The Florida bar says I have to tell you that this is not legal advice. So I've done that. But nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games the carriers play and what you need to know to get the disability benefits you deserve. Today I'm going to talk about brain injuries and long term disability claims. We're going to talk about, first, the basics of brain injuries. Second, I'm going to talk about how a Utah federal judge upheld united of Omaha's denial of disability benefits to a brain injured policyholder and what you can learn from that denial.
 
 Speaker A [00:01:01]:
 And how does a brain injury impact the ERISA lawsuit? Statute of limitations, period. Let's take a break for a moment before we get started with this week's episode.
 
 Speaker B [00:01:12]:
 Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:01:31]:
 Welcome back to winning isn't easy. I'm going to talk about brain injury basics and basic brain injury claim tips that you need to understand. Let's first talk about a brain injury. I know that a brain injury can significantly alter the course of an individual's life and that of their family. A traumatic brain injury, known as a TBI, can be caused by trauma to the brain, whether it be a violent blow to the head or penetrating injury like a bullet wound or any other types of accidents or injuries that can cause trauma to the brain. One of the things that I always want to know when I'm dealing with a brain injury claim is what are the symptoms that you're having now? Symptoms of the brain injury can depend on what part of the brain has been injured. Mild traumatic brain injury can cause temporary dysfunction of brain cells. A more serious injury, though, can result in bruising, torn tissue, bleeding and even death.
 
 Speaker A [00:02:29]:
 The physical consequences of a brain injury can depend on whether the person has a mild, moderate or severe brain injury, and the symptoms can range. They can range from headaches, dizziness, impaired concentration, slowness of movement, paralysis, weakness on one side, seizures, sensory problems, impaired alertness, fatigue, language disorder, and problems with speech and vision. But there are also cognitive problems, and these, of course, can be difficult to prove because they're not quote unquote visible. The cognitive problems can include difficulty talking, following instructions, staying on task, sequencing, processing information, and it also may involve some psychological symptoms because it's not uncommon for those with brain injury to act out or to suffer from depression. The physical, cognitive, and behavioral symptoms can have catastrophic consequences on your ability to work. But I will tell you, the disability carriers do not like traumatic brain injury cases because sometimes there is no evidence of an organic brain injury based on diagnostic studies like mris or ct scans. And of course, they don't necessarily like the results of neuropsychological testing either. So often when we get a brain injury claim, I know that there are some common reasons that we have to deal with these, and they form the basis of not only my application, but a continuing claim for benefits if the case is being denied or terminated.
 
 Speaker A [00:04:04]:
 Disability carriers are likely to deny claims on the basis that there's no objective basis of the cognitive or behavioral problems. They'll say there's no objective basis of either the physical or cognitive restrictions and limitations. And then they'll say, look, there's no causal relationship between the cognitive and behavioral problems and your other restrictions, limitations, and you can do your own or any other occupation. So that's the starting point for how disability carriers will go about analyzing these files. Now, to get the disability benefits you deserve because of a brain injury, I think that there are a number of things that you need to do as a starting point. First, you need to get a copy of the disability policy or plan because you want to understand the definition of disability, occupation, self reported problems. You want to understand the parameters of proof and what you need to do to get the benefits you deserve because of the brain injury. One of the other policy terms we're looking for are self reported limitation conditions, and it can limit how long you get benefits for self reported conditions or symptoms, including headaches, lightheadedness, weakness, fatigue.
 
 Speaker A [00:05:13]:
 So I want to understand the waterfront, if you will. As we put together a claim or defend a claim, the next thing we should be doing, or you should be doing, is getting a copy of your medical records to look to see if there's an objective basis of the diagnosis, what the records say about your report of symptoms, and what those records say about your limitations. Thirdly, if you have continued to work after a brain injury, you want to get a copy of your personnel file to see what your supervisors have said about the impact the brain injuries had on your work performance. Additionally, you're going to want to get a copy of your job description from your employer. I always want my clients or their family members to create a job description of the physical and cognitive duties, the interaction with other employees and customers. And as part of that I like them to also explain what the physical or cognitive problems are that impact their ability to do the materially and substantial duties of the occupation. It's also crucial that your physician understand what the occupational description is because they're going to be asked to complete forms called an attending physician statement form and they're going to be asked what's the objective basis of the diagnosis? What's the objective basis of the restrictions and limitations? What are the objective reasons, doctor? You think they can't do the material and substantial duties of their occupation. So obviously your doctor needs to understand what your occupational duties are, what problems you're having, or what duties you can't perform at all.
 
 Speaker A [00:06:42]:
 So they can put this together in a coherent report or a coherent AP's form. I also think that it's important for you and your family members to prepare a diary of your symptoms and even include the side effects of medication. You need to give examples. I think of how those symptoms impact your functionality, both physically, cognitively and psychiatrically. And you can see that putting together a brain injury claim can be pretty complex. I think that this is the kind of disability claim that requires the assistance of an experienced ERISA disability attorney who could put together the application or to even appeal a wrongful denial or termination of claims. Remember, disability carriers have all sorts of denial tools in their denial toolbox that they're going to use in a brain injury claim from the beginning and through the life of the case. Got it? All right.
 
 Speaker A [00:07:37]:
 In the next segment, I'm going to be talking about how a Utah federal judge upheld the denial of the disability benefits to a brain injury policyholder. And we'll see how we're going to put together the things that we've just talked about and how it works in real life. Ready for a break? Let's do it. Welcome back to winning isn't easy. Now, in my last segment of this podcast, I talked about the symptoms of a brain injury, the common reasons for denial, and the things that I think need to be done to put together a winning brain injury claim and to keep a person on claim. What I'm going to talk about next is how a Utah federal judge upheld United Omaha's denial of disability benefits to a brain injury policyholder. Because I think that this kind of explains how judges will look at these claims and some of the tools that disability carriers use in denying claims. Now, disability carriers will commonly scour a disability policyholder's medical history for statements that it can take out of or they can conflate with an ability to work.
 
 Speaker A [00:09:19]:
 They'll cherry pick neuropsychological testing and records, and they'll say that even an ability to work in some sort of a part time capacity or even volunteer demonstrates an ability to work on a full time basis. So they're, they're cherry picking. They're taking things out of context. They're conflating. They do all of that to create a claims denial. And that's exactly what they did in the case of Jennifer Lydia versus United Omaha. Now when you apply for disability benefits and you're on claim, you're also asked to do reports of your activities. And that report can be found in the forms that you fill out or in your medical records or a combination of both.
 
 Speaker A [00:10:04]:
 You need to understand that this is fodder for the disability carrier. Now, Miss l was involved in a low speed motor vehicle accident. She was rear ended. She didn't hit her head. She didn't lose consciousness. She had a concussion evaluation. She reported fatigue, headaches and difficulty with tasks that required focus. And she specifically said, look, the headaches and the cognitive problems occur at work and they're impacting my ability to work, to read and to complete activities of daily living.
 
 Speaker A [00:10:35]:
 So, so far, so good. But some seven months later, she reported she was hiking, biking, and that work was going good. Now nobody explained what the word good meant, but that would come back to bite her. And then three months later, she reported she had vacationed for two weeks. She had obtained a puppy. She was hiking, she was walking. She was working 30 hours per week. Now, she did complain that her headaches were worse doing visually focused work, but you can see there's beginning to be a theme of improvement.
 
 Speaker A [00:11:07]:
 Now, over the course of the next year, she reports skiing, hiking, biking, golfing, even though she's working a reduced or modified work schedule. The history is going to be seized upon by mutual omaha to justify the claims denial. Now I think you obviously have to be truthful about your activities, but I don't think she gave an accurate or complete history of her symptoms and functionality. So what do I mean? The medical records did not discuss how her brain injury and cognitive problems caused difficulty at work with tasks that required focus. What were those tasks she was having difficulty with? What were the symptoms she was experiencing? Second, the records never explained how the headaches caused any difficulty with work related tasks, didn't identify what the tasks were what the symptoms were. Did she do any modification of her work environment? The third thing she didn't explain is what problems she had with her vacation. Did she limit her activity? Did any of the activity cause her problems? And if so, what? Did she have to stop that activity because of the headaches or the problems? Now, she also didn't explain what problems, if any, she was having, getting or caring for a puppy. You know, I have a new dog, and that dog is requiring a lot of concentration, a lot of patience, and it's almost a full time job to take care of this dog.
 
 Speaker A [00:12:34]:
 So again, explanation as to the problem she was having, both physically or cognitively, taking care of the puppy would have gone a long way to help her case. Now, she was also skiing, hiking, and golfing. Again, I love to hike. I love to ski. I don't golf. But if I had a brain injury and I was having cognitive problems, I might be having problems with perception on the ski slope. I might be having problems hiking, figuring out where I was, when to turn around, making judgment decisions. The other thing she didn't explain was, yeah, she was working a reduced or modified work schedule, but she didn't explain why.
 
 Speaker A [00:13:15]:
 What was modified? Why was it modified? What problems did she have with any of the modifications? Did she have any performance issues because of her symptoms? What were those problems? How did an employer address those issues? So you can see that this type of information would have given a clearer picture of her symptoms and functionality. Now, part of the denial toolbox kit games is cherry picking medical test results. That's exactly what they did. In this case. She had had a functional MRI that showed some abnormal activation associated with short term or verbal memory. Now, that sounds great, but did the treating physicians ever get a history that she was having any short term memory issues, any verbal memory issues? Did she ever provide them with a history of how that was impacting her ability to function at work or how that work might have been modified? Did the doctor explain any medical correlation between those findings and a reduced work schedule or activity? The answer was no. So the carrier got away with cherry picking the medical test results. But carriers also like to cherry pick neuropsychological testing and evaluations.
 
 Speaker A [00:14:28]:
 The testing she had showed an adjustment disorder with mixed anxiety and depression, with mild neurocognitive disorder secondary to traumatic brain injury. The test results indicated that there was no areas of profound impairment, but there was reduction in attention, executive functioning, and delayed recall. And that would have, in the provider's opinion, a marked impact on her ability to sustain workplace efficiency. It was suggested that she modify her workplace environment with respect to meeting and processing information. But guess what? There was no history of her problems with attention, executive functioning, workplace efficiency, or difficulties with meeting or information processing. Now, that should have been nailed down through a vocational evaluation and an opinion of the enduropsychologist that would have addressed this impaired function. But Michelle Vaumahal pulled out another of their claim denial tools. They had her undergo a neuropsychological evaluation, and she wasn't prepared.
 
 Speaker A [00:15:29]:
 I mean, it's clear that she never gave a history of the problems with the physical activity she was doing, any detailed history about her work activities. She was having problems. And worse yet, the testing shows she gave poor effort and the test results were inconsistent with a neuropsychological testing. So the carrier seized on it, saying, she's lying. She didn't cooperate. She breached that part of her policy. She couldn't possibly be as, as disabled as she says, because look at all the things she's doing. Look at the lack of complaints.
 
 Speaker A [00:16:01]:
 Look at the lack of modification or an explanation of those modifications. What she should have done was to hire an experienced service of disability attorney as soon as she was scheduled for that IME. In fact, I think sooner. But the attorney would have looked at her medical records and seen the deficiencies we discussed, would have prepared her for the IME, videotaped the IME interview with a neuropsychologist. Those are the things that should have been done. Now, her neuropsychologist attempted to rebut the opinions of the IMe, but there really wasn't a good factual or vocational basis for his opinions. And mutual of Omaha's doctors ultimately seized on those deficiencies to justify the denial. So what did the federal judge do with this? Well, the judge found that the results of the testing and records didn't support a mental or a physical impairment, that her daily functioning and her recreational activities were inconsistent with her self reported symptoms, that her return to work in some capacity for more than a year after the accident was important because there was no evidence that she was having problems functioning, that the nature of her treatment was based on her self reported symptoms, and that there is a general expectation that brain injuries gradually improve over time.
 
 Speaker A [00:17:20]:
 None of this is a surprise. It all should have been anticipated and addressed. So what are the lessons learned at each medical visit? You need to give a complete and accurate history of your symptoms and how those symptoms impact your ability to do things, not only around the home and at your work. Make sure, number two, that the testing results correlate with your symptoms and functionality. Three, hire an ERISA attorney in a brain injury claim and certainly if you don't, you darn well better do it when you've been scheduled for an IME because it's going to be crucial. Number four, that you get lots of prep for this Ime. You also need to make sure that there is medical correlation between your symptoms and functionality and your diagnostic studies. You got to tie it all together in a coherent story and you should be hiring a vocational rehabilitation counselor to correlate the symptoms functionality issues with the inability to do your own occupation or any occupation.
 
 Speaker A [00:18:18]:
 You can see that these were valuable lessons that she didn't know didn't apply, but you will learn as a result of her mistakes. Hire an experienced erisadic attorney in a brain injury case. It's as simple as that. In the next segment, I'm going to talk about how the brain injury can impact an ERISA lawsuit statute of limitations, period lets take a break.
 
 Speaker B [00:18:43]:
 Are you a professional with questions about your individual disability policy? You need the disability insurance claim survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos regarding your disability application that will assist you in submitting a winning disability application. This is one you wont want to miss for the next 24 hours. We are giving away free, free copies of the disability insurance claims survival guide for professionals. Order yours Today@Disabilityclaimsforprofessionals.com. dot.
 
 Speaker A [00:19:39]:
 Welcome back to winning isn't easy how does a brain injury impact the ERISA lawsuit? Statute of limitations, period did you know that every ERISA policy or plan has a provision that will govern the time limit that you have to sue to get the benefits you're entitled to or to determine your legal rights? This is called a statute of limitations. What's the practical impact of a statute of limitations, period? In my view, it's everything. The statute of limitations, as I said, is the period of time in which you have to file suit if there's any kind of dispute. But if the policyholder or the beneficiary files a lawsuit after the statute of limitations has expired, that lawsuit can and probably will be dismissed. It doesn't matter how valid your claim is, the court will find that the period in which to bring the suit is expired and dismiss the lawsuit. Now, there are some legal reasons why the statute of limitations can be told or stopped, and one of those is legal or mental incompetency. How does tolling the statute of limitations work for incompetency? Let me tell you the story of Mister Jones, who in 2011 suffered a severe brain injury as a result of a motorcycle accident. He returned to work for his employer for three years, but he never handled the job responsibilities he did at the time of his motorcycle accident.
 
 Speaker A [00:21:02]:
 He was ultimately terminated in March of 2014 and for the first time filed a claim for benefits. The disability carriers are always looking for a reason to deny a claim. Terminate benefits, and the statute of limitations defense can be an easy win for them. Disability carrier Aetna denied the claim and he appealed unsuccessfully. His wife, Miss Poisson, tried from 2015 to 2019 to resolve the claim with Aetna, but wasn't successful. She wasn't legally authorized to act on his behalf. In 2019, she petitioned the court and asked to be named as a conservator for her husband. A neurologist determined that Jones had never been competent enough to manage his legal or financial affairs since that motorcycle accident.
 
 Speaker A [00:21:51]:
 And ultimately, in June of 2020, Poisson, his wife, filed a lawsuit seeking a clarification of Jones Erisa rights and equitable relief, requiring Aetna to reopen the claim investigation and consider all of the relevant information. So what did Aetna do? Aetna said, heck no. They filed a motion to dismiss, arguing that the claim was barred under the three year statute of limitations period in the plan. Now, the court found that the limitation period would have ended in June of 2017, some three years before the lawsuit was filed. So Poisson fortunately retained an attorney who argued that the statute of limitations period was equitably told because her husband was mentally incompetent for the entire period. She argued that the statute of limitations should have started once poisin was named the legal conservator in August of 2019, and that, of course, this lawsuit was timely filed. But the federal judge said, oh, so no applying California state law. Now, the judge did find under federal common law that mental incompetency was grounds for tolling the statute of limitations, and as a result, the judge under the federal law let the case go forward because Jones was unable to assert his legal rights because of his mental incompetency.
 
 Speaker A [00:23:24]:
 The lessons here are important. Federal courts are going to take the statute of limitations defense seriously. If there's no legal reason to toll the statute of limitations, the court's going to grant the insurance company's motion to dismiss. I call it the too bad, so sad statute of limitations defense. The failure to finally file that lawsuit can result in a dismissal with prejudice of an otherwise valid and legitimate claim. So please don't make the crucial mistake and blow the statute of limitations. If your family member has been involved in a traumatic brain injury, obviously, and as quickly as possible, you want a conservator appointed. And then that conservator needs to follow the ethical statute of limitations and file a timely claim for benefits, and, if necessary, a timely lawsuit.
 
 Speaker A [00:24:17]:
 I hope you've enjoyed this week's episode of winning isn't easy. If you've enjoyed this episode, as I'm sure you have like this page, leave a review and share it with your family and friends. I want you to also subscribe to this podcast. Why? We notified every time a new episode comes out, and I don't want you to miss any insightful episodes of winning isn't easy. They're all great, and you need this information to help you get the disability benefits you deserve. Thanks.