Disability Attorneys See Signs of Evolution in Fibromyalgia Coverage

Could an evolution in public perception of fibromyalgia one day crack the disability insurance industry’s stone wall? The following situation analysis by California-based disability law attorneys at Pillsbury & Levinson, LLP suggests it might.


Seeking Disability Benefits in Fibromyalgia Cases

Fibromyalgia is a musculoskeletal ailment characterized by widespread pain accompanied by fatigue, sleep, memory and mood issues.

• Doctors believe that the disease amplifies pain by affecting the way the brain processes pain signals. Essentially, painful sensations are a result of how normal signals are amplified. Normally benign aches would register as debilitating pain.

• Fibromyalgia is also associated with increased fatigue and sleep disturbances which can further debilitate those with the disease.

Fibromyalgia (FMS) awareness has gained significant traction over the last 20 years.

• Nearly five million Americans (or 1 in 50) suffer from this disorder. In fact, fibromyalgia is second only to osteoarthritis as the most common musculoskeletal ailment.

• Ninety percent of those suffering from FMS are women (although it does affect men as well).

• Most people develop symptoms during their 30’s and 40’s, and over half recall a traumatic event (such as an accident, significant injury or other experience leading to PTSD) as a trigger for their symptoms.

Negative Perceptions of FMS

Many people with FMS are dismissed as psychological head cases who don’t actually suffer from a neurochemical ailment.

• Perhaps because a large majority of people suffering from it are women, there is an inherent perception that nothing is medically wrong with the patient.

• Most FMS patients endure long periods of misdiagnosis (e.g., for depression, anxiety, irritability) before finally being treated. Because it has symptoms that may point to other ailments, the average assessment takes five years.

• During that time, FMS patients may be told that the pain is “all in their head” or that they “need to get over it” or “get on with life.”

The disability insurance industry has capitalized on these biases.

Insurance companies do this in several ways.

• First, many disability insurers simply refuse to cover disability caused by FMS or other musculoskeletal disorders.

• Where there is not an express exclusion for FMS, disability insurance companies often demand “objective” testing results to demonstrate disability from FMS.

• These companies are aware that objectifying a condition which is characterized by subjective symptoms is close to impossible.

Court Findings

Nevertheless, courts have increasingly resisted these efforts to deny disability insurance coverage to FMS sufferers.

In Salomaa v. Honda LTD Plan, the U.S. Court of Appeals for the Ninth Circuit held that the plan administrator abused its discretion when it denied long term disability benefits to a claimant suffering from fibromyalgia.

• He had completed a battery of tests that indicated he was disabled, and was even awarded Social Security disability benefits.

• Despite this, the administrator denied benefits because he failed to provide “positive physical findings.” The plan administrator did not believe that he met the criteria for a chronic syndrome.

• The court found that the reasons for the denial were “shifting and inconsistent as well as illogical.”

Important Considerations

1. FMS awareness has led to changes in the diagnostic criteria adopted by the American College of Rheumatology in 2010. The new diagnosis:

• Combines an updated pain index (which includes 19 specified areas) with a new severity scale that measures pain levels across a person’s body.

• It also measures the levels of related factors, including fatigue, waking un-refreshed and cognitive difficulties.

2. Another important consideration is the type of claimants seeking California disability benefits.

• Many are ambitious, hardworking professionals entering the prime of their careers. They would trade the money and satisfaction of a gratifying career over their pain and suffering and the finality of fixed disability payments.

• While they may not reveal it, most judges realize this as well.

If you have been diagnosed with fibromyalgia or chronic pain syndrome and are seeking disability benefits, an experienced lawyer can counsel you.

Pillsbury & Levinson, LLP, May 11, 2012

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