Many have asked about disability and what to do if you are denied due to your chronic illness. We have Andrew Kantor from Kantor & Kantor on this episode to explain the process and some do’s and don’ts

Lupe & Brian: [00:00:00] Welcome to another episode of Sjogren’s Strong.

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Clarification – you might get less than 180 days in some circumstances. (if you filed before 2002 and were denied after 2020…very rare). Kantor & Kantor

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[00:00:03][00:00:03] This is Brian. [00:00:04][00:00:04] And this is Lupe. [00:00:04][00:00:04] And this is your weekly, damn it. And this is your bio monthly podcast discussing how to live an active and healthy lifestyle despite a diagnosis of Sjogren’s. What you got? [00:00:17][00:00:17] Seriously?[00:00:19][00:00:19] Not a lot of updates since last week, but we have a special guest in studio today and we want to introduce, Andrew Canter. And Andrew works for Kantar and Kantor, and they focus, primarily, on helping individuals obtain wrongfully denied disability and life insurance benefits, in both the ERISA and I got it right. And Non-ERISA, which is bad faith policies. [00:00:47] Since beginning his career at Kantar and Kantar, Andrew has helped hundreds of clients secure wrongfully denied disability benefits. He also serves on the board of the Elder Law and Disability Rights Center. In addition, his efforts have been recognized by Super Lawyer, we’ve got to ask about that, being named at 2019 Rising Star in Southern California. Andrew, welcome to Sjogren Strong. [00:01:11][00:01:11] Thank you very much. I’m very excited to be here. [00:01:13][00:01:13] Welcome, welcome. [00:01:14][00:01:14] We’re excited to learn more because we actually had an attorney, she was an attorney, Teresa, on the show, talking about workplace accommodations and she was from the HR perspective. So obviously that goes south, and we need to bring in the big guns like you. [00:01:30][00:01:30] Well, ideally, you don’t have to bring in the big guns, like me, until things go wrong a few steps down the road. But you bring me in when, I’m the flip side of the coin, to the lawyer you dealt with last time. When, you go to your employer and you need accommodations. And what you’re saying is, I can keep doing this job, if you just help me. [00:01:48] When you file for disability, you’re saying the opposite. You’re saying no matter how many accommodations or what you could do for me, employer. There’s nothing I can do at this point to work in this occupation. So, a lot of people say, they come to me and ask about filing a disability claim and filing a wrongful termination claim against their employer. [00:02:05] And I try and explain very often they’re they don’t line up, at least if, you’re alleging disability discrimination. So, basically, if you have disability insurance, either through your employer or through a private broker, and you find yourself unable to, as most policies define it, unable to perform the material duties of your own occupation, the policy will pay you benefits. [00:02:28]Now there’s about seven words in that small definition, which will probably require a little bit of explanation, but the gist of it is that you can’t do your job, you’ll get paid, usually 60 to 67% of your salary, until you’re ready to return to work. Now, there’s a lot of complications to them. There’s a lot of things that are, not quite so easy as I make it sound. [00:02:48] But the gist of it is that when you feel, when you and your doctors feel like you’re not able to continue working, you file a disability claim. I like to think that a lot of people’s claims are paid without ever having to consult someone like me. I like to tell people, you know, people don’t call me up saying, my insurance company paid my claim within two weeks. We need to find, figure out a way to, to Sue them. [00:03:06] You know, I only get calls from the people who really need help. And so, while I’m sure a lot of claims go off without a hitch a, lot of claims, they have some problems. And so. I think the first thing you really talk about, if you have Sjogren’s or any other issue and you’re considering potentially one day filing for disability, the first thing you want to know is whether you have enough disability insurance. [00:03:27] A lot of employers will offer it. You want to first make sure that they offer enough to actually cover your salary. I had someone who made, I think 300 grand come to me and say, Oh, I need to file for disability. I need some help. And I said, please tell me you have something besides this policy, which gives you a maximum of $2,000 per month, forever. [00:03:45] And of course he was shocked as, as many people are. The employer provided coverage, as often the cheapest they can find. And so, it won’t, sometimes, does not give you as much as you need. And if you need more, you can go to a private broker and just buy more insurance coverage. Also pay attention to whether your disability benefits are taxable. [00:04:05] And while I can’t technically give tax advice, the IRS has told me that if your premiums are paid by your employer or with pretax dollars, your benefits are not taxable. Or excuse me, your benefits are taxable. If your employer pays or they are paid with pretax dollars, your benefits are taxable. [00:04:24] What that means is you get 60% of your income and then taxes are taken from that 60%. So, you’re really receiving closer to 45% of what you are getting before, and that’s a huge hit for most people. [00:04:34][00:04:34] Yeah, definitely. [00:04:35][00:04:35] Yeah. And so, a lot of people, they pay the premiums themselves, so they get 70% of their income non-taxable, which for some people, especially in places like California, that’s more than you get in your pocket. Had you been just receiving your salary and paying taxes. So those are the two big things most people should look at before they even consider filing a claim, is whether or not you have enough coverage, and whether your benefits are taxable or nontaxable. [00:04:59][00:04:59] Your client base currently has or has had patients with Sjogren’s Syndrome in it? [00:05:06][00:05:06] Oh, yes. A large percentage of my clients have Sjogren’s as a diagnosis. I’d say most of my client, a large portion of my clients who are disabled, who have Sjogren’s also have other disabling conditions. Rheumatoid Arthritis and Fibromyalgia are probably the two that are, that are most common. [00:05:25] But as I’ll kind of elaborate, I think a bit as we talk it, the diagnosis is not the primary concern to the disability insurance companies or to the, to the benefit claim, really. It’s more about what is actually impairing you. And so, there’s really no diagnosis out there that’s enough. You can’t just walk in and say, I have Sjogren’s, I need my benefits. [00:05:46] You can’t walk in and say, I have Parkinson’s, give me my benefits. They will make you show what it is about your condition that is impairing you. But I say Sjogren’s is one of the most common conditions I see. That, and Fibromyalgia are probably the two non-mechanical, you know, like back issues or things like that. Non-mechanical issues that I see amongst my clients. [00:06:05] And you know, Fibromyalgia, especially is something that a lot of courts are just recently starting to take seriously. I mean, there are cases out there from, you know, 2010 which say, just so it’s clear, insurance company, Fibromyalgia is not a made-up disease. [00:06:21] It’s real. It has proof. It exists. And you keep, you had assigned this case to a doctor who’s on record saying nobody with Fibromyalgia can be disabled. [00:06:31] You can’t use doctors like that. You just, you can’t do that under your, you know, under your duties under the law. So yes, very common to see individuals with Sjogren’s in my practice, but not only Sjogren’s. [00:06:42][00:06:42] If a case goes to court, are you sitting in front of a jury? Is it just a judge? [00:06:48][00:06:48] So, it depends. So, the biggest factor is how your case will proceed is whether or not it’s governed by state law or federal law. The federal law is called ERISA, which you beautifully pronounced earlier in the intro [00:07:00] Employee retirement income security act of 1974, it was originally designed to prevent. Pension managers from self-dealing and basically, you know, screwing pensioners out of their pensions, to their own benefit. A few really weird Supreme Court cases, later, it expanded to covering every employee benefit. A non-government or nonreligious employer offers. [00:07:26] So if you work for a private company and you get your disability benefits from them, you can be almost guaranteed that it is governed by a federal law called ERISA, rather than your state’s bad faith insurance law. This is not a good thing for you. If you recovered by ERISA, and most people are, eh, the main reason this is not a good thing for you is because ERISA prevents you from recovering state law remedies against the insurance company. [00:07:55] In other words, in California, for example, if you buy a policy from a broker, let’s say it’s a $10,000 policy and they deny the policy, very wrongfully. It’s crystal clear that they were really unreasonable, and you can prove it in the claim notes, and you can also prove that it caused you immense emotional harm and you lost your house as a result. [00:08:15] In California, you can sue and you get that $10,000, you can get emotional distress damages, you can get damages for losing your house, and you can ask a jury for punitive damages to punish the insurance company so they won’t do this again. If your claim is governed by an ERISA, you can get that $10,000 and if you’re lucky, you can get some attorney’s fees. And if there’s a really egregious situation where they’re still doing something bad to you, you can potentially get a judge to tell them to stop. And that’s it. [00:08:44][00:08:44] Wow. [00:08:45][00:08:45] And that can be the difference. You know, there are cases where people have recovered $5 million on a hundred thousand dollar claim because of all these damages. [00:08:54] And I promise you there are ERISA cases out there, significantly, worse than the worst bad faith cases you’ve seen. And these people, they’re only entitled to their benefits. And the theory behind this was that, okay, we keep the cost down for these insurance companies and these employers, so they’re offer more benefits to people and it’s cheaper and yay, you know, yay, corporate capitalism so we can keep the companies happy and keep the people happy. [00:09:15] Well, it turns out that if they buy the cheapest product, which is pretty much illusory for a lot of people, it doesn’t matter, if it’s cheap because people don’t have a benefit that they think they have. So, if your claim is governed by an ERISA as 95% are, you don’t even get the benefit of a jury. [00:09:32] You don’t get the benefit of testifying. It’s a trial in front of a judge and the only thing reviewed is the paper record, which is the evidence that was already submitted before you actually have to file suit. And a lot of people don’t realize this. They handle their appeal without a lawyer, not understanding how serious the appeal is, because the insurance company sent the thing saying, hey, just fill out this form. [00:09:56] Check these two boxes, and we’ll initiate your appeal for you. And they do. And that’s all you get in. And then the doors, the window is closed on the evidence and there’s, you know, far less we can do than if we had just sent you to some testing that we knew would really help your case. And so, and there’s nothing to get around that. [00:10:12] You can’t tell a judge; this poor person didn’t know the rules. Can’t we just get some more evidence in. Nope. Just doesn’t work that way. so, the deck is stacked against most people in these disability claims immensely. Which is another reason, even if you have coverage through your employer, I strongly recommend looking for individual coverage through a broker, which is governed by state law, because it’s a lot better protection than your employer coverages. [00:10:35][00:10:35] So, in order to file a claim, I didn’t know it was your employer who paid? [00:10:43][00:10:43] So to get the benefits in the first place, premiums have to be paid and you get it through your employer, either your employer can pay the premiums for you, as like an employee benefit, or you can pay them out of your own paycheck. And you have the coverage. either way, that just dictates the taxability of the benefits and whether you have to pay taxes on it, which can make a huge difference. But yeah, and a lot of employers offer disability coverage as an employee benefit. And so, the thing to pay attention to as far as premiums is who’s paying the premiums. [00:11:12] So you know whether you have to pay taxes, if you eventually filed a claim. The employer does have to pay anything to file the claim or anything like that. And you don’t have to pay anything to file a claim. It’s just more about how the benefits are taxed. [00:11:23][00:11:23] Ok. [00:11:24][00:11:24] If somebody is at the point to where they feel they need to go out on disability, I’m assuming that that conversation is initiated with a doctor. [00:11:36] And the doctor’s going to document something? Or walk us through that process. [00:11:41][00:11:41] Yeah. So, well, I’ll talk about, a perfect world if I happen to be involved the whole step of the way, because I mean, that doesn’t usually happen this perfectly, but in a perfect world, you’re, you’re someone who, you’ve had this condition for a long time. [00:11:53] And of course we’re assuming this is someone with Sjogren’s, not, you know, a car accident or something like that. Cause the timeline would be different. But you have the disease for a while, you have issues for a while, and you continue working and you discuss your issues with your doctor and there will be medical records which reflect that discussion. [00:12:08] Now, before I move on, the first thing you want to do is get your medical records, before you file the claim. And ideally, before you even talk to your doctor about disability, because it can often, it often shines a lot of light and it relieves a lot of stress, for some people, knowing what their doctor is actually thinking or knowing what they’ve already documented. [00:12:28] On the flip side, it can be really jarring to know that your doctor does not necessarily think your complaints are all that legitimate or they think that, there’s other explanations for your illnesses, like psychosomatic things, things that can be, if an insurance company finds the not going to be really shocking. [00:12:43] And now, you can’t always do something about it necessarily, but it can help guide you as far as what your next step needs to be. So, you should get your own medical records. Ideally, once you’re ready to go out, there’s probably has been a discussion, with you and your doctor before, you know, either your doctor saying, I really think you should slow down. And you saying no. [00:13:02] Or you are mentioning that you may want to stop working and your doctor saying, okay, well let’s, let’s try this. And then see, you know, there’s usually some kind of narrative behind it. And building on that you, you tell your doctor that, you know, it’s time. You just don’t think you can do it anymore. [00:13:15] I find that 95% of the time, the doctors are usually saying, finally, it’s about time. I’ve been begging you to do this. And they’re supportive. You know, doctors are generally wonderful. They’re out there trying to, trying to heal people, and I find that to the extent that insurance gets in the way and frustrates people or frustrates people with the administrative system, it’s just the system. [00:13:34] The doctors, themselves, are really, really usually, willing to help people. If you’ve gotten to that point in your relationship or even working with them for a long time, so you have that discussion. A lot of doctors are unfamiliar with the disability process. It is shocking to me how little some doctors know, so be ready to educate them. [00:13:54] Primarily the difference between., Social security and state disability and your private disability, most people who are on private disability eventually have to file for social security and the standards are different. You know, a doctor who loses use of his left hand, a surgeon, he uses low use of his left hand. Can’t be a surgeon that is a slam dunk, own occupation, disability claim. [00:14:20] That same surgeon could certainly answer medical questions over the phone or do some other kind of work. For private disability that gets your claim paid because the question is, can you do your own job. For social security, the question is, can you earn $1,200 a month doing anything? The surgeon can definitely still work under those standards. [00:14:38] So, if the doctor doesn’t know and doesn’t understand the difference. They could be either not understanding why you’re filing for disability, Mr. surgeon, who could definitely still do other things and not understand how to support you. But once you have your doctor on board, doctor will fill out a form that you request from your employer and it’s called an attending physician statement, and they’ll document your issues, your limitations and restrictions. [00:15:00] For people with autoimmune issues, it can get tricky because the forms are not designed to actually encapsulate your problems. The forms are designed to look like they’ll encapsulate your problems, in that, the forms are designed for people who have very, you know, have a warehouse job and they need to lift 150 pounds. And they can only lift 75 so it’s very clear that they cannot lift over a certain amount. It doesn’t do a good job of capturing fatigue. Capturing cognitive issues, capturing pain that doesn’t directly lead to, you know, an inability to lift things. [00:15:32] So, well, the forms are there, you have to make sure your doctor fills them out properly, and you also have to help your doctor, if you need to, to kind of, have your doctor fill out more . And say, okay, well this form doesn’t ask me about my fatigue and my cognitive issues, I can get my doctor actually explain that. [00:15:49] So there’s a lot of nuances with the forms, but basically you get your doctor on board, they fill out the forms, you fill out a similar form. You check them and make sure they line up with each other, then you submit the claim. [00:15:59] And that’s pretty much, you know, I made it sound kind of complicated, but a lot of the time it really is, hey doctor, it’s time to fill this out. [00:16:05] Doctor fills it out perfectly. You fill out your forms and then the claims underway, so that it can be as simple as that. [00:16:11] And that claim is filed with the insurance company, upfront? [00:16:16] Yes. So, I mean, I’m kind of getting technical, but for most of the time insurance company, employer, will pay insurance companies for an insurance policy. [00:16:24] And then yes, you do everything through the insurer. Sometimes big companies like AT&T will self-fund their own insurance policies where it’s not really insurance. [00:16:33][00:16:33] Right? [00:16:33][00:16:33] And so then you still do it through AT&T or through their administrator. but you do it through either through the insurance company or whoever the company is that your employer has designated the disability administrator. [00:16:43][00:16:43] Claims are filed. And I guess when, and if they are denied an appeals process starts, is that when they should reach out to you or a firm like yours? [00:16:54][00:16:54] So. Usually, you’re able to kind of get a sense that something’s going wrong with, for then. So, once you file your claim, you can be almost assured that they will reach out to your doctors. [00:17:06] Whether or not it’s to verify the forms or to have a peer to peer discussion where one of their doctors talks to yours. But the next step is to talk to your doctor, is, for them to talk to your doctor. [00:17:17] If your doctor is good and in the loop and has an open line of communication, as soon as they get a call or a letter saying, Hey, we actually don’t think your patient can work, please explain why you think they can. [00:17:28] They should let you know. And at that point, even before the appeal has been denied, we can kind of either get involved fully or help kind of guide you to help you get what you need to get at that stage. [00:17:39] But usually we still at the appeal stage, we have plenty of time to help. And if anything’s gone wrong previously, we can step in and fix it. And the appeal is a great time to get to us. But you also, you know, there should be signs before then that something might be going wrong and you can contact us before that. [00:17:54][00:17:54] And is there a clock on the appeals process. [00:17:56] Yeah. So, when you get a denial letter, if it’s an ERISA claim, it’ll say you have 180 days from the date of the denial to file an appeal.[00:18:03][00:18:03] They usually will give you extensions and there’s a lot of other, you know, intricacies about the rules, but do not miss that deadline. It is an unfairly harsh deadline, where if they decide not to review the appeal cause it’s late, there’s a lot of cases out there which says they don’t have to. [00:18:18] I still do not understand how the law has it turned out to be that way, but it is. Where insurance companies can do something a day late and the judges will say, sorry, it doesn’t matter, it’s not a big deal. Where claimants will do the same exact thing, a day late and their claim will be completely wiped. There’ll be completely forbidden from filing a lawsuit. [00:18:35] Which is another, you know, unfair cork of an ERISA. [00:18:39][00:18:39] If your claim is denied, you can never file again? [00:18:42][00:18:42] If your claim is denied and you appeal, and you’re denied. If you are no longer working with that same employer, you’ve lost coverage because you only maintain your coverage when you’re still working. So, there’s a possibility that if you are denied and you appeal and you’re denied and you’re still with that employer and you go back, you can eventually make another claim in the future. But you can never make a claim for that same amount of time unless you appeal and go through the appeal process and litigate that denial. [00:19:14] But it’s usually not that situation. Usually people are terminated from their employment, so they don’t have coverage. So their only hope is to go back and get the benefits reinstated from the past and bring them up current through the future because it doesn’t matter whether or not you’re disabled today, if you can’t establish that you are entitled to coverage back when you were disabled. [00:19:33][00:19:33] Okay. And if you’re not employed, you can still file? [00:19:37][00:19:37] Yes. So, if you’re not employed, and this happens pretty frequently, people will, what happens is, people will get terminated because of their job performance. You know, they, they fight really hard to, to keep working despite their issues. But they, they’ll give fired because of their job performance. [00:19:52] And that’s often linked to the disability. And they’ll be fired, and they’ll think, oh my God, I can’t believe I didn’t file disability back then. I’m totally out of luck. It’s not true. [00:20:01] You can go and file as of the date you should have filed back then and you say, I was disabled back then, I was so disabled, I was fired for it, I just didn’t realize it. [00:20:11] And you, and we do that all the time, where we can file dating back to the time where you were working and you still entitled to coverage and make the claim of that, as of that date. [00:20:22] But we, you know, can’t make a claim as of two days later, if you’ve already been terminated. Cause if you make the claim on that day, you have no more coverage. [00:20:29] And that’s, that’s a mistake that people have made, I’ve seen people make. Cause they put the date as of the last day, the first day they were off work rather than the last day they did work. Insurance company will deny it based on that grounds. [00:20:41] It’s usually pretty easy to fix once we explained what was actually going on. But you know, they don’t, they are not going to take the time to make sure they’re crossing the T’s and dotting the I’s are going to make you do it, but yeah. In California, you know, in a lot of other states, even if it’s been awhile, I mean, years, sometimes you can still go back and make that claim. [00:20:59] You know, California has a law where they can’t deny you for making a late claim unless they can show the late filing actually impacted or prejudiced, the claim filing. So, you know, people filing six months, a year late, if you have all your medical records, they, they never deny it. [00:21:13] You know, 10 years medical records are missing or, you know, the conditions different, they might deny on that ground. But, don’t worry about filing late, if you think you have a claim, just file it. [00:21:22][00:21:22] Can somebody go back and find medical records, if a practice is no longer in existence? [00:21:30][00:21:30] That’s a great question. So, I have not been able to do that. What I have, I’ve been lucky enough in that situation that I was already representing the person when the practices have gone under. And so, you make sure you keep your own records. [00:21:45] In California, medical offices are supposed to notify patients if they still are holding records for them and they intend to close down or dispose of the records. I don’t know if there’s any actual penalty for not doing that, and I don’t, I don’t know how often they do it. [00:22:01] It’s tough, if the records are gone and the person didn’t individually back their records up, that’s pretty much the only way an insurance company gets away with denying a lay claim. If it’s the records are gone, if you can’t produce them, they’re gone. And thankfully, I don’t think there’ll be a problem in 10 years down the road. [00:22:19] You know, everything will be backed up in the cloud, eh, but no, there’s, there’s tons of people who just have had their claims, you know, there’s nothing that can be done. If the three doctors you were seeing in 1998 no longer exist and you don’t have the records, unfortunately not. But I mean, it’s a rare situation. [00:22:35] There’s other ways you could potentially prove disability during a certain period of time or records are missing now. It’s not something I’d want to rely upon, but you know, things happen where people can’t go to their doctors because of insurance or physically they just miss three appointments in a row because they can’t get out of bed. [00:22:51] And, holy crap, I just, I had missed three appointments in her writing and realize, so there’s other ways we can try and kind of paint that picture, if there’s a downtime in the records but it’s not ideal. You want to make sure you have medical records, even if they’re not good. [00:23:02][00:23:02] What are the medical records need to say besides your diagnosis? [00:23:07][00:23:07] Well, that is the million-dollar question. Again, in a perfect world, they will first document all of your subjective complaints. They will document what you said at that appointment, summarize what you’ve said, you know, up through today, pretty much, and why you’re back today. What the primary goals are of your treatment. [00:23:25] It will, in detail, document physical examination. For someone with fibromyalgia, that means a trigger point test, every single exam. It means observations of range of motion, pain on exam, any skin discolorations, any observations of cognitive impairment, subjective and objective observations of fatigue, as much detail of what is actually being seen by the doctor as is, possible. [00:23:53] Unfortunately, that is not the goal of the doctor, when he’s actually creating a medical record. And this is one of the main arguments I made in a case recently that, you know, insurance companies are fully aware that a medical record is created for treatment, to document past treatment, to document important current problems, and to address issues going forward. [00:24:16] They are not designed to document disability. And of course, insurance companies know this because they also ask for attending physician statements, from your doctor. They ask her personal interviews from you. They ask you to answer questions, they observe you on video. I mean, there’s just tons of things that they know they can also use, to try and make the determination. [00:24:34] So, very often medical records are just, they’re not perfect and they’re missing things. And then you have to put the work in, in regard to doctor’s letters or personal statements or other testing or evidence that can show, what the medical records don’t. [00:24:50] And I’d say that’s probably one of my most common problems, is people coming to me saying, I’m looking at my medical records for the first time and my head’s going to explode because nothing is in here. [00:25:01] You know, what often happens, you know, there’s, there’ll be the constitution of symptoms and they’ll just check the box every time. So, let’s say, physical pain, your range of motion on exam, none decreased. Where it’s like, that’s the whole point of the exam and these critical errors, you know, they can certainly give an insurance company enough to hook onto. [00:25:18] And that’s why I gave the advice earlier about, getting your medical records and having them. Because doctors will change the records, if they are missing critical information or they have inaccurate information, as well. HIPAA actually gives you the rights to clarify your medical records if they are inaccurate. [00:25:36] Not that they’re missing information, but if there’s actual inaccuracies in there. So, it’s important, you can ask your doctor to do that, if you can identify things that are really important. [00:25:44] You know, I had an issue not too long ago, where a doctor noted down that, someone, that a client drove from Los Angeles to Texas, and he claims he can’t sit for more than 10 minutes. So, we were really concerned. Turns out, yeah, his wife drove from Arizona to Texas in the RV. And he slept in the back the whole time. That’s not what the record said. So, things like that, you know, he obviously, we caught them before we, we caught it beforehand and had them correct it and it was no problem. [00:26:10] But things like that can be, it can be a real problem. So, I think, my answer to your question is, it’s going to be impossible to make sure your medical records have everything that they need to have. It’s more about making sure you know what is in them and that you correct the big inaccuracies. And that your doctor’s willing to kind of go to bat for you and explain the holes in the records. Cause there will be some, because the records are not designed to capture disability, that’s what the forms are for. [00:26:37] But the things I do tell people is, make sure you’re telling your doctor these things tough. I think a lot of times people are just superheroes. [00:26:46][00:26:46] Yeah. [00:26:46][00:26:46] You know? Yeah. I don’t want to, again, tell my doctor that I’m having the same side effects. [00:26:51] I don’t want to, again, tell the doctor that I’m still experiencing this same pain. Well, you know, that’s something you need to be doing, because that is used against you. And you know, well you haven’t complained about the medical side effects for three years, they must be gone. [00:27:04] It’s like, no, I stopped complaining about them, the doctor couldn’t do anything. We accepted this as a thing, so why am I going to go in there and tell her the same thing every appointment? [00:27:12][00:27:12] Right. [00:27:12][00:27:12] So, things like that come up a lot and you know, it all comes back to making sure you have an open line of communication with your doctor and that they’re on board. And that they’re willing to work with you on these things, if they don’t end up as you want them to. [00:27:24][00:27:24] Tell them everything, even if they can’t fix it. [00:27:27][00:27:27] It helps. It really does help. [00:27:30][00:27:30] Step one, if you feel you need to start talking about disability, get your medical records from your doctor, have the conversation with your doctor. If he’s obviously in agreement, you move forward and when and if they’re denied, is when they should be talking to somebody like you. [00:27:50][00:27:50] Yeah. Or if you get a sign that you might be denied. You know, there’s a lot you can do before then. You know, if you get a peer, if your doctor gets a peer of your report or anything that indicates that you might, you know, get denied. [00:28:01] Or if they send you surveillance video and say, Hey, we saw you doing certain things. Can you comment? [00:28:06] There will be times where you, you know, you’ll see something going on and it’s worth contacting us. You know, you’re welcome to most firms like us, you know, I know we certainly aren’t, you know, we’re more than willing to give answers to easy questions, before a denial to make sure that you, you’re equipped to going forward, at least with the basics. [00:28:24] It’s never too early to reach out to ask questions. You know, we don’t turn people away if they’re asking basic questions, because you never know when that’s going to be an important one. But I think the big takeaway is do not do the appeal on your own. [00:28:37] If you have an ERISA case, do not do the appeal without at least consulting with an attorney. Because not knowing what you’re handling, as far as the appeal goes, can be devastating. [00:28:48]And you know, along those lines, no matter what you do, if your claim is denied and you have an ERISA case, request the copy of the claim file, it’s one of the few perks of ERISA. You’re able to request a copy and they have to give it to you within 30 days, and it contains everything. [00:29:01] It’s supposed to contain every document generated, relied upon, reviewed, anything they smelled in the air. It should all be in there and includes their internal claim notes, all the medical reviews and the vocational reviews, that they’ve done in the course of your claim. So even if you don’t hire a lawyer, it is extremely important to have access to these documents because as most people will see, when they’re denied, the denial letter will be a pretty egregious cherry-picking of reality. [00:29:30] You know, they’ll highlight a few really bad facts and make them seem a lot worse than they are. They’ll omit pages of supportive data and they’ll jump to a conclusion, which makes very little sense. And very often they’ve often hidden the worst information for them in the file. [00:29:46] You know, I’ve seen them cut out and basically quote 90% of the, report, and then the last report is yes, but despite all this, the person can’t work, and they forgot to quote that part. [00:29:54] So you really want to see what’s actually in the file and know what they’re relying upon. You know, a lot of times they don’t review all the records, or, I mean, in a really egregious situations, they review the wrong person’s records. [00:30:07] I don’t know how family friendly of a podcast this is but we have a pretty famous case in our office where the IME, the Independent Medical Examiner reported that the, the patient’s testicles were firm, and had no obvious lumps. [00:30:18] The woman was surprised to know that her testicles had no lumps in them. But that was, yeah, it was one of those, okay. that’s really how these things are. So, she wouldn’t have known that had we not gotten the report and seen like, and we put two and two together. He never even examines, I mean, it wasn’t even reported the same examination. [00:30:36]And you know, another thing before, when you were talking about the steps about filing a claim, one option, if we’re in a perfect world, is I tell a lot of people to request accommodations, before you go out and disability. The narrative, it just looks a lot more sensical, especially if you’ve worked for a long time. You worked for a long time, you know, you’re a stud in your career, and then all of a sudden, you’re just gone. [00:31:00] It raises more questions for an insurance company that wants to find questions to ask. You know, if you’ve worked really hard and then the medical records show a decline, then you say to your employer, Hey, I won’t really want to keep working, but these are some really reasonable accommodations I need. [00:31:14] Or really unreasonable. If you really do need unreasonable accommodations, you want to give your employer the chance to say no. You want to give them a chance to say, we’ve analyzed this, we love you, we can’t do it. Because you want to be able to turn to your insurance company and say, I tried and they said, no. [00:31:31] One quirk that that these insurance companies try to focus on is that, technically these policies do not pay you, if you can’t do your job, for your employer. They pay you if you can’t do your job for the average employer, in the economy. And so technically, you know, you could not work for one job because the boss is awful. [00:31:51] But you could still not be disabled because you could do it anywhere else. but it makes it a lot harder for them to argue that, yeah, you just couldn’t do it at your job. You could do it somewhere else, when you’ve asked that employer and they’ve, in writing told, you no. And in writing has told you that the accommodations don’t work. [00:32:06] So that, that’s, this is also something that’s pretty important to have, and to work through that process, if you have the opportunity to do so. It just, it bolsters the claim a lot, yeah, at that early stage. [00:32:16][00:32:16] If you ask for accommodations and they don’t want to, can they let you go? [00:32:22][00:32:22] Yes. Well, I say that very quickly. So, I feel like one thing people do overestimate, is the job protection they have as a result of disability. [00:32:31] You’re, protected through FMLA, which is the first 12 weeks, and pretty much as soon as you file for short term or long-term disability, they can let you go. Without having to worry about legal, you know, a lawsuit for letting you go too early. [00:32:45] Now it’s a bad look and they probably don’t want to do that, for a lot of other reasons. But there’s no federal or state protection which protects your job position, once you’re filing for disability. So, you know, if they, if you ask for accommodations and they terminate you on the spot, that is probably actionable under the ADA. [00:33:06] I don’t do that law. So, you’d have to talk to someone who handles those cases, but that’s pretty much as fishy as it gets. And if you want to go that route, you can. And you know, then you have another thing to sue for if, if they decided to do that. but usually they’re a lot smarter than that. They don’t just turn it you on the spot. [00:33:21] But it’s, it’s something you have to kind of be realistic about, it’s possible. And it’s also possible if fire you when you file for disability, as well. And they don’t have to keep your claim going. And you know, the really tough part when your disability insurance and your health insurance is through your employer, if you lose your job, you often lose your health insurance coverage. [00:33:41] And, you know, for people who are rely on that coverage to go to the doctors who are supporting the disability claim, it can be devastating. So, you should also make sure if you are terminated, you’re aware of your Cobra rights. When you’re terminated, your employer has to give you a right to convert the Cobra and keep your health insurance. [00:33:57] It is really expensive and for 99% of people, it doesn’t make sense, compared to going on the exchange. Except if you’re about to file for disability and you have doctors in your corner, that you may not be able to keep on other insurance, it might be worth it for you to keep your Cobra for a few months just to at least get the claim off the ground or to investigate, whether this doctor, you can even see this doctor under a state exchange policy. [00:34:22] So there’s going to be a lot of complications as far as the employer goes, which admittedly is why some people are afraid to ask for accommodations. And they just don’t. They would rather just, you know, they know they have enough evidence and they just are going to file and, and just go off. You know, I can’t, criticize anyone one way or the other. It’s their situation. [00:34:39] And, you know, something else that plays in is part time work. A lot of people, a lot of policies will pay you if you have to drop the part time. If you suffer an income loss, usually the 80% or 60%, even if you’re working part time, they’ll pay you. And so, one thing a lot of people do is they go to part time first, see how that goes, and then you transition off to, you know, not working at all. [00:35:03] That’s another way. If you don’t want to ask for accommodations, you could just say, I can’t do. And that works for people with like debilitating fatigue, where there aren’t really any accommodations that can help you not be tired and you just need to have a completely flexible work schedule or not do anything which you’re relied upon in that moment to be sharp. [00:35:22] And that a lot of employers is a, is a no go. So, it’s another thing to think about, and if you are someone who’s been working part time for a lot of years and you haven’t filed a disability, you’re probably already owed disability benefits. And there’s sometimes incentives, which, make it a lot nicer for people working part time because not the full benefit gets reduced. [00:35:40] So you get to kind of get a piece of or get your cake and eat it too. In some ways, even though it’s a horrible analogy, using the situation. but yeah. [00:35:48][00:35:48] Well, as we wind down here, a lot of our listeners aren’t in California, but ERISA, being federal, you’re not bound. You can defend or work on somebody’s behalf outside of California, correct? [00:36:04][00:36:04] Yeah. So, ERISA is federal. And so, the law, the plain text of law applies everywhere. Different circuits, the federal appeals courts across the country have interpreted ERISA, different ways. So, in different places it will translate somewhat differently. And ERISA still enforces state law insurance regulations. [00:36:28] So, in California, for example, there’s a state law regulation that says they have to pay 10% interest. For however many days they are late, for paying a disability claim, that’s still applies, that’s not preempted. So different States have different regulations which still play in. So, for those reasons, we, don’t often take cases out. [00:36:49] We less often take cases outside of California. as far as our bread and butter, like the regular cases we do, but we often take special ones. You know, we, we co-counsel with other firms all the time. And also, there’s enough other fantastic ERISA firms and other places in the country, that we know and trust that we’re happy to work with them. [00:37:06] And you’re in better hands with them, working with us, because they know that the local, you know, the, the, the local layouts. But you know, if you are someone with an issue with your disability insurance, it’s definitely worth looking at an ERISA attorney in your state, as well as looking us up if you want to. [00:37:21] But, and ERISA attorney, in your state, especially one that you can, that has actually tried cases, win or lose. Just make sure you have someone who’s actually tried cases in court. Because that’s the lawyer you want. You want someone who, who the other side knows will actually go and litigate your case. And it’s not just there for a quick settlement. [00:37:37][00:37:37] Definitely. [00:37:38][00:37:38] When you’re looking at your policy, especially for people with Sjogren’s, look at this special limitation section. There’s historically, the only thing that’s been limited, which means they pay less benefits, AKA, only two years of benefits was for mental health issues. So, it used to be that if you had a mental health issue or disabled from it, they’d only pay for two years, max. [00:37:58] A lot of insurers are expanding that now. So, they will also only pay two years, if you are disabled from chronic fatigue syndrome or other related illnesses. Muscular skeletal conditions that aren’t confirmed by an MRI. autoimmune conditions, which aren’t one of the seven things listed. [00:38:18] Sjogren’s not being one of them. Actually, Sjogren’s sometimes is one of them, but it’s really important to look at that limitation section, especially if you are someone who has, you know, has Sjogren’s and you know, you’re probably going to file on that basis. Because you don’t want to get, realizing if you have to file at 50, you only have two years of benefits. [00:38:35] It can be completely devastating. And you know, the chronic fatigue syndrome limitation should not apply to anybody listening here, it does. And they will try to apply it. In California, there’s a lot of good law, which protects people in other parts of the country there is not. [00:38:51] So not only do insurance companies have to meet a lower standard. To win, the regulations themselves aren’t as strong to protect people, and there’s not the same kind of common law. So, I don’t think any insurance company in California, successfully applies that limitation to a Sjogren’s claimant. In other places that are, you know, more conservative judiciary, I would not say the same thing. [00:39:13] So it’s really important to check the limitation section of your policy, as well, as the actual amount of benefits you’d get if they actually paid you. The other thing is that a lot of, along the chronic fatigue thing, a lot of individuals who have Sjogren’s and related conditions are disabled from fatigue. [00:39:29] A lot of them are disabled from cognitive impairment, as well. Cognitive impairment is best measured by a neuropsychological evaluation. If you have cognitive impairment and the insurance company doesn’t believe you, that’s pretty much the only way to convince them of that. It’s expensive and if you have someone you don’t trust, it can potentially backfire, but a good one is pretty much the only way to prove you have cognitive impairment. [00:39:53] If you’re at that stage, I strongly recommend talking to an attorney before you go forward. The other thing I want to mention is that there is a new test, relatively new over the past few years called a two-day cardiopulmonary exercise test. There are two institutions that offer. [00:40:08] It in California, there’s the Work Wealth Foundation. In New York there’s, Dr Betsy Keller from the Ithaca College, who runs a sleep lab. These two places have a two-day cardiopulmonary exercise test, which should prove, impairing fatigue. Insurance companies don’t always buy it. It is by far the best piece of evidence anybody could acquire, if you are disabled by fatigue and your insurance company does not believe you. [00:40:34] So that’s really important for people to know, anybody who could be impaired by fatigue. So, I hope that it’s helpful to someone, if you ever come across that issue. [00:40:41][00:40:41] Is cognitive, like brain fog? [00:40:43][00:40:43] Yes, that’s exactly what it is. And brain fog is the, you know, very general term, used to describe a whole slew of cognitive problems. You know, brain fog is a term I hear so often because it’s just the easiest way to describe, you know, that range of symptoms. [00:41:00] But a neuro psychological evaluation is an objective test, which, basically runs your brain through a whole series of tests designed design.to test all different kinds of cognition. [00:41:12] So it’s not just memory or language retention or processing. It really hits you in all of them. And really good neuropsychologist, should not only be able to say, yes, this person is impaired, but yeah, her memory processing, is it 2% compared to the population? Compare this, you know, her processing generally is at 6%. [00:41:33] The average at for someone her age is, it’s 70. and so, you can kind of have someone show how impaired you are, objectively. And then, if you hired us or another lawyer like us, we would have that analyzed by a vocational expert, who would then take that and say, why this person could not do a particular job because of these issues? [00:41:51] You’d think it’s obvious that someone who has no memory, you know, can’t be a nurse, but it’s not to them. You have to actually explain why someone with severe memory problems should not be relied upon as a floor nurse, you know? And, what’s obvious to us is not obvious to them. So that’s kind of our job is to make the intentionally oblivious insurance company, to force their eyes open so they can no longer be oblivious. [00:42:14][00:42:14] Before I was diagnosed with Sjogren’s, I thought I had early signs of Alzheimer’s. I mean, it got really bad. [00:42:23][00:42:23] It did. [00:42:25][00:42:25] I kind of lost my words and I used to speak to Brian, like in sign language, you know, I forgot most of my words. It was really bad. [00:42:36][00:42:36] Yeah, it’s interesting. We had a client who his doctors were convinced he had Alzheimer’s and insurance company wasn’t even convinced he was disabled. [00:42:45] Doctors thought he has Alzheimer’s, insurance company, wouldn’t admit anything. We send him to a, a neuro psych and the doctor came back and said, I’ve got good news. I don’t think he’s got Alzheimer’s. Definitely disabled, but he actually was able to write a whole report showing my Alzheimer’s wasn’t the proper diagnosis and this guy was like, wait, so you’re going to support my disability claim and tell me I don’t have Alzheimer’s? [00:43:07] You didn’t, you didn’t tell me this is part of the fact. If I could offer that to every client, I would be over the moon. [00:43:11] It’s is. You know, these psych exams can be really helpful in that regard. They can kind of, they really can be that specific with a good one to show what’s causing your impairment or at least rule out some really horrible possibilities. [00:43:24][00:43:24] My memory’s not what it used to be. I find myself, when I’m at work, I take a lot of notes and say I do the same thing for two weeks and maybe I take a week off and I don’t do that job. I had to go back to my notes because my brain is not as sharp. [00:43:40][00:43:40] And her notes, she says taking notes and people think a few pieces of paper. It’s four-inch binders, print screens, [00:43:48] highlights, flags. [00:43:50][00:43:50] I forget. I mean, I have those issues lately. And I mean, I don’t want to keep asking the same question, 10 times when, you know, I’ve been doing it forever. But if I don’t take notes, I forget. My memory’s getting really bad. [00:44:06][00:44:06] Are you worried that that’s your employers concerned about that and that they’re noticing that? [00:44:11][00:44:11] Sometimes, yeah. I find myself making dumb errors that I shouldn’t be making. [00:44:18][00:44:18] So one thing, I mean, a good employer should have an open line of communication with his employees and give them feedback and tell an employee when they’re not living, you know, performing properly. It’s not reality. So, one thing I do find that can be helpful is requesting a copy of a personnel file. [00:44:33] Now, I don’t necessarily recommend you do that., if you’re at the stage you’re at. I don’t know if you, you know, plan on filing, but getting a copy of the personnel file, if there’s a bunch of negative reviews in there and a bunch of things, which kind of show you’re not doing the job well. [00:44:46] Hard to read, but it could help the disability claim. If you, you know, you’re getting close to, to filing or you’re trying to eventually, if you are fired and then trying to go back and make that claim, definitely request your personnel file. Cause you can see a lot of evidence in there, if you’re not doing the job well, that’s more evidence that you’re disabled. [00:45:04] You know, a lot of personnel files will come up empty, but sometimes you can find, you know, some really helpful stuff in there. So, it’s always worth asking and you’re entitled to it, too it under, I know you’re entitled under California law, and I think most States have a similar law which entitles you to your personnel file. [00:45:18] So it’s definitely worth taking a look at if you’re in a situation like that. [00:45:22][00:45:22] Definitely. Thanks for sharing that. Going back to the, doctors, requesting your files from the doctors, what if you have, insurance, like, you know, big companies like Kaiser? Are they, do they give you your paperwork? [00:45:38][00:45:38] Oh yeah. You’re entitled to your medical records under HIPAA. Whether it’s, going to take a little bit of, of effort to get your records from some organizations compared to others. Yes. I mean, Kaiser is different in different places. Like, I mean, the Woodland Hills Kaiser is different than the one in Northern California. [00:45:53] And so, it just depends on your organization. I’ve gotten records in two hours and I’ve gotten records in seven months. [00:45:59][00:45:59] Wow. [00:46:01][00:46:01] Most of the time we get, we get records within two to three weeks, and especially these days and more people on their online portals and things like that. You can get records but pay attention to that because a lot of people don’t get their full medical records of the portal. [00:46:13] The portal will give them a censored version or like a summary and there. full formal records are still with the doctor. So, you’ve made sure if you’re getting your records to your portal, you’ve asked your doctor whether or not they have a full set or whether you have everything through the portal. [00:46:26][00:46:26] My first rheumatologists, he had a private practice, yes? [00:46:29][00:46:29] Yes. [00:46:30][00:46:30] And, he passed away maybe two years ago. And we got a letter from the doctor who took over his practice. And I mean, I didn’t like him too much, so I requested my medical records and it was about, I’m going to say about 10 years’ worth, So, I have that. [00:46:47][00:46:47] And Kaiser’s will probably be easier to read than Dr Ryba’s. [00:46:52][00:46:52] I mean, doctors or somebody shouldn’t be able to read them, right? [00:46:55][00:46:55] Dr Ryba was old school. Everything was pen and paper. [00:46:59][00:46:59] Well, it actually brings up a good point. If you email your doctors, assume the emails will also be in your medical records. Do not assume your emails, your doctors are confidential, for some reason. [00:47:08][00:47:08] Really? [00:47:09][00:47:09] Oh man, I’ve seen some bad emails. [00:47:10][00:47:10] And when you file a claim, you should assume somebody is going to be watching you doing things you probably shouldn’t be doing, if you’re not being a hundred percent honest? [00:47:20][00:47:20] So yeah, I should talk about that a bit. So, insurance companies can observe you and they do. They will observe you, you know, pay for surveillance to observe your activities. I find it rare that they do it at the initial claim stage. It happens, but it’s rare. Usually they’ll do it either once you’ve been paid and then they’re trying to conjure up a reason to terminate you once you haven’t paid or a really big claim. [00:47:46] Or if you’ve been on claim a while and then they want to shake you lose, but it’s not quite as common when you first file. Definitely safest to assume that they will. You know, the concept of surveillance is very scary. You know, a lot of people, they just get very stressed by it. It’s a stressful concept. [00:48:01]it is not nearly as damaging as insurance companies hope it can be, unless they find you really contradicting, explicitly contradicting what you said you could do. You know, if you’re doing something that you didn’t mention to them that you could do and it’s kind of lines up not the end of the world. If you say, I am so ill, I’ve not been able to sit on a bicycle for years and they catch you riding on your block, you can assume your claim will be terminated and they’ll probably try and get the money back. [00:48:31] So you know it is not, but thankfully I don’t find that that’s a realistic problem. I mean, I’m sure it is out there, but most people are just trying to get their proper benefits. Most people really deserve the help they’re asking for. And I think that the social security administration did a study a few years ago, and their best estimate is that 2- 4% of disability claims are fraudulent. [00:48:54] 2 to 4%, you know, and to me it’s, on one hand it’s a lot of money and it’s really not, you know. If one out of 50 people is trying to game the system, let’s not, you know, screw the other 49 because of that one person. But insurance companies, they’re really not looking for the person who’s riding around on the block when they said they couldn’t. [00:49:11] They’re looking for people who understated their limitations. You know people who say, I never drive, when in reality you drive once a month, they’ll catch you driving that one time. Or you know, the people who say, I can’t lift anything. You know, my grandmother needs to come over and help me lift anything. [00:49:25] You know, if you happen to lift, this actually happened an empty plastic bottle, a bag full of empty plastic bottles and throw in the trash. Even though you see you can’t lift anything, they’ll use that against you. Even if you tell them twice in the appeal, it was full of plastic bottles and show them a video of you zooming in to the trashcan with the plastic bottles. They still won’t listen. [00:49:45] Now the judge listened, and the judge came down on her side, but it was, you know, these, these are the kinds of things they look for. They look for small inconsistencies, which they can blow up. And so, it’s really important to not overstate your abilities or your impairments and not understate them either. [00:50:02] You know, always, you know, never do this, but never, you know, never say, never. Always say sometimes, and they always qualify what you’re doing. Never be absolute. Tell them you’re trying your best. Tell them, you know, I’m trying to do new things all the time. If I can feel like doing something, I will. [00:50:19] And what also, a lot of people lose sight of is that very often, you know, the insurance company will catch you gardening in the front yard. You didn’t mention them that you’re able to garden, but your doctor told you a few weeks ago to get out of the house and start doing something outside, garden for as long as you can. [00:50:34] Or the doctor will say, go to the gym twice a week and they’ll catch you at the gym. Who cares? Your doctor told you to do that. You have nothing to be ashamed of. So, there’s a lot of different kinds of considerations, as far as surveillance. And a lot of ways we can get around it and fight it. But the big lesson is, you know, obviously don’t outright lie. Nothing worse. You’re claiming that outright lying. [00:50:54] But also don’t, don’t subtly lie. Don’t suddenly overstate or understate, you know, be as direct as you can. Qualify as much as you can. And then even if they do catch you doing something, they won’t be able to sink your claim because of it, hopefully. [00:51:09][00:51:09] Good to know. [00:51:10][00:51:10] That’s very good to know. [00:51:12] Well, we like always, we’ll have a links and contact information in the show notes below, so you’ll be able to reach out to Andrew and, other attorneys at the firm. [00:51:22] And if you have questions, I’m sure email them, be nice everybody. Email them, they’re busy people. And if you’re out of state, they’ll probably going to refer you to somebody there. But if you’re inside of California, they will, most likely be able to help you a little more than if you are out of state. [00:51:42] And if you are out of the country, you’re obviously going to need to seek counsel in the country in which you live. Because I’m sure those laws are, who knows? [00:51:53][00:51:53] Hopefully there, you know, they’ve got a better public disability system than we do. [00:51:57][00:51:57] Yeah. [00:51:57][00:51:57] Probably better. [00:51:58][00:51:58] But you know what’s crazy? We talked to a young lady who lived in Columbia and she worked for the state, and she had reasonable, accommodations, to the point, if she needed an app, she could go home. [00:52:12][00:52:12] Wow. [00:52:12][00:52:12] If she needed to go home early, she could go home. And that was nice for her. And she was youngster. She’s probably 26 now and on occasion needed those accommodations. So, you know, I think we’ve got some ground to make up. [00:52:31][00:52:31] Oh, we certainly do. Isn’t that the truth. You know, we operate out of California, but we do handle all cases in the ninth circuit. You know, Washington and Oregon, included. And we do handle cases outside of California, but, you know, we have lots of referrals. We’d be more than happy to connect you with someone who’s in your state. if it’s not something we can help immediately. [00:52:52] And I really do like answering questions, so feel free to email me or give me a call. I get back to people as soon as I can. And, don’t be shy. It’s part of our normal intake process, is answering questions for people. So please don’t feel like I’m being charitable with my time. It’s, it’s part of our business. So, reach out whenever you feel comfortable. [00:53:08][00:53:08] Yeah. And quite a few of you have hit us offline asking questions of this nature. And that’s why it was kind of perfect. That timing aligned here, and we were able to bring Andrew on. So hopefully you’ve, taken something away from this episode. I know I have. [00:53:23][00:53:23] I took a lot actually, and I didn’t take notes because I couldn’t listen to it again and again and again. [00:53:29][00:53:29] Awesome. Well, Andrew, thank you so much for your time. We appreciate you. [00:53:32][00:53:32] Absolutely. Thanks for having me. It was great. [00:53:34][00:53:34] Thank you.

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