A recent case that came before a U.S. District Court reflects the fact that the Court system is beginning to hold ERISA short-term disability plans and long-term disability plans accountable for decisions to deny disability benefits to claimants with CFS when they provide all the medical evidence it is currently possible to provide with medicine’s current understanding of this mysterious syndrome. This case teaches certain lessons which any disability attorney is wise to consider.

Disability Attorney Lesson #1:

First, a disability attorney should seek any information available into the potential conflict of interest which could have existed when the plan administrator had both the power to decide who deserved disability benefits and to interpret what the plan document meant. If initial research suggests that a conflict of interest may have motivated the decision to deny benefits, a motion to compel may be filed with the Court.

Every effort should be made to demonstrate a conflict of interest, as it heightens the standard with which the Court will review the disability claimant’s claims file. Instead of the Court merely looking at the file to determine whether or not the disability plan made a reasonable decision, the Court also considers how much the conflict of interest played in the decision making process. This increases the probability that the Court will find the decision was arbitrary and capricious.

Disability Attorney Lesson #2:

Next, move on to discovering whether the disability insurance plan has a practice of denying claims for “subjective” illnesses such as chronic fatigue syndrome (CFS). Collect a list of court cases where the disability insurance company or plan has been before the Court already for denying CFS claims. This may be used to help support a discovery request and demonstrate bias to the Court among other things.

Disability Attorney Lesson #3:

In general, it is difficult to secure a de novo review (a new look at the evidence) under ERISA. Whenever the benefit plan gives the administrator of the plan discretionary authority to determine who is eligible for benefits and to interpret how the plan’s terms apply to individual cases, the Court will use the arbitrary and capricious standard as mandated by Congress when it passed the Employee Retirement Income Security Act.

ERISA states that as long as the plan administrator can demonstrate its decision was supported by substantial evidence, the Court must uphold the decision of the disability insurance plan administrator. This makes it all the more important for a disability attorney to assist a CFS client with making sure that the medical record in the file is as thorough and complete as possible. Tests that demonstrate how CFS has limited a client’s ability to function in a real-world work environment are vital. The Courts recognize that there are no diagnostic tests for CFS, but the Courts do uphold the expectation of the disability insurance plan that some type of functional capacity testing that demonstrates the CFS is severely limiting should be present in the record.

Disability Attorney Lesson #4:

Make sure that the disability insurance plan has given value to the opinion of the treating physician(s). While the Court will not ask a long-term disability plan to give more weight to the opinion of your client’s doctors, the Court does expect the plan administrators to consider the opinion expressed. Especially in the case of a CFS client, a disability attorney should never overlook the type of medical review the disability insurance plan used as evidence. Did the disability insurance plan order an independent medical exam, or only conduct a paper review? Did the plan gather the necessary medical evidence to confirm or disprove the claimant’s disability?

Disability Attorney Lesson #5:

Look at the denial letter very carefully. Does it give reasons for the decision to deny short-term or long-term disability benefits? Does it provide clear guidance as to what specific additional information the disability insurance plan needs during an appeal of the denial. Does it explain why evidence presented by the claimant is being rejected? ERISA requires the denial letter to include specific reasons for denying the claim and specific instructions on how to provide the necessary documentation to change the denial. If the plan has failed to do this, the decision of the plan has been arbitrary and capricious.

Disability Attorney Lesson #6:

Expect the disability plan to try to discount the symptoms because CFS is primarily a self-reported condition. This is where a long-term history with a physician or even a series of physicians can be helpful. It is vital if the disability attorney is involved during the administrative appeals process to make sure that the medical record is filled with detailed notes from the CFS claimant’s treating physicians. This will make it easier to demonstrate that a decision to deny benefits was not reasonable.

CFS specialists and the Court have recognized the connection between Epstein-Barr infection and CFS. Other aspects of the syndrome may include sleep apnea, with resulting fatigue and difficulty concentrating. Pain all over the body is another common feature of this complex-the intensity of which cannot be measured objectively. The Court also recognizes the fickleness of the syndrome. One day may be better than another.

Disability Attorney Lesson #7:

Look for clues that the disability insurance plan failed to give a full and fair review. Failure to order an independent medical exam in the face of several opinions favorable to the claimant before issuing a denial could be a clue. Failing to send the medical file to a physician qualified to review CFS medical records or withholding some information that should be in the file is another hint that a full and fair review of the CFS claim has not occurred.

These disability attorney lessons are also useful information for anyone considering hiring a long-term disability insurance attorney to represent him/her in a lawsuit against one of the disability insurance plans. They can help with the evaluation of a claim’s merits. The best disability attorneys prefer to have clients who understand the risks involved in bringing their claims before the Court and who are fully committed to securing their rights.