Our client, “SW”, won her second decision against Unum today for Long-Term Disabiity (LTD) benefits. On appeal, we challenged the application of the self-reported symptoms limitation to her claim for LTD benefits. Unum’s summary plan description (“SPD”) made no mention of the self-reported symptoms limitation. Unum’s approval letter included language from the plan on what was considered a disability but did not mention the self-reported symptoms limitation. In its letter of explanation, Unum did not dispute SW’s diagnosis of fibromyalgia but instead emphasized that her pain, being the primary symptom associated with her fibromyalgia, was based on self-report. As such, benefits were limited to twenty-four months by the self-reported symptoms limitation.
We then filed the lawsuit that was decided today by the Seventh Circuit Court of Appeals (which decides long-term disability benefits cases from Wisconsin, Indiana and Illinois). The court said that, “to determine whether the self-reported symptoms limitation applies here, we begin with the language of the plan, which limits payment for “[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms,” but the parties disagree as to what this clause means. Unum alleged that the focus was on whether the limitation on function is primarily based on selfreported symptoms. We argued that the focus must be on whether the diagnosis of the disease itself is primarily based on self-reported symptoms.
The court refused to read the clause literally as Unum proposed (the plural self-reported systems clause modifies the plural “Disabilities” rather than the singular “illness or injury,” suggesting that if the inability to perform work is self-reported, the limitation applies), when the clause is considered in context and in light of actual application, 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 selfreported.
The court held that the contrary interpretation advanced by Unum would sweep within the limitation virtually all diseases, leaving only a small subset for coverage. 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. Under Unum’s interpretation, however, the court reasoned, those diseases would fall within the twenty-four-month limitation because pain, weakness and fatigue are self-reported symptoms that are difficult if not impossible to verify using objective medical evidence.
In fact, at oral argument, Unum conceded that under its interpretation the provision would limit coverage for all conditions in which the disabling symptom is pain. Unum even maintained this was true regardless of the etiology of the pain, so that even if the underlying condition were highly likely to cause pain, the limitation would apply because the pain itself is self-reported and not verifiable.
The court rejected Unum‘s “bold assertion”, finding no indication that Unum actually applied or proposed to apply this limitation to disabilities based on diagnoses that can be objectively verified by clinical tests, procedures, and clinical examinations. The court refused to countenance a reading that would allow Unum arbitrarily to disallow any illness or injury that it preferred not to cover while not making that explicit in its SPD.
As to the remaining question of whether the diagnosis of disabling fibromyalgia in the present case was based primarily on our client’s self-reported symptoms or on objective medical evidence, she was diagnosed following the 18-point “trigger test. The court found that the trigger test can “more or less objectively” establish the disease where the findings of the test are consistent with fibromyalgia. The trigger test “qualifies as a clinical examination standardly accepted in the practice of medicine.”
Ultimately, the court agreed with our client’s treating rheumatologist who concluded that “[d]espite interventions by neurology, psychiatry, psychology, neuropsychology, orthopedics, physiatry, integrative medicine, [and a] pain program with multiple interventions from these services, [SW] remains unable to work.” Accordingly, Unum was instructed to reinstate our client’s benefits retroactive to August 22, 2008 and awarded the costs our firm incurred in bringing suit.
Alan Olson writes this web-log to provide helpful information regarding long-term disability cases. He practices long-term disability law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at [email protected] with questions about the information posted here or for advice on specific disability benefit claims.