As one of the largest employers in Indiana, Eli Lilly covers thousands of employees under their Extended Disability Plan (“Lilly EDL Plan”). The Lilly EDL Plan is self-insured, a rarity in the long term disability world. Just a few years ago, Anthem was the claims administrator for the Lilly EDL Plan but in the spring of 2012, Lilly hired Sedgwick to administer extended disability claims under the EDL Plan. Shortly after this time, our office began receiving calls from Lilly employees whose EDL benefits had been terminated or were under investigation by Sedgwick.
One of the calls we received was from the former Executive Director of Human Resources at Lilly who had worked for Lilly for over 25 years. Unfortunately, her diagnosis of Fibromyalgia worsened over the years until she was forced to leave Lilly and apply for short and long term disability benefits in December 2007. Fibromyalgia is a disease the Seventh Circuit has characterized as “common, but elusive and mysterious.” Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996). In evaluating fibromyalgia in the context of a disability claim, the court in Sarchet described the disease as:
Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed sleep, stiffness, and–the only symptom that discriminates between it and other diseases of a rheumatic character–multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.
Based on the severity of her fibromyalgia condition, our client was approved for EDL benefits in May 2009 and she received those benefits for over 3½ until Sedgwick abruptly terminated those benefits.
In order to terminate the EDL benefits, Sedgwick required her to attend a medical examination in a different state with the physician of their choosing. The actual exam lasted less than 5 minutes. From this brief examination, Sedgwick’s physician concluded that our client could return to work because, among other reasons, the “American College of Rheumatology does not consider fibromyalgia to be disabling on a long-term basis.” This was untrue and not supported by the medical community. Additionally, Lilly itself contradicted this statement in their marketing of Cymbalta, a medication utilized to treat fibromyalgia. Lilly uses Dr. Daniel Clauw as an expert on fibromyalgia. In a continuing education presentation for physicians, supported by an educational grant from Lilly, Dr. Clauw comments, “We know a lot about fibromyalgia and the types of disabilities that it causes. Certainly a substantial portion of individuals with fibromyalgia will develop some type of functional disability. Because of this many of them end up needing to stop working because of this condition.” Dr. Clauw also testified before the U.S. Senate stating:
Fibromyalgia is one of the most common chronic pain conditions, affecting 2-6% of the US population. This makes fibromyalgia the second most common rheumatological disorder, with only osteoarthritis being more common. Fibromyalgia is not only very common but is typically also very disabling; depending on the sample up to 15-20% of fibromyalgia patients may be on long-term disability.
After the termination of benefits, our client appealed to the Lilly Employee Benefits Committee and supplied them with additional medical support for the continued payment of her claim. The EBC refused to reverse Sedgwick’s decision to terminate the claim and the case proceeded to court.
In analyzing the evidence before the Employee Benefits Committee, the Court concluded that “the record contains nothing more than scraps to offset the evidence” provided by the claimant and her physician. The Court found that the insistence by Lilly’s record reviewing physician on objective evidence was an error given that no definitive objective tests exist for fibromyalgia. Additionally, the Court rejected Lilly’s attempt to cherry-pick the claimant’s treating physician’s statements to utilize only information that supported Lilly’s position. In the end, the Court found that Lilly wrongfully terminated the EDL benefits and ordered Lilly to reinstate the EDL claim. Kennedy v. The Lilly Extended Disability Plan, 2015 WL 631391 (S.D. Ind., Feb. 13, 2015).
If you are a former Lilly employee whose benefits have been terminated by Sedgwick and the EBC, contact the O’Ryan Law Firm for a free consultation.