Fibromyalgia is a recognized disability and all authorities agree that if the condition is severe enough, disability benefits can be obtained. There are several sources of disability payments: Social Security disability, state disability programs (California and New Jersey), long term disability (LTD) available under group insurance plans; and individual disability income insurance purchased directly from insurers, which pays a fixed monthly indemnity in the event of sickness or accident causing an inability to work. Regardless of which type of claim is pursued, to establish an entitlement to benefits, it is necessary to meet either a statutory or contractual definition of disability. Those definitions are divided generally into two groups: occupational disability and general disability. Under the first category, benefits are payable upon an inability to perform the material duties of one's own occupation; otherwise, a claimant must prove an inability to perform the duties of any occupation.
Group disability, or LTD insurance, is often a hybrid and will pay benefits for a limited period of time if the insured cannot work at his or her regular occupation. After that period, total disability must be shown. Because most LTD coverage is provided by employers as an employee benefit, claims under those policies are usually governed by the ERISA law (Employee Retirement Income Security Act). ERISA does not apply, though, if insurance coverage is provided by a government or religious employer. Because ERISA is a federal law, claims are mostly decided in federal court. ERISA claims do not allow for jury trials and there is no claim for any damages whatsoever.
However, there is one advantage afforded by ERISA: the insurer must conduct a meaningful appeal of the claim upon request. That affords claimants a powerful weapon because the federal regulations governing ERISA appeals mandate the claimant be provided with the entire claim record, free of charge, as well as all standards, criteria, and other documents that cover the administration of the claim. Armed with that information, a claimant can more easily discern why the claim was denied and target precisely what evidence might be needed to overcome a claim denial.
Fibromyalgia claims present a particular challenge because there are no laboratory tests available to diagnose or rate the severity of the impairment. Thus, it is crucial to put in the record the basis for the diagnosis and why other conditions causing the same symptoms were ruled out. It is also important to keep in mind that the diagnosis alone will never suffice to prove the claim-the degree of impairment must be established. Therefore, it is frequently helpful to place into the claim record as much evidence as possible that will "humanize" the claimant. Letters from family, friends, co-workers and clergy can describe not only the loss of occupational functionality, but the loss of ability to engage in normal family and social functions. Photographs and even videos can also illustrate the degree of disability and make the claim analyst see what the claimant looks like rather than considering the claim as just another statistic.
Most important, though, is a well-supported opinion from the treating doctor. Several recent cases give deference to the treating doctor's opinion so long as the doctor has expertise (i.e., preferably a rheumatologist) and the medical opinions are not inconsistent with the other evidence. Such opinions must also counter another growing trend: to limit benefits for self-reported illnesses, including fibromyalgia. In Russell v. UNUM Life Insurance Company of America, 40 F.Supp.2d 747 (D.S.C. 1999), a court found a doctor's detection of trigger points during the examination of a patient to constitute objective proof of fibromyalgia, thus taking the disorder out of the realm of a "self-reported" illness.
Because disability insurance claims can be extremely complex, it is important to retain experienced, competent counsel to assist in these cases - starting with the appeal of the denial of benefits. It may be too late if hiring counsel is delayed until court is imminent because the standard and scope of review applied by courts may bar additional evidence and doom the litigation to failure even before it starts. Through local support groups and on-line discussion groups, recommendations of attorneys can usually be obtained. Depending on the facts and circumstances of the case, it may also be feasible to find an attorney willing to accept cases either on a contingency fee basis (fees are payable only if benefits are obtained) or by placing most of the fee obligation on a contingency fee basis after payment of an initial retainer.
Originally published in 8/7/02 issue of NFA (National Fibromyalgia Association) Online
