Fibromyalgia and Long Term Disability Insurance
Fibromyalgia, also known as Fibromyositis, is a chronic disorder characterized by widespread musculoskeletal pain, fatigue, and tenderness in localized areas. Millions of American men and women suffer from this debilitating medical condition. Thus, it may come as no surprise that many of those who suffer from Fibromyalgia may find themselves no longer able to continue to work and needing to apply for Short Term or Long Term Disability benefits.
Fibromyalgia Conditions and Symptoms
Scientists estimate that Fibromyalgia affects 5 million Americans 18 or older. Fibromyalgia is most common in women between the ages of 25 and 60; however, men and children can also have the disorder. Most people are diagnosed during middle age.
People with certain other diseases may be more likely to have Fibromyalgia. These diseases include:
- Rheumatoid arthritis;
- Systemic lupus erythematosus (commonly called lupus);
- Ankylosing spondylitis (spinal arthritis); and
- Women who have a family member with Fibromyalgia may be more likely to have Fibromyalgia themselves.
The primary complication from Fibromyalgia is the extreme pain that the condition produces. People suffering from FM often experience pain in their joints and muscles throughout the body, causing joint pain and muscle spasms. People with fibromyalgia have “tender points” on the body. Tender points are specific places on the neck, shoulders, back, hips, arms, and legs. These points hurt when pressure is put on them.
People with fibromyalgia may also have other symptoms, such as:
- Trouble sleeping;
- Morning stiffness;
- Painful menstrual periods;
- Tingling or numbness in hands and feet; and
- Problems with thinking and memory (sometimes called “fibro fog”).
To complicate things even further, those who have Fibromyalgia tend to have a lower pain tolerance than most due to the condition itself. This can in turn intensify the symptoms and may have a significant impact on the patient’s quality of life. In some cases, dealing with Fibromyalgia may cause mental problems such as depression, anxiety and fatigue in addition to the physical symptoms.
What Causes Fibromyalgia?
The causes of Fibromyalgia are unknown. There may be a number of factors involved. Fibromyalgia has been linked to:
- Stressful or traumatic events, such as car accidents;
- Repetitive injuries;
- Illness; and
- Certain diseases.
Fibromyalgia can also occur on its own. Some scientists think that a gene or genes might be involved in fibromyalgia. The genes could make a person react strongly to things that other people would not find painful.
How Is Fibromyalgia Diagnosed?
The American College of Rheumatology (ACR) has issued criteria to determine whether an applicant has Fibromyalgia. There are two alternatives in ACR criteria that can be used in determining whether you have fibromyalgia. The ACR requires the following for a diagnosis of Fibromyalgia:
- Evidence of chronic widespread pain, including pain in the back, neck, or chest;
- Evidence that shows your doctor ruled out other diseases that could cause the same symptoms (the symptoms of fibromyalgia often overlap with those of lupus, hypothyroidism, and multiple sclerosis), such as lab tests and examination notes, and
- One of the following:
- Tender point sites in at least 11 of 18 tender point areas of the body, with tender points occurring on both sides of the body and both above and below the waist. A list of the tender points can be viewed in the SSA’s recent ruling on Fibromyalgia. In testing tender points, your doctor should apply the approximate amount of pressure needed to blanch his or her own thumbnail; or
- Repeated manifestations of six or more Fibromyalgia symptoms, signs, or conditions that often occur with FM, particularly fatigue, non-restorative sleep, cognitive or memory problems (“fibro fog”), depression, anxiety, or irritable bowel syndrome (IBS). Other possible symptoms include headache, muscle weakness, abdominal pain, Raynaud’s phenomenon, seizures, and dizziness.
A person may also have two or more coexisting chronic pain conditions. Such conditions can include chronic fatigue syndrome, endometriosis, fibromyalgia, inflammatory bowel disease, interstitial cystitis, temporomandibular joint dysfunction, and vulvodynia. It is not known whether these disorders share a common cause.
When a primary care physician assesses a patient a Fibromyalgia diagnosis without a corroborative diagnosis by a specialist, a disability examiner may interpret that to mean that the doctor gave the patient a label for lack of a better way to diagnose a patient’s pain. Unfortunately, this was in fact often the way family doctors prescribed fibromyalgia in the past. Many times when primary care doctors were unable to find underlying reasons for the pain their patients felt, they diagnosed “Fibromyalgia” as the cause. Over the past 10-15 years, disability examiners have seen this routinely occur in the records they review. Fortunately, this is happening less and less in the present as doctors are becoming more familiar with Fibromyalgia. But still, as a result, a Fibromyalgia diagnosis issued by an orthopedist or rheumatologist will still be more credible to a disability examiner and will strengthen a Long Term Disability claim, in contrast to situations where the Fibromyalgia diagnosis has been made by an internist or family care doctor.
How Is Fibromyalgia Treated?
Fibromyalgia can be hard to treat. It’s important to find a doctor who is familiar with the disorder and its treatment. Many family physicians, general internists, or rheumatologists can treat fibromyalgia. Rheumatologists are doctors who specialize in arthritis and other conditions that affect the joints or soft tissues.
Fibromyalgia treatment often requires a team approach. The team may include your doctor, a physical therapist, and possibly other health care providers. A pain or rheumatology clinic can be a good place to get treatment.
What Can You Do to Try to Feel Better?
There are many things you can do to feel better, including:
- Taking medicines as prescribed;
- Getting enough sleep;
- Eating well; and
- Making work changes if necessary.
What Research Is Being Done on Fibromyalgia?
The National Institute of Arthritis and Musculoskeletal and Skin Diseases (NIAMS) sponsors research to help understand Fibromyalgia and find better ways to diagnose, treat, and prevent it. Researchers are studying:
- Why people with Fibromyalgia have increased sensitivity to pain;
- Medicines and behavioral treatments;
- Whether there is a gene or genes that make a person more likely to have Fibromyalgia;
- The use of imaging methods, such as magnetic resonate imaging (MRI), to better understand Fibromyalgia;
- Inflammation in the body and its relationship to Fibromyalgia;
- Non-drug therapies to help reduce pain; and
- Methods to improve sleep in people with Fibromyalgia.
Filing for Long Term Disability with Fibromyalgia
Traditionally, when an LTD claims examiner received a case in which the only disability alleged in the claim was fibromyalgia, the outlook for an initial approval was poor. Disability insurance examiners generally gave little weight to a claim of fibromyalgia unless another severe medical condition was involved, such as arthritis or degenerative disc disease. For example, if a claimant made a disability claim and the chief impairments were Fibromyalgia and rheumatoid arthritis, or Fibromyalgia and degenerative disc disease, the Fibromyalgia allegation automatically carried more weight when seen in combination with another impairment as opposed to fibromyalgia being evaluated on its own. This may be because fibromyalgia is seen as a logical and plausible extension to what are generally considered as “more proven” impairments. As a result, unless a Fibromyalgia diagnosis was made in conjunction with another medical diagnosis, especially one of a musculoskeletal nature, a disability claimant with fibromyalgia had little chance of being approved for LTD benefits.
If you are suffering from Fibromyalgia and wish to file a Long Term Disability claim, there are some things you need to know. First and foremost, as you know, Fibromyalgia is difficult to prove with medical testing. There are no “objective” imaging or laboratory tests (such as an X-Ray, CT-Scan or MRI) that can confirm or exclude the condition. Your doctor will evaluate your “subjective” complaints and will need to rely on your medical history, exclusionary testing and a comprehensive physical exam in order to diagnose Fibromyalgia.
The Burden of Proof: A Diagnosis of Fibromyalgia is Not Enough
Even if you are diagnosed with Fibromyalgia, the battle for disability benefits is not over just because you’ve been diagnosed with the condition. In any disability insurance claim, the claimant has the “burden of proof” to prove he or she is disabled. Most insurance companies are denying LTD benefits because they know there are no tests to prove the condition. Moreover, we are seeing more and more limitations placed on Fibromyalgia claims in new LTD insurance policies. For example, many disability insurance policies now have a one or two year cap on benefits for FM claims under
What allows a claims handler to consider subjective complaints to be taken as “medical signs” in the case of Fibromyalgia? When a symptom is an abnormality that can be documented by clinical diagnostic techniques that have been accepted by the medical profession, such as found in the definition established by the ACR, the claims handler may view this as sufficient evidence.
Self-Reported Symptoms Limitation
Many insurance carriers are limiting disability insurance coverage for Fibromyalgia under the self-reported symptoms limitation clause of the LTD policy. This clause is sometimes called the non-verifiable condition limitation. Here is some sample language take from a Unum plan, which provides in relevant part:
Disabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse have a limited pay period up to 24 months.
Self-reported symptoms means the manifestations of your condition which you tell your doctor that are not verifiable using tests, procedures or clinical examinations typically accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.
The key language of the plan limits payment for “[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms.” The issue is whether the limitation on function is primarily based on self-reported symptoms, or that the diagnosis of the disease itself is primarily based on self-reported symptoms.
Insurance companies argue that such clauses should be read literally so that the plural self-reported symptoms clause modifies the plural “Disabilities” rather than the singular “illness or injury,” suggesting that if the inability to perform work is self-reported, the limitation applies. However, when the clause is considered in context and in light of actual application, the only viable conclusion is that the self-reported symptoms limitation applies to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported. The contrary interpretation advanced by insurance companies would sweep within the limitation virtually all diseases, leaving only a small subset for coverage beyond the reduced time period. For most illnesses or injuries, the disabling aspect is not the disease itself, but the pain, weakness, or fatigue caused by that illness or injury. Even diseases that are extremely likely to cause an inability to work, such as stage IV cancer or advanced heart disease, are disabling because of the pain, weakness or fatigue. Under an insurance company’s interpretation, however, those diseases would fall within the twenty-four-month limitation because pain, weakness and fatigue are self-reported symptoms that are difficult if not impossible to verify using objective medical evidence.
Assessment of Fibromyalgia
The claims examiner assigned to your claim will review your medical records to see if they include evidence of the above criteria. The examiner will read your doctor’s notes on your complaints of pain, fatigue, and possible cognitive difficulties. To assess the credibility of your complaints, the claims examiner may ask your doctor to provide information about the extent and duration of your condition, his or her opinion of how well you are able to function with your condition, what treatments were tried, whether the treatments were helpful, whether the treatments and/or medications had negative side effects, and how long the doctor expects your ability to function to be limited. The longer your medical record includes evidence of fibromyalgia symptoms and treatment, the better. Moreover, if your various doctors agree that you have fibromyalgia, this makes your case stronger.
Other Documentation of a Fibromyalgia Claim
In addition to using your treating doctor’s medical records, the LTD insurance adjuster may request records from psychologists and physical therapists you have seen. The adjuster may also send you for an “independent medical examination”. At the exam, you will be seen by a doctor who is paid by the insurance company and who will report on whether he or she thinks you have fibromyalgia, its severity, its duration, and the ways it functionally limits you.
The insurance company adjuster may develop a residual functional capacity (RFC) assessment for you to determine if there is any work you can do given your condition. An RFC assessment is an evaluation of your ability to perform work activity. For example, if you cannot lift more than 10 pounds, then that would eliminate all jobs that require you to lift and carry more than 10 pounds. Let’s say your RFC also says you need to take frequent rest breaks. This would further limit the types of jobs you can do. Similarly, if you cannot use your hands for fine motor movements, this would further limit the types of jobs you can do. Your RFC will be based on your medical records, opinions from doctors and specialists, and statements from you. In assessing your RFC, the insurance adjuster will rely on your doctor’s opinion as to your abilities, like how long you can stand, sit, and walk, how much you can lift, and how well you can focus and remember instructions. These functional limitations are the key to showing the insurance company why you cannot work.
After creating your RFC, the insurance adjuster will compare it to the types of jobs available for someone with your RFC level and limitations. If your RFC rules out all jobs, even sedentary work, you would be found disabled.
Denial Letters in Fibromyalgia Claims
In short, it is very common for an initial Long Term Disability claim to be denied when the application is based on a Fibromyalgia diagnosis. That does not, however, mean that you will be unable to successfully appeal the denial of your claim. Many claimants who have been denied at the initial application stage based on a diagnosis of Fibromyalgia go on to appeal the decision and win benefits.
If your Long Term Disability claim is based on Fibromyalgia along with another medical diagnosis, it will be easier to have your claim approved than it would be if you are filing a claim based on Fibromyalgia alone.
How your condition was diagnosed will also play a role in the success of your Long Term Disability claim. If you have had your condition diagnosed by a family doctor or primary care physician, it will not carry as much weight as a diagnosis that has been made by a Rheumatologist or Orthopedist. If you have not yet seen a specialist to verify your Fibromyalgia diagnosis, you may want to do so before filing a claim for Long Term Disability benefits.
Don’t Give Up: Appeal Your Denial for LTD Benefits
If your initial claim is denied, you should not give up on receiving Long Term Disability benefits for your Fibromyalgia condition. What you need to do is appeal the decision within the time limits set out in your LTD policy. You should also consider hiring an experienced Long Term Disability attorney to represent you during the appeal process. More so than in other types of cases, hiring a lawyer to appeal a denial or termination of benefits for fibromyalgia can really help your case, since an experienced disability lawyer will be familiar with the latest court decisions on when disability should be granted for fibromyalgia. This knowledge helps disability attorneys find errors made by the claims examiner in the disability determination and use them to your advantage. Mr. Ortiz is experienced in handling such claims. Call 850-308-1818 for a free case evaluation.