Cancer, also called malignancy, is an abnormal growth of cells. There are more than 100 types of cancer, including breast cancer, skin cancer, lung cancer, colon cancer, prostate cancer, and lymphoma. Symptoms vary depending on the type. Cancer treatment may include chemotherapy, radiation, and/or surgery. Many people who suffer from cancer need to take long periods of time off work. Those with private disability insurance will seek to file a claim with their insurers. The process is not always straightforward, but Justin Frankel is highly experienced in pursuing long-term disability claims for individuals with cancer.
The words “You have cancer” are terrifying to hear. While there are many different types of cancers, and there are many new treatments for cancer, many patients cannot work during treatment. Some cancer patients can work part-time while undergoing chemotherapy or radiation therapy, while many are simply not able to work and count on their disability insurance benefits to cover the costs of running their households. As with any other illness or condition, it is not the diagnosis of cancer that qualifies you for short-term disability insurance or long-term disability insurance. What matters is your inability to perform the material and substantial duties of your own or any occupation.
This does not seem fair, as a diagnosis of cancer is so frightening to most people that many find themselves unable to concentrate at work, feeling anxious, sad, angry and many intense emotions as well as the symptoms of their illness.
Cancer patients filing a claim for long-term disability insurance often find themselves fighting to beat their illness and fighting with the long-term disability insurance company to obtain their long-term disability benefits. At our disability law firm, we can help you fight the disability insurance company so that you can direct your energies towards recovering from cancer. Long-term disability insurance companies treat cancer claims in the same manner as other claims. If medical records show a condition that has resulted from the cancer or the treatment for the cancer, the insurance company may try to use as the diagnosis.
The side effects of cancer treatments, including chemotherapy, radiation, radiation implants, surgery, etc., vary widely depending on the treatment and the claimant’s response. The treatments and their side effects are considered temporary, even if their impact can be long-term. Radiation used to treat breast cancer, for instance, often impairs the heart and/or the lungs, with varying degrees of intensity from patient to patient.
Chemo brain is a common term used by cancer survivors to describe thinking and memory problems that can occur after cancer treatment. Chemo brain can also be called chemo fog, chemotherapy-related cognitive impairment or cognitive dysfunction. It’s clear that the memory problems commonly called chemo brain can be a frustrating and debilitating side effect of cancer and its treatment. These symptoms may be temporary, or permanent, and medical records need to be aligned to work to support the claim.
Our client is a 47-year-old neurosurgeon diagnosed with breast cancer requiring multiple surgeries, chemotherapy and subsequent rehabilitation. During the course of her chemotherapy treatment, she developed numbness and tingling in her hands and feet, which progressed after treatment with the oral chemotherapy drug, Taxol. The residual side effects of chemotherapy treatment included peripheral neuropathy in her hands and feet and “chemobrain,” described as memory loss, poor attention and concentration, difficulty coping with stress, concurrent with the development of depression and anxiety.
These side effects never dissipated and she never fully recovered. Neurosurgery is one of the most technically and physically demanding specialty, requiring the longest residency training of seven years and frequently, an additional one to two year fellowship. After completing such a rigorous and demanding education, and becoming sick at such a young age, our client was devastated by her illness and her disability. She had to leave her successful career behind and file a claim for disability benefits. Our client had two disability policies provided through The Standard. One policy was a group policy provided through her employer and the second was an individual policy she purchased privately. Initially, both claims were approved and The Standard paid her disability benefits, but a few months later, The Standard became increasingly difficult, requesting more and more documentation addressing why she could not return to work. Despite the opinions of our client’s treating neurologists, The Standard terminated both of her disability claims.
The Standard’s decision to terminate her disability claims focused solely on a belief that our client had the physical and mental capacity to return to work in her own physically and cognitively demanding occupation. The Standard’s rationale was based on an inaccurate understanding of the material and substantial duties of her occupation as a neurosurgeon. The Standard relied upon the Dictionary of Occupational Titles (“DOT”), an overly generalized and largely outdated database that does not accurately describe occupations as they exist in today’s labor market. The Standard clearly erred in relying upon the DOT in determining that our client had the ability to return to work as a neurosurgeon with her ongoing restrictions and limitations. We worked closely with our client in obtaining occupational materials and developed a powerful vocational report outlining the nature of her job.
These arguments delineated in great detail the material and substantial duties of a neurosurgeon, including the mental toughness and physical endurance required of the occupation, the intense precision of hand, equipment and tool movement necessary – none of which can be overemphasized. Extreme stress or unsteady hands could lead to potential devastating consequences. A lapse in focus, slip of a hand, or minute surgical error could easily lead to a patient’s death, neurological impairment-physical and/or cognitive, loss of limb function, loss of functional independence, or permanent brain damage. We developed compelling objective medical support with our client’s physicians which furthered our arguments of why she could not perform the essential duties of her occupation. All of her physicians opined that she was simply unable to sustain the mental or the physical demands of her occupation on a full-time sustained basis and challenged the opinions of The Standard’s review.
Our appeal aggressively attacked The Standard’s utter failure to undertake any type of occupational analysis that truly appreciated the physical and cognitive demands of a neurosurgeon. Nor did The Standard appreciate the findings of her treating physicians who outlined the numerous side effects she suffered from chemotherapy treatment which greatly impacted her ability to work. Had The Standard done this in the very beginning, our client’s benefits would never have been terminated. A few weeks after we submitted our client’s appeal The Standard overturned its decision on both claims and reinstated her disability benefits. Our client continues to receive two large benefit monthly checks from The Standard for her group and individual disability claims.
Depression and anxiety are also common to cancer patients. A claims adjuster will review claim documents and determine that the disability claim has changed from cancer to a mental/nervous condition or a chronic fatigue condition, which have more restrictive benefit limits. This is just one example of the tactics used by disability insurance companies and their claims adjusters to delay and deny cancer patients their disability insurance benefits.
It’s very important that your medical records are as specific as possible. We work with oncologists to ensure that medical records include this information:
Our work with oncologists also includes ensuring that the medical records correctly reflect the claimant’s inability to perform the tasks of their occupation.
The last thing a cancer patient should have to think about is whether or not their disability insurance company is going to delay or deny disability benefits, but unfortunately, this does happen. The national disability Law Office Of Justin Frankel, PC has successfully represented many cancer patients, and we understand how difficult this particular battle is. Justin Frankel has represented many cancer patients and understands how difficult it can be to battle a large insurance company while trying to overcome such a serious illness. If you are about to file for a disability claim for cancer or have filed a claim and have been asked to provide additional information or are experiencing any delay in payment of benefits, call our office today at 888-583-4959 for a free consultation.