The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments. By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.
Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard. The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing. The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors. This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.
Why would a patient lie to her doctor? The insurers never say, but there are only two possibilities:
- the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or
- the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing. In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."
Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.
But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment? When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints. Kelly
v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932
(D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's
chronic and severe pain under the apparent theory that MRIs or EMGs must
demonstrate some structural deformity for a person to be disabled because of
back pain. Unfortunately for all parties involved, back pain, even severe
pain, is not so simple.")
But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain. Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions. A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady. And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.
The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence. Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true. Some courts have accepted this analogy. Lasser
v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform
him of his daily activities in order to obtain an effective program of
rehabilitation. Indeed, it is based on this indicium of reliability that such
out-of-court statements by Dr. Lasser would be admissible under the Federal
Rules of Evidence.”).
In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it. The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar. We'll see if Connecticut federal courts will start turning the tables and require insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.
One of the most difficult aspects of showing a disability from Chronic Fatigue Syndrome (CFS or ME/CFS) is convincing the insurance company that the condition was properly diagnosed. No definitive medical test exists, leading insurers to deny LTD claims based on CFS because of the lack of objective medical evidence. I discussed some of these issues in an earlier post about the recent proposal that the condition be called Systemic Exertion Intolerance Disease or SEID.
A study recently established that there are differences in the immune system that are associated with CFS. Patients who had been diagnosed for less than three years had significant activation of cytokines, which influence inflammation, and patients who had been diagnosed for more than three years had dampened cytokines activity. Healthy subjects had neither condition.
While the study does not have current clinical significance, it holds out the hope of developing a definitive blood test for CFS. Here is a link to a New York Times article on the study. Here is a link to a Reddit "AMA" with Mady Hornig, who worked on the study. She answers many questions regarding the study and CFS in general.
Diagnosis is important, but as stated repeatedly in this blog, you must focus on the impairment, rather than the diagnosis. See my prior post on this issue. But, getting over the diagnosis hurdle would be a big help for an initial application for long-term disability benefits, and appeal of a LTD denial, or a lawsuit to recover LTD benefits.
Julie Rehmeyer has an Op-Ed piece in the New York Times discussing the hostility of doctors to the Chronic Fatigue Syndrome diagnosis. She discusses comments by physicians to the Institute of Medicine report, discussed in this blog here, demonstrating this hostility. She states that until there are effective treatments of CFS and a definitive diagnostic tests, some doctors will never accept the reality of the diagnosis. The best existing test, the two-day exercise-to-exhaustion challenge, can make CFS much worse for an extended period. She discusses some good developments, like treatment with Rituximabe. She calls for more federal support to find both better diagnostic tests, and more effective treatment.
If some doctors are doubtful about CFS, you can imagine how doubtful insurance companies are about the reality of the condition, and the impairments resulting from it. You must focus on the impairments you suffer from, and specifically how it affects your ability to work. See my blog post on focusing on the impairment, and not the diagnosis.
With conditions like CFS, were diagnosis is not based on something definitive like a blood test, and quantifying how a condition like fatigue or cognitive issues is difficult it can be useful to have a long-term disability lawyer to assist with an appeal or an initial claim.. Connecticut has many excellent physicians experienced with CFS, and a Connecticut long term disability attorney can help in securing the cooperation of the physicians that is crucial to a successful appeal of a denial of LTD benefits. Working together with your doctors and you, we can do much to overcome the hostility of doctors, and disability insurance companies, to the condition.
LTD applicants with CFS or ME/CFS can have a hard time being approved for benefits, or to win an appeal of a denial of long-term disability benefits. The traditional diagnostic
criteria of the C.D.C., link here, are quite subjective. Also, it can be difficult for a treating physician without experience in this area to exclude all the other diagnoses necessary to establish a diagnosis of CFS. Due to diagnostic errors by inexperienced doctors, and inherently subjective criteria, insurer have a lot of grounds to deny a claim.
Some of these issues may be resolved. Today the Institute of Medicine of the National Academies (“IOM) issued new diagnostic criteria, and recommended that Systemic Exertion Intolerance Disease be the new name for the condition traditionally referred to as Chronic Fatigue Syndrome, and more recently sometimes as myalgic encephalomyelitis/chronic fatigue syndrome (ME or ME/CFS for short). Here is a link to the IOM page with a number of different reports about the recommended change. If this is TLDR (too long, didn't read), here is a link to a New York Times’ discussion of the history of the name of the condition, and why the change was recommended.
The change in diagnostic criteria will make a difference for me as a Connecticut LTD lawyer, in appeals and initial applications. The new criteria establish a diagnostic
algorithm that makes it easier for a doctor to make a proper diagnosis, which will make it less likely that the insurer will deny a claim based on a faulty diagnosis.
But, the most important thing to win a claim for the condition, whether you call it CFS, MECFS or SEID, has not changed. You must focus on the impairment, rather than the diagnosis. See my prior post on this issue. Your doctor may not be a big help here; doctors are there to diagnose, not conduct a vocational assessment. So, make sure that in any initial benefits application, or any appeal of a denial, you make sure it is clear:
- What condition is causing the impairments,
- What the impairments resulting from the condition are; and
- The specific aspects of the job that you can't do as a result of the impairments.
Having an experienced ERISA benefits lawyer can help, but whether you are represented or handling the claim on your own, make sure you focus on impairment, not diagnosis.
