DON’T LET YOUR CLAIM BE DENIED BY A “FIBRO DENIER”

Fibro

“…Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues. Researchers believe that fibromyalgia amplifies painful sensations by affecting the way your brain processes pain signals. Symptoms sometimes begin after a physical trauma, surgery, infection or significant psychological stress. In other cases, symptoms gradually accumulate over time with no single triggering event….” There used to be considerable skepticism that fibromyalgia was a real disease. No more. Kennedy v The Lilly Extended Disability Plan, 856 F.3d 1135, 1137 (7th Cir., 2017).

The above statement by Judge Posner of the Seventh Circuit Court of Appeals is one of the more recent decisions that recognizes that Fibromyalgia is a disease which is painful and can be disabling.

Fibromyalgia is one of the “invisible diseases”[1] which cannot be diagnosed or quantified by an MRI or x-ray. When the disease first came to the forefront in disability litigation, insurers sought to deny these claims based on the rationale that the insured did not prove the claim with “objective evidence.”

However, more often than not, there was no “objective evidence” requirement in the disability insurance policy. Courts rightfully held that insurers could not deny a claim for failure to provide “objective evidence” when there was no such policy criteria. Courts also noted that insurers could not deny a claim for failure to submit evidence which could not exist: the disabling nature of Fibromyalgia and/or even its diagnosis could not be proved with a “dipstick.” See Salomaa v Honda LTD Plan. 642 F.3d 666 (9th Cir., 2011.) It is improper to insist on this type of proof when no such proof could ever exist.

Insurers have now been using a different tactic. They utilize “Fibro Denier” physicians to review the claim. These physicians often opine that Fibromyalgia is a “syndrome,” as opposed to a true illness and that it can never be impairing. Instead of looking at the evidence of the particular claim, they rely on general statements that Fibromyalgia patients can alleviate their symptoms by exercising and engaging in more activity.

When deciding ERISA cases, trial courts will weigh the credibility of the evidence. The evidence of a “Fibro-Denier” is not entitled to much, if any credibility because it does not address the medical evidence in the case. Rather the opinions of these doctors dismiss the disabling potential of the disease out of hand without ever evaluating the actual evidence.

Thus, when reviewing the credibility of these opinions, courts have held that it is arbitrary or erroneous for an insurer to rely on the opinion of a physician who does not believe in the disabling potential of the disease. For example, in DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860, 873 (4th Cir. 2011), the Court of Appeals held that a physician reviewer’s opinion, which was based on a general assumption that fibromyalgia patients are able to work in a sedentary job was insufficient to rebut the insured’s specific evidence of disability.

Kantor & Kantor has obtained two trial court opinions where the judges found, among other things, that the insurers were wrong or arbitrary in accepting the opinions of physician reviewers who did not believe in the disabling potential of fibromyalgia:

Yancy v. United of Omaha, 2015 WL 9311729 (C.D. Cal., 2015) (Insurer acted arbitrarily in accepting the opinion of a reviewing physician who obviously did not believe in the disabling potential of fibromyalgia) and Myers v Aetna Life Insurance Company, 2020 WL 7423109 (C.D. Cal., 2020). In ruling for the Plaintiff, the Myers Court stated:

Third, Dr. Nudell unfairly discounted the effect fibromyalgia can have on individuals. Dr. Nudell's report states “[w]hile [fibromyalgia] may result in subjective myofascial discomfort, there is overall no basis for restrictions with activities of daily living or any other functional impairment as a result of this myofascial pain syndrome.” Additionally, he notes “there is no basis for physical/medical impairment” despite the fact that “subjective complaints of fatigue are not uncommon with the diagnosis of fibromyalgia[ and] MCAS.” Dr. Nudell seems to state fibromyalgia cannot render one disabled, which does not make sense – at least not in a legal context. As explained above, the Ninth Circuit has repeatedly found that fibromyalgia is an impairment that can render one disabled. See Revels v. Berryhill, 874 F.3d 648, 656-57, 662 (9th Cir. 2017) (finding the failure to construe the medical evidence “in light of fibromyalgia's unique symptoms and diagnostic methods” was error); Salomaa, 642 F.3d at 678 (discussing fibromyalgia in the disability plan context); see also Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136, 1137 (7th Cir. 2017) (“There used to be considerable skepticism that fibromyalgia was a real disease. No more.”).

One would think that after seeing courts reject the opinions of “Fibro Deniers,” that insurers would not hire these types of physicians to review claims.

Yet, they continue to do so. At Kantor & Kantor, we still see claims that are denied on the basis of opinions by these types of physicians. The opinions are even quoted by the insurers in their denial letters.

This type of claim adjudication is improper. Claims should be decided on their merits and not dismissed without proper consideration because a doctor does not believe that the disease can ever be impairing. We have made substantial progress in educating the courts that disability opinions such as those seen in the Yancy and Myers case are improper. We will continue to do so as long as insurers rely on these opinions to deny legitimate claims.

Our law firm is here to help. If you have questions about your claim or have been wrongfully denied, call our law firm today and speak with one of our team members to see if we can help you at 1-877-220-0556. Or learn more about who we are and what we do by visiting www.kantorlaw.net. We understand and we can help.

 

[1] www.sciencedaily.com

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