“Objective Evidence” of Pain … or … Is your disabling pain or fatigue not “real” enough for your insurance company?

People who are unable to work due to serious and painful conditions that do not have objectively measurable symptoms or tests may face difficult problems when making and supporting a claim for disability insurance benefits. These hurdles are common to people who suffer from conditions like fibromyalgia, chronic fatigue syndrome (“CFS”), or chronic pain conditions like complex regional pain syndrome (“CRPS”).

While Kantor & Kantor’s experience has shown us that many short term disability and long term disability insurance companies capitalize on these difficulties to deny or terminate disability benefits (as typified publicly by the UNUM/Provident scandal written about by Professor John Langbein), recently the Seventh Circuit Court of Appeals acknowledged these difficulties and chastised the conduct of Metropolitan Life Insurance Company (“MetLife”) for trying to take advantage of the absence of objective measurements of disabling pain and fatigue that the claimant, Lanette Holmstrom, suffered from. See Holmstrom v. Metropolitan Life Insurance Company, et al., 2010 WL 3024870 (7th Cir. Aug. 4, 2010).

In a lengthy decision decided under the Employee Retirement Income Security Act of 1974 (“ERISA”), the Court found MetLife’s decision to terminate Ms. Holmstrom’s disability benefits to be wrong, and MetLife’s conduct in reaching that decision to have been arbitrary and capricious. MetLife was faulted for conduct that Kantor & Kantor has seen time and again with major disability insurance carriers, including:

● claiming that some “normal” or “negative” test results proved that the claimant was not disabled – without recognizing that these results are not inconsistent with the disabling condition or explaining why the test results identified were of any significance other than being “normal”

● speculating, without any indication in the record to support the speculation, that the functional capacity evaluation (“FCE”) or independent medical evaluation (“IME”) results supporting the claimant’s disability were not reliable because the claimant may not have provided full effort or was faking poor function
● ignoring the Social Security Administration’s determination to award Social Security disability benefits which were only awarded after a finding that the claimant was disabled and unable to work not only from their own occupation but from any occupation
● speculating that a claimant’s heavy regimen of pain medications does not support the existence of genuine pain (and instead these medications were feeding drug-seeking behavior)

● discounting the evidence of cognitive impairment resulting from the claimant’s pain medications
● providing no guidance as to what testing or documentation the claimant should provide to support their disability, including no guidance as to how and by whom this testing should be done
● relying upon the opinions of doctors who never actually saw the claimant over the opinions of doctors who had actually examined the claimant – especially in the absence of evidence of malingering or drug-seeking behavior
● repeatedly “moving the target” during the course of the claim by inviting additional evidence to establish disability, but when that evidence was provided, finding the new evidence was not sufficient under new standards or expectations that had not been communicated to the claimant
If you have had your claim denied or terminated, Kantor & Kantor’s experience in helping those disabled by subjective symptoms of pain and fatigue overcome these wrongful, yet all to common, practices may be of help to you. If you have been the victim of conduct similar to that listed above, do not give up the fight – continue to send the insurance company the FCEs, your treating doctor’s opinions, your treatment records showing your consistent struggles and diagnoses, the surgeries you’ve endured, the medications you take, the neurocognitive testing you’ve undergone, the Social Security (or other entities) findings which all support your non-“objective” pain and/or fatigue you experience.

If you need help fighting, we can fight the fight for you. Consultations are free. 1-800-446-7529

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