Can anyone recommend a disability lawyer? (WA state or else where)

[ratmom]

Hello, I believe what we are looking for is an ERISA lawyer. We have a disability policy with my husband's employer through Metlife. We're coming up at the end of our short term disability here in a week or so, the whole three month leave having been consumed by various tests and wait lists for tests/specialists just to find out at the end it was, in fact, what we suspected - CFS due to recurrent EBV. (Sorry if that's not the right way to put it, this has all been sprung on me in the past two days.) We need to talk to a lawyer about where to go from here - he's unable to work and we are trying to get onto a wait list for CFS specialist. Our PCP admits he's worthless at this point so I doubt he would be of any use to do the paperwork. Earliest we are looking to see a specialist is July at the moment. We're worried he will lose his job and therefore, the insurance plan, if he has to just go back to work in his current state.

There are a few "nationwide" lawyers I've found but I don't know that I'm familiar with how that process works. The flashy websites and "nationwide representation" raises all sorts of red flags in my eyes. Is there any validity to that sort of thing? I thought you had to be certified for a particular state only. There's also a guy in AZ who looks really promising but we're in Washington so I don't know how that works either.

Thanks for reading

 

[Learner1]

Can he move onto LTD? I started on STD, then have been on LTD working part time since. My naturopath did most of my paperwork. Eventually, I had to produce all my medical records and submit to an independent medical examination at 2 years. Haven't needed a lawyer yet...

 

[jesse's mom]

My husband went through a similar situation; he ended up going on temporary leave (with a letter from his DR. he has a different illness than we do, that I won't disclose here for his privacy)
until they could work out the first temporary disability, then tried to work a little longer. By then he had some new strategies for work. nevertheless he made it till the earliest retirement he could take.
I needed and used an attorney for my SSD case as I was so young when I applied. He won the case easily, but I'm pretty sure he only works locally. His name is Gil Laden.
all the best

 

[medfeb]

@ratmom Steve Krafchick handles Erisa cases for ME and is in Seattle. He is on the IACFSME board and was on CFSAC and knows ME, the 2 day CPET test in disability cases, etc
https://www.krafchick.com

 

[caledonia]

Contact your local bar association and ask for a referral to a lawyer. Explain your situation just to make sure it falls under ERISA. (sounds like it, but if he works for the state, for example, it could be different).

Get a copy of your LTD plan document from HR. The lawyer will want to see it. Try to meet with and interview three lawyers. Then go with the one your gut feeling tells you is the best.

In my area, there were only two ERISA lawyers and one didn't return my message. Luckily, the other one turned out to be a great lawyer.

My city isn't that small, so I take it that ERISA lawyers are kind of few and far between.

It's good to use someone from your area if you can, because they will know the judges.

Be prepared to get denied, and for any resolution to be a long haul. I was denied and actually won my case, but the insurance company appealed. Then as it was about to go to court again, they decided to settle. It took five years to get a settlement, which was equivalent (by the time the lawyer got his cut) to about one year's salary.

You should apply for SSDI around the same time as you apply for LTD. You can use the same medical evidence for both. Use your own lawyer for SSDI, not one provided by the insurance company. They only get paid if you win and it won't cost you anything out of pocket. Also consider using a service such as Allsup.

If it goes this route, you'll probably have SSDI income coming in long before the ERISA case is settled. (However it's likely there will be a long gap with no income, so start cutting down on your expenses now. You may have to dip into your savings to survive.)

If you actually get approved for LTD, you can be pleasantly surprised. But do use this extra time to apply for SSDI. The insurance company may require it anyway. Your policy may have a clause limiting payments for "fatiguing illnesses" to two years, or it may have a mental health clause with the same limit. In that case, they will try to say that his disease is depression, so that they can limit payments.

There may still be a gap in income if SSDI takes over two years (two to three years is very possible). You can ask potential SSDI lawyers or Allsup about wait times for your area. Allsup will take your case from the initial application, so you may be able to be approved earlier with their help. Lawyers are starting to do the same (probably due to competition from Allsup). So look for someone like that.

Good luck!

 

[MEPatient345]

I’m not sure if Barbara Comerfords firm works nationally, they are ME/CFS ERiSA lawyers too. Sounds like @medfeb has a good referral for you though. It’s rreally helpful to have a lawyer who knows the disease.
You are right that he shouldn’t go back to work or work part time. He should go on LTD, but be prepared to fight for years. In my first 4 years, I appealed 3 times. But, worth the fight.

 

[ratmom]

@ratmom Steve Krafchick handles Erisa cases for ME and is in Seattle. He is on the IACFSME board and was on CFSAC and knows ME, the 2 day CPET test in disability cases, etc
https://www.krafchick.com

Oh my goodness, thank you SO much. That is exactly what I needed!

 

[ratmom]

I’m not sure if Barbara Comerfords firm works nationally, they are ME/CFS ERiSA lawyers too. Sounds like @medfeb has a good referral for you though. It’s rreally helpful to have a lawyer who knows the disease.
You are right that he shouldn’t go back to work or work part time. He should go on LTD, but be prepared to fight for years. In my first 4 years, I appealed 3 times. But, worth the fight.

Right! It's the whole appeals process that worries me, so that's why we want to try to stay on top of it and consult with an attorney. I've been reading horror stories about how people are appealing every year or two! :/

 

[ratmom]

Contact your local bar association and ask for a referral to a lawyer. Explain your situation just to make sure it falls under ERISA. (sounds like it, but if he works for the state, for example, it could be different).

Thank you for ALL of that awesome information. I'll make note of it all and will definitely refer to it once I get the process going this week. We contacted our local bar association but they want a $50 referral fee - I don't mind paying that but obviously getting recommendations from local people feels like a better bet to me.

 

[Stretched]

...There are a few "nationwide" lawyers I've found but I don't know that I'm familiar with how that process works. The flashy websites and "nationwide representation" raises all sorts of red flags in my eyes. Is there any validity to that sort of thing? I thought you had to be certified for a particular state only. There's also a guy in AZ who looks really promising but we're in Washington so I don't know how that works either.

Thanks for reading

My 40 years of business (career) was highly interwoven with legal proceedings and fighting through lawyers from small professional firms to the Fortune 500’s and many in between. IMO, you’re lucky to have been recommended a local lawyer who knows the illness.

You’re otherwise in a big enough market to have a number of firms and lawyers to select from, just to keep any other one honest, so to speak. Going national would cost you in many ways. Let me just summarize by saying it’s good to know the law - it’s better to know the judge... . Yours is not a large enough ‘war’ to warrant the time and expense of a national effort. You’ll feel better in hindsight if you don’t do it. Good luck.

 

[caledonia]

Thank you for ALL of that awesome information. I'll make note of it all and will definitely refer to it once I get the process going this week. We contacted our local bar association but they want a $50 referral fee - I don't mind paying that but obviously getting recommendations from local people feels like a better bet to me.

Hmmm, my bar association didn't charge anything. But you can look at it this way - $50 is nothing compared to all the money you would get from disability payments or a settlement.

I did have to pay the lawyers for a half hour consultation.

If Mr. Krafchick isn't exactly in your court district area, maybe he knows someone good who is. So I think it would be worth contacting him either way.

Also, my lawyer wasn't really familiar with CFS, but he was familiar with FM and that was close enough.

 

[medfeb]

I’m not sure if Barbara Comerfords firm works nationally, they are ME/CFS ERiSA lawyers too. Sounds like @medfeb has a good referral for you though. It’s rreally helpful to have a lawyer who knows the disease.
You are right that he shouldn’t go back to work or work part time. He should go on LTD, but be prepared to fight for years. In my first 4 years, I appealed 3 times. But, worth the fight.

My son was in Connecticut and used Comedford's office after the CT lawyer ditched him at the last minute. But they were close enough to travel to the judge's office for the appeal. I don't know if they cover cases further away

 

[medfeb]

@ratmon - whoever you go with, make sure they know the tests that are used to demonstrate functional impairment. The Ct lawyer - supposedly an expert in ME/CFS - that ditched my son felt the case had no merit even though my son had a 2 day CPET test that the review judge cited as the reason he ultimately approved the case.

 

[dannybex]

I'm not so sure a lawyer is always necessary. Sometimes they'll intentionally drag out the case (of course they'd never admit that), because that means they'll collect a higher fee in back payments. And I'm also not sure that a ME/CFS 'specialist' always equates to getting a faster approval.

Since there are millions of people in the workforce who use wheelchairs and/or have been diagnosed with diseases with somewhat similar severity, the key IMO is to stress 2 things; The fact that one never knows when one will have the energy to perform in even a part time job, and mainly, the inability to concentrate or focus on the task(s) at hand -- the so-called 'brain fog', which as we know can be quite severe. After all, if you can't remember what you're being asked to do, you can't work.

The first -- not knowing when you'll have 'energy' -- is very difficult to prove, but the 2nd -- the inability to concentrate or remember the task -- is one of the tests that one needs to pass in order to get SSI or SSDI.

For that test, one is given a list of 5-6 words to remember, then the psych doc comes back to those words a couple minutes later and asks the patient to recall them. I could only remember 2 out of the 6, and for one of those I said 'puppy', when the word was 'dog'. I was so beyond frustrated and scared, I started balling like a baby. Still, although I'd already been turned down on paper, 2 days later I had my approval. And I got it on the first try.

 

[MEPatient345]

@dannybex You are right about the tests — cognitive Testing is one of the most important tests. @ratmom and her husband should get one scheduled immediately. He’ll need to repeat them every year. (I started bawling too w frustration during my first one).

But you’re wrong about not needing a lawyer. A lawyer for an erisa case is a necessity. Partly, to show the insurer that you know how to play ball and that you intend to fight. The lawyer will include in the appeal, not just all the details of your disease, but also sections on where the insurer did not meet the legal standards for erisa law, where they acted in poor faith and against the rules. Things that we have no way of knowing. My appeal by Comerfords firm was a work of art. I won 3 appeals with them. (2 other friends lost, with the same tests, same lawyer, different insurers. So, it’s not a given that a good lawyer will win, but it evens the playing field a little.)

Tests that prove symptoms of ME — i broke mine down by symptoms:
Exercise intolerance (2 day cpet, only do this if he is strong enough, I lost 10% of function from this test)
Cognitive dysfunction (qEEG report and cognitive testing, qEEG should be read and interpreted in context of the cog test so have cog test done first)
Autonomic dysfunction (hypocapnia test, NASA lean test or tilt table test)

Others I’ve thought of but not done would be ophthalmologic testing, low blood volume testing and spect scans. And also vitally important are good, long, descriptive doctors letters that put your whole complex set of symptoms in context. An ME specialist is the best, but a GP can do it if you give him instructions / write it for him.

And more subjective reports that can be done are physio reports. But do not do a regular functional capacity test — he may be capable of standing, bending, lifting etc but the test will not capture how he feels or if he crashes afterwards. This is not a good test for an ME patient.

Be prepared in advance with these tests, and do them once a year (except for the cpet, too dangerous). The lawyers will not always tell you quick enough to go get them done. They’ll just get you to have your doctor fill out a form from the insurer. Then a few months later the insurer will deny you. Months end up going by and once you are in appeal you are paying the lawyer by the month. If you can be proactive and have the tests ready, perhaps you can avoid the constant appealing.

Also know that each year when the insurers ask for an update, it’s like you are starting from scratch, talking to people who have no idea who you are even though they have your entire record. If you, in year 2 or 3 provide only one test, they will read it without any context. So every time, you must have doctors letters which put all tests in context and recount once again the entire history of your case. For example, for my 3rd appeal, I was unable to do a CPET or any autonomic testing bc I was so ill, so my doctors letter talked about my entire case history from the beginning, my loss of function from doing the CPET and inability to risk doing these tests. I also had a diary for a few weeks, letters from family, Fitbit step counts and heart rate patterns showing spikes on activity and from PEM.

 

[dannybex]

But you’re wrong about not needing a lawyer. A lawyer for an erisa case is a necessity.

I totally missed that in @ratmom's first sentence! I didn't make enough when I was working to qualify for SSDI, let alone have an employer that offered a decent pension/health plan. My bad.

 

[ratmom]

Thank you everyone for your help with this matter. It's just been one of those nonstop weeks for us - got dumped by our doctor because he doesn't want to help any further and are being thrown a few curve balls. Luckily, it looks like we may be invited to a study in Florida involved with Dr. Klimas' clinic/organization. Hoping this gives my husband some answers.

Couple of questions - if any of you can help?

My phone call with the lawyer was VERY hard to hear - I was under the impression you pay lawyers by the hour for their time, but he said something about a percentage of the settlement - or that's what I thought I heard. The idea of having to pay someone like 40% of our "settlement" - whatever that means, really - is REALLY frightening. I don't know how this works and I am now quite terrified.

Secondly, my husband just read something from the Institute of Medicine that says he needs to have been doing "fatigue" documentation surveys with his doctors for 6 months. Our doctor has been pushing a "sleep apnea" diagnosis for the past 3 months so we don't have any of the surverys/reports filled out. Apparently we were supposed to be doing these every visit or at some interval with him. Our doctor dumped us today and now we are scared this will disqualify us from getting disability. Am I worrying too much?

Also, we don't technically have the diagnosis yet nor have we done the the CPET or other testing - that won't be done for at least another 3 weeks. Can we file for disability yet or do we have to wait til we have everything ready?

 

[MEPatient345]

@ratmom percentage of settlement is typical. 40% is also typical. Sometimes you can negotiate them down to 33%, but usually after appeal #1 once you have a longer relationship. The main thing to avoid is a percentage of future benefits, ie. You only want to agree to give them 40% of the benefits won on appeal, not an ongoing amount.

This is why I was telling you above to get all your ducks in a row with testing preemptively— do not wait to get denied officially, and for the lawyer to ask you to do tests. You will get denied with only doctors letters, you need objective testing. Often the lawyers are not clear enough in telling you to go do all this, and you are paying them 40% of every month you are in appeal. So, don’t wait to be told what to do. Schedule cognitive tests, tilt table tests, qEEG, any test you can get your hands on that shows an abnormal result, and do at least two of those (cognitive and qEEG) every year your husband is on benefits. I WISH someone had told me this 4 years ago, but I learned the hard way.

There is no proper way to do this, and the IOM does not dictate the right way to get a legal appeal through. It’s very important for him to have ongoing doctors visits (every 2 to 3 mths) with descriptive visit notes, letters etc. so he has a large file describing his illness, and it is clear he is under medical care. If you go to a CFS specialist, they will give you fatigue surveys, which is helpful. But letters and visit notes from a GP are as helpful. I sometimes would go to my GP with a bullet point list which I would ask him to make sure and put in his visit notes. He also wrote about what we had tried that didn’t work.

The diagnosis is helpful longer term, but, all the insurer cares about is that your husband is not currently able to work. Not being able to work is all you need to prove right now, not that he has ME/CFS or sleep apnea. Go ahead and file, you will get denied first most likely anyway. Get the ball rolling.

I want to warn you about CPET — I lost 10 to 15% of function from doing it. Other people don’t. But it is a dangerous test to take. You could ask them if it’s possible to get useful cpet results without pushing to maximum effort. I feel I have read that there are still useful results to be achieved without doing that. It’s pushing to maximum effort that this dangerous for us. Also, know It is possible to win an appeal without cpet.

Finally, if you have not already done so, start cutting your expenses. You could be waiting a year or longer for money to come in. Figure out the taxing of the benefits. If he paid part of the premiums, that part will be not taxable. The percentage of premiums paid by his employer is taxable. The lawyers fees will be fully tax deductible.

Hope this is helpful.. happy to keep answering any questions.

 

[ratmom]

@Silencio We somehow go the impression that the "settlement" would be based on the on-going amount, so that's a big relief, but even then, the prospect of someone taking half of his annual compensation seems insane to me. We started cutting our spending down substantially since we went on on short term disability and he started getting roughly 1/2 his salary. I have to say that part has gotten easier, as most of our spending was on travel and dining out regularly, our two true loves. We can't really do either of those now, unfortunately, but it makes not spending money much, much easier. We have enough in savings to pack up and move back home to his little country in the Pacific if all else fails, where he will at least get access to free healthcare and things that he needs. Not any specialists or anything, but we are in a fairly "safe" position assuming nothing goes horribly wrong. (Knocking on wood and keeping fingers crossed here). Not that I want to pack up and move to another country with all this, but if it means we have a better social safety net.... I'll take it.

We have been trying to schedule the CPET (which he is scared to do for the reasons you stated) for like 3 weeks now and have only recently figured out that the Doctor who dumped us didn't send any of the referrals or medical history to these places. It's going to be another 2 1/2 weeks til we can meet with the new PCP we've set up with. In the meantime, he's going to an immunologist and infectious disease doctor, mostly because, why not - it shows Metlife that we are actively trying to get him help.

We are definitely bummed out that we haven't had any of the fatigue surveys done yet - as I mentioned our Dr didn't really know (or seem to care) so he just kept ordering blood tests, sleep studies, and therapist visits. All of those things had wait lists of of 3-6 weeks. While my husband started getting the brain fog back in October, the doctors notes literally say he was "depressed" and we don't have anything about fatigue on the records until January. Really, I can't imagine what people in positions worse than ours - who maybe don't have money to see doctors or a good insurance plan - have had to go through. It's been profoundly frustrating on our end and yet this is still with access to whatever providers we need. We even went to the ER last week because he felt terrible but also because we didn't have to worry about taking a financial hit.

I will take a read over your message a little later and detail some of those things. Fitbit data was definitely something we were looking to collect as well. My husband has been keeping records on a scale of 1-10 of how he feels in a couple of notebooks around the house since December. Getting letter from friends would be great - but we were always homebodies when not traveling together and my husband worked from home - so no one misses us

Thank you again for the help. We are being pretty diligent and I feel like my husband has used what was left of his energy all up trying to deal with this matter. I just want to stay ahead of the game, so working out this nonsense with the non-cooperative PCP is the first order of business this very second.

 

[Stretched]

Thank you everyone for your help with this matter. It's just been one of those nonstop weeks for us - got dumped by our doctor because he doesn't want to help any further and are being thrown a few curve balls. Luckily, it looks like we may be invited to a study in Florida involved with Dr. Klimas' clinic/organization. Hoping this gives my husband some answers.

Couple of questions - if any of you can help?

My phone call with the lawyer was VERY hard to hear - I was under the impression you pay lawyers by the hour for their time, but he said something about a percentage of the settlement - or that's what I thought I heard. The idea of having to pay someone like 40% of our "settlement" - whatever that means, really - is REALLY frightening. I don't know how this works and I am now quite terrified...

Also, we don't technically have the diagnosis yet nor have we done the the CPET or other testing - that won't be done for at least another 3 weeks. Can we file for disability yet or do we have to wait til we have everything ready?

Your last paragraph seems to imply the better path to follow. Regarding the lawyers, their fee arrangement should have early on been clarified and reduced to writing. Verbal agreements count; dig up all recollections and type them out. Ethically, LOL, They can’t have it both ways. IMO, a case as yours should be under an hourly aegis, in writing from the beginning, or a flat fee, e.g.$5,000. If that was the case and they switched to contingency I would either transfer lawyers or file for arbitration - now! Keep in mind a legal arbitration committee is usually comprised of 2 lawyer and a businessman. You almost need another lawyer to manage these rascals; don’t be timid in dealing with them - they won’t,you! Remember, they really represent themselves when it comes to cash flow. Lawyer fighting is usually worse than the original contentious dispute.