Individuals in Chicago with employer-sponsored long-term disability insurance coverage often face obstacles when becoming disabled due to Fibromyalgia or Chronic Fatigue Syndrome. This is especially so if the long-term disability insurer or plan is vested with discretionary authority. For background on what it means for an insurer to have discretionary authority, see our past post.
The most frequent reason insurers give for denying a long-term disability claim based on Fibromyalgia or Chronic Fatigue is lack of objective evidence. While there is no objective evidence of these diagnoses, there can be objective evidence of how the symptoms impair you. You can obtain is a functional capacity evaluation. As explained by an appellate court, while no objective test can measure pain or fatigue, a functional capacity evaluation can objectively measure the degree to which pain or fatigue limits your functioning. Holmstrom v. Metropolitan Life Insurance Co., 615 F.3d 758, 669–70 (7th Cir. 2010).
This is where a recent claimant went wrong, and lost. In Cassidy v. Aetna Life Insurance Co., No. 6:19-cv-201, 2021 WL 1857297 (E.D. Ky. May 10, 2021), Cassidy suffered from Fibromyalgia and Chronic Fatigue Syndrome. Aetna denied her long-term disability claim due to lack of objective evidence of how her symptoms impaired her from working. Though Cassidy received Social Security Disability, the insurer easily dismissed the award because it had different evidence. When Cassidy sued under ERISA § 502(a), giving deference to Aetna, the judge ruled against Cassidy.
Often after being awarded Social Security Disability, the insurer receives the notice of award. But in order to prompt the insurer to explain why its decision differs from that of the Social Security Administration, you must submit the file. Even then, if you received Social Security due to a rule, like medical-vocational grids based on age, or a compassionate allowance, the insurer may still try to distinguish the award. It may also state it has different evidence, namely its own doctors’ opinions.
Getting family members or co-workers to document their observations of how your symptoms affect you helps strengthen any objective evidence of your limitations, such as through a functional capacity evaluation. This will also strengthen the credibility of your doctors’ opinions. By combining multiple avenues of evidence, they all strengthen each other.
If a long-term disability insurer denied your claim, contact an experienced long-term disability attorney immediately.