Articles Tagged with fibromyalgia

O’Ryan Law Firm, on behalf of Plaintiff, Denise D., recently filed a lawsuit against The Prudential Insurance Company of America (“Prudential”).   Plaintiff was employed by Advance/Newhouse Partnership, which made her eligible for the Advance/Newhouse Partnership Short Term and Long Term Disability Plans, which were administered and insured by Prudential.

Facts of the Case Against Prudential

Plaintiff was employed by Advance/Newhouse Partnership from 2012 until she became disabled in February 2016 and was unable to work due to lupus, fibromyalgia, migraines, spondylosis and radiculopathy. Plaintiff’s treating physicians provided objective medical proof that the Plaintiff was unable to continue working due to these serious illnesses.  Her physicians also confirmed that she was unable to perform the material duties of her job thus meeting the definition of “Disabled” under the Prudential policy.

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.
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The Prudential Friendly Society was founded by insurance agent John Fairfield Dryden in a basement office in downtown Newark, N.J., in 1875. It was the first company in the U.S. to make life insurance available to the working class. In business for 137 years, it boast 48,000 employees worldwide.

At the O’Ryan Law Firm, we receive numerous calls a year from individuals who have become disabled, have disability coverage through Prudential, their doctor has reported to Prudential that they cannot work and Prudential denies the claim. One of Prudential’s favorite reasons for denying claims is what they call a lack of “objective medical evidence.” Many conditions, such as fibromyalgia or migraine headaches, result in symptoms, such as pain and fatigue, which are hard to prove objectively. There are no lab tests or diagnostic testing that are able to establish the severity of chronic pain or fatigue. Yet Prudential in these types of claims will insist on objective medical evidence to prove the disability thus making it nearly impossible to get the claim approved.

The courts have made clear in numerous cases that an insurer’s refusal to honor a claim for lack of scientific data such as lab tests and x-rays is an abuse of discretion where no such data exists in medicine for the conditions at issue and where licensed physicians have provided professional opinions that the conditions are genuine and credibly disabling the claimant. See Holmstrom v. Metropolitan Life Insurance Company, 615 F.3d 758, 769-772 (7th Cir. 2010); Leger v. Tribune Company Long Term Disability Benefit Plan, 557, F.3d 823, 834-835 (7th Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).

In Holmstrom, the claimant suffered from Complex Regional Pain Syndrome (“CPRS”), a condition recognized by the medical community but for which there is no specific diagnostic test. 615 F.3d 758, 768. In that case, the plan acknowledged “Holmstrom’s claims of intractable pain, significant physical limitations, and cognitive deficiency as identified by [claimant and her treating physician],” but found “that the lack of objective findings to support ongoing total disability prevented [the plan] from determining whether [claimant’s] disability was genuine.” Id. at 764. In finding the Holmstrom plan’s denial arbitrary and capricious, the court stated that the plan “gave undue weight to the absence of objective measurements for [claimant’s] impairments,” reasoning that:

Subjectively painful conditions like CPRS and fibromyalgia pose difficult problems for private disability insurance plan administrators and the Social Security Administration, who understandably seek to make decisions based on the most objective evidence available. But we have rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective tests exist for the condition or its severity.
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The O’Ryan Law Firm has represented numerous clients suffering from fibromyalgia in the disability claims process. Usually, the client contacts our office after their disability claim has been denied and all too often the insurance company or claims administrator has denied the claim because there is “insufficient objective medical evidence” to support the claim. It is improper for your disability insurance company to insist that you produce objective medical evidence to prove that you have fibromyalgia because it is impossible to supply the insurance company with objective evidence that doesn’t exist.

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 an 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.

According to the American College of Rheumatology:

Fibromyalgia is a chronic health problem that causes pain all over the body and other symptoms. Other symptoms that patients most often have are:

• Tenderness to touch or pressure affecting joints and muscles • Fatigue • Sleep problems (waking up unrefreshed)
• Problems with memory or thinking clearly
Some patients also may have:

• Depression or anxiety • Migraine or tension headaches • Digestive problems: irritable bowel syndrome (commonly IBS) or gastroesophageal reflux disease (often referred to as GERD)

• Irritable or overactive bladder • Pelvic pain • Temporomandibular disorder–often called TMJ (a set of symptoms including face or jaw pain, jaw clicking and ringing in the ears)

Symptoms of fibromyalgia and related problems can vary in intensity, and will wax and wane over time. Stress often worsens the symptoms.

The American College of Rheumatology provides the following criteria for evaluating of fibromyalgia:
Criteria Needed for a Fibromyalgia Diagnosis
1. Pain and symptoms over the past week, based on the total of:

Number of painful areas out of 18 parts of the body Plus level of severity of these symptoms:
• Fatigue • Waking unrefreshed • Cognitive (memory or thought) problems Plus number of other general physical symptoms 2. Symptoms lasting at least three months at a similar level 3. No other health problem that would explain the pain and other symptoms.
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Cigna, headquartered in Bloomfield, Connecticut, is a global health services organization and its insurance subsidiaries are major providers of medical, dental, disability, life and accident insurance and related products and services, the majority of which are offered through employers and other groups. CIGNA is one of the top health insurers in North America, with medical plans covering nearly 12 million people. Cigna operates in 30 countries, has approximately 40,000 employees and manages around $54 billion in assets.

CIGNA is the parent company of Life Insurance Company of North America. Life Insurance Company of North America (“LINA”) offers group life, accident, and disability insurance to employers. LINA was formed in 1956 by Insurance Company of North America (INA), a CIGNA predecessor company. LINA provides group disability insurance to many employers across Indiana including Toyota, the University of Notre Dame, State Farm, Sony Electronics, Covance and many others. Employees of these companies are provided short and long term disability benefits if they become unable to work due to injury or illness. LINA is responsible for processing the claims and making monthly benefit payments if the claimant proves that they are disabled and unable to return to their own occupation.

During the claims process, LINA will have a Nurse Case Manager review the medical records to determine whether an individual meets the definition of Disabled under the terms of the policy. If necessary, the Nurse Case Manager will escalate the review to a Cigna Medical Director who is an employee of Cigna. The Medical Director will also review the medical records and reports to determine whether the restrictions and limitations listed by the claimant’s treating physician are supported by the medical records. It is not uncommon for the Nurse Case Manager and Cigna Medical Director to disagree with the treating physician and to find that the claimant is able to return to work despite the medical evidence supporting the claim.
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Fibromyalgia is a condition that may prevent someone from working. In these situations, the person may be able to apply for short term disability benefits, long term disability benefits, or Social Security disability benefits. When it comes to filing a claim for disability benefits, it can be challenging for claimants to prove that their fibromyalgia is disabling. These challenges appear in claims to both insurance companies and the Social Security Administration (“SSA”).

Those who suffer from fibromyalgia experience chronic, widespread pain and fatigue, but the objective test results may not show this. Unlike conditions such as Multiple Sclerosis or degenerative disc disease, fibromyalgia does not appear in MRIs or x-rays. Because fibromyalgia is a disorder which does not appear in medical imaging or blood tests, it can be a difficult condition to diagnose. If a fibromyalgia patient is applying for disability benefits, they should follow these steps to document proof of their disability:
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