Subjective Symptom Disability Claims:
CFS, FMS, and MCSS

Skip editorial introduction and go directly to the document

Editorial Introduction

The following document showed up in my mailbox; the sender remains anonymous. Consequently, there is no way to guarantee the accuracy of the author attribution or that he is an employee of UNUM Life Insurance Company. I have posted this on the web in the belief that free flows of information are critical to the personal freedom upon which the United States is founded -- and essential to the preservation of a free market in the insurance industry (i.e., information symmetry promotes a market solution to the availability and distribution of insurance services, which free market advocates theoretically consider to be a good thing). If anyone can offer corroborating evidence that this document is in fact attributed to the correct author and that the document is unchanged from that which was presented at the conference, I would appreciate it. In the meantime, we thank Rick Lawrence for his research efforts in this extraordinarily useful document and hope that those who make use of this remember to give him proper attribution.

We do warn readers, however, that calling Chronic Fatigue Syndrome, Myalgic Encephalomyelitis, Fibromyalgia, and Multiple Chemical Sensitivity Syndrome "subjective symptom disabilities" can be a bit misleading -- as Altzheimer's can be diagnosed without having to perform a brain autopsy, these serious (and overlapping) physical conditions are in no way "subjective" themselves (that is, all in the experience of the patient) -- all three produce verifiable physical symptoms that can be recognized by a physician with up-to-date information about these disease syndromes. However, there are no objective tests approved by the CDC or the FDA as "proof" that a patient has any one (or more) of these three disease syndromes. That is not quite the same thing as saying the symptoms are entirely subjective, and the reader must take care not to form the impression that these diseases are diagnosed by patient self-description alone: they are not. To repeat: the problem is that there is no "marker" (such as deterioration of the myelin sheath that appears in the spinal fluid of an M.S. patient) that can "prove" definitively whether or not a patient has CFS, or FMS, or MCSS. The insurance companies are saying, in effect, that until such a marker is found, patients who are sufficiently unfortunate to suffer from these diseases are not insured under regular policies. Those of us who worked for years thinking that we were covered by reputable and honest disability insurance were shocked to find this out, one by one, as claims were denied. The very few who can afford it are taking these cases to court. Because of the ERISA law, we cannot go to a jury of our peers, but must plead our cases before a single appointed judge in one federal court after another. Again, because of ERISA, the standard used to decide whether the claimant was treated "fairly" is not "preponderance of evidence" or "what a reasonable person would assume" from the contract, but rather whether the insurance companies have been operating in an "arbitrary and capricious" manner. More legal legerdemain. This is the background for the following essay.

Note: the issues debated in these courts are not whether or not the particular person really is disabled, but whether the insurance company followed "the rules." The reader can judge for himself/herself. Finally, those of us who are patients and claimants ask that the outside world please refer to the debilitation caused by our conditions (once described by U.S. Asst. Sec. of Health Philip Lee as "disease syndromes") not as "subjective symptom disabilities," a rather awkward phrase that implies that these may "really" be psychological illnesses and/or cases of outright fraud, but as "invisible disabilities" -- disabilities that may not be clear to the casual external observer, but are quite clear to friends, family, co-workers, employers, and the medical professionals who care for us. The postmodern satire that "everything is subjective" will soon replace Andy Warhol's "fifteen minutes of fame" as the ultimate American experience if these bureaucracies succeed in convincing us that because the experience of health or illness -- ultimately, of life itself -- is subjective, why then it doesn't exist!

One other comment: When reading this, note that the name "Chronic Fatigue Syndrome" first appeared publicly in 1988. It would hardly be surprising, then, that cases would suddenly start "appearing" in the 1990s.

Those of us suffering from ME-CFS, Fibromyalgia, lupus, post-polio syndrome, Gulf WAr syndrome, rheumatoid arthritis syndrome, connective tissue disorders, neuralgias, and other "hidden illnesses", ask that our representatives in government, and friends in society, step back from the legalism. Ask his basic question: what has happened to our society when a severely disabled person can be left abandoned and impoverished, denied the benefits that were part of their pay while they were able to work, because of the linguistic gamesmanship of the legal community?

To paraphrase: "Justice is the balm that heals the wounds of society." What follows is jurisprudence. But is it justice?

-- Mary M. Schweitzer, Ph.D, webmaster
The CFIDS/M.E. Information Page: http://www.cfids-me.org
The Disability Insurance Webpage


SUBJECTIVE SYMPTOM DISABILITY CLAIMS:
CHRONIC FATIGUE, FIBROMYALGIA AND MLTIPLE CHEMICAL SENSITIVITY SYNDROME

Rick Lawrence
Litigation Counsel
UNUM Life Insurance Company of America

DRI -- Life Health & Disability/ERISA Litigation Conference
September 23-25, 1998

The analysis conclusions and/or opinions expressed herein are solely those of the author and are not intended to be, and do not necessarily represent, the views, opinions or positions of UNUM Corporation, its affiliates or subsidiaries, or the policies of the Defense Research Institute, Incorporated.


TABLE OF CONTENTS

Page numbers refer to the typescript text
A. Introduction -- p. J-1
B. Claims that are denied on the basis of lack of objective medical findings -- p. J-2
C. Claims that are denied on the basis of lack of definitive diagnosis -- p. J-10
D. Other illustrative subjective symptom disability cases -- p. J-18
E. Conclusion -- p. J-25
Bibliography -- p. J-27

[page J-1]

A. Introduction

The incidence of disability claims based on self-reported conditions has increased dramatically over the last several years. In fact, studies have shown that such claims are among the fastest growing causes of disability in the United States. CNA recently reported that from 1991 to 1996 chronic fatigue syndrome claims increased more than 900%, fibromyalgia, or soft-tissue pain claims, increased 254%, psychiatric-related claims increased 195%, and chronic pain claims increased 100%. Susan, C. Sendra, Subjective Disabilities a Unique Challenge, Business Insurance, October 7, 1996, p.29. Though not strictly limited to disability claims, the State of Washington alone is estimated to have spent as much as $1.7 million in benefits for workers with alleged chemically related illnesses in 1993 and 1994. Sally James, The Chemically Sensitive Controversy, Issues of Injury Vol. 8, No. 3 1994, p. 1. Experience shows that 20% to 40% of back related disability claims are self-reported with no objective evidence to substantiate disability. James R. McMullin, Confronting the Back-Related DI Claims Challenge, National Underwriter February 10, 1997, p. 9.

The self-reported, or subjective, condition is one which cannot be confirmed through objective medical findings. The symptoms of these conditions can be reported to a physician, but are not easily verifiable by standard medical tests or procedures. Generally, the presence and severity of these conditions hinge solely on self- reported symptoms. Self-reported disability claims are difficult to adjudicate because standard, objective medical data indicates that nothing is wrong.

[page J-2]
Disability insurance carriers thus face the problem of how to determine when an insured is truly sick; subjective disability claims may be real, but they hold an enormous potential for fraud and abuse. Subjective claims are inherently problematic for disability insurance carriers because "[t]hese types of subjective complaints are easy to make, but almost impossible to refute." Yeager v. Reliance Standard Life Insurance Company, 88 F.3d 376, 382 (6th Cir. 1996).

In response to the difficulties that subjective claims present, some carriers are modifying their policies. These changes include self- reported provisions which give a claim examiner the ability to terminate benefit payments after a certain time period has elapsed on claims which are based on subjective or self-reported conditions. While such limitations have been commonplace in group disability policies in regard to mental and nervous claims, these provisions are being applied to a broader array of medical conditions such as: chronic fatigue syndrome; musculoskeletal and connective tissue disorders of the neck and back; fibromyalgia; myofascial pain syndrome; and multiple chemical/environmental sensitivity syndrome. Implementation of these modifications is fairly recent, consequently, the case law interpreting these provisions is still in the early stages of development.

Case law does exist, however, that addresses claims based on such subjective conditions. Several of these cases are discussed below.

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B. Claims that are denied on the basis of lack of objective medical findings

There are a number of reported decisions on subjective symptom claims in which the insurer has based its decision denying or terminating disability benefits on the ground
[page J-3]
that no objective medical evidence supported a finding of total disability. Some courts have upheld these decisions, notwithstanding the lack of an explicit requirement in the policy at issue that a claimant present objective medical evidence supporting a claim for disability. Other courts have held to the contrary. Two cases involving Du Pont's self-insured long-term disability plan provide an interesting comparison of the way in which courts treat this situation, and of the way insurers (or in this case the employer) can approach the problem of subjective claims.

The Du Pont disability plan at issue in these two cases provided in pertinent part:

An individual shall be considered 'totally and permanently disabled' if the Board of Benefits and Pensions finds that he is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful occupation....
Pokol v. E.I. Du Pont De Nemours & Co., Inc., 963 F. Supp. 1361, 1365 (D.N.J. 1997), quoting from the Du Pont Total and Permanent Disability Plan (the "Du Pont Plan").

In Sansevera v. Du Pont, 859 F. Supp. 106 (S.D.N.Y. 1994), Du Pont denied the claimant's claim for long term disability benefits because of his failure to provide objective medical evidence that he was permanently incapacitated by the chronic fatigue syndrome ("CFS") from which he claimed he suffered. Id., at 110.

The Court reviewed Du Pont's decision under the arbitrary and capricious standard delineated by Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed. 2d 80 (1989). The court noted that Du Pont defended its denial on the ground that the application for benefits was not supported by objective medical
[page J-4]
information indicating a permanent impairment. Id. at 113. The court found that Du Pont acted arbitrarily and capriciously by ignoring expert opinions regarding the diagnosis and treatment of CFS and by failing to seek the opinion of an independent expert on CFS. Id. The court further found that it was unreasonable to require that an applicant demonstrate with medical certainty that a disability will be permanent when:

[as] is especially true in the case of an applicant diagnosed with CFS . . . there is currently no method of determining whether a person will ever recover from CFS, nor is there any treatment that has been proven [effective] in overcoming this illness. Because Sansevera has been suffering from CFS from February of 1990 and has not shown any sign of improvement, it is unreasonable to deny him benefits simply because he cannot prove with medical certainty that he will never recover.
Id. at 114-15.

This is an interesting case for a number of reasons. First, notwithstanding the application of the arbitrary and capricious standard, the Court appears to have disregarded an express requirement in the Du Pont Plan that a claimant must satisfy before becoming entitled to disability benefits. Specifically, the Du Pont Plan requires that a claimant establish not only that he is totally disabled, but also demonstrate that he is permanently disabled as well. Secondly, the Court appears to have disregarded the fact that a reasonable basis for Du Pont's decision existed in the independent medical exams that Du Pont obtained. Courts generally have been reluctant to overturn an insurer's decision when there is a reasonable basis for it. Finally, the Court implicitly rejected Du Pont's argument that objective evidence of a disability must be provided before a claimant is entitled to disability benefits. While this aspect of the decision is not surprising, given the
[page J-5]
lack of any requirement in the plan that a claimant produce objective medical evidence to support his or her claim, as discussed below, just two years after the decision in Sansevera the federal district court in Pokol held otherwise.

The case of Pokol v. Du Pont, 963 F. Supp. 1361 (D.N.J. 1997), provides an interesting counterpoise to Sansevera. In Pokol, a machine operator filed a claim seeking disability benefits on the basis of fibromyalgia, back and arm pain, cervical symptoms, spondylosis and post-traumatic stress disorder. Id. at 1364. Pokol's application was supported by numerous medical reports regarding her physical and psychological health. These reports were reviewed by a member of Du Pont's corporate medical division who concluded that the claimant failed to submit any objective medical information to establish that she was totally and permanently disabled. Id. at 1367. Accordingly, Du Pont denied the claim.

Pokol appealed the denial and once again submitted a number of medical reports in support of her application for benefits. Du Pont upheld the denial of the claim. Pokol sued, alleging that Du Pont's denial was arbitrary and capricious. Pokol argued that the failure of the Du Pont Plan to define "objective medical evidence" was a "fatal flaw which requires a finding that the denial of disability benefits was . . . arbitrary and capricious." Id. at 1372. Du Pont, in an argument that perhaps should have been made in the Sansevera case, or if made, was rejected by the court without comment, contended that since the Du Pont Plan expressly granted discretionary authority to construe the terms and conditions of the Du Pont Plan, interpreting the language "satisfactory medical evidence" to include "objective medical evidence" is neither irrational nor unreasonable. Id. The
[page J-6]
Pokol court agreed with Du Pont and went on to find that in light of the absence of objective medical evidence supporting Pokol's claim for disability benefits, Du Pont's decision denying those benefits was neither arbitrary nor capricious. Id.

The Pokol and Sansevera decisions, contrasted with each other, present an interesting conundrum. Notwithstanding consideration of the identical policy language; assertion of disabilities involving subjective symptomatology; presentation of medical opinions that supported the respective positions of Du Pont and the claimant; and application of deferential standards of review in both cases, differing results obtained. This schism points out a fundamental truth of disability litigation: case outcomes are extremely fact and forum sensitive. Perhaps of greatest interest to defense practitioners is the success of Du Pont's argument in Pokol within the context of an abuse of discretion standard of review, that a claimant must provide objective medical evidence to support his or her claim of disability, notwithstanding the absence of any such express requirement in the policy.

This argument has succeeded in other subjective disability based cases. In an unreported decision, Davis v. U.S. West Inc.. et al., 1996 WL 673148 (1).Neb. 1996), the claimant presented conflicting medical opinions in support of his disability claim, which asserted everything from no diagnosis to a diagnosis of CFS combined with depression. In Davis the United States District Court for the District of Nebraska addressed the issue of whether the long-term disability plan in place on the date of disability ("Plan I"), or the plan in place at the time of the denial of the claim ("Plan III") controlled. Plan I did not contain a requirement that the claimant provide objective medical evidence to support her
[page J-7]
disability claim. Plan III did contain this requirement. The Davis court ultimately concluded that the resolution of this issue was immaterial. It found that U.S. West's claim reviewers and appellate committee always looked for objective medical evidence under either Plan I or Plan III. Thus, claimant's argument that Plan III somehow was designed to limit benefits failed because the objective medical evidence requirement was always in play as a part of the plan. The Davis court went on to find that even if Plan I applied, the appellate committee's interpretation of Plan I to require a showing of objective medical evidence was consistent with the Plan's goal of providing sickness disability benefits to individuals who truly merit such benefits. Id. at 12. See also Finster v. Metropolitan Life Insurance Co., 927 F. Supp. 201 (N.D. Texas 1996) (summary judgment granted to defendant carrier on ground that plaintiff did not provide adequate, objective medical evidence to support claim that she was disabled as a result of back pain); Conlev v. Pitney Bowes. Inc., 1997 WL 580533 (E.D.Mo. 1997) (judgment for defendant after trial on grounds that complaints of subjective back pain were not supported by objective medical findings); Steinman v. Long Term Disability Plan of the Mav Department Stores Co., 863 F. Supp. 994 (E.D.Mo. 1994) (summary judgment granted to defendant plan on ground that claims administrator reasonably found an absence of objective evidence supporting a diagnosis of chemical sensitivity that would form a basis of total disability). Donato v. Metropolitan Life Insurance Co., 19 F.3d 375 (7th Cir. 1994) (denial of claim for disability benefits based on alleged hypersensitivity to common environmental chemicals upheld under arbitrary and capricious standard where insurer reasonably contended that claim was based on questionable medical theory and suspect medical evaluation, testing and
[page J-8]
documentation).

Acceptance of the need for objective medical evidence to support a subjective symptom claim, however, has not been universal. The unreported decision in Duncan v. Continental Casualty Co. 1997 WL88374 N.D.Cal. 1997) bears out this point. In Duncan disability was claimed on the basis of a diagnosis of fibromyalgia and benefits were denied on the ground that there was no evidence of a medical condition of sufficient severity to support the claim. Id. at 1. The United States District Court for the Northern District of California, reviewing the denial under the de novo standard, noted that the policy "makes no reference to the 'objective medical evidence' described in defendant's letter denying Duncan's claims, nor does it define the term." Id. at 2. The denial letter stated in part:

Objective evidence means medical signs and findings established by medically acceptable diagnostic techniques which show the existence of a medical impairment that results from an anatomical, physiological or psychological abnormality which could reasonably be expected to produce the pain or other symptoms alleged. Subjective complaints alone shall not be considered conclusive evidence of a disability... The attending physician must be able to provide objective medical evidence to support his/her opinion as to why you are not able to perform the duties of your occupation.
Id. at 4. The Duncan court stated that Continental cannot exclude a claim for lack of "objective medical evidence" unless the "objective medical evidence" standard was made "clear, plain and conspicuous enough [in the policy] to negate laymen [plaintiff's] objectively reasonable expectations of coverage." Id. citing Saltarelli V. Bob Baker Group Medical Trust et al., 35 F.3d 382, 387 (9th Cir. 1994). The court further
[page J-9]
concluded that the denial of Duncan's claim was not sustainable under either the de novo or arbitrary and capricious standard. It stated, in pertinent part:
[M]edical conditions that do not give rise to hard laboratory facts or data may still be cognizable claims. In the medical opinion of Duncan's physician, the plaintiff has exhibited symptoms associated with fibromyalgia or CPS [chronic pain syndrome] and has become totally disabled as a result. ... Continental may not deny Duncan's claim because her physician cannot provide physiological proof where the physical condition is such that physiological proof is not available.
Id. at 5.

The purported absence of objective medical evidence as the grounds for the denial of a subjective symptom claim was rejected in another 1997 case. In Monroe v. Pacific Telesis Group Comprehensive Disabilitv Benefits Plan, 971 F. Supp. 1310 (C.D.Cal. 1997), the claimant sought disability benefits after being diagnosed by a rheumatologist as having "profound fibromyalgia." The plan had the claimant examined by an internist who concluded that no objective evidence existed to substantiate the claimant's fibromyalgia symptoms. Id. at 1312. The plan initially denied the claim based on the internist's assessment and then briefly paid disability benefits on the basis of a psychiatric disability. Id. at 1313. Benefits were later denied when another treating physician opined that the claimant's depression was secondary to her fibromyalgia, which might be disabling, but that her depression was not. Id. Monroe appealed the denial of her claim and submitted a sleep study which showed that she suffered from a lack of REM sleep. Id. The plan upheld its denial.

The Monroe court found the denial to be arbitrary and capricious because the
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plan's examining physician was not a fibromyalgia expert. Id. at 1315. In addition, the Monroe court felt that there was objective evidence supporting Monroe's claim in the form of the abnormal sleep study performed by the treating physician and the treating physician's notation of certain "trigger points" that caused Monroe to suffer. Id. The court further noted that as the treating physician's report was more detailed than that of the plan's examining doctor, the denial was arbitrary and capricious because the plan (1) had given more weight to its doctor's report and (2) had failed to obtain an IME by a rheumatologist as had been urged by the claimant and her treating physician. Id.

The above cases highlight one approach that disability carriers sometimes take when dealing with subjective claims: require the claimant to provide objective medical evidence. This, however, is not the only tact that insurance companies have employed in connection with subjective symptom disabilities as is discussed below.

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C. Claims that are denied on the basis of lack of definitive diagnosis

In Yeager v. Reliance Standard Life Insurance Company. 88 F.3d 376 (6th Cir. 1996), an industrial nurse filed a claim for disability benefits under a group plan issued by Reliance Standard, claiming that she was disabled as a result of fibromyalgia, chronic low back arthritis, fatigue and carpel tunnel syndrome. The claimant's application was supported by four attending physicians: her primary care physician, a rheumatologist, a neurologist and a fourth physician whose specialty was not disclosed. Id. at 378. Three of these attending physicians opined that claimant was not capable of performing the material duties of her occupation (the opinion of the fourth is unclear). Three of her physicians believed that the probable diagnosis was fibromyalgia. None of these
[page J-11]
physicians, however, provided a definitive diagnosis of fibromyalgia. The physicians noted a lack of objective findings to support claimant's subjective complaints. Id. at 378-79. It is unclear from the decision what medical evidence, if any, was presented by Reliance Standard, which denied the claim on the ground that there was insufficient evidence that plaintiff was totally disabled within the meaning of the group long-term disability insurance policy. Id. at 379.

The plan provided that Reliance would pay a monthly benefit if a claimant "is Totally Disabled as a result of a Sickness or Injury covered by [the plan). . .. 'Totally Disabled' and 'Total Disability' mean that as a result of an Injury or Sickness:... an insured perform the material duties of his/her regular occupation...." Id. at 378. The Court reviewed the denial under the arbitrary and capricious standard. The Court stated:

The Plan required plaintiff to submit satisfactory proof that she could not perform the material duties of her regular occupation, and defendant had received no medical evidence of any physical condition or anatomic abnormality that would cause plaintiff to be totally disabled. The disabling condition on which plaintiff based her claim for disability benefits is fibromyalgia, but no doctor ever actually definitively diagnosed plaintiff as having this condition.... In the absence of any definitive anatomical explanation of plaintiff's symptoms, we cannot find that the administrator's decision to deny benefits was arbitrary and capricious.
Id. at 381-82. Thus, despite the fact that three out of four of plaintiff's treating physicians opined that she was totally disabled, and absent any comment on the medical evidence (if any) presented by Reliance Standard, the Yeager court found that the lack of a definitive diagnosis of plaintiff's condition was fatal to her claim. See also Ellis v. Metropolitan
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Life Insurance Co. 126 F.3d 228 (4th Cir. 1997) (denial of claim not arbitrary and capricious despite primary treating physician's diagnosis of a somatic dysfunction where all of treating physicians unable to arrive at a consensus on a diagnosis of the claimant's condition).

Other cases have also turned on the existence of a credible diagnosis. In Gawrysh v. CNA Insurance Co., 1998 WL 329719 N.D. Ill. 1998), the United States District Court for the Northern District of Illinois, Eastern Division, found CNA's denial of Gawrysh's claim for long term disability benefits to be arbitrary and capricious. Gawrysh described herself as suffering from chronic fatigue, sinus problems, severe headaches and depreassion. Her atending physician stated that she suffered from chronic fatigue syndrome, sinusitis with intractable headache, recurrent sinus infections and bronchitis. Id. at 1. The CNA claim specialist assigned to Gawrysh's claim obtained her medical records from the attending physician' Dr. BIain, along with a letter from Dr. Blain that explained his diagnosis of chronic fatigue syndrome for Gawrysh. Id Nevertheless, CNA denied the claim stating that the claimant's "maladies did not meet the definition for chronic fatigue syndrome that had been established by the Centers for Disease Control ("CDC")." Id. at 2. Apparently, CNA believed that the claimant's sinus problems could be the cause of her persistent fatigue. Id. CNA also noted that the claimant had three small children and worked in a stressful environment, both of which circumstances might result in fatigue. Id. Thus, CNA concluded that there was no objective medical documentation to support Gawrysh's disability claim. Id.

Gawrysh appealed CNA's decision and submitted a letter from Dr. Blain which
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clearly indicated the attending physician's firm belief that the claimant suffered from chronic fatigue syndrome and from chronic sinusitis, the latter condition having required two surgeries. Id. In the letter, Dr. Blain also pointed out that Gawrysh had increased antibody levels to the Epstein-Barr virus. On review, CNA found that while Gawrysh might have been disabled for a period due to sinus surgery, there was insufficient objective medical documentation to find her sinus condition to be a source of continual disability. Id. The denial was upheld on appeal and Gawrysh's lawsuit followed.

The Gawrysh court determined that the arbitrary and capricious standard applied in this case and thus that CNA's decision was entitled to great deference on review, provided that it did not:

rel[y] on factors which Congress has not intended it to consider, entirely fail to consider an important aspect of the problem, offer an explanation for its decision that runs counter to the evidence before [it], or is so implausible that it could not be ascribed to a difference in view or in the product of [its] expertise.
Id. at 3. The Gawrysh court further noted that under the arbitrary and capricious standard it had to consider:
The impartiality of the decision making body, the complexity of the issues, the process afforded the parties, the extent to which decisionmakers utilized the assistance of experts where necessary, and finally the soundness of the fiduciary's ratiocination.
Id. The Gawrysh court next stated that the diagnosis of chronic fatigue is not a simple matter. Id. It then went on to observe that that no medical test exists for the diagnosis of CFS and that the CDC's protocol requires a physician to rule out other clinically defined causes of chronic fatigue by using a variety of tests. Id. The court then noted that CNA
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believed that Gawrysh's fatigue was caused by sinusitis rather than CFS and it concluded that such reasoning was shortsighted:
CNA did not deny [claimant]'s symptoms existed or had a debilitating effect, but concluded that because the symptoms could not, with complete certainty, be linked to a specific illness, [claimant] was not totally disabled. The uncontroverted evidence indicates that [claimant]'s symptoms were debilitating and were consistent with chronic fatigue syndrome. Rather than punishing [claimant] for the inability of medicine to specifically pinpoint the cause of her debilitating fatigue, CNA should have hired experts or used its own doctors to examine [claimant] to determine the cause and degree of her fatigue.
Id. Thus, the fact that is was unclear whether Gawrysh's fatigue stemmed from CFS or chronic sinusitis was an improper basis for the denial of the view of the court. If CNA doubted the legitimacy of Gawrysh's claims, it should have had outside experts examine her and try to pinpoint the severity and cause of the fatigue. Id. at 4. Instead, CNA utilized a claims specialist who apparently had no medical training or experience with issues of fatigue to review Gawrysh's medical records, and that made CNA's claim denial arbitrary and capricious. Id.

In Clausen v. Standard Insurance Co., 961 F. Supp. 46 (D.Colo. 1997), the insurer's denial of plaintiff's group long-term disability claim was also found to be arbitrary and capricious. Clausen suffered from hypothyroidism, asthma, lingering viral or flu-like illness, chemical and environmental sensitivities, and pelvic pain. The attending physician's statement in support of the application related a diagnosis of chronic fatigue syndrome, asthma, mylagias, pudendal nerve irritation and allergy. Id. at 1448. After Clausen filed her claim, Standard requested the medical records from all ten of her treating
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physicians. Standard's medical director reviewed this documentation and questioned the existence of chronic fatigue syndrome and found it "difficult to understand the nature of her impairment." Id. at 1449. Thus, Standard scheduled a psychiatric independent medical examination ("IME") and internal medicine IME. Id.

The psychiatrist concluded that Clausen was not suffering from any psychiatric disorder.Id. The internist concluded that there was no evidence of severe, disabling chronic lung disease and that claimant's asthma was very mild. Id. at 1449. Thereafter, Standard notified Clausen that it believed there was insufficient objective medical evidence to support her claim, but that it was sending her file to an infectious disease specialist for review. Id. The infectious disease specialist, Dr. Edell, concluded that Clausen's complaints were primarily subjective and that there were no laboratory findings or other correlation present to explain her symptomatology. Id. at 1450. However, Dr. Edell also stated that Clausen had many of the criteria present that would meet the CDC's definition of chronic fatigue syndrome and that many of the other reports in the file had ruled out other common causes of fatigue. Id. Edell thus suggested that Clausen's primary attending physician, Dr. Wright, complete a CFS report. Id. Dr. Wright completed the report, and checked off all of the major and minor criteria for CFS, as well as two of three physical criteria. Id. Thereafter, Clausen submitted numerous additional records from doctors which concluded that she was disabled as a result of chronic fatigue syndrome. Id.

Notwithstanding the receipt of this medical information, Standard's medical director continued to be troubled by the claimant's long history of having numerous
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somatic complaints, but few objective findings. Id. at 1451. While he concluded that the working diagnosis at that point in time should be CFS, he suggested that surveillance be undertaken. Id.

The surveillance, conducted over the course of one day, showed Clausen taking a two mile walk with her dog for approximately one-half hour, driving a car and shopping for two hours with her mother and having lunch. Id. at 1451-52. At the conclusion of the day of surveillance, the investigators knocked on Clausen's door, informed her that they were assisting Standard Insurance and proceeded to ask her questions about her daily routine. Id. at 1452. They obtained a signed statement from her in which she indicated that she took her dog on walks of approximately one mile, three to four times a week and could only drive or sit for one-half hour at a time. Id. Standard then requested that Clausen undergo an independent neuropsychological evaluation, the conclusion of which was that from a neuropsychological perspective alone, Clausen was employable. Id. Thereafter, Clausen's claim was denied. Id.

On appeal, Clausen submitted additional medical records supporting her claim. Standard upheld the denial on grounds that there was "insufficient medical evidence to support Clausen's claim that she suffered a disabling sickness." Id. at 1453. Clausen filed suit and the court reviewed the denial under the arbitrary and capricious standard. The court recited the uncontroverted medical evidence that Clausen suffered from CFS and noted that none of the independent examiners to whom Standard referred Clausen disagreed with the CFS diagnosis. Id. at 1455-56. The Court noted that the reasoning behind Standard's denial was that the medical director believed that the videotape and the
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report of the neuropsychologist refuted Clausen's subjective statements as to her physical and cognitive impairments. Id. at 1456. The medical director maintained that Standard "needed to rely on objective documentation of Clausen's impairment" and that the only such documentation was the videotape and the neuropsychologist's report. Id. at 1454. The Court disapproved of this approach:

Standard's attempt to ignore the CFS diagnosis of Clausen's treating physicians and to require, instead, that Clausen provide "objective" evidence of a distinct "physical disease" runs afoul of established law in this circuit.
Id. at 1456. Citing Sisco v. United States Department of Health and Human Services 10 F.3d 739 (10th Cir. 1993), the Court found that:
the lack of 'objective' medical evidence to 'prove' Clausen was disabled by her fatigue or pain cannot constitute substantial evidence that Clausen was not disabled, i.e., that she was capable of full-time work. I now find in addition that neither the surveillance video nor Dr. Thompson's report constitute such evidence.
Id. at 1457. The court thus found Standard's denial of Clausen's claim to be arbitrary and capricious. Id. The court's rationale for its decision focused on the fact that many of Clausen's attending physicians had diagnosed her as having CFS, while none of the physicians who examined Clausen on behalf of Standard or who reviewed Clausen's medical records controverted this diagnosis.

Gawrysh, Clausen, and to a certain extent, Yeager highlight an issue that can be a red herring in these subjective disability cases. Claimants, claim administrators, the lawyers who represent these parties and even judges often focus too much attention on the diagnosis of a condition, or the lack thereof. In so doing, these players in the
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claims/litigation process disregard what is typically the primary concern in a disability case: what restrictions and limitations are caused by claimant's medical condition, and do these restrictions and limitations prevent the claimant from performing the material duties of his or her (or any) occupation.

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D. Other illustrative subjective symptom disability cases

Another interesting case dealing with a claim for disability based on chronic fatigue syndrome is Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3rd Cir. 1997). In this case, like Clausen, the Court found that the plan administrator acted arbitrarily and capriciously in requiring the claimant to provide objective medical evidence that he was unable to engage in any substantial gainful work. Mitchell's CFS claim was initially denied by Metropolitan Life Insurance Company ("MetLife"), the claims administrator under the Kodak group long-term disability plan, on the grounds that Mitchell had failed to "provide objective medical evidence that his condition made him totally and continuously unable to engage in any substantial gainful work for which he was qualified as of June 26, 1989 [the alleged date of his disability]." Id. at 436. The denial decision was upheld on appeal and thereafter Mitchell brought an ERISA action to challenge the administrator's decision. Mitchell and Kodak filed cross-motions for summary judgment, both of which were denied, and the matter was remanded to the claims administrator for reconsideration after supplementation of the record. Id.

On remand, Mitchell submitted a letter from his treating physician which explained how the chronic fatigue symptoms prevented him from engaging in any substantial gainful work. Once again, the administrator concluded that Mitchell had failed to provide any
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objective medical evidence that he was totally disabled as of his alleged date of disability, five years prior to the date of this physician's letter. Mitchell reopened his motion for summary judgment, which the District Court granted after conducting a de novo review. Id. at 437.

On appeal, the Third Circuit determined that the arbitrary and capricious standard should apply since "the plan in effect at the time of the latest denial decision contained discretionary language." Id. at 439. Kodak appears to have focused its appeal on the fact that the record did not contain any explicit doctor's statements that Mitchell was totally disabled as of June 26, 1989. There is no mention in either the Circuit Court or District Court opinions of any independent evaluation or record review by an in-house doctor. The Mitchell court found that the undisputed evidence in the claim file showed that as of the date of disability, "Mitchell's chronic and unpredictable fatigue and loss of concentration made it impossible for him to sustain regular paid employment." Id. at 440. The court found that while the records lack an explicit statement that Mitchell was totally disabled as of the date of his alleged disability, that alone does not support the administrator's conclusion that Mitchell failed to show total disability as of that date. Id. at 441. The court reasoned that what the administrator meant by its stated reason for denial was "that Mitchell failed to submit clinical evidence establishing the etiology of the chronic and unpredictable fatigue and loss of concentration that disabled him from working." Id. at 442. It further stated:

Because the disease, although universally recognized as a severe disability, has no known etiology, [citation omitted], it would defeat the legitimate expectations of participants in the Kodak Plan to require those with CFS to make a showing of such etiology as a condition of eligibility for
[page J-20]
LTD benefits. Thus it was arbitrary and capricious for the administrator to deny Mitchell benefits because of a lack of such clinical evidence of the etiology of his CFS.
Id. at 443.

A review of the District Court opinion, Mitchell v Eastman Kodak Co., 910 F. Supp. 1044 (M.D.Pa. 1995), sheds further light on the medical evidence that was presented to the administrator and suggests that if Kodak had focused on the alleged restrictions and limitations caused by claimant's condition, the outcome of the Mitchell case may have been different. First, the District Court noted that Mitchell never offered any evidence or opinions from vocational experts, although it determined that none were necessary because the attending physician's opinion of Mitchell's inability to work due to CFS symptoms accorded with the court's view of the realities of the workplace. Id. at 1053-54.

Despite its acceptance the sufficiency of the medical evidence as to the CFS diagnosis, however, the Mitchell court took great care to point out that Kodak failed to offer any expert reports or other evidence to counter Mitchell's proof and instead choose to merely argue about its alleged insufficiency. Id. at 1054.

The importance of carefully examining and determining the pertinent restrictions and limitations in these subjective symptom disability cases, in other words ascertaining "what the claimant cannot do because of what" is further underscored by the following two cases.

In Greene v. Metropolitan Life Insurance Co. 924 F.Supp. 351 (D.R.I. 1996), the claimant filed an application for group long-term disability benefits with MetLife, the policy issuer and claims administrator. Greene asserted that she was totally disabled by
[page J-21]
chronic fatigue syndrome which was diagnosed by attending physician Armenio. Id. at 353. MetLife collected the medical records pertaining to Greene's condition and forwarded them to Dr. Freeman, a medical consultant it hired. Freeman concluded that the information available did not permit an independent confirmation of a CFS diagnosis. MetLife sent this report to Dr. Armenio and requested his comments. He responded that Greene had been responding to gammaguard treatments, but that she had become "completely depleted of energies," and could only work a half a day at most. Id. at 355. This response was forwarded to Dr. Freeman, who once again concluded he that he could not find any clear physical or psychological limitation of function. Id. at 356. MetLife thus denied Greene's claim. Its denial letter stated, in pertinent part, that "the objective evidence submitted does not support the insured's inability to perform each of the material duties of her regular job." Id. at 356. Greene appealed the decision and sent additional medical information to MetLife. This information was reviewed and the denial decision upheld. Greene commenced an ERISA action and the court reviewed MetLife's decision under the arbitrary and capricious standard. Id. at 357. Greene contended that MetLife acted arbitrarily and capriciously by ignoring the treating physician's observations and diagnosis and by constantly requesting "objective medical evidence" from him when MetLife knew that no diagnostic test exists for CFS. Id. at 359. The Greene court stated that "pared to its essence, this case comes down to a choice between the Freeman consulting groups utilized by MetLife and Dr. Armenio." Id. The court noted that Greene emphatically contended that the reports prepared by Freeman failed to show that Greene did not suffer from CFS and Armenio's reports did show she suffered from CFS.
[page J-22]
Id. The court also observed that all of the doctors involved in the matter were board certified, at alL relevant times, in fields pertinent to the diagnosis and treatment of CFS. Id.

Having summarized the essence of the conflicting medical evidence, the court's analysis then shifted to the next logical concern in a disability case, when it stated that:

It is imperative to note that whether or not Greene could perform her job duties was the relevant question in determining her eligibility under the disability plan, not simply being diagnosed with CFS.
Id. at 360. The court went on to conclude that in a situation such as this where all of the medical experts possess virtually identical information, but their conclusions differ, the:
applicable 'arbitrary and capricious' standard prevents a court from injecting its own judgment into the case to vacate a claim fiduciary's prior determination.
Id. Accordingly, the court granted MetLife's motion for summary judgment.

In Renfro v. UNUM Life Insurance Co. of America, 920 F. Supp. 831 (C.D.Tenn. 1996), the claimant initially filed a claim due to major depression. After the end of the two benefit period for mental nervous conditions, she asserted that she continued to be totally disabled from multiple causes. Id. at 832. Renfro's internist wrote to UNUM in support of her claim indicating that the claimant suffered from arthralgias, myalgias, weakness and other medical problems and that given her allergies and asthma she would be unable to work because she was very sensitive to perfume and other materials common in the work place. Id. at 834. After obtaining further records from Renfro's internist, along with records from her chiropractor, allergist and physical therapist, and having these records reviewed by its staff doctors, UNUM denied Renfro's claim on the grounds that
[page J-23]
nothing in those materials supported disability from a physical standpoint. Id. at 835.

Renfro appealed the denial and submitted a letter from a Dr. Furr, a physician who practiced in the areas of chronic fatigue, allergies, and environmental medicine. Id. Dr. Furr reported that he had performed testing with various chemicals, as well as referred Renfro to a pulmonologist to confirm that her breathing difficulties were neither psychological nor the product of malingering. Id. UNUM upheld its original denial in a letter noting that it had relied on Renfro's internist's assessment that she had the functional capacity to sit for 4 hours, stand for 2 hours, walk for 4 hours and lift up to 25 pounds occasionally, and occasionally bend and stoop. Id. at 836. The letter also stated that UNUM'S consulting physician had reviewed the claim file and determined that Renfro's pulmonary function test was normal and that her asthma was not debilitating. Id.

In follow up to test results submitted by Dr. Furr, UNUM then decided to pay Renfro disability benefits under a reservation of rights, while it continued to investigate the claim. As one of UNUM's staff doctors noted some controversy over whether multiple chemical sensitivity syndrome existed as a legitimate medical syndrome, he recommended that an independent medical examination be performed. Id. The IME doctor concluded that Renfro's asthma was mild at best. Id. He further observed that the claimant's symptoms could be controlled with aggressive use of an anti-inflammatory drug, at the same time the IME doctor noted that:

[claimant] is obviously disabled in that she becomes markedly symptomatic if she leaves her home environment, and thus it would be difficult for her to participate in work outside her home. I do not believe however that this is as a result of a true asthma and may well be functional.
[page J-24]
Id. at 837. UNUM upheld its denial of Renfro's claim and she commenced an ERISA action.

The Renfro court reviewed UNUM's decision under the de novo standard. Id. at 838. The court then summarized the medical evidence that UNUM had in its claim file. In the Renfro court's assessment, the claimant's treating psychiatrist only provided evidence of her mental disability and he disclaimed any expertise concerning allergies. Id. Renfro's treating allergist noted diagnoses of several conditions, but did not state that she was disabled due to any of these conditions. Id. The court then observed that the opinions of the Renfro's chiropractor and physical therapist could be discounted because (1) neither had the expertise to diagnose an infectious or environmental illness and (2) Renfro had not contended that she was disabled due to any chiropractic or musculoskeletal condition. Id. The court also noted that Renfro's internist had suggested that she was disabled due to "very, very severe asthma," but that assessment was contradicted by the results of contemporaneous clinical tests. Id. Further, the court commented that while the internist had opined that Renfro's allergies contributed to her disabilities, the allergist who was treating Renfro at that same time did not give a similar opinion. Id. at 838. Finally, in the court's view Renfro's pulmonary tests showed only mild obstructive airways disease and the recommended treatment did not indicate that she was disabled. Id.

The Renfro court then stated its assessment of the case as follows:

As for [Renfro]'s list of the various diagnoses made of her conditions during 1991 through 1993, the issue before the plan administrator was, as it is before this court, whether any condition or combination of conditions suffered by the [claimant] is disabling within the meaning of the applicable
[page J-25]
plan language. A list of diagnosed conditions, standing alone, does not satisfy the burden of making such a showing of disability.
Id. Accordingly, the Court granted UNUM's motion for summary judgment.

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E. Conclusion

A review of the cases that address the denial of disability claims based on subjective symptoms leads to several conclusions. Each case is unique, its outcome highly dependent on the facts and the forum. Some courts have found that denials based on lack of objective medical evidence are not arbitrary and capricious, even in the absence of plan language requiring claimant to produce such evidence. other courts have overturned "lack of objective evidence" denials. Some courts have found acceptable denials based on lack of a definitive diagnosis. Others have not.

Generally speaking, claims in which the claims administrator or carrier has conducted a thorough review of medical records by an in-house or consulting physician or commissioned an independent medical examination, and arrived at thoughtful and reasonable conclusions resulting therefrom, are more likely to result in a judicial finding favorable to the claims administrator or carrier, in matters governed by ERISA.

Even though conditions such as chronic fatigue syndrome, fibromyalgia, chemical and environmental sensitivity and chronic pain have beguiled and to an extent divided the medical community, courts tend to look with disfavor on claims decisions that are based on conclusory opinions of medical professionals that these subjective conditions don't exist or that a claimant is not suffering from them. However, diagnosis alone does not equal disability. Consequently, it is important to remember that disability occurs when an
[page J-25]
individual lacks the ability to perform the duties of an occupation. The complexities and difficulties of litigating a subjective condition disability lawsuit can be lessened if the parties and courts maintain their focus on this critical issue.

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Go to the Editorial Introduction

[page J-26]

BIBLIOGRAPHY

Clausen v. Standard Insurance Co., 961 F. Supp. 46 (D.Colo. 1997)

Conley v. Pitney Bowesm Inc., 1997 WL 580533 (E.D.Mo. 1997)

Davis v. U.S. West. Inc.. et al., 1996 WL 673148 (D.Neb. 1996)

Donato v. Metropolitan Life Insurance Co., 19 F.3d 375 (7th Cir 1994)

Duncan v. Continental Casualty Co. 1997 WL88374 (N.D.Cal. 1997)

Ellis v. Metropolitan Life Insurance Co., 126 F.3d 228 (4th Cir. 1997)

Finster v. Metropolitan Life Insurance Co. 927 F. Supp. 201 (N.D. Texas 1996)

Firestone Tire and Rubber Co. v. Bruch 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed. 2d 80 (1989)

Gawrysh v. CNA Insurance Co. 1998 WL 329719 (N.D.Ill. 1998)

Greene v. Metropolitan Life Insurance Co. 924 F.Supp. 351 (D.R.I. 1996)

Mitchell v. Eastman Kodak Co. 910 F.Supp. 1044 (M.D.Pa. 1995)

Mitchell v. Eastman Kodak Co. 113 F.3d 433 (3rd Cir. 1997)

Monroe v. Pacific Telesis Group Comprehensive Disability Benefits Plan 971 F. Supp. 1310 (C.D.Cal. 1997)

Pokol v. E.I. Du Pont De Nemours & Co.. Inc. 963 F. Supp. 1361, 1365 (D.N.J. 1997)

Renfro v. UNUM Life Insurance Co. of America 920 F. Supp. 831 (E.D.Tenn. 1996)

Saltarelli v. Bob Baker Group Medical Trust. et al. 35 F.3d 382, 387 (9th Cir. 1994)

Sansevera v. Du Pont 859 F. Supp. 106 (S.D.N.Y. 1994)

Sisco v. United States Department of Health and Human Services 10 F.3d 739 (10th Cir. 1993)

Steinman v. Long Term Disability Plan of the May Department Stores Co. 863 F. Supp. 994 (E.D.Mo. 1994)

[page J-28]
Yeager v. Reliance Standard Life Insurance Co., 88 F.3d 376 (6th Cir. 1996)

Sally James, "The Chemically Sensitive Controversy," Issues of Iniurv, Vol.8, No.3 1994

James R. McMullin, "Confronting the Back-Related DI Claims Challenge," National Underwriter, February 10, 1997

Susan, C. Sendra, "Subjective Disabilities a Unique Challenge," Business Insurance, October 7, 1996

 

 

Document #:61437


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