Courts across the country grapple with the challenge of reviewing denied or terminated long-term disability claims based on fibromyalgia. On September 21, 2018, a federal judge in Massachusetts found that Unum and a supplemental insurer had wrongly terminated Judith Kamerer’s LTD benefits after almost a decade of payments. Kamerer suffers chiefly from fibromyalgia and depression.
Background on fibromyalgia
According to the Mayo Clinic, fibromyalgia is a medical impairment with “widespread musculoskeletal pain” plus “fatigue, sleep, memory and mood issues.” Researchers think it “amplifies painful sensations by affecting the way your brain processes pain signals.”
In addition, Mayo explains that fibromyalgia patients may experience “fibro fog,” a cognitive difficulty that “impairs the ability to focus, pay attention and concentrate on mental tasks.”
There may not always be a specific ascertainable cause, but sometimes fibromyalgia is associated with trauma, infection, a surgical procedure or “significant psychological stress.”
LTD insurers have historically discounted the complaints of fibromyalgia claimants by saying that there is no objective medical evidence to support their claims. This begs the question of how do you provide objective evidence of something that is subjective in nature, or how do you measure something you can’t see, like pain, fatigue or depression?
Kamerer v Unum Life Insurance Company of America
The judge wrote in Kamerer that the First Circuit Court of Appeals has held that it is “unreasonable to require objective evidence supporting a diagnosis such as fibromyalgia that inherently evades objective verification.” (Emphasis added.)
Yet, the insurer still argued that Kamerer had to produce objective evidence that her symptoms kept her from performing the tasks of her job as a systems project manager.
Noting that “countless medical professionals” had:
- Diagnosed Kamerer with fibromyalgia
- Felt clearly that she could not perform the physical tasks of her occupation
- Observed evidence objective in nature
- Believed her subjective complaints
- Found her “occupationally disabled”
and noting that she has endured the “significant side-effects” of strong prescription pain medications, the judge concluded that Kamerer met her burden of showing she cannot return to her occupation.
The Kamerer opinion is available on Westlaw at 2018 WL 4539693.