Legendary Judge Richard Posner Awards Disability Benefits to Lilly Employee in One of His Final Opinions Before His Abrupt Retirement

Earlier this month, Judge Richard Posner abruptly announced his retirement from the United States Court of Appeals for the Seventh Circuit after more than 35 years on the bench, effective the following day. Judge Posner, a prolific writer and author of more than 3300 judicial opinions and nearly 40 books, was one of the most prominent appellate judges in the United States and the most-cited legal scholar of the 20th century, according to a survey by the Journal of Legal Studies. He carefully drafted his legal opinions to be easy to read and understand, and his signature concise, frank, and often humorous writing style helped to modernize the discipline of legal writing, presenting a stark contrast from the overly formal, long-winded “legalese” that had long dominated the legal field.

Just over three months prior to his retirement, Judge Posner authored an opinionKennedy v. The Lilly Extended Disability Plan, 856 F.3d 1136 (7th Cir. 2017), awarding substantial long term disability benefits to Cathleen Kennedy, an O’Ryan Law Firm client who had been forced to stop working in her position as an HR executive for Eli Lilly & Company as a result of severe fibromyalgia, a nightmarish condition characterized by chronic widespread musculoskeletal pain and fatigue that often presents with psychosomatic symptoms such as sleep and memory issues, anxiety, and depression. Unfortunately, because many of the primary symptoms of fibromyalgia – especially pain and fatigue – are difficult to objectively measure, the condition has historically been misunderstood and often goes undiagnosed due to the lack of a reliable means of testing for it. As a result, those who suffer from fibromyalgia also frequently must deal with the frustration caused by doubts about the validity of their condition and symptoms by friends, family, and sometimes even their healthcare providers.

Fortunately, recent scientific advances in the understanding of fibromyalgia have led to increasing acceptance of the validity of the condition and its profound impact on the lives of those who suffer from it. Judge Posner recognized this in his opinion, noting that Lilly itself markets a treatment for fibromyalgia and has been advised by one of its own physicians that fibromyalgia “is not only very common but is typically also very disabling” and that many victims of fibromyalgia “end up needing to stop working because of this condition.” Nonetheless, Lilly had terminated Ms. Kennedy’s long term disability benefits after she had been disabled for nearly four years due to fibromyalgia, despite the fact that her primary treating physicians had declared her to be permanently disabled, largely because there was no objective laboratory data proving the validity of her symptoms. Lilly claimed that although Ms. Kennedy was unable to work full time in her previous executive-level position, she could still work part time in one of “various non-executive positions” in her field.

Judge Posner, along with Judge Hamilton who concurred in his opinion, rejected Lilly’s argument and instead upheld the District Court’s judgment awarding the Ms. Kennedy more than $500,000 in past benefits and ordering Lilly to reinstate her monthly benefit payments. In reaching this conclusion, he noted that Lilly’s investigating physicians had disregarded the serious symptoms set forth in Ms. Kennedy’s primary physicians’ records as well as the fact that she experienced frequent but unpredictable periods of worsened fibromyalgia symptoms known as “flares” that would keep the client out of work for one or two days a month and made a regular employment schedule impossible. In his trademark concise style, Judge Posner needed only a single sentence to reject Lilly’s argument that it was not obligated to pay disability benefits because there was no laboratory data confirming Ms. Kennedy’s symptoms, stating simply that “it is error to demand laboratory data to credit the symptoms of fibromyalgia – the crucial symptoms, pain and fatigue, won’t appear on laboratory tests.”

Ultimately, Judge Posner’s opinion was a victory not only for Ms. Kennedy and O’Ryan Law Firm, but for anyone who suffers from fibromyalgia and has difficulty securing disability benefits due to a lack of objective laboratory findings supporting their symptoms. This provides a powerful precedent for anyone seeking to challenge the denial of disability benefits on this basis. If you are unable to work due to fibromyalgia but have been denied disability benefits, please contact the O’Ryan Law Firm for a free consultation.

Judge Posner’s full opinion is available at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D05-18/C:16-2314:J:Posner:aut:T:fnOp:N:1966337:S:0.