Episode 35: ERISA and Disability Insurance with Michelle Roberts

Episode 35: ERISA and Disability Insurance with Michelle Roberts


Michelle Roberts is a partner at the California law firm of Kantor & Kantor, LLP. She has spent her entire legal career helping individuals with disabilities obtain income replacement benefits from their employer’s group disability plans, and works from the heart after watching her father, a disabled veteran, struggle to work and support his family while dealing with the consequences of debilitating medical conditions. In so doing, she has worked with hundreds of clients with invisible illnesses and understands the unique challenges of proving disability to an insurance company. Her focus is handling claims under the Employee Retirement Income Security Act of 1974, also known as ERISA. Michelle is a recognized “Super Lawyer” in her field and speaks and writes regularly about the developments in ERISA law. Michelle received her law degree from the University of California, Berkeley School of Law.



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Lauren: All right guys, thank you so much for joining us. I'm joined here today by Michelle Roberts, who is an attorney and partner at Kantor & Kantor, which is a legal group that specializes in disability insurance. Michelle specializes in cases involving the ERISA Act. She's going to talk to us a bit about that. So Michelle, welcome.

Michelle: Thank you. Thank you very much. I'm really delighted to be a guest on your podcast.

Lauren: Yeah, I'm so glad we were able to connect! So just to get us started, why don't you tell us a bit about your legal work in the disability space and how you came to it?

Michelle: Sure.

I know that ERISA is not a familiar acronym to most people. So I'll just define it as the Employee Retirement Income Security Act of 1974. It's a federal law that governs most employer-provided benefits.

And so the work that I do, primarily focusing on disability insurance benefits, comes into play if you have a workplace policy. If you work in the private sector, and you don't work for a church or a government entity, your policy that you get through your employer is likely going to be covered by ERISA. So that’s pretty much in a nutshell the type of law that I do, or that I focus on. And really how I came to this work is not necessarily a linear path. I think most people don't end up in their careers following a linear path.

But by way of background … my father is actually a disabled veteran.

And today's Memorial Day! But he's still alive!

Lauren: It’s appropriate we're meeting today!

Michelle: It’s like we planned it! Growing up, I saw him struggling with his physical and mental disabilities, that he got from serving in the armed forces. He was in the Navy. And so I have that background. And then, in college, working for employers where I saw that certain employees who maybe didn't really understand their rights … I pretty much saw a lot of workplace violations. So I went into law knowing I wanted to do something representing employees, representing workers.

And then I also had this background of being very aware of what it's like when you have a family member who's disabled in the workforce.

My first job out of law school was with a firm that pretty much specializes in ERISA. That's how I fell into the practice that way. I really came to love working with people who have disabilities, who are trying to get benefits. To me, it felt really rewarding and I was able to really relate to my clients and their experience.

Lauren: That’s wonderful. So, specifically — because this is not an area of law that I'm terribly familiar with — does that mean that ERISA law applies most to cases where, say, someone has realized that they have some kind of chronic illness while working full-time? Or is it something where these disabilities are caused by the workplace? How does that, sort of, shake out?

Michelle: It could be either of those scenarios. In order for this law to come into place, you do have to have a policy that you got while you were working. There are different types of disability benefits and government-provided benefits that could provide you with disability insurance if you aren't working at the time that you incur a disability. But sometimes I have clients who, as a result of maybe workplace stress, become disabled, and that's the basis for their claim. Other times, they might get a condition that's completely unrelated to work. And as a result of that condition, they're not able to work. And then, the insurance companies are usually the ones that ensure these policies, private insurance companies. Sometimes employers will self-fund these plans, but you don't see that as often. It's usually really big employers who have the resources to do that. Most employers will purchase a disability insurance policy.

Lauren: Do you see any particular illnesses … do you see a trend … in which ones are coming up the most among your clients?

Michelle: That's a very interesting question. It's not that I see more types of illnesses that cause disabilities, but I might see insurance companies fighting certain conditions more aggressively because there's issues with proof. And I think in particular …and I think your audience is probably pretty aware of what is an invisible illness … but just to remind our audience when we talk about invisible illness, that's the umbrella term for any medical condition that's not easily visible to others.

So some that we see a lot of in our practice are chronic physical conditions like fibromyalgia, chronic fatigue syndrome, traumatic brain illnesses, cognitive impairments that might be caused by some underlying medical condition, mental illness, multiple sclerosis, lupus, Lyme disease. I can go on with lots of the conditions that we see. But lately I feel like we are seeing a lot of pushback from insurance companies when somebody is diagnosed and disabled by chronic fatigue syndrome or Lyme disease.

Ten years ago, the big fight was over fibromyalgia …  with, “That’s not even a real illness.” Now we know. And I think the courts are a little bit behind on the science, but the courts are even now recognizing that fibromyalgia is a legitimate disabling condition. But sometimes, doctors will say there's no such thing as chronic fatigue syndrome, or Lyme disease. When you have that skepticism that's there, especially in the medical community, of course you're going to get insurance companies that are going to, you know, be skeptical about those claims.

Lauren: That’s got to be just as frustrating for you, as it is for your clients, I imagine, because it's something where they're really trying to fight for their rights and you're doing that for them as well — and to not be recognized ... That happens all the time in this world.

Michelle: And it's a struggle for a lot of my clients because ...

A lot of my clients have these strong work ethics and they have a very strong career identity, and then they're not able to do their job anymore. And there's always that thing in the back of my mind … am I trying hard enough? Am I pushing myself hard enough? They're already struggling with that. And then you've got this insurance carrier saying: "You can work. There's nothing wrong with you.” And that’s hard.

Lauren: So it's really the insurance companies that are creating more of the rift between employer and employee, it sounds like, in these cases?

Michelle: The dispute is typically not with the employer, because the employer, especially with insured plans … they're not the ones that are making the decisions. But in some ways, it does create attention, because the employer might be providing, let's say, an accommodation or a leave of absence as a form of an accommodation. And then their third party carrier is saying, this person isn't entitled to benefits. So the employer is saying, “Well, what is it? I've got an obligation under the law to provide an accommodation.” But that obligation does not extend to the insurance company to force them to pay benefits, to administer their policy based on their terms. And so in that situation, there sometimes is some tension. But most of the time, employers know that they have to comply with the ADA or whatever the state law is that requires them to provide accommodation. But it's not something that they have to provide for years on end.

Lauren: Yeah, and we hear different cases from various guests I've had on the show where often employers are making accommodations. And there are the rare cases where employers aren't. Is that something that you touch on as well, or are you more focused on the insurance aspect of it?

Michelle: I’m more focused on the insurance aspect of it. Sometimes my clients are in situations where they're deciding … do I continue to try to work, even part-time, and then maybe collect a partial disability benefit? Or am I really at the stage now where I've got this chronic illness and it's going to be a long-term, permanent disability? And I really need to invest in this insurance claim, because most of these policies will pay to age 65, or until retirement age.

So if you're a 49-year-old individual whose long-term work prospect is bleak because of your medical condition, you really want to make sure that these benefits are being paid.

Lauren:  And we should mention that these are also distinct from state and federal benefits as well. These are specific to employer plans with insurance companies. In case anyone is a little confused about that, because I was!

Michelle: They overlap in the sense that, a lot of these private policies require people to apply for state benefits and federal benefits, because they take them as an offset. So if you have a policy that says, I'm going to insure you for 66 and two-thirds percent of your salary, we're going to look at what you get from other sources. So that if you combine all of your disability income sources, you're not going to exceed that level. Because they don't want people to be incentivized, to stay on disability.

Lauren: That makes sense from a corporate perspective, I suppose. So, has the opioid crisis come up in your work as it applies to the chronic and invisible illness community? If so, have these cases become tougher to fight because of new restrictions and the reluctance of healthcare providers to prescribe opioids?

Michelle: It’s really interesting, because I feel like this has come up in a couple of different ways with my clients. We have this really good body of case law that requires insurance companies to take into consideration side-effects of medication. And so a lot of our clients, particularly with chronic pain … they've been on opioid medication for a really long time. So we always make these arguments, based on the case law, that you have to consider side-effects, and known side-effects of opioid medications are dizziness and inability to focus, and being tired, and all of these other things. And who would want to take these really strong medications if it weren't that they were suffering from significant chronic pain? And now you've got this backlash and you have doctors that are now less willing to prescribe as much. But you also have a reluctance — and I'm finding a lot of my patients … not my patients, my clients …!

Lauren: It’s funny you mentioned that, because as I was getting my questions ready for you, I was writing patients/clients every time! Because they are patients!

Michelle: They are! And I've read enough medical records that sometimes I think I'm a doctor and I diagnose people. But I'm really not!

Lauren: You and I both. So there we go!

Michelle: So as I was saying, my patients … my clients! Oh, sorry!

Lauren: I think it's great. It shows a level of empathy on your part!

Michelle: As their legal counsel, yes. And I also have patience doing this work! They also don't want to be addicted. They don't want to be reliant, dependent on opioid medication. So where this has been a problem on the flip side is, the doctors will prescribe the medication. My clients say, I'm not going to take it, I'd rather suffer. And then the insurance company goes, ‘You're not really in pain, because if you were in pain, you would have taken the medication.’ It's like you can't win. Because you take the medication, and then they say, ‘Oh, we don't think you need the medication; you're really not in that much pain.’ And then you don’t take the medication, and you're just, like, I'm going to suffer with level 7 pain all day long. And they say, ‘Well, you must not really be that bad.’

Lauren: And that can then get in the way of someone receiving full benefits, I imagine.

Michelle: It’s one of the factors that can make it difficult.

When an insurance company is evaluating these claims, they are looking for red flags; they’re looking for anything that suggests this person is not credible.

If you have a prescription — or you don't have a prescription — that could be read in a way where the insurance company could say you're not really in as much pain as you're saying.

Lauren: It’s interesting what you just said about these insurance companies looking for any sign that these clients and patients are not credible. And that's, I guess, the most frustrating element of it, isn't it? Because, from a patient perspective, nobody wants to feel this way. But having access to care is so essential, and that the system is sort of rigged against patients in these particular cases … it sounds like that makes it even more of an uphill battle.

Michelle: Right.

Lauren: So, speaking of the kind of empathy involved in dealing with people who are patients and having patience as you do, do you find that your clients often require a greater level of empathy from you as well because they feel like they're shuttled between specialist to specialist, and court to court? By the time they get to you, are you like the soft landing for them? And is there an element of warmth that you have to exude in order to really gain their trust, as well?

Michelle: Yes. That's an excellent question. I often say, I'm not a therapist — but I am.

So by the time that people come to me — not in every case, but in most cases — they're just at the end of the rope. They're just, like: “What do I do? I'm about to lose my job, I'm about to lose my health care. And now the insurance company just denied my claim.” They're barely managing.

They might not know what their diagnosis is. They might be dealing with a lot of medical issues. And then all the paperwork involved with an insurance claim. So yeah, it's a balance of being warm and empathetic … but also having the client know that they can trust me to be an aggressive advocate for them with the insurance company.

Lauren: That is a delicate balance, I imagine.

Michelle: Usually, after I've spoken to a client, I've said, “This is what I'm going to do.  I'm going to take the burden off your shoulders. I’m going to deal with the insurance company; you never have to talk to them again, unless I'm there. I'll handle the communications.” They just feel a sense of relief there. They just feel, I'm going to let this person take care of it. She knows what she’s doing; the firm knows what they're doing. I'm going to just focus on myself.

Lauren: Which must be a huge relief for them. And do you find that they often come to you with an advocate, as well? Are they coming to you alone? Or are they coming with a loved one who's helping with their care, or helping with their mental health within the care space?

Michelle: I would say that probably with at least half my clients, if not more, I am regularly dealing with some close family member — like a spouse or a parent or sibling — because they just can't manage it. If I can't get information from my client, I will ask, “Who can I contact in case of emergency? Who’s going to be able to give me this information? Who's going to help me be able to represent you?” Even though I'm taking the burden off their hands when it comes to dealing with the insurance company, there's still a lot of information and interactions I need to have with the client — to understand the case, to build the case, and understand what evidence is there. So yeah, I am often working with close family members.

Lauren: I suppose that's probably a good sign, right? It's tough to go these these things alone. And the fact that many of your clients would be showing up with a loved one or a family member is huge, because it shows that they are reaching out to the people around them, and that's good. And so, following up from what you were mentioning before about the insurance companies often requiring your clients to also be getting some benefits from state or federal disability claims, how often do these clients end up on some kind of government assistance — in addition to the claim that they're seeking with these private insurance companies?

Michelle: Well, we’re in California, and California is one of five states that actually has short-term disability benefits. And so if you consider that assistance — I mean, it is a benefit we pay into — but one that is relatively easy, comparatively, at least for the private policies, to get approved if your doctor certifies your disability.

So almost all of my clients in California are going to get state disability. But that ends after 52 weeks. So for long-term disability, then you apply for Social Security. But that takes a really long time to get approved in many cases.

But I would say, most of my clients who have chronic long-term disabilities … I think all of them are also receiving Social Security.

Lauren: That probably makes sense. And from what I understand, those Social Security cases … when you say they take a long time to be approved, they take somewhere from three to five months, but it can be longer than that. Is that right?

Michelle: Typically much longer than that. Some clients will get approved upon submitting the application. But a lot of people will not get approved until they've done a couple of appeals, and then have a hearing before an administrative law judge. That could take a year-and-a-half to two years to get that hearing, depending on where you are.

I tell my clients when they come to me … I don’t handle the public benefits, but I know enough about them because there's so much interaction between the private and the public spheres … if you anticipate that you're going to be out for at least 12 months, apply now, because it can take a while to get paid. And there's a five-month waiting period for the federal Social Security.

Lauren: Wow. It's unbelievable. And if you think about the number of people who would be not in a position to be receiving these private insurance benefits … the waiting game that they'll be in. But that's where the state benefits in California do come into play, don't they? Because you can be on that, as you say, for 52 weeks before applying for the federal. But if you do it at the same time, which is a lot of work … And I should say that there are also attorneys who specialize in these state and federal claims as well. So where Michelle is someone that our listeners could reach out to with regard to these private disability claims, there are other areas of the law that lawyers specialize in, as well, with regard to disability insurance. Across the board, you can always seek help. So, what are your thoughts on the U.S. system with regard to work/life balance … and how you're seeing that play out with your clients, with particular regard to disability insurance?

Michelle: It's really interesting … we talk about work/life balance all the time. I'm a single parent with joint custody of two kids, and I'm a partner in a law firm. So it's always a balancing life/work balance! It’s always a balancing act. You give and you take, and you're never 100% in either. But that's just what it is. But I was talking to my colleague, Andrew Kantor, about this, and about how, generationally … when you think about employees committed to the workforce.

Maybe people in my generation or the generation before me, were … you work until you die. You're going to work, work, work and you kill yourself working. And that's just the work ethic you have to have. Whereas the newer generation are like … you know, I kind of want my balance … I want my my free time, I'm not going to kill myself working.

Lauren: I think that’s also come hand in hand with salaries not always matching the cost of living.

Michelle: Absolutely. Exactly. The dollar is just not buying what it used to buy. You could have a separate podcast just on that! But it's interesting because where this comes into play, it’s: How much do you have to suffer? How much does your work life, your life balance have to suffer before an insurance company says, ‘Now we think you should get disability benefits.’ I see this come into play when sometimes I'll look at files and I'll see reviewing doctors that the insurance companies hire evaluate a claim and say, “Well, this person is still driving their kids to school.” Or, “This person could still attend a Little League game.” So until you get to the point where they're doing absolutely nothing with their children … it's basically along those lines.

Unless they see that you absolutely cannot do anything but work, they’re going to think that you can still do it.

Lauren: That’s really frightening. It's upsetting. And it's maddening. But it's saddening at the same.

Michelle: Yeah. And it's a question I get from my clients a lot, because they say, “I'm at a point where I'm working half-time.” Maybe they're working part-time and they're getting a partial disability benefit — but that's all they can do.

And they're asking, “How much of my personal life, my family life, my social life do I have to give up to show that I deserve benefits?” And it's a hard question for me to answer, I have to say, because I know they’re being surveilled —which is pretty common in the private disability insurance world. And the surveillance shows them going to meet a friend for lunch, or going to the grocery store. You better believe they're going to cite those things and say, "Well, if you could sit there and have lunch, and if you could go buy groceries, why can’t you work?”

Lauren: Well, also that you mentioned the surveillance. That’s a really interesting one to me because there's a real dehumanizing aspect to having a real human complaint of living in chronic pain or having chronic mental illness or something, and not feeling that you can function up to your optimal level — and then suddenly to have people following you around and photographing you out and providing evidence to the contrary. It seems like in terms of privacy, your privacy is being challenged a lot of the time. But also if you are trying to collect money from these larger corporations … of course, that's the way of business in this world now. But you're already sacrificing, right? Because you can't function the way you used to. And then you're sacrificing your privacy and you're sacrificing being able to go to your kids’ Little League game. And it’s the only way in order to really be able to afford to pay for your family, so the sacrifices that you then have to choose to make in order to be recognized … that’s tough.

Michelle:  That’s right. Today's a holiday, right. I bet you I have a client who's being surveilled today, because they know, it’s a holiday … you're probably going to go to a barbecue, maybe you'll leave the house. These are the times that they want to see if you're going to go do something … like on your birthday. It's really infuriating. I actually lost a case a long time ago, where I had argued that the insurance company, whose surveillance agent was standing on the street, zooming into my client’s window … she had her window open, but she she was in the kitchen; she wasn't undressing.

Lauren: But it's in her home!  That's a total violation, it seems!

Michelle: I argued there was a privacy violation. And I lost a summary judgment because the court said she was in her house but the windows were open. And he saw what anybody could see standing on the street. So you don't have a right to privacy in that. Now certainly, if the agent crawled into her backyard, trespassed and was looking through a window and saw her changing — that would be a different story.

But I tell my clients, if you are out in public, you have to assume that you can be videotaped, and it's not going to be a privacy violation. But when you're already dealing with having to give the insurance company all of your medical records, so they can parse through them and point out inconsistencies … you're opening yourself up and it feels really like you don't have any more privacy.

Lauren: And you’ve got to feel like you're you're fighting a losing battle a lot of the time. But that's exactly why people like you exist right now. And that's where I suppose a lot of the work that you're doing, as you mentioned earlier, is really buoying up your clients and giving them the hope that there is a way through it if you do see a light at the end of the tunnel. Oh, wow, that whole world is brutal out there. So I commend you for working in this space because just hearing about it makes me boil! Do you think that there are any ways in which the system is working for patients and clients? I know we're talking this work/life balance thing is a tough one to really hit on appropriately for most people's lifestyles. But are there ways in which the medical system and the insurance system are actually working for people beyond these difficulties and these privacy issues?

Michelle: In terms of talking about the health system and the disability insurance system … they really go hand-in-hand for my clients because they need medical records, they need medical treatment. Because these policies actually require, most of them do, that you are under the regular care of a physician, and that you are getting the appropriate level of treatment — with the idea that you are trying to get better to go back to work. But what happens if your insurance is through your employer — and you lose your job because you can't work?

Lauren: Well, is that a wrongful termination case often as well?

Michelle: You know, not always, no. It depends. Because an employer has an obligation, a requirement under the law — most employers do, maybe not very, very small employers — to accommodate you if they can, if it's not undue burden. But it depends on what you need, to be able to work. What if you can only work two hours a day on your own time from your house? Depending on the employer's business, they might not be able to accommodate that. Or maybe what you need is a leave of absence, but they can't accommodate you being gone for more than a year. Before they need to replace you, and so they can't keep you on.

So you lose your health insurance because the employer doesn't have to accommodate you indefinitely. What are your options? COBRA? You know how expensive COBRA is? It's extremely expensive. Fortunately, we have the plans on the Exchange — but who knows how much longer that's going to be there, right? Or how horrible that's going to be.

Lauren: And that's only recent, as well.

Michelle: That’s recent, as well. And so a lot of times, for people who had difficulty getting COBRA, I could say, “You know what, it's probably cheaper to just go out on the Exchange and get a policy — because you cannot lose healthcare. You need it now more than you ever did.” So when you have a job loss, and then you can't afford COBRA … and then your insurance company is saying, “We're not going to pay the claim” … and you don't have the money to pay for the COBRA. And then you get into a situation where the insurance company is saying, “Well, now we're not going to pay your claim, because you don't have evidence that you were seeing a doctor.” You're just in this really vicious downhill cycle. And so I think your question was: Actually, in what ways is it working? And I just went down the total opposite, of where it’s not working! (laughs)

Lauren: (laughs) But actually part of that question is, where's it falling short?

Michelle: I jumped ahead!

Lauren: You jumped ahead, but it's interesting, because I think also because of the work that you do, you're seeing the flaws more than you're seeing where it works. And is that also a larger question of: Is it just not working? And is there something that we need to do in terms of reform across the board, to make care more accessible to people who need it?

Michelle: I definitely have my own personal beliefs about what the healthcare system should be.

I think [healthcare] should be accessible and affordable to every single person.

Lauren: And especially in the field you work in … I'm sure that's really reinforced that belief, too.

Michelle: Absolutely. When I was five or six years old … I was born with a hernia … and fortunately, my dad was in the military, and we had health care. But my parents were relatively uneducated. If he wasn't in the military, who knows if I would have been able to get that surgery, what that would have cost them, if it would have bankrupted them.

Lauren: And what the long-term effects could have been on on you, physically.

Michelle: Absolutely. I really believe that we need healthcare to be accessible and affordable for everybody. Do we need a single payer system? I don't want to get into all of that.

Lauren: I don't know if any of us really knows what the answer is. I know that there are a lot of people who say, “It's a single payer system, we've got to do the single payer system!” And on a certain level, I totally agree. But then, we've seen that work and not work in different places. But the bottom line is that, right now, the system we have is not helping people.

Michelle: Yeah ...

But where this works, where you can experience continuous care, if everything kind of lines up … you have employee healthcare through your employer … if you lose that, you get on COBRA, and then you get Social Security. And then after 24 months of Social Security, you get Medicare. So if everything happens on a timely basis, you actually don't lose coverage. So you can have COBRA and then Medicare — and that's great. But for most people, they lose something along the line or something doesn't quite line up — and then they have a gap in coverage.

Lauren: Well, it's interesting you mention that, because this is stuff that's been coming up as we've been talking — that it can take two years to even get benefits through Social Security. So unless you're aware of the timeline for application, for all of these different elements of care and insurance that you can apply for, I don't know that there is a central system where you can look up: How long does it take for this to get approved? When should I apply for this? That there is that kind of resource for patients?

Michelle: Right.

It's a lot of information because people don't research these things until they need it.

Lauren: Right. And then you’ve got to wait two years for it.

Michelle: Exactly.

Lauren: And then what do you do? I suppose that scenario of, as an employee, being aware of your rights, and again …what you say, people aren't going to look it up until they need it … but knowing what your rights are. That's where it's so important, isn't it? Because if you're aware of what your rights are, and you have a full-spectrum idea of what that is going into every situation. But that’s never something that we learn in college! I suppose in law school you would!

Michelle: No, not even in law school. You don't really learn these things until you're out in the field and you're specializing. And actually, just what you said in terms of knowing your rights … that was what I was going to close with, in terms of the Top Three things that you should do. We'll get to that later.

Lauren: Yeah, that's a huge thing. And it's interesting, because in my last job before I had to stop working, I became very passionate about not only knowing my rights, but making sure that people who I was managing also knew theirs. Because even within small companies, it's important that people educate themselves. Education is key there. So, we talked a little bit about where the system is working, where it's not working. If improvement is needed in particular areas … and I know that we touched on this, the single payer thing and all that … but how would you suggest, from your perspective within the legal world, that we go about that as a community? Are there ways that we can improve things immediately, aside from patients knowing their rights? Are there ways that the system could improve immediately to help people?

Michelle: I think one area where we as a community can do better — and you're starting to see a lot of this in the news, at least I am — is access to quality mental health care.

Lauren: Oh, gosh, yes.

Michelle: Right?

Even with mental health parity, we are falling short on providers. And then if you don't have private insurance that covers it, you’re seeing revolving doors to the ER psych units. If you could just have preventive care, or access to quality mental health care, a lot of things could be avoided.

Lauren: Well, I wonder then if quality mental health care actually becomes part of a preventive plan ... that everyone is offered that at some stage.

Michelle: It should absolutely be that. I have really strong feelings about that. If we’re talking about community and what can we as a community be doing … we should be more open about these things. Twenty years ago, you didn't want to say you had depression; you didn't want to say somebody in your family had killed themselves. These things were so hush, and there was a lot of shame around that. And if we just had greater dialogue, like the dialogues you have on your podcasts. I think that's great. Better awareness, and less stigma around that.  Again, I think that could be huge.

Lauren: I'm gleaning this from our conversation as well … what you've been saying is that when people have a physical disorder, there is often a huge mental health component as well. And the questioning begins when they have to leave work, or when they have to pull back at work — when you're dealing with people who are used to being fully-functioning professionals who have personal and professional lives that work in tandem, and all of a sudden these structures sort of collapse under you. And when you have the rug pulled out from under you, what that toll takes on you mentally is significant, to say the least.

Michelle: It is significant.

Most of my clients, if not all, who have a long-term chronic illness — they've been on disability for over a year and it looks like they're going to stay on disability — I can't even think of one that is not suffering from some form of depression, anxiety. It's just part of the package.

And unfortunately, because a lot of these disability policies have limitations on how much they'll pay for mental illness …

Lauren: Which is unreal to me.

Michelle: Yes. Social Security doesn't have that limit; state disability doesn't have it.

But mental health parity has not extended to the private disability insurance policies yet.

Lauren: It’s still not considered essential.

Michelle: You have to keep in mind, too, that these plans are voluntary, because ERISA doesn't require that employers even provide these plans. So they're just, like, ‘Look, we're providing you a benefit. Unless it's completely illusory —and even in those situations, it's okay — we’re giving you something extra that we didn't have to. So if we want to have a two-year limitation on what we will pay for mental health claims … that's going to be enforceable.'

I would love to see this change legislatively. I would like to see mental health parity extend to disability insurance policies ...

... and then you don't have to worry about … what am I disabled from? How do I prove it? If I've got really disabling mental conditions, but also have really disabling physical conditions, do I have to downplay the mental and up-play the physical, just so I can get paid? I can't work as a result of a medical condition. That should really should be enough.

Lauren: In terms of creating these real concrete inroads legislatively, as you mentioned, how do we go about that? Is that something where we find someone like you, who maybe has a pro bono aspect to their practice, and we start consulting with legal teams and get different political systems involved? If I wanted to go out tomorrow and try to change the legislation, how would I do that?

Michelle: That's a good question. Where we've done some advocacy as a law firm … and we've worked with the California Department of Insurance, and the Department of Labor actually issues regulations under ERISA … we actually just had some new regulations in place this year that are supposed to make the disability process fairer. So there are these avenues where you can chip away or strengthen rights. But what I'd love to see, and I'm not exactly sure how to go about doing it … but just to have …

Lauren: The dedicated group, really.

Michelle: Yeah. And really be able to just build in more benefits with these policies. To say, if you're going to provide this, you can't have an exclusion for mental illness. I don't really know exactly how we go about doing that. But I would love to see it. We're not going to see it in the court system.

I can argue about it until I'm blue in the face, but the Court of Appeals are not gonna be able to change the law.

Lauren: And also you're dealing with the law as it is now, as opposed to changing things — whether it's on a local and state level, or if it's on a constitutional level. And those are completely different practices, as well.

Michelle: Right. I’m just in the Hunger Games arena! (laughs)

Lauren: You really are! You have volunteered as tribute! You mentioned advocacy, and because you got into this world of disability insurance because of your personal experience and the direction you took when you were out of law school and everything. But I was wondering if there's any advocacy work that has extended beyond your practice that you have participated in? Or if there's advocacy work that you're looking to do, that you could speak to us about?

Michelle: I spend a fair amount of time volunteering in the local legal community, just really more, again, providing access to people who have health conditions and they aren't able to afford legal services, or they don't know what their rights are. One of the organizations I’ve volunteered with for a long time is the AIDS Legal Referral Panel that's based in San Francisco. They provide free or low-cost legal services to people who are living with HIV/AIDS in the local Bay Area community. And that’s really rewarding. Or just working with our local Legal Aid Workers’ Rights Clinic and talking to people there about their workplace issues — and just letting them know what their rights are.

Fundamentally, I think the biggest problem is that a lot of times people just don't know what they don't know.

And being able to volunteer my time and doing that, it's really rewarding. But I also think as an attorney, we really have this obligation to work part-time in this way.

Lauren: And you mentioned paying for legal services and working with local Legal Aid … that's something that I wonder about as well … the cost of legal services to access disability insurance. Obviously, it's clients who are in the private sector who are coming to you. So they already probably had a fairly decent salary, so that they're able to contribute to their legal aid in that way. But if people are struggling to even afford legal aid, are there resources and organizations that they can go to that you're aware of, and can tell us about, that might help with some of the cost of their legal services?

Michelle: I mentioned the AIDS Legal Referral Panel … I know that they have some attorneys who will do appeals.

A lot of attorneys who do handle these — we obviously recognize the income limitations of people who don't have their income coming in — so a lot of times that work is done on a contingency basis. The one actually good thing about ERISA is that if you do have to file a lawsuit in order to get your benefits reinstated, and you win, the court can order the other side to pay the attorney’s fees for the time that was spent in litigation.

So it's not all the attorney’s fees, because a lot of the work you do you have to do before you get to court. But it’s a little bit of a disincentive for the insurance companies to continue to draw out litigation that they know is not meritorious — if they are going to have to pay big attorney’s fees at the end.

Lauren: Well, that's good to hear that it does cover some aspect of that, too. That's comforting! So, how do you think we keep dialogue open about chronic illness, about invisible illness, about disability and its overlap between personal and professional? How do you think we can keep talking about this and keep making noise, in the most structured and helpful way possible?

Michelle: It's a real tough one. I think I mentioned earlier … just like these conversations that we're having, and the conversations that you have on your podcast … and really just people reaching out, talking about these issues that they might be too afraid to talk about with their mental health providers, with their doctors, with their friends, with their families. How do we then transfer that dialogue to actual policy, right?

Lauren: And sort of brainstorming along the lines that we were earlier. And finding ways to incentivize different legal firms, and different advocates and patient advocates to be involved as well.

Michelle: One organization I didn't mention, which I should, along these lines … there's a nonprofit organization called United Policyholders. And they do a lot. They're like the consumer voice, not just in disability insurance, but all types of consumer insurance. They do a lot of amicus briefs. And so I've done a lot of that as well for this organization where there might be a court case, and we might say, “Look, but there's this aspect of it that you really should take into consideration.” And we'll file what we call a Friend-of-the-Court brief, to try to highlight … ‘consider this aspect of it.’ That’s one way where this dialoguing can kind of get its way into the court. But it's hard. Definitely, there are a lot of limitations in the law.

Lauren: I think what you do is so wonderful. And obviously, we've discussed that you have your personal opinions about disability insurance, about health care in this country, and how your beliefs have been either reinforced or almost structured around your experience within these policies and cases. I think it's really interesting because you're probably learning so much every day. But there's got to be a frustration when you're dealing with the law as it is — as opposed to policy change that you could try to enact.

Michelle: That’s right.

Lauren: But I commend you, because you are providing a very necessary service for so many people. So … we are at the end of things, and on to the Top Three lists. Because we know I love a list! What are your Top Three Tips for someone who suspects that they may be entering the world of life with invisible or chronic illness, and may need to apply for disability insurance coverage?

Michelle: Going back to what you said earlier about knowing your rights … absolutely, that’s the number one thing.

So if you are working for a company, and you're not sure if they have disability insurance, ask HR. When you’re first hired, you’re supposed to get plan documents that say: These are your benefits.

But most people, especially with disability insurance, you put that in a drawer; you don't start a new job and think you're going to go on disability.

Lauren: That's the thing; we sign the papers and we don't read them. It’s kind of important to read that stuff!

Michelle: Yeah!

Employers are supposed to provide Summary Plan Descriptions. Those are the highlights of what these benefits entail. So you want to know: Does your policy have a limitation for chronic fatigue syndrome? Some do. You want to know that. You want to know what you need to file a state disability claim — where you get that paperwork from. Social Security, you can typically apply for that online. State disability, you can as well.

But I would definitely have your policy before you even file a claim, before you even think about it. Just to know what's in there. Because, what if you could do some things differently? What if there's a pre-existing condition limitation that would completely make you ineligible for benefits? You want to know that. So that's definitely the top one. The second one is, having the conversation with your medical providers, and making sure that you are getting regular treatment so that there are supportive medical records. They're going to ask for that. They're going to say, “Well, if you said you couldn't work as of, you know, May 27 … what do your medical records look like?” If you haven't been going to the doctor, if you haven't been having these conversations and letting your doctor know … “I’m having a hard time keeping up with my workload because of X, Y and Z” … Or, “After I sit for more than 30 minutes, my back really hurts. I’ve got to stand up, but I can’t.”

Lauren: I wonder if that feeds back into what you were saying earlier about your conversation within the office — about the generational aspect, where perhaps someone who has been with a company for a long time or is of an older generation may be less likely to have those supportive medical documents. Because they might push on until they're dead. Maybe there is more of that aspect. Would you find that's sort of a trend in what you're doing, as well?

Michelle: It’s really case by case.

I definitely don't want to stereotype, but I've had more of an issue with my male clients, sometimes, who won't go to the doctor, and, like, report this!

Lauren: It’s a stereotype for a reason! (laughs)

Michelle: If I think about the clients where I've had that issue, it's all been men. So that is an issue.

Lauren: But that’s more where gender comes into play, than age?

Michelle: Right. But usually by the time I’m working with a client, they’ve already been to the doctor. And it's usually a doctor who's telling them, "You've got to stop working. You’ve got to figure out how to reduce your hours, or you’ve just got to take some time off altogether.” But just having those conversations first, and just knowing that your doctor is going to be supportive. Because what if you've been going to the doctor, and you've been reporting all your limitations, and then you find out when you go to file a claim, “Well, I'm not going to support this. I don't think you need to take time off.” You kind of want to know that upfront! And then, if you need to find a new provider, one that's going to be more empathetic to your situation or really believe what you're saying about your limitations, then you have the opportunity to do that. But I wouldn't wait to have that conversation.

Lauren: So true. It's where communication is so important.

Michelle: Yeah. And then when it comes to invisible illness, I find that having diaries of symptoms is really important. Because you can't really see somebody experiencing a migraine. You can probably tell someone's in pain. But a lot of it's subjective. Or if you have IBS, how much are you going to the bathroom? How severe your migraines are; when you're experiencing pain, how long you're experiencing it, on a scale of one to 10.

And if you're keeping a somewhat regular diary, that's proof. It's one aspect of proof. But it's something that I think when you're dealing with an invisible illness, it's really helpful to have.

Lauren: Yeah, and it's interesting because we talk a lot with patients who say, keep a diary so that you're understanding your symptoms, and also providing data that you can hand to your doctor if your doctor doesn't speak your language. But it's also helpful from a legal aspect that you're able to use that as evidence of, “Well, I'm having these attacks that are compounded, are brought on when I have extra stress at work. And it's happening at this time … " So all of those things are connected. And that's where diaries are so important!  Well, Michelle, is there anything else that you would like to add for listeners? I definitely would love you to share how they can find you if they want to contact you about working with you, or if they have questions about disability insurance.

Michelle: Yeah, sure. I'm happy to help answer any questions that anybody might have about their disability insurance. Probably the easiest way is to go to our website: KantorLaw.net. You can put in an inquiry that way; that's probably the easiest way.

Lauren: I've done it myself!  I actually spoke to one of your other attorneys because I had questions about Social Security. She referred me to people in California who specialize in Social Security benefits. So it's great, because she was super helpful and answered the questions I had immediately with regard to your practice, and then was, like, “But I can put you in touch with other people.” Super, super helpful. And for everyone listening, just remember that Kantor & Kantor are based in California. So that certainly affects disability access, legally speaking. But whatever state you're in, I'm sure they can refer you or answer questions.

Michelle: Yeah. And we do represent clients in other states, too. So if you live in another state, it doesn't necessarily mean we can't help you. But if we can't, we have a lot of resources.

Lauren: Michelle, it has been such a pleasure having you on today.  I've learned so much; I find this so fascinating. We should definitely talk about having you on again, because I think there's plenty more that we could talk about! Thank you so much.

Michelle: Of course. Thank you!


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