We have noted higher denial rates for disability claims from clients who suffer from fibromyalgia and chronic fatigue syndrome.  In order to combat these denials it is important to understand why insurance companies deny these claims.  Fibromyalgia and Chronic Fatigue – though two separate diagnoses – have several similarities.  The medical community has not yet come up with any objective testing to confirm the diagnosis of either condition.  They are diagnosed based on the subjective symptomology and the exclusion of other possible explanations for the symptomology.  The overriding symptoms are joint and muscle pain and incapacitating fatigue often referred to as brain fog.  It has been described as if you have a constant bad flu with every muscle in your body shouting out in pain.  In addition, you feel devoid of energy as though someone has unplugged your power supply.

Insurance companies have taken advantage of (1) the fact that there is no objective testing to support the diagnosis of these conditions or to measure the amount of pain or fatigue a patient suffers as a result of these conditions; and (2) the fact that the conditions tend to wax and wane, so that one day a patient may be able to go about his daily business in an ordinary manner, then the next day, because of the extended effort from the day before, they may be bedridden.  Because of the variability of the symptoms and thus the capacity of the patient, it is very difficult for the treating doctor to quantify how long a person can sit, stand, walk or lift.  These are the types of measurements insurance companies like and when doctors cannot provide accurate estimates of a patient’s limitations then the insurer cites that as a basis to deny benefits.

Where an insurance policy contains no specific requirements for objective proof, it cannot deny a claim for lack of such evidence.  This is particularly true where there is no objective evidence to confirm the diagnosis of chronic fatigue or fibromyalgia.  The Federal Courts have repeatedly held that insurance companies who deny these claims for lack of objective evidence are acting unlawfully.  Salomaa v. Honda LTD Plan, 647 F.3d 958 (9th Cir. 2011).

Thus, the strategy must be to:

(1)  Provide the strongest evidence possible to support the diagnosis and symptoms and how that precludes the claimant from performing his work; and

(2)  Point out how the insurance company relies solely on objective evidence (that does not exist) and ignores all the relevant subjective evidence.