LTD Claim Shows Difficulty in Diagnosis of Cognitive Impairment

A former highly distinguished marketing executive of a major law firm filed an ERISA lawsuit on July 3 seeking long-term disability benefits that the insurer had denied, in part, because it claimed that a long delay in applying for benefits made documentation of the disability challenging.

The complaint describes a situation where, after a fall, it took years for symptoms of injury and disease to manifest themselves to a level where a doctor could make a definitive diagnosis, even though those symptoms prevented the claimant from holding a high-level executive position at a much earlier time.

The complaint, filed in the U.S. District Court in Portland, Oregon, explains that Edward Schechter was the Chief Marketing Officer or CMO for a worldwide law firm from 2002 through 2009. He had to leave his job because he was unable to perform its “material duties … with consistency and dependability.”

Schechter reports that he held an MBA from a top business school and had held executive positions with several companies before joining the law firm where he was employed when his symptoms became disabling. He alleged that he had a positive impact on the firm’s “size and profitability.” He further alleged that he received a major law firm marketing award, held leadership positions within trade organizations and taught at the graduate level at Harvard and the University of Pennsylvania Law School.

Schechter claimed that he fell and sustained a head trauma in 2005 that caused increasing cognitive difficulty. He received an auditory processing disorder diagnosis in January 2008.

After he left work in 2009, he did not apply for LTD benefits until May 2017. During this time span, he reports that he tried to find and do other work without success because of his symptoms. When he was finally diagnosed with a “neurocognitive disorder,” he filed his LTD claim.

The insurer denied the claim, alleging inadequate medical and financial documentation and prejudicial delay. By contrast, in November 2017 the Social Security Administration found Schechter disabled, retroactively, as of his last day of work in 2009.

The claimant then appealed the LTD claim denial. His attorney argued that the insurer had to prove it was prejudiced by the claim’s delay. He argued further that if the SSA could establish disability in 2017 for a condition that began in 2009, there was no good reason the insurer could not do the same.

The appeal also included extensive medical records documenting a slow cognitive decline, including information that a “unifying diagnosis of Lewy Body Dementia” was not possible until 2017 because of a “gradually emerging diagnosis of executive function loss caused by LBD …”

The insurer again denied the claim on appeal.

Schechter then submitted a new medical report in which the doctor said that Schechter’s cognitive problems had begun in 2009 and that the condition was a “parkinsonian disorder,” but that “definitive diagnosis would require brain biopsy or autopsy.” The doctor explained in detail why diagnosis was difficult and how symptoms “emerge slowly and insidiously … often unrecognized for years and [are] … only apparent in retrospect.”

When the insurer did not approve the claim in a timely manner, a lawsuit was filed.

The disability advocacy community will watch this case with interest as it raises so many important issues related to proper administration of a claim for disability benefits based on a complex degenerative mental impairment.