Long-term disability policies and documented cognitive impairments in CFS, FM and Lyme disease

Cognitive impairments are well-known symptoms of CFS, FM, and Lyme disease. Research has shown that these impairments: short-term memory loss, word-finding, concentration, etc. are biological consequences of the physical illness and not psychiatric in origin. Under "older" insurance contracts, cognitive impairments, as long as they were noted as physically-caused, would be useful documentation in supporting the illness diagnosis and the loss of function.

Under more recently-written contracts, cognitive impairments resulting from the illnesses are more easily and frequently interpreted as mental impairments. The new Diagnostic Statistical Manual-V (DSM-V), the listing of psychiatric illnesses and conditions, contains a category of cognitive limitations due to physical causes. The insurance companies are starting to use this listing to categorize organically caused cognitive impairments as mental impairments—thereby enabling them to curtail benefits.

A proper response to this problem is to medically document that the cognitive impairments produced by the illnesses are organic in nature and not psychiatric or mental impairments. A physician and/or a neuropsychologist well-versed in ME/CFS or FM can provide such documentation. Neuropsychological testing by a tester knowledgeable about how to interpret such test results in ME/CFS and FM patients could be helpful in showing the organic nature of cognitive dysfunction. However, testers unfamiliar with the illnesses could easily interpret the cognitive impairments as psychiatric in nature. Such documentation could be devastating. Therefore an ME/CFS or FM patient must know, in advance, if a tester is experienced in interpreting tests in relation to ME/CFS, FM, or Lyme disease. If the tester is not knowledgeable, do not use that tester. It would be better to have no test than a misinterpreted test.

The most serious danger and vulnerability to long-term disability claims is a finding of mental illness or mental impairment. This vulnerability is substantially increased when the claimant is applying for both Social Security Disability and long-term disability insurance—or already receiving one form of disability and applying for the other.

There is a very serious difference in how Social Security Disability and long-term disability insurance legally treat mental impairments in qualifying or not qualifying a person for disability benefits. In the case of Social Security, benefits may be more easily awarded when a mental impairment contributes to a physical disability—or when there are separate mental and physical disabilities.

As you can see, however, the opposite can be the case with long-term disability insurance: mental impairments can limit benefits to two years.

In the case of Social Security, qualification for those with physical illnesses is made less difficult in the presence of mental impairments. Therefore, a disability lawyer, in order to assist the patient in qualifying for Social Security, may utilize depression or anxiety associated with ME/CFS, FM, or Lyme disease to help win the case—as long as the mental impairment is secondary to the primary physical illness and would not be interpreted to negate the physical diagnosis.

However, once this use of a mental impairment diagnosis is in the medical and disability record, it can be used by an insurance company to curtail benefit—the company may claim the record shows that the mental impairment "contributes to" the disability.

Thus, applications or potential applications for both Social Security and long-term disability insurance cannot be approached separately—they must be considered together according to one medical and legal approach. This problem dictates that patients who expect to receive both forms of insurance employ the same lawyer, experienced with LTD and Social Security, to handle both applications to make sure that any mental impairment documentation used for Social Security does not harm the patient's application for LTD. However, if there is no potential for long-term disability, then considered use of mental impairment diagnosis can be considered for Social Security.

Moreover, patients who expect to receive both benefits should never agree to use an insurance company lawyer to represent their Social Security claim. Most patients receiving long-term disability benefits are required by their insurance contracts to file for Social Security. Insurance companies often are willing, at no cost, to provide a lawyer to assist the individual in representing their claim. Patients, especially those with little or no money, will often see the free legal assistance as a positive. But such representation can be extremely risky: patient information submitted to Social Security could easily find its way into the hands of the insurance company. It is also possible that the attorney would attempt to shape documentation to win the Social Security case that would later be used against the individual by the insurance company. The attorney is working for the insurance company as well as his or her client. There can easily be a conflict of interest. This is not to say that attorneys in this position are unethical. But it is far safer for the patient not to employ insurance company referred attorneys.