“There used to be considerable skepticism that Fibromyalgia was a real disease. No more.”

“There used to be considerable skepticism that Fibromyalgia was a real disease. No more.”

Kennedy v. The Lilly Extended Disability Plan, –F.3d–, 2017 WL 2178091 (7th Cir., 2017)

It has been said that disability insurance carriers view a Fibromyalgia diagnosis with skepticism. The disease is an “invisible disease” which cannot be measured on x-ray and its diagnosis is often dependent on an insured’s report of pain, fatigue and cognitive dysfunction. For this reason, insurance carriers often try to discount the disabling nature of the disease.   We see carriers do this by: (1) hiring physicians who do not believe in the disabling nature of the disease or (2) demanding the insured submit “objective proof” of the disability, which cannot exist. There are no x-ray’s or MRI’s used for diagnosing Fibromyalgia.

Courts have started to “push back” on disability administrators who use dubious methods to deny Fibromyalgia disability claims. The Seventh Court of Appeals recently issued a decision which will be helpful for Fibromyalgia patients in the future. In Kennedy v. The Lilly Extended Disability Plan, –F.3d–, 2017 WL 2178091 (7th Cir., 2017), the Court started its Opinion with a description of the disabling nature of the disease. The symptoms include severe fatigue, sleep problems and joint pain and are considered “chronic” in nature (lasting more than 3 months.) The claimant, Cathleen Kennedy, used to work for Eli Lilly as a high level executive. Ironically, Elli Lilly manufactures one of the most common drugs to treat Fibromyalgia patients—Cymbalta. In its marketing efforts, Lilly hired a prominent rheumatologist who pointed out that Fibromyalgia patients often need to stop working because of the disabling nature of the disease.

After working for many years, Ms. Kennedy submitted a disability claim to her employer, based on Fibromyalgia. Ms. Kennedy’s claim was initially approved, but then terminated by Lilly. In its termination, Lilly relied upon doctors who either did not believe in the disabling potential of Fibromyalgia, or who gave opinions that “laboratory tests” were normal. The Kennedy Court was very skeptical of their opinions, noting that none of Lilly’s reviewing doctors considered whether the common “flares” associated with the disease would prevent Ms. Kennedy from working a regular schedule.

The Court did not note the amount of profits which Lilly has undoubtedly earned from its sales of Cymbalta. But it did end its opinion by noting that the termination of benefits, if upheld, would have saved the Company about $2.5 million. This is not a “trivial loss:” even for a company the size of Eli Lilly.

We anticipate that the Kennedy decision will be very useful in litigating Fibromyalgia cases in the future.

 

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