ERISA DISABILITY COVERAGE FOR IMPAIRMENTS CONSISTING PRIMARILY OF SELF-REPORTED SYMPTOMS

Some disability policies or ERISA plans limit coverage for “self-reported” symptoms. See, e.g., Chronister v. Baptist Health, 442 F.3d 648 (8th Cir. 2006) (2 year limitation for claims based on “self-reported” symptoms with “self-reported” defined as those that “are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine”); Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1188-89 (10th Cir. 2009) (similar limitation). However, many plans provide for no such limitations. This is important because if a plan has no exception for coverage for a specific impairment, then the plan necessarily covers that impairment and cannot place unreasonable conditions on proving the impairment. As the 9th Circuit stated in Salomaa v. Honda, 642 F.3d 666, 678 (9th Cir. 2011):

[Because] [t]he plan has no exception to coverage for chronic fatigue syndrome, [it] has taken on the risk of false claims for this difficult to diagnose condition. Many medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established until autopsy. In neither case can a disability insurer condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.

Id. The Salomaa Court explained further:

As we said in dicta in a fibromyalgia case, “if the administrator had said, ‘we will not accept fibromyalgia as a diagnosis unless you present objective evidence of it such as positive findings on x-rays,’ she would have been demanding what cannot exist . . . .”We now establish as holding what was then dicta, that conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious.

Id.

Under Salomaa, if there is no exception to coverage for an impairment consisting mainly of self-reported symptoms, like chronic fatigue syndrome, fibromyalgia or migraine headaches, and if such impairment is particularly unsusceptible to diagnostic testing or objective evidence, then an ERISA plan cannot require a claimant to confirm the existence of his or her condition solely through “objective tests.” Just recently this principle was succinctly articulated in Hare v. Liberty Life Assurance Company of Boston, 2013 WL 5574480 *2 (E.D.Ark 2013). Under Hare, even where a plan specifically requires “objective evidence” it would be unreasonable for the plan to rely solely upon such evidence for impairments which have pain as their dominate feature. Id. The HareCourt noted:

[The] plan requires [plaintiff] to show her disability by objective evidence, including “chart notes, lab findings, test results, and x-rays”. . .For a fibromyalgia diagnosis, objective evidence comes in the form of an eighteen-point “trigger test.” [Citation omitted]. A test result supports the diagnosis if eleven of the eighteen particular points on the body are painful when pressed. [Citations omitted]. . .Fibromyalgia isn’t like other disabling conditions; there’s an objective test to diagnose it, but the associated pain for any given person is subjective. Only [plaintiff] knows how much she hurts, and whether that pain is disabling. Under this circumstance, “it would not be reasonable for [Defendant] to rely solely upon objective evidence in assessing [plaintiff’s] level of impairment.” [Citations omitted].

Id, at *1 – 2. Additionally, the Court in Abram v. Cargill, Inc., 395 F.3d 882, 887 n.3 (8th Cir. 2005), found that “[w]hile fatigue is difficult to assess, disability plan administrators may not require objective medical evidence of the cause if there is consistent evidence of disability symptoms, and no finding that the claimant is not credible in her complaints. See Mitchell v. Eastman Kodak Co.,113 F.3d 433, 442-43 (3rd Cir.1997); Wilkins v. Hartford Life & Acc. Ins. Co., 299 F.3d 945, 947 n. 1 (8th Cir.2002).”

The 6th Circuit contains similar jurisprudence. For example, in Holder v. United of Omaha, 2013 WL 571815 * 17 (M.D. Tenn. 2013), the Court indicated that “[o]bjective evidence of disability can be required…when a claimant’s alleged disability stems from a condition that does not lend itself to objective evidence.” However, Holder defined “objective evidence of disability” in cases where “symptoms are largely subjective” as an “objective analysis” of the “limitations imposed by the symptoms.” Holder, 2013 WL 571815 at *17. Holder notes that “[c]ourts have held that an ERISA administrator’s reliance on the lack of objective medical evidence is arbitrary and capricious where the claimant’s illness or sickness cannot be objectively determined,” referencing Brooking v. Hartford Life & Accident Ins. Co., 167 Fed. Appx. 544, 549 (6th Cir. 2006). Holder found that 6thCircuit jurisprudence required “medical evidence of a diagnosis” though a plaintiff is “not required to provide objective evidence of the [illness itself],” where “symptoms [are] largely subjective.” Id., referencing Huffaker v. Metro. Life Ins. Co., 271 Fed. Appx. 493, 500 (6th Cir. 2008). In other words, unless a plan specifically excludes coverage for a disability consisting mainly of self-reported symptoms like pain and fatigue, then that disability is likely covered and no unreasonable conditions can be placed on proving the impairment, even though the insurance company may pretend otherwise.