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Important Shifts in Fibromyalgia Proof for LTD cases 2017

Important Shifts in Fibromyalgia Proof for LTD cases 2017

Fibromyalgia Claims

Fibromyalgia is a disease that does not offer any objective evidence or test results. It has been difficult to “prove” for long-term disability claims in the past. In 2017 there were two strong decisions which overturned long-term disability benefit denials. Disabled claimants were entitled to long-term disability benefits for fibromyalgia. The 2017 rulings represent important shifts in how fibromyalgia cases are proven. More importantly,  they represent how courts should take a skeptical look at medical opinions generated by non-examining peer review physicians. These physicians try to cite to a lack of objective evidence in a disease process that is known for its variability and lack of objective proof.


Tobin v. Hartford

In Tobin v. Hartford Life and Acc. Ins. Co., 233 F. Supp. 3d 578 – Dist. Court, WD Michigan 2017 our client, Mrs. Tobin filed for Long Term Disability for fibromyalgia. The Hartford Insurance Company denied the claim based on a medical report citing a lack of objective data to support the claim. At the same point in time Hartford’s physician, Dr. Farber noted that “diagnoses of fibromyalgia are frequently out of proportion with the degree of objective data provided for review.”

The U.S. District Judge for the Western District of Michigan noted that fibromyalgia, unlike other illnesses, cannot be confirmed or diagnosed by objective medical tests. It is diagnosed by an “elimination of other medical conditions which may manifest fibrositis like symptoms of musculoskeletal pain, stiffness, and fatigue.” Citing to Preston v. Secretary of Health & Human Services, 854 F 2d 815 (6th Cir. 1988).

After Mrs. Tobin appealed the decision, the Hartford obtained additional file reviews from their own peer review physicians who indicated, “The available medical records do not indicate objective functional abnormalities.” They also used a medical review conducted by The Hartford’s Dr. Dennis Payne highlighted normal rheumatology tests and exam notes which found “no weakness or atrophy or features of joint damage, deformity or destruction.”

The District Court Judge found Hartford’s use of the physicians’ assessments problematic. The judge stated, “The fallacy occurs when the proponent (Hartford) introduces a new issue…in an attempt to distract or avoid the subject or topic of discussion. Tobin claimed disability from fibromyalgia. By pointing to a lack of evidence to support a different cause of disability, Hartford distracts from or avoids addressing the question of whether Tobin is disabled by fibromyalgia. For example, Dr. Payne concluded that Tobin’s file contained no objective evidence to support an impairment related to any rheumatological process; he does not address whether Tobin has functional impairments from her fibromyalgia.”


Peer Review Physicians

Peer review physicians are doctors who are hired by insurance companies to review files, even though they have never treated the individual they are assessing. In an effort to gain favor with the insurance company who hired them, they will routinely talk about the case that they would like to see, rather than the one that is actually being presented to them.


Kennedy v. The Lily Extended Disability Plan

A few months after the Tobin case, the Seventh Circuit Court of Appeals In Kennedy v. The Lily Extended Disability Plan, Case No. 16-2314, analyzed a case in which Ms. Kennedy sought disability from her job with the Eli Lily Corporation due to fibromyalgia. Ms. Kennedy was an executive director of Eli Lily’s HR department when she was unable to continue her duties due to fibromyalgia. Interestingly, Eli Lily hired Dr. Dennis Payne to review the case. This is the same Dr. Payne who evaluated Mrs. Tobin’s case.  Dr. Payne’s opinion was that Ms. Kennedy was able to return to her job even though the medical records noted fatigue, irritable bowel, and other problems. The Court noted that Dr. Payne appeared to have ignored the symptoms by saying, “all of the laboratory data in this file are normal.”

The Court also noted that Ms. Kennedy presented evidence from her rheumatologist Dr. Neucks that she was subject to fibromyalgia flares. The flares would prevent her from working at least 1-2 days per month. With this information, Judge Posner stated: “If Dr. Neucks is correct about the flares (and there is no evidence that he is not), Kennedy wouldn’t be able to work any regular schedule.” Consequently, the Seventh Circuit Court affirmed the judgment of the District Court and held that Ms. Kennedy was entitled to long-term disability benefits.


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