New Jersey Disability Lawyer Blog
If you are suffering from fibromyalgia or chronic fatigue syndrome (CFS) and need to go on disability, chances are that you will receive push back from your short term or long term disability insurer. Insurers often resist claims based on fibromyalgia and CFS. More often than not, insurers will require claimants to provide “objective evidence” of these conditions and evidence of the symptoms experienced. As these are conditions that cannot be proven through traditional clinical testing, it is important to take steps to protect yourself to present the strongest case possible to your insurer.
Third Circuit courts have repeatedly held that it is arbitrary and capricious for an insurer to require that a claimant provide “objective medical evidence” in the context of a claim for LTD benefits when that claim is due to fibromyalgia or CFS. Balas v. PNC Fin. Servs. Group, 2012 U.S. Dist. LEXIS 26027 (W.D. Pa. Feb. 29, 2012); See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 442-443 (3d Cir. 1997); Steele v. Boeing Co., 225 Fed. Appx. 71, 74-75 (3d Cir. 2007); Kuhn v. Prudential Ins. Co. of Am., 551 F. Supp. 2d 413, 427 (E.D. Pa. 2008). It is well known that both fibromyalgia and CFS are diseases that cannot be verified through traditional objective testing and therefore requiring a claimant to do so creates an impossible hurdle that cannot be overcome. Id. Other Circuits have reached a similar consensus that it is improper for an insurer to require objective evidence to justify fibromyalgia and CFS. See Burkhead v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 52040 (D. Colo. Apr. 13, 2012); Ayers v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 55814 (D. Or. Apr. 19, 2012); Solomon v. Metro. Life Ins. Co., 628 F. Supp. 2d 519 (S.D.N.Y. 2009); Holler v. Hartford Life & Accident Ins. Co., 737 F. Supp. 2d 883, 891 (S.D. Ohio 2010); Rodriquez v. McGraw-Hill Companies, 297 F.Supp 2d 676 (S. D. NY 2004).
In Balas, the court distinguished between requiring objective proof of a condition and requiring objective proof ofa loss of functional capacity causing the claimant to be disabled. Balas, 2012 U.S. Dist. LEXIS 26027 at *25. However, as the court in Heim v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 38257 (E.D. Pa. Mar. 21, 2012) points out, there is an inherent problem “in requiring objective evidence of the symptoms or bases of diagnoses for which there are no objective tests.” The Heim court found it improper when the insurer sought objective evidence that the claimant’s symptoms of fatigue and pain rendered her unable to work. Id. at *28.
You should still take steps to document your condition. For fibromyalgia ask your doctor to make a clear record of your tender points, a measure of fibromyalgia that courts have found to be “objective evidence of the condition.” For CFS ask your doctor to track the other conditions that they have ruled out, and the history of the symptoms that have led to confirming your diagnosis. It is also important that you keep a strong record of the symptoms you experience, and why each symptom prevents you from performing your job or any other job, and what causes an exacerbation of your symptoms.
If you are suffering from fibromyalgia or CFS and have been denied benefits due to a lack of “objective evidence” of your medical conditions or symptoms, there is a strong chance that your insurer has acted in an arbitrary and capricious manner. We at Bonny G. Rafel have extensive experience dealing with this issue and frequently help clients with fibromyalgia and CFS fight for the benefits they deserve.
–By Alexander C. Schaffel, Esq.