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Friday, October 10, 2014

Don’t Get Hung Up On Diagnosis: Focus on Impairment

In handling ERISA benefit denials in Connecticut for more than twenty years, I've observed a big change in the grounds insurance companies give for denying benefits under group disability plans governed by ERISA.  In handling ERISA benefit denials in the 1990s, the issue of diagnosis was often central to the appeal: did the medical records establish that the claimant was properly diagnosed with the condition that caused the disability?  This often occurred with conditions like fibromyalgia, chronic fatigue syndrome, myofascial pain syndrome, migraine and other conditions that depend, in whole or part, on subjective reports of condition.  The appeals mainly concerned whether the claimant had satisfied the specific diagnostic factors for the condition, such as for fibromyalgia, arguing whether the medical records showed that the claimant had 12 or 18 tender points as required by the American College of Rheumatology diagnostic factors.

The insurers got smarter, though.  Rather than claim that there is not objective evidence of the diagnosis, over the last decade or so they acknowledge that the condition was properly diagnosed but are denying benefits on the basis that there is not objective evidence of the impairment.  It is more common for the insurer to concede that a claimant has a condition like fibromyalgia or myofascial pain syndrome, but then state that “diagnosis does not equal disability.” They then state that the absence of objective medical evidence of disabling impairments is evidence that there is no disability.   

Therefore, the focus has to be on proving the impairment rather than proving the diagnosis. In appealing ERISA long-term disability denials with the plan or in suing the insurance company in court, you must keep the focus on proving the impairments, and how those impairments keep the claimant from performing specific aspects of the job.  How to prove impairment from conditions that depend on a subjective report of pain or impairment will be the subject of many future posts

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