Episode 67: Patient Advocacy & Playing to Win with Andrew Kantor

Episode 67: Patient Advocacy & Playing to Win with Andrew Kantor

Overview

Andrew Kantor is an Associate at Kantor & Kantor, LLP. The son of the founding namesake attorneys, his practice is focused primarily on helping individuals obtain wrongfully-denied disability and life insurance benefits in both ERISA and non-ERISA (bad faith) policies. A client-centered attorney, he has emerged as one of the US’s leading experts on fighting disability denials, with a particular focus on chronic-fatigue-related illnesses like ME/CFS and Lyme disease. Andrew serves on the Board of The Elder Law and Disability Rights Center, and he was named a 2019 Rising Star in Southern California by Super Lawyers. In this episode, he shares his passion for advocacy, the logic behind disability rulings, and how to read between the lines when communicating with insurance companies and physicians.

Takeaway

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Transcript

Lauren: Okay, guys, thank you so much for joining us. I am here today with Andrew Kantor, who is an Associate Attorney at Kantor and Kantor LLP in Los Angeles. And he's here to talk to us about disability. He specializes in disability law, but those cases tend to really include a lot of cases involving ME/CFS which is myalgic encephalomyelitis/chronic fatigue syndrome, for those of you who aren't familiar. So Andrew, thank you so much for joining us today.

Andrew: You’re very welcome. Thanks for having me. I'm glad we get to have this discussion. It’s the first time I'm doing something like this. I'm looking forward to it.

Lauren: Fantastic. Well, thank you so much. So why don't we just jump right into it. If you could just start off by telling us about your legal work in the disability space and how you came to it?

Andrew: As I'm sure some of you put together, my last name is the same as the name of the firm, but I am just an associate. My parents are Glenn and Lisa Kantor, the owners of the firm. And so I basically grew up on insurance law, because they founded the firm together in 2003 and my father had been doing it a lot longer than that. So, ERISA and insurance discussions and especially discussions about disability law were kind of in my universe from a very young age. And while I think a lot of people who've got lawyer parents who hear about the law growing up … the result is, the last thing they want to do is end up being a lawyer. Neither of my brothers became lawyers; they both swore that they would never do it because of that.

Lauren: Someone had to do it then!

Andrew: Right. Someone had to keep it going.

But really, I mean, seeing what they did and seeing how they helped people, I couldn't imagine doing anything else.

And so I did anything I could and went to law school and followed in their footsteps, basically. The ME/CFS cases specifically … I really fell into it by accident. When I was first assigned, about five years ago, to start working on these cases, I happened to have a few ME/CFS cases. And when I was talking with my supervisor about how to basically help these people, how to prove their case, I realized right off the bat that we had a sliver of the evidence or the information for ME/CFS clients than we did for, let's say, someone with lupus or someone with a back condition even. I didn't really understand why this one condition had such a lack of information. And what I was basically told is that these are kind of a new set of cases coming in. Nobody really knew how to deal with them. We had just found a new test at the time called CPET (Cardiopulmonary Exercise Test), which was this new thing that we were using to help our clients. But we just didn't know that much.

Lauren: And this continues to be a concern in the medical community and beyond … it's not just a legal issue, but something that I know a lot of people in the ME/CFS community are working toward — trying to create structures for diagnosis and for treatment of this disease. But it's one of those really nebulous and insidious hideous diseases that's often misdiagnosed. Which I'm sure has a lot to do with why you were having trouble getting the right kind of diagnostics to prove that your clients had this disease.

Andrew: Oh, absolutely. And you have to keep in mind, these insurance companies that we're dealing with, there are a lot of reasons they are just not looking out for your best interest — as I'm sure you wouldn't be surprised to hear.

Lauren: It’s good to hear that from a lawyer and have it confirmed from a legal point of view!

Andrew:  Most people get their insurance through their employer. Most people who get their insurance through their employer, the insurance is governed by a federal law called ERISA. ERISA is a 3000-page statute which does a lot of things, but the main thing that it does, it preempts state law damages outside of the benefits owed. So in other words, the way the law is set up is that if you were to rob a bank and steal 100 grand and get away, the only way you’d get in any trouble is if the government found you, sued you, successfully convicted you, and then the punishment is: You have to give the hundred thousand dollars back. And maybe a little bit in attorneys’ fees on top of that. Just imagine if that was the law, how many banks would be getting robbed on a regular basis? The answer is a lot. There’s no incentive for these insurance companies to act properly because they're not exposed to any actual harm. The stereotypes about evil insurers aren’t true in a lot of contexts. But most people don't understand how true it is in the ERISA context.

And it ends up impacting the most vulnerable group of people, who are disabled individuals who need benefits, and the last thing they need is to be screwed around with by their insurance companies.

Lauren: So you mentioned that you come across other kinds of disabilities and illnesses aside from ME/CFS. I know that ME/CFS is your focus. But what other illnesses do you come across in your practice?

Andrew: There's a wide range — everything from Parkinson's, multiple sclerosis, traumatic brain injuries, autoimmune issues like lupus, Ehlers-Danlos, a lot of back injuries. God, the lack of information and expertise we have on the human back is just mind-boggling. So a lot of back surgeries and related issues. A lot of mental health issues these days. Thankfully, I think there's a lot more awareness, and people are becoming more comfortable saying, “I have a mental health issue and that's okay; I need to take time off work for that.” And unfortunately, a lot of those conditions are a lot more more serious than someone having that kind of peace of mind to say that. It's a pretty wide assortment. There’s a lot of different things that can impact someone to prevent them from working. We're seeing a lot of autoimmune and ME/CFS cases and other unidentified chronic fatigue cases where they can't find any of the markers for ME/CFS but there’s still debilitating fatigue. It's there and we do the best we can to show that there's fatigue — even if we can't necessarily prove there's something there causing it.

Lauren: Well, with regard to ME/CFS, is the problem, from the legal perspective, with diagnosis, with regard to medical training … as well as with the lack of treatment protocols when it comes to actually being able to make a case for these individuals?

Andrew: So the answer's yes and no to several of those points, in that the lack of training among medical professionals is devastating to people trying to get their benefits paid. Especially in this context, because these insurance companies are 20 years behind medical science. They are not going to push themselves to the cutting edge, unless it benefits them. As soon as they find a new test that can detect someone faking it … oh, man, cutting edge! They’re on that one!

Lauren: They'll definitely be on that one!

Andrew: Right. They have no incentive to try and really figure out what's going on with these people, especially because there's no risk to them to just throwing up their hands and saying, “Well, we didn't understand this.” And there's a good chance that a federal judge won't either, if isn't handled properly and these things aren't fully explained.

But so much of it does end up being dependent on the treating physician themselves.

There's the question of whether you can get your insurance company to pay the claim. And then there's the separate question of whether you've done enough to do well if you sue them after they have denied you. And so there's a lot of ways to accomplish that, even if you can't convince them to overturn the actual denial. So that often ends up being dependent on your own treating physician. And most people with back injuries, for example … usually it's pretty easy to get their doctor to say, “Yeah, you've got a C5, C6 problem here that is definitely not going to let you sit for more than six hours a day. I can certainly write that up.”

Lauren: And they've got an X-ray, they’ve got something that they can actually hand to the companies is the point, isn't it.

Andrew: Right. That’s a lot of it. And it's not just that there's an X-ray, it's that everyone knows what an X-ray is. Everyone knows what an MRI is. They can't say, “Yeah, we know you say an MRI says this, but does it really show anything? Isn't an MRI just kind of a magical box you throw people in?” That’s really what they still try and say about things like two-day CPET, which are objective tests designed to measure disability. They say, “Well, you can't prove that's an actual ‘thing’ that's peer-reviewed and verifiable.” Even though it certainly is.

Lauren: Do you know about the CPET test? Do you know what it involves?

Andrew: Yeah. Two-day CPET, as far as I know, is only available in Northern California and New York/Ithaca College. It's a two-day exam, only seven or eight minutes per day, where they measure an assortment of things including your blood oxygen saturation levels, your VO2 max. They measure it against baseline numbers they have as to how the body is supposed to recover, and they can use those results to actually assess the extent of disability in a particular individual.

Lauren: And this can work across a range of disabilities, it sounds like as well?

Andrew: Yes, it is designed to detect and measure fatigue from any source. We often find ourselves using it for ME/CFS patients, because generally that's who needs it. But we have a lot of people who have just been on medication for 20 years …

Lauren: That’s something I’m going to ask you about. We’re going to get to that!

Andrew: Yes, that cause damage to their system. You know, “I can't point to what in my body is causing this. I'm pointing to my medical records of 15 years of trial and error and messing up my body trying things that weren’t working, and now I'm left with all these issues.” Well, we have to prove that, but there's nothing to prove.

We're just trying to convince the insurance company that this person is genuine.

Lauren: And when you say there's nothing to prove, what you're saying is that the CPET test has been peer-reviewed, it’s respected in the medical community. But these insurers don't see it as a gold standard yet, like they do in comparison to an X-ray or an MRI, as you've mentioned earlier.

Andrew: It's either that, or the testing we show them they don't buy, or they're asking for evidence which can't exist. For example, pain … they often will ask, “Okay, where's the objective evidence to confirm your subjective complaints of pain?” What exactly are they asking for? How do you prove that someone's in pain? And how do you prove that one person's 3 is someone else's 7? Seven is disabling, but someone else's 3 is not, but it's the same pain. To whom is the insurance company going to say, “No, that pain is not sufficient. Prove it.” And it puts people in these positions where they know they're asking for evidence which does not exist.

Lauren: Do you think it means that's something that within the medical community … more regulations need to be established, in order for patients to have more of a clear diagnostic, particularly for legal purposes, when it comes to the more subjective concerns like pain and fatigue?

Andrew: The concept of that just sounds so wonderful!

Lauren: But it's also so huge, I know!

Andrew: Especially with what our government is trying to get accomplished at this moment.

Lauren: Or not get accomplished at this moment.

Andrew: I know, we can get started on that later! (laughs) But the idea of such regulations actually being powerful enough to guide medical treatment to the point of supporting disability claims … I mean, it sounds incredible, but we're far away from that point.

I think, more practically and more realistically, the next step needs to be just continuing to inform the medical community and the treating physician.

Because the amount of just misinformation that is out there … and there doesn't seem to be a universal requirement for how doctors have to stay educated. I mean, there are those requirements, but they're really not real. Like, you don't know if after 30 years this doctor actually still knows what the heck they're talking about. Or if they've opened a book from any time after the ‘80s. You don't really know until they mess up maybe and get sued — and then someone starts looking. If there are going to be regulations anywhere, it should be continuing medical education.

Lauren: And awareness raising, it sounds like as well. So they know what ME/CFS is, for a start.

Andrew:  Exactly. When you Google it and you've got the CDC giving a definition from 1992 that nobody, nobody thinks is legitimate anymore … how are doctors supposed to figure out what’s real and what isn't? Because the CDC is usually a good source, I think. I haven't assessed all their recommendations, but when a doctor looks at the CDC website, isn't he almost committing malpractice by disagreeing with that, without really knowing what they're doing. There's nothing more harmful than when the government decides to not only take a position, but to take a bad one. Or the wrong one. It’s better if they just shut their mouth and say, “We don't really know what ME/CFS is. Go talk to the action groups or … “

Lauren: Talk to the doctors, yeah.

Andrew: Exactly.

Lauren: Well, one thing that you mentioned earlier was about medication. And I was wondering whether, in particular, painkillers and the opioid crisis has come up in your work as it applies to the invisible illness community. And if cases involving these kinds of medications have become tougher to fight because of the new restrictions and reluctance of healthcare providers to prescribe these medications in the first place. What's that looking like for you nowadays?

Andrew: So to the first part of your question … thankfully, I don't see insurance companies successfully utilizing overuse of prescription meds or the use of prescription meds against claimants. And that's just kind of because the logical position they're in. If they say, “You say you're disabled because of your back issue. But you're really just disabled because you're addicted to painkillers.” Well, okay, so you're admitting he's disabled. And you're saying the thing disabling him is the painkillers he had to take because of the back issue? So even if you’re right, insurance company, don't you still have to pay him? The answer's usually yes. So sometimes what they'll do is, they’ll try and float the suggestion out … "You were prescribed this much medication, and our peer reviewer noted that's four times the amount that an average male is prescribed.”

Of course, they ignore the metal spikes sticking out of his leg or something horrific that requires that.

Lauren: The thing that makes him not average.

Andrew: Right. Exactly. They are not really able to utilize that as well as they'd like to. Especially in California where I operate, it's a lot easier for us to spin that around on them than it is for them to utilize it against our clients. At this point, what I'm far more worried about is that a lot of my patients — or my clients 

Lauren: I like that you call them patients!

Andrew: I know, I keep calling them my patients!

Lauren: It shows how caring you are, though.

Andrew: I appreciate that. I hope that's what it shows. My concern now is that people are having a much harder time getting the drugs that they need, people who have been on a consistent regimen of medication. What usually is happening is that their doctor will either retire, or their insurance will change and they'll have to switch doctors. And despite being on a steady regimen for 5, 10 years with no problems, they'll switch and say, “Well, you shouldn't have been at this level; I'm not comfortable prescribing this for you.” And they can't get what they were getting, and so they're forced to either drop to a lower level or to something different altogether. For my clients, it can be extremely difficult. The insurance company will say, “Well wait, you stopped taking Norco, so you must be getting better.” “I wasn't able to get it.” “Well, you're still able to function without your Norco.”  And so they try and harp on people who are trying to get it, for not getting it, and of course, that doesn't even mention the biggest issue — that these people are in pain, that they are suffering.

Lauren: And what the insurance companies seem to be doing is applying the most basic of logic to the most complex of problems.

Andrew: Oh, yeah. And that's kind of how they operate.

If it pads their bottom line and it’s the easiest and cheapest way to think, why not think that way.

Because again, there aren't any real repercussions for messing around and wrongfully denying all these claims.

Lauren: It’s really interesting because you obviously care very much about your clients/patients! I'm curious about what happens when patients do come to you, when people who are disabled and chronically ill come to you for help. Do you find that you're often in a role in which you are providing an extra level of care for them — partially because you're aware of the trials and tribulations they're having to go through, but also because in a way you're addressing this lack of attentiveness that they've experienced from the medical industry and from their insurance providers. Do you find that you end up taking on a caregiver role with them in certain ways as well, that that's part of what you signed up for?

Andrew: Definitely a therapist role at some point.

Lauren: Because you have to get all the details — and some of that involves some pretty harrowing stories, I'm sure.

Andrew: Oh, yeah. And to rehash all these things can be tough for these people. Lawyers in this kind of work, or any kind of line of work where you really have to be a client-centered attorney … you have a choice. You can just kind of keep them at arm's distance and just have them write down statements and move along. And tell them, “I’m sorry, I can't answer these questions. Talk to your therapist or talk to your doctor or call your HR representative.” And there are lawyers who do that. That's how they operate, and that is totally them.

Lauren: Clearly, that's not you!

Andrew: No, it’s not me. I find that it's just not my personality. I'm not going to operate at this arm's length. I want to get to know the people I'm helping. I want to understand what it is the insurance company is missing, what they're really missing about this picture.

And I found out very early on that getting on the phone and talking to someone for an hour, you get way more information than you do than by asking them to fill in questions or fill in the blanks.

What I’ve also found is that, yeah, you're right, these people are, to some degree, used to getting brushed aside and not being taken seriously. What I find most striking is the ME/CFS and other similarly-situated people … the first time I talk to them and they tell me their story, and my response is, “Oh, yeah, I don't doubt that one bit. I've heard that a lot with insurance companies.” They go, “Wait, you don't think this is crazy?? I’ve just told you three crazy things.” And I say, “Well, I could tell you six. Let me tell you what I've heard.” Even other lawyers who they've talked to don't know what this disease is and haven't dealt with an ERISA case before. So between their doctors not believing them, and their friends and family not believing them. And lawyers they call not either not believing them or not really understanding what they need to do … yeah, I may be the first person who they actually feel is on their side. And as a result, I often end up as less a caregiver … more of a therapist role.

Lauren: Do you find that draining, though? Obviously, you really care about these cases and you are committed to creating some kind of change within this system, and the logic that these insurance companies are using in these cases. But how do you leave that at work and come home and not take on all that trauma?

Andrew: I guess I'm just lucky in a way, because I don't find it draining. What I find draining is the negative interactions with clients — when a client's upset with me or doesn't understand what's going on and is directing their ire at me. That is what can be draining. But if I'm on the phone with someone, and I'm helping them, and I know after the phone call ends that I calmed them down a little bit or helped them sleep a little bit better today, that's rejuvenating to me. The aspect of, how do I not bring that trauma home … disability is extraordinarily traumatic to every person who goes through it. But it's not traumatic for me to hear about these kind of stories because it's mostly people explaining how they became disabled, they were working … I'm not dealing with that personal trauma, with say, criminal law or something like that, where it's something that I have to kind of push away. These are just humans beings; these are their normal, natural stories and I'm not jaded by them at all.

Lauren: That kind of endless hope is actually really contagious and really wonderful to hear that someone on your side of this situation is like that, has that kind of attitude. It must be really great for your clients. So, we're talking a bit about this insurance system and the kinds of cases that you're working on. In what way is our health system working for patients? Because we're talking about the ways in which these insurance companies are falling short. But are there ways in which things are actually working and we're seeing inroads for people with disabilities?

Andrew: Certainly there are some ways in which it's working.

I think first, for people who have a lot of money, the system is really good in America.

You've got dollars, I dare say there's almost nowhere better you can get treatment. There's no doubt that we are not caught up with ME/CFS or with a lot of these issues we need to be caught up on. But I still think with our system, it's a lot easier to get that top-level treatment for that unique issue than it is in a more universal or socialized kind of system. But I'm not so convinced by that to say that it's a reason to stay with what we've got now, because hopefully everyone can have care and everyone can get the top level care if they need it. There are still opportunities and some of the best doctors in the world are still the ones working in the US. To some degree, I try not to take that for granted. My wife gave birth a few weeks ago …

Lauren: I know, and I was, like, when do we get to tell everyone you’re a new dad?

Andrew: I wasn't happy with the $3,000 bill I had to pay at the end, but I also felt that she was literally in the best hands she possibly could be. I mean, the place was clean, their security was tight, we had access to people, the doctor was as competent as possibly could be. We got to choose our doctor from amongst other doctors. And so I realized again … I am a lawyer so I'm including myself in the group of people with “money”. I have access to all of that. I have top of the line healthcare, and thank God if anything awful ever happened to my wife or me — or … we can’t even mention the other option — we'd be taken care of, at least to some extent. Now, that’s only 1%. What about everyone else?

Lauren: And the other question is, has your experience also influenced the way in which you've approached healthcare for your family and for yourself? Are you much more wary of certain practitioners, and looking more at certain kinds of health systems?

Andrew: Well, maybe. I don't do a lot of the health insurance side work yet; our firm does a lot of health insurance litigation. But yeah, seeing how it operates kind of impacts my decisions about what I do. One thing I will tell you, for all of those people out there who are dealing with the workers’ compensation system … I am sorry. Because at least in California, it is one of the most nightmarish setups I've ever seen.

There cannot be a harder way than the workers’ comp system to get the medical care that you need.

It's the worst, most backward, upside down system. And I can't tell you how many people … the insurance company denies someone and says, “Well, you didn't get this treatment for a year.” “I would have loved to if workers’ comp would have authorized it.” There's so much embedded within the system that I don't think people really pay attention to. No one talks about the workers’ comp system and how workers’ comp is going to be impacted by universal health care or something similar. I don't have any answers. I don't know if it's going to be good or bad. But to me, that's one of the things … man, if the workers' comp system would disappear and people who get injured at work could get reasonable health care, that would just be wonderful.

Lauren: That would begin to fix the problem. Well, how do we fix it? What do you think?

Andrew: (sighs)

Lauren: It's a big question!

Andrew: Frankly, the workers' comp system, I think you'd get rid of it. You’d just get rid of it.

Lauren: And you’d provide good health care instead.

Andrew: Yeah. And you go back to the system where if you get injured on the job, you sue your employer. And you see what happens and you get your medical care. This whole system was designed to minimize lawsuits against employers, out of the recurring theme throughout history of the greedy plaintiff lawyers concept. Which more often than not is corporations raising that to protect themselves from damage laws or things like that.

Lauren: So what you’re saying is that it’s really that companies are being protected, and not individuals.

Andrew: Oh, yeah, right.

Lauren: So, it's about switching that dynamic around, it sounds like. One of the things we talked about before you and I jumped on this interview … we chatted a few weeks ago, and one of the things you did bring up at that time, particularly with regard to ME/CFS, was about gender disparity. I'm really interested for you to share with our listeners your take on the way in which you're seeing a difference between the diagnostics in cases involving women, versus cases involving men, or even cases involving people who are non-binary or non-gender conforming. What’s been your experience of that in the cases that you've encountered?

Andrew: So my journey into this topic was kind of the the cart leading the horse in that I, early on, got hit with a case where they basically came up with all these awful reasons to discredit my client. Which really agitated me. So I went through and researched any piece of evidence I could find discrediting their doctor. And in doing this, I actually stumbled upon a lot of evidence — and this was still early in my career — a lot of evidence generally about discrimination against women in believing their pain complaints. And kind of digging into that topic was really illuminating, because statistically, what you'll find is that women are, last time I checked, a factor of two or three believed less, and tests are not ordered at their request, compared to men — when there is a lack of diagnosis.

There are studies across multiple arenas showing that women in their subjective non-confirmed complaints are believed at a far lower rate than those of men.

And ironically I think … I looked at all this research and was, like, man, I’ve got to really look into this and keep my eyes open for this. Two weeks later, I had a case where a super nice woman calls me. She had ME/CFS or something similar; it was a kind of unconfirmed illness. And she shows me the peer review report. She says, “Before you read this, I was just so angered by this, and you have to tell me if I was out of line. I'm sure you see this all the time, and they just do these things. You tell me if this is really unique and if I really have a reason to be upset.” I'm thinking in my head, it’s probably what I see every day. I'm sure it's upsetting, but there's no way I'm going to see anything that's going to make me say, what the hell, right? I read, I read, I read… I get to the last line … “She more likely than not is suffering from a bout of hysteria.”

Lauren: I'm glad you don't like that word, either! Every time I hear that word, it makes me go bananas! It makes me go … hysterical! Because it's one of those words that's been weaponized against women in every single way, hasn't it.

Andrew: To the point where, when I saw it, I called her back and I said, "You've basically won your case.” The fact that their doctor used the phrase “hysteria” … we are going to just rub this in their face in basically every line of the complaint. That your idiot doctor used the word “hysteria” to describe a female claimant who is suffering from this list of issues. There was a mile-long list of the lab tests and the documents and the journal, showing how severe her physical issues were. And because he needed something to say: “Hysteria.” I basically threw the paper in the air.

Lauren: Were you able to wipe the floor with these guys?

Andrew: Oh, we didn't even have the chance. We filed the complaint, called the other side and said, "Read pages X through Y of the file. Our demand is full reinstatement and attorneys’ fees. We want to hear back from you within a week; if we don’t, we're moving forward and the fee bill is going to go up.” Two days later, they reinstated.

Lauren: So these insurers are aware that language like that, and that kind of brushing off of patients with such specific use of language, is at best outdated, and at worst borderline asking for a problem, right?

Andrew: Each insurance company has its own personality and the lawyers for some are a lot smarter than others. The lawyer in this case was smart as hell. She saw this, she saw the writing on the wall, and she was, “How am I ever going to look a federal judge in the eye and say that this doctor, who uses the phrase ‘hysteria’, should be believed over this woman's own treating physician?” You just can't justify it. And so some of the smart ones will, very early on, if they know who we are and know that they actually will end up getting their butts kicked if they don't just reinstate and pay the fees, they are willing to fix things in that regard — but only once they’re sued. Once they know someone who knows what they're doing is handling the case.

Lauren: You have to poke the bear, don’t you.

Andrew: Oh, yeah, just a little bit. The bear in this context is really slow, really old, really unintelligent; it just happens to be taking up a ton of space. It's just there and you have to deal with it, but it is not a ferocious bear. Fortunately.

Lauren: Well, speaking of these bears, I have to ask: What's your success rate like in these disability cases? Because I know that they're all so complex in their own ways. But are you finding that when you're not coming up against the various roadblocks that are established by government statutes and a lack of understanding in the medical community, are you finding that you do have success when you're taking the right strategies and really finding the best way in to make these insurance companies do something about what they're promising their patients?

Andrew: I love being asked this question because the answer is: I've yet to lose.

Lauren: Ooh, that makes me feel very good! I got a chill.

Andrew: I’ve yet to lose, but that doesn't necessarily mean I'm a super lawyer. The way these cases work is that if you're denied the appeal and you have to litigate, at some point the other side, the insurance company, will offer a lump sum of money to walk away. And there are a lot of factors on whether a lump sum is good or bad, compared to the strength of the case and all these things. It is extremely rare that we end up with a situation where they offer an amount of money that we advise our clients to take — and the client doesn't take it, and we have to go to trial anyway, and we end up losing. So if we're at trial, it's usually a case where our case is extremely strong, or there's a really specific legal issue that is kind of up in the air. So most of the cases settle. And that's really where you get to it, because for a lot of these people, if they don't take a lump sum, even if they win at trial, the result is they get paid up to date, and then they go back on claim with the insurance company. So the next week, the insurance company can just go start it all over again.

And, depending on the individual, that is basically losing all over again, because dealing with them is so awful.

So, most of the cases settle. The cases I have taken to trial, I have won, thankfully. And the insurance companies don't usually appeal once you win a trial, because once they lose out, they've usually lost pretty soundly and they know that. We're making a ton of progress as far as identifying ways to support ME/CFS and other issues. Every time a case comes out which is unhelpful to a piece of evidence we use, we go get a piece of evidence fixing it, or something explaining why that assessment is wrong. We've done that three times now. With CPET, every time we get a comment from an insurance company or a bad decision, we go and we fix it. So we can submit that with every case going forward. The difference between now and five years ago with ME/CFS is enormous. It really is. The concept of me having this discussion with you and being asked to speak about this topic and disability claims … no one knew enough five years ago. It was still a lot more invisible than it is now.

Lauren: So there's hope for the future, I guess, if you’ve made this much progress.

Andrew: Yeah, absolutely.

Lauren: And I think part of it is also that you're the expert in this, too. So with regard to things like the CPET and these insurance companies trying to deny these claims and the truth of the matter, you're already prepared with ammunition to tell them why they're wrong. Which is probably very handy to have all of that ready to go, really.

Andrew: Oh, it is. It's a lot of fun, too, to have all that evidence ready to go.

Lauren: To give them a nice good slap in the face! (laughs)

Andrew:  Oh, yes, it can be fun. Some of these insurance companies, when they take on a personality, there’s one or two that have taken on a really evil personality and that we really, really like beating up on. It is what it is. I am lucky enough to love what I do and to love the people I do it for. So if an insurance company wants to make me feel like the super good guy for doing it, fine, by all means, let them go ahead and do it.

Lauren: Now, you mentioned you're in a good position because you're a lawyer and you have access to health care and stuff … for people who are coming to you and might be trying to take on their insurance companies because they're not making an income, how do you make your services affordable for them? Is it something where you would take a cut of the winnings from a case like this? Or is it pro bono work? How does that work with you guys? And how do you help your clients fund their legal fees?

Andrew: We are a contingency firm. So for most of our cases, we'll take a percentage of benefits we recover for you — once we recover them. And only if we recover them. A lot of lawyers who are contingency lawyers do that.

Lauren: Very kind, considering.

Andrew: Well, the end result is, if we win, we get more than how much we would have charged if we had just done it on an hourly basis. That's why a lawyer has an upside for doing a contingency. But it's also great for a client who has no money in their pocket.

And also, we'll advance the cost for all the testing that needs to get done.

Lauren: Oh, wow, that's fantastic.

Andrew: Yeah. Not all firms will do that. It's something we do. I can't speak for anyone else. But from our perspective, that's one of the biggest hurdles for people, not only getting access to the legal representation they need … because even if they find a lawyer on contingency, the lawyer says, “Well, you're still going to have to pay for this out of pocket.” Well, that's not an option, especially if you need $5000 to $10,000 of testing, which sometimes you do. You can stop people short right then and there. So we definitely don't want that. And from our perspective, if we're taking the case, and we're taking a percentage, to some degree it’s our obligation, too. If we think it’s our job to win, we’re going to put our money where our mouth is to get you the evidence you need. So that's one way we do it; it's a contingency.

Admittedly, for some people, they are in a better position if they pay someone hourly than a contingency. Because someone might have a really specific legal issue that all they need is a letter from a lawyer pointing out a few cases. 3000 bucks and they'll probably get fixed … pay $3,000 and be done with it, that's a lot better than paying 20% of your benefit for the next three years. So it's not always ideal to do it contingency.

But that's one way someone without anything in their pocket can get access to lawyers like us.

Our clientele is all across the range, as far as income levels. One of the few upsides with ERISA, and this kind of combines with what we do with some other clients, is that the attorneys’ fees statutes are really good. So, if there's a case that's $20,000 in dispute total … it’s this person's everything, they need this $20,000. We can't usually take a contingency case for $20,000; it’s just not financially feasible. But what we can do is litigate it, not charge the client anything as long as they agree to let us pursue whatever fees we want from the other side. And we can often end up getting paid from the other side. And nothing out of the individual's pocket. That is a more unique situation where the case is really strong, it’s a certain set of insurance companies who we know will play ball, and the money at stake has to be at a much lower range, where it makes sense. So that's another way that we really like to help people out — who, even if they could hire a contingency firm, the benefits and dispute are probably too small to take it on on that basis.

Lauren: It's wonderful, though, because I think there are a lot of people out there listening who might not even know that they have access to legal counsel. Because they might think that they can't afford an hourly rate for a lawyer. But actually, it’s worth contacting … particularly contingency lawyers, it sounds like … because you may actually have ways to get your case heard. And to get some help beyond what seems obvious. We all think of lawyer, and we think, oh, boy, I'm about to shell out thousands and thousands of dollars. But it might not be as clear cut as that, and there might be ways to actually make it work where, as you're saying, the insurance company is actually paying the attorneys’ fees because of these particular statutes in place.

Andrew: Right, exactly. It can end up working that way. I can't tell you how many times someone has called me, we've talked for an hour, and then said, “Okay, how much do I owe you?” You don't owe me anything. This is part of the free consultation that we give in assessing a case, and most contingency lawyers will do that. They'll give a free consultation. So it is almost always worth a phone call to an ERISA lawyer who offers free consultations in your state. Because you never know what kind of info they can give you that can help. I know that there's plenty of times where I've given really easy pieces of info that someone who's never filed for disability wouldn’t know — that can can make a huge difference in the ease of the next couple of weeks, or couple of months of their life. So yeah, there's a lot out there that can be helpful.

Lauren: It offers a lot of hope to people listening. We’ve covered so much today. I wanted to know if there was anything else you wanted to add, before I get onto my Top Three lists. Because I like to end with a little list. But anything else you'd like to add for the listeners out there? It sounds like, if you have questions, call a lawyer and find out — because you might have more options than you think. Right?

Andrew: Yes, absolutely. If you do end up dealing with an ERISA case or a disability case specifically, make sure you find someone who handles disability lawsuits.

You don't want the local general practice attorney handling these things. You want someone with experience in that particular area.

There's a lot of us out there, but you want someone who’s actually tried these cases in front of the local judges, the judges in your federal district, and won. So they know what they're doing.

Lauren: Okay, so let's do this Top Three list, Andrew. What would your top three tips be for someone who thinks or … either they've been diagnosed, or suspect they may be diagnosed soon, with some kind of invisible illness, be it ME/CFS or anything else that you're litigating … and might need to either apply for disability insurance coverage or take advantage of their employer’s disability insurance. What tips would you give to these people? Aside from giving a lawyer a call and finding out what you can get done, what tips would you give them in terms of entering this world of endless litigation and worry and concern? What do you say for these people to offer them hope?

Andrew: Some practical tips I can provide. The first thing you want to do is make sure you have a copy of your policy, or your plan document as it's called sometimes through your employer.

If you don't have it, just ask your employer for a copy in writing; if your employer is not a church or government organization, they are required to give it to you within 30 days of the receipt of the written request. So that's where everybody should start; before you file a claim, read it and read it carefully. Because each policy is different. Pay special attention to the exclusions and limitations sections. This is where disability policies will vary. And this is where all different kinds of people can get into all different kinds of trouble, depending on what their issues are. But most of these policies will have mental health limitations, where they only pay for two years if your condition is based on a mental health issue. Insurance companies love using that as a blanket limitation. If there’s so much evidence that they can't say that you’re not disabled, but if there's a question about what's causing it, they'll just shove it into this mental health limitation corner.

Lauren: Which is so subjective, isn't it. That's really tough.

Andrew: Oh, yeah. It is really subjective, but the way that insurance companies try and shoehorn these things, they usually don't do a great job of it. If your own doctors are supportive and in line … “Yeah, this is a physical issue” … which they usually are … it is not usually very easy for them to justify the mental health limitation.

It gets hard when someone goes off for mental health reasons, and then develops physical issues. That becomes the harder case to prove.

Get a copy of your policy and pay close attention to it. Before you give the insurance company the names of the doctors you are going to rely upon, get the medical records yourself. Before the insurance company even knows the names, because they will go get the records themselves. 99% of the time it’s no problem at all and the records look exactly how you expect them to look, maybe a little scarce about some details. But if there is a problem with the records — where either there's a bunch of information missing … you had a 45-minute conversation with your doctor about how much pain you're in and there's nothing in there about that … or, which occasionally happens unfortunately, fortunately less so now than three or four years ago, in the records could be: “Patient complains of symptom list here; strong possibility it is psychosomatic.” Where your doctor, all along, who you think is your ally and supporting you, actually indicates in the notes that this could be all in your head. Now interestingly, what I've heard from doctors sometimes is they only say that to protect themselves.

Lauren: Yeah, because they don't want malpractice suits.

Andrew: I didn't really understand the thought process, but I think when doctors start thinking about legal stuff their heads start to spin a little bit — just like when I start thinking about too much medical stuff, my head starts to spin.

Lauren: It's all psychosomatic, isn't it!

Andrew: Yeah! So, go get the medical records yourself.

Lauren: And it sounds like also, possibly, have a conversation with your doctor. If there's something in there that may potentially be misleading.

Andrew: Right. If there's something that you are concerned about, you definitely want to discuss it with your doctor. Not in writing.

You want to discuss it with your doctor over the phone or in person, because you never know when a doctor will take an email and put it in your medical records.

If you have an email saying, “I don't think this is accurate, I want you to change this.” And the doctor emails the response, “No, it's accurate. I meant what I said." You've got some trouble.

Lauren: Go see your doctor, and talk to them about it in person.

Andrew: Exactly. Make sure you get the records. Make sure you read your policy. If your claim is denied, you have a right to your claim file. So ask for that in writing; just ask: “I would like a copy of my claim file,” and send it off in a trackable form. That is one of the perks of ERISA, that they give you access to all the documents that you can need, that they relied on. It can be really helpful if we need to assess the case, if we're going to look at it. Assume you will be social media surveilled. If you have a social media presence and you file a disability claim, they will see it, all of it. If you have a private account that you believe is private, assume it's not all that private. I have not figured out whether I can genuinely say I believe that they're hacking or committing any crimes. But there are way too many scenarios where an insurance company lawyer, during the case, presents me with info and the client turns to me and says, “There's no way they could have that; it was on my private account. Here's the context, by the way, but this was private.” The first couple of times I heard that, I kind of rolled my eyes. After the 10th, 11th, 12th … I'm concerned. So be really careful with what you post online and just assume that they're going to look at it.

Lauren: And if they see you having fun, they're going to try to deny you.

Andrew: Yeah, unfortunately they are.

Lauren: They don't understand that some days are good and some days are bad. They just need to see that every day is bad, unfortunately.

Andrew: Right.

And that's another thing to mention, it's a great point … if you're just talking to insurance companies, make sure you point out your good days and bad days.

Some people I've talked to, they say, “Well, I don’t want to tell them that I have good days and bad days. I don't seem that disabled.” Well, you know what? It's not all that true, because I think everyone understands now that if someone has this kind of illness, the whole point is that there's good days and bad days.

Lauren: Do you think insurance companies understand that now?

Andrew: Well, they're starting to. I think they're more suspicious of someone just permanently laid up in bed with no explanation for it. I think the nature of ME/CFS and these conditions is that some days these people have energy, and some days people just don't. And so people often think, well, I can't tell them that. Well, I certainly would tell them that, because if they catch you taking your dog on a walk for 15 minutes after you've told them that you never were able to leave the house, your entire case is torpedoed. Because once they can attack your credibility, they can put together a narrative that can convince a judge that you're just making all this up, you're lying to your doctors, you're lying to your friends. As soon as they have that hook, your case becomes exponentially weaker. On the flip side, if you are able to protect your credibility, say, if they ask, “Yeah, last Wednesday, I had a great day. I drove and got some groceries for half-an-hour and the next four days, I was laid up in bed, but I had a good day last Wednesday.” They surveil you, and lo and behold … they see you grocery shopping on Wednesday. If you hadn't told them the truth, they get this and they use it against you. Because you told them the truth, they have now have surveillance confirming that you're honest.

Lauren: Well, and I've heard stories even of people being photographed. I mean, these insurance companies hire private investigators, and they have photographed people. I’m trying to remember what it was … something in the last few months, where there was some controversy about people being photographed within their homes … because of private property and their private space … but they were being photographed in their homes walking around and maybe doing an exercise video or something, and the insurance company was photographing them through their windows, and got in trouble for doing that. But in these cases, you can truly be followed by PIs and various companies that have been contracted by the insurance company. But before anyone does any of this, talk to a lawyer, right?

Andrew: Definitely. Don’t panic too much early on. I'm obviously giving you ‘the sky is falling’ version. It's not super helpful to tell you about all the things that could go right!

Sometimes it does go right; you just file your claim and you're paid with no hassle. It happens.

Lauren: Well, in your case it seems to go right!

Andrew: Somewhat, yeah. So yeah, you can assume that there’s 100% chance they're going to see your social media. And I'd say … I don't know … a third of people are surveilled physically. But it probably means a smaller percentage of the population as a whole are surveilled. Because I don't get calls from people who are paid without hassle. So I'm sure those people weren't surveilled. Physical surveillance is not necessarily as prevalent as it was — I think because they have social media, and that's so effective at accomplishing their goals. And I think there’s a lot more ability to explain these things than there used to be. But, yeah, expect the surveillance.

Lauren: Well, Andrew, where can our guests find you if they want to give Kantor & Kantor a call and speak to you or any of your associates at the firm?

Andrew: You can check out the website. KantorLaw.net has not only info and how to contact us, but a lot of resources about filing a claim and filing an appeal and lots of things of that nature. The main line is on there; you're welcome to call and ask for me or just to ask to speak to someone at intake about your issues. You can also feel free to email me directly. If you have a case-specific question, I’m happy to answer it. If it requires more than just a quick answer, I'll certainly provide if I can. My email address is AKantor@KantorLaw.net. Really, I'm always happy to answer questions; please don't hesitate to reach out if you have one.

Lauren: Well, how generous of you to offer everyone your email address. That's really fantastic. Andrew, thank you so much for being on the show today. It's been really valuable having this conversation with you, and I hope that the people out there listening have gotten a lot out of this. Because I certainly have. There's so many things I've learned today!

Andrew: Great! Well, it was really a pleasure to be here. I'm really glad you asked me to come here and speak, and hope I get to chat with you again soon.

Lauren: Absolutely.

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