In a recent article, Long Term Disability Claims for Cognitive Disorders, we discussed the challenges presented with disability claims based on cognitive disorders. These are medical conditions that interfere with intellectual or cognitive abilities, such as memory, concentration, planning, problem-solving, reasoning, verbal and written communication, and other logical processes. They are oftentimes “invisible” medical conditions, sometimes not even detectable on a brain MRI or CT scan, which creates proof challenges in a disability setting. The previous article dealt with how a disability expert can assist with evidence making these claims more “visible,” i.e. less controversial and more objectively provable, by way of additional testing, lay witness testimony, and expert medical testimony.

This article deals with another legal challenge unique to cognitive disorders – the policies’ “Mental and Nervous Disorder Limitation.“ As noted in our previous article, cognitive injuries or disorders often impact emotional regulation and tolerance for stress. As a result, we often see long-term disability insurance companies try to use a plan’s Mental and Nervous Disorder Limitation to cut off benefits after twenty-four months.

The disability attorneys at Robinson Warncke have overcome these attempts on many occasions. This is one of the most complicated fights in disability insurance law. You should consult with a disability expert the minute you suspect an insurance company is even *considering* applying the Mental Nervous Limitation to your physically-based cognitive or intellectual disability claim. Our initial consultation is always free of charge. This article will address the basics of why this can be such a challenging issue.

What is a Mental Disorder Limitation?

"Mental Disorder” Limitations as to Cognitive DisabilitiesGenerally speaking, Mental Disorder Limitations are designed to limit the insurer’s liability to 24 months’ benefits for disabilities, predominantly caused by emotional disorders like depression, anxiety, bipolar disorder, and the like. However, the specific wording defining the conditions that fall within this category varies from one disability policy to the next. These often subtle differences can prove significant. The courts will apply these terms as written, even if the insured/claimant has not read them, does not understand what the “fine print” means, and even if the application comes as a great surprise – which it often does in our experience. As much as any insurance term we can think of, Mental Disorder Limitations are the embodiment of the adage, “what the large print giveth, the small print taketh away.”

Almost every employer-sponsored (ERISA) plan contains a Mental Disorder Limitation. To our knowledge, every private insurer insists on them. Most limit payments to 24 months whenever the disability is “caused or contributed to” by a “Mental Disorder.” That raises two obvious questions: (1) what does the phrase “caused or contributed to” mean?; and (2) what is a “Mental Disorder”?

Insurance law provides some rules that help prevent the insurer from going too far in invoking these limitations. One is the legal principle of “contra proferentem,” Latin for “against the offerer.” It means a judge will interpret vague or ambiguous insurance terms against the party that drafted the agreement – in this case, the insurer. If there are two reasonable competing ways to read the language of the limitation, the courts will adopt the one that results in the broadest coverage. The other two interrelated principles are that courts will interpret insurance policy exclusions and limitations narrowly, and that the insurer has the burden of proving they apply in the first place.

The bottom line is that the courts will generally find against a Mental Nervous Disorder “causing or contributing” to a disability if the insured is independently disabled by a physical or organic medical condition. It shouldn’t matter if the insured also has depression, anxiety, or some other “Mental Disorder.” Most disabled people will experience some degree of both, for obvious reasons. So, it also makes sense to ensure that these policy limitations don’t end up defeating the overall purpose of disability coverage.

Then there is the separate but related question of how the policy defines a “Mental Disorder.” A minority of policies fail to define the term at all. In those cases, the courts will interpret the policy against the insurer, usually refusing to apply the limitation unless the patient does not have any physical basis at all for his/her disability. Some courts go even further: science has advanced to the point it is widely accepted there is a chemical/physical basis for depression, and on that basis, some courts have prevented insurers from limiting benefits for illnesses of this type.

Other policies have differing definitions for what constitutes a “mental disorder.” Some of these definitions are more consistent with consumer expectations than others. Our clients are routinely surprised to encounter definitions of “Mental Disorder” that include any condition that manifests in mental, emotional or cognitive impairment, including those conditions with an “underlying physical or organic basis.” Many policies refer to the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, which includes nearly all neurocognitive disorders, including disorders of organic origin. Taken to the extreme, these “mental disorders” would include brain damage caused by chemical exposure or even a gunshot wound to the head causing intellectual deficits. This is hardly what most laypeople would consider a “mental disorder.”

How Do Insurance Companies Apply the Limitation to Brain Injuries and Other Cognitive Disabilities?

Even when the definition of mental disorder is much narrower and more consistent with what you might expect, we see insurance companies applying the mental disorder limitation when the primary disabling condition is physical/organic condition causing cognitive or intellectual problems. We have noticed insurers attempt to apply the mental limitations in these circumstances:

These cases all seemed to follow a similar pattern. A formerly highly successful, highly credible professional becomes disabled due to a physical cause. The disabling condition results in cognitive (not emotional) limitations – the claimant simply cannot operate intellectually on the level necessary to succeed as a doctor, lawyer, executive, etc. The patient predictably suffers some depression and anxiety secondary to the cognitive disability and its attendant loss of professional identity, increased financial challenges, loss of control, and loss of enjoyment of life. The insurer finds a doctor to say that depression and anxiety “cause or contribute” to the disability, usually while questioning the adequacy of “documentation” for the cognitive problems. The insurer unilaterally terminates disability benefit payments. This is normally when we get involved.

Unfortunately, things don’t always get easier from there. To combat the allegation of “inadequate documentation,” our clients will undergo neuropsychological testing, higher sensitivity brain MRIs, and/or functional brain testing like Diffusion Tensor Imaging, and/or PET or SPECT scans. The cottage industry of doctors serving insurance companies will then try to find ways to minimize even that objective data.

In short, these issues are as complicated as any in disability law. To have a chance of fighting back, you will need a treatment team that is capable, engaged, and willing to explain things understandably, backed up by published medical research. Your treatment team will often have to fight back against misinformed and/or biased insurance company medical reviews. And the entire process must be overseen by lawyers who have the highest degree of experience and expertise in medicine, the law, and the disability claim process.

If you are struggling with your insurance company and would like our experienced long-term disability attorneys to review your case, please call or email us directly today. We will evaluate your claim and give you an assessment based on the information you provide. We have taken on all the major insurers and know what it takes to win. We will work with you to make sure you get the best outcome for yourself and your family.