A Pleasant Surprise: Stumbling Across A Line Of Plaintiff Friendly ERISA Case Law
Stumbling Across a Line of Plaintiff Friendly ERISA Case Law
In general, a plaintiff’s attorney won’t go too far wrong assuming that the case law on any given issue underlying ERISA-governed long term disability insurance policies will be problematic or difficult. I was surprised, therefore, when drafting a recent brief, to stumble across a surprisingly friendly line of cases addressing “self reported symptoms” limitations. A far from universal, yet not uncommon LTD policy provision limits the length of time for which benefits are payable for “self reported symptoms.” A typical example reads:
WHAT DISABILITIES HAVE A LIMITED PAY PERIOD UNDER YOUR PLAN?
Disabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness have a limited pay period up to 12 months.
In turn, “self-reported symptoms” are defined as:
SELF-REPORTED SYMTPOMS means the manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.
While not stated explicitly, this language seems intended to limit the insurer’s exposure to disability claims for such conditions as fibromyalgia and chronic fatigue syndrome. Surprisingly, across a series of cases, this language has not had the intended effect.
In Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323, 330 (7th Cir. 2011), the court concluded that “disabilities, due to sickness or injury, which are primarily based on self- reported symptoms” was ambiguous. The clause “based on self-reported symptoms” could be read to modify “disabilities,” such that the focus is on whether the limitation on function is primarily based on self-reported symptoms. Alternately, the clause “based on self-reported symptoms” could be read to modify “sickness or injury,” such that the focus must be on whether the diagnosis of the disease itself is primarily based on self-reported symptoms.
Perhaps surprisingly, the Weitzenkamp court concluded that the second interpretation, focusing on diagnosis, not limitation, was the correct one: “the only viable conclusion is that the self-reported symptoms limitation applies to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported.” The court reasoned:
The contrary interpretation advanced by Unum would sweep within the limitation virtually all diseases, leaving only a small subset for coverage beyond that time period. For most illnesses or injuries, the disabling aspect is not the disease itself, but the pain, weakness, or fatigue caused by that illness or injury. Even diseases that are extremely likely to cause an inability to work, such as stage IV cancer or advanced heart disease, are disabling because of the pain, weakness or fatigue . . . Although we must give deference to the administrator’s interpretation of the plan terms, we cannot conclude that Unum’s interpretation is reasonable.
661 F.3d at 330-31. The Weitzenkamp court then held that because the plaintiff was diagnosed with fibromyalgia using the 18-point trigger test, which it noted “can more or less objectively establish the disease where the findings of the test are consistent with fibromyalgia,” the diagnosis was on the basis of objective evidence and the self-reported symptom limitation did not apply.
Weitzenkamp is not a single, rogue holding; other courts have agreed. See Chronister v. Baptist Health & UNUM Life Ins. Co., 442 F.3d 648, 656 (8th Cir. 2006) (“the eighteen point ‘trigger test’ performed by Dr. Lipsmeyer qualifies as a ‘clinical examination standardly accepted in the practice of medicine,’ and thus, Chronister’s fibromyalgia is not subject to Unum’s self-reported symptoms limitations”). See also McCardle v. UNUM Life Ins. Co. of Am., 2001 U.S. Dist. LEXIS 20541 (D.Minn. September 26, 2001); Russell v. UNUM Life Ins. Co. of America, 40 F.Supp.2d at 750-51 (D.S.C. 1999).
This line of cases is not a panacea that will universally shepherd a fibromyalgia case past a self-reported symptoms limitation. Other cases deem fibromyalgia to be inherently subjective, and focus instead on whether the limitations as a result of the condition can be objectively verified, by functional capacities evaluation or some other means. See Boardman v. Prudential Insurance Co. of America, 337 F.3d 9, 16 n.5 (1st Cir. 2003); Huffaker v. Metro. Life Ins. Co., 271 Fed. Appx. 493 (6th Cir. March 25, 2008). Where economically feasible, an attorney would be wise to obtain objective testing in order to be able to argue that physical limitations as well as diagnosis are based upon more than just self-report. An FCE (especially a two-day FCE that could demonstrate the impact of fatigue) or manual dexterity testing (to demonstrate impaired ability to write and type, thereby precluding most sedentary jobs) could still be invaluable. However, with all the case law that’s unfriendly to plaintiffs out there, it’s nice to sometimes stumble across a line of helpful cases.