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Reliance Standard is ordered by Arizona Court to pay long-term disability benefits to technology consultant with fibromyalgia

After receiving disability benefits for more than 10 years, the Reliance Standard denied disability benefits. After a 4 year legal battle, the Arizona district court determined that Melisa Gemmel was disabled by fibromyalgia. Melissa Gemmel was employed at Systemhouse, Inc. and covered under her employer’s long-term disability plan, issued by Reliance Standard (NYSE:DFG). In 1989, it was discovered that Gemmel suffered from osteophytes in the neural canal at C5-6, a posterior osteophyte at C5-6, and a C7-T1 abnormality.

In January of 1989, Zsolt G. dePapp, M.D. – referred by Gemmel’s doctor – stated that with proper physical therapy, exercise and medication, Gemmel may become more functional again.  However, he didn’t think Gemmel realized how much her inner tensions affected her nervous system and muscles.  In October of 1993, a lumbar MRI revealed that Gemmal had a small focal disc herniation at L5-S1. In December of 1993, Gemmel applied for long-term disability benefits as a result of back pain, numbness in her leg, headaches, degenerative disc disease, fibromyalgia, pain and numbness, neck pain, swelling in her hands and fingers because of carpal tunnel in both wrists as well as loss of range of motion with her fingers and thumbs.

In February of 1994, Dr. Mitchell Freedman informed Reliance Standard that he believed Gemmel had connective tissue disease characterized by Fibromyalgia, Osteoarthritis and Sjorgren’s syndrome.  He also stated that she couldn’t work due to severe, chronic pain.  In March of 1994, Gemmel’s application for disability benefits was approved by Systemhouse.

In April of 1994, Dr. Robert A. Eisenberg conducted an independent medical examination on Gemmel on request from Systemhouse. He diagnosed her with Fibromyalgia, but was unable to judge whether she could work at that time. In June of 1994, LTD Claim Screening Review stated that Gemmel’s condition was radicular back pain, fibromyalgia, spondylosis and migraines. They determined that she did in fact suffer from a long-term disability.  Dr. Michael D. Gwinn, an independent medical examiner hired by Systemhouse in March of 1996 reported that Gemmel did suffer from chronic pain and that psychological pain may be a contributing factor.  He stated that because there were not enough objective findings, Gemmel should be able to perform regular sedentary work, even if she was in pain.

Dr. Hill, one of Gemmel’s medical professionals, (stated that, “in evaluating Ms. Gemmel’s on-going disability, there seems to be inordinate weight given to the fact that Ms. Gemmel felt well enough to play 9 holes of golf in August 95 — (my clinic note 8/18/95). It is the nature of fibromyalgia that there will be some very good days and some very bad days (unable to turn over in bed without pain); but lots of bad days where sitting behind the wheel for a 5 minute trip to the grocery store (sic) is too painful. However, Ms. Gemmel will have no predictable number of very good days in any given month. Obviously an individual can undertake no responsible work — no matter how physically undemanding it may be — if they cannot commit to working some definite number of hours each month. Employers with positions of low responsibility requiring little skill and training are usually not interested in developing individualized, flexible schedules. At this time I cannot recommend that Ms. Gemmel commit to even a flexible work schedule of any practical consequence.”

In June of 1996, Gemmel received social security disability benefits, and in September of the same year, Dr. Norman N. Kohn, another of Gemmel’s medical professionals, reported that “Gemmel appears totally incapacitated by her subjective complaints” and that psychological factors separate from her fibromyalgia are significant factors in her disability for work.

Reliance Standard contacted Dr. George M. Sandoz and Dr. Benjamin, who stated that they hadn’t seen Gemmel since September of 2000, but that she could stand, sit, walk or drive for three to five hours in an eight hour day.  They stated that she could not do any pushing or pulling but that she was capable of repetitive grasping and fine manipulation and that she could occasionally bend at the waist, reach above her shoulder, use foot controls and could frequently bend at the waist and squat at the knees.

As Gemmel was still receiving benefits in 2001, Reliance Standard sought a peer review on all medical records, and in April of 2001, Dr. William Scott Hauptman, a medical doctor hired by the insurance company, reviewed the records.  He concluded that,“ this lady certainly has a bizarre set of symptoms. I cannot say that all of her symptoms originate from the apparent degenerative disc with osteophyte formation at C5-6. She does not have any myelopathic signs.”

He further stated, she still has a lot of tension and stress. She now realizes the connection between her symptoms and the various stresses in her life. It is sort of remarkable that [*10] everything started with the death of her father a number of years ago and it was exacerbated by the death of her mother last year. She is also troubled by a younger brother who is constantly being arrested for DWI and requesting her financial assistance. She relates an episode of shaking following an argument with her daughter, and another bad day following her stint in front of her computer where her muscles in her neck and back were extremely tight.” Therefore the medical records document clearly and early on the significant contribution and connection of psychological stress and the patient’s symptoms”

On May 15, 2001 Gemmel was notified that her benefits would be terminated because there was not enough evidence to support benefits for total disability.  Gemmel appealed in July and benefits were reinstated while the case was being investigated.  In October of 2001, Dr. Coggins, a doctor of Gemmel’s, wrote a letter, stating, “The disc degeneration is real, the nerve root encroachment is real, and therefore, the subjective pain and dysfunction reported by the patient, both at the time and since, are believable and correspond with the pathology. No evidence of significant, nor lasting improvement has been demonstrated in my experience with the patient.”

In January and February 2002, Reliance Standard attempted to contact Gemmel in order to schedule an Independent Medical Examination (IME), but was unable to get in touch with her.  A letter was sent, which stated that Gemmel must comply within 30 days or lose her benefits.  Her benefits were terminated when she never replied, however, Gemmel appealed and agreed to an IME. In January of 2004, her benefits were reinstated on the condition that they were still under investigation.

In January of 2004, an IME was done by Dr. Karen Lunda, who reported that “Gemmel exhibited greater spontaneous cervical and trunk rotation and cervical flexion range of motion than what she demonstrated actively during the physical exam and some of the ranges increased despite reports of increased pain.”

She also stated “The client did not exhibit any specific pain [*23] behaviors. As noted previously, the client ambulates with a deviated gait pattern. This varied during the testing. At times the client favored the left lower extremity a lot, at times a little and at other times not at all.

Despite reporting increases in pain and/or numbness the client did not present to be in any physical distress and there were minimal objective signs and symptoms to substantiate the pain complaints during functional testing. Except for the standing and walking tests, there was not a change in the manner in which the client performed the activity, a change in body mechanics, muscle recruitment, change in the soft tissue etc.”

Dr. Lunda reported that Gemmel was able to perform sedentary work, but that self-pacing should be allowed.  In 2004, based upon Dr. Lunda’s IME report, Reliance Standard denied Mrs. Gemmel disability benefits after paying benefits since March 1994. Gemmel was left with no alternative and filed a lawsuit against Systemhouse in  the United States District Court for the District of Arizona.  The judge heard all of the evidence after and determined that Mrs. Gemmel was disabled.  Reliance Standard was ordered to pay all past due benefits and reinstate disability benefits.  After 14 years of battling Reliance Standard hopefully they will accept that Mrs. Gemmel is disabled and continue to pay her long-term disability benefits.



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