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by by Mark Oring, Professor of Law, UWLA
October 1, 1996
It has become increasingly clear over the past few years that disability insurance carriers are doing everything within their ability to reduce their exposure to claims from individuals with such illness as Chronic Fatigue Syndrome (CFS) and Fibromyalgia (FM). In fact, in the Wall Street Journal dated July 25, 19096, they reported that UNUM Insurance Company was seeking approval from various States to place a two-year cap on illnesses that they could not diagnose with objective findings through medical tests. Because there are no standard medical tests for CFS and FM, if an insured's State approves UNUM's request, the policy will exclude these diseases from coverage after two years.
Most disability policies to date, however, do not have such a provision. Nevertheless, disability carriers are attempting to deny PWCs their rightful benefits. The insurance companies' first line of defense to contend that there is nothing wrong with the insured. They will specifically use this rationale if the PWC does not have any objective medical findings. Unfortunately, in most cases of CFS, there are no objective medical findings that the traditional medical community (allopathic) accepts as a definitive diagnosis. The fact that a number of PWCs have not found medical practitioners that are sufficiently familiar with their disease to properly document their findings, diagnosis, and objective symptoms, further exacerbates this problem. Remember, insurance companies will have a right to review all of the insured's medical files, and if the files are not well documented, a claim can easily be denied.
Even assuming the claim is initially accepted, a claimant should not be lulled into a false sense of security. Disability carriers have a number of methods of limiting coverage, even if they can't deny the claim at the outset. Most policies have a two year cap if the basis of a claim can be found to be psychological. Accordingly, a PWC may find a demand for an Independent Medical Exam (IME), commonly referred to by attorneys as a "Defense Medical Exam." In other words, an IME is generally performed by a practitioner who is nothing more than a hired medical gun for the insurance company. The IME will usually be set up with a Psychiatrist and/or Infectious Disease Specialist. The psychiatrist will ultimately find that there is a psychological basis for the disability. This is easily accomplished, because most disabled individuals are depressed. The psychiatrist, working for the insurance company will find the depression the cause of the disability. This will be further confirmed by the infectious disease practitioner, who will conclude that there are no objective medical findings.
If all else fails and the insurance carrier cannot deny a claimant's claim as described above, a claimant may find that he or she has been followed by private investigators. If they find that the insured is capable of spending any time out of his or her home, then the insured may no longer be found disabled and benefits will be cut off. The insurance companies will take this attitude despite the fact that the definition of "disability" under the terms of the policy has nothing to do with being in or out of the house.
The problem with diseases such as CFS or Fibromyalgia is that there is no assurance that the patient will ever be able to return to work. Consequently, disability payments might have to continue for the duration of the policy. This would result in a large loss to disability carriers over an extended period of time. Therefore, these companies will expend a great deal of resources and use any means available to deny or limit coverage. Because PWCs have so much at stake, it is important that PWCs know and protect their rights from the inception of their illness.
Editors Note: Good news! One of the nation's leading law firms has decided to participate in a class action/mass action suit representing CFIDS patients against Standard Insurance Company. They are also willing to evaluate individual, non-erisa long-term disability policies of California residents only. For information, please contact Angela at Healthwatch at 1-800-366-6056 for Standard Insurance Disability claims. To be involved in a UNUM class action/mass action law suit, contact the group organizers through Penny Lane, P.O. Box 1093, Bothell, WA 98041-1093.
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