Fibromyalgia is a multifaceted illness that can affect every aspect of one’s life. While most people are aware of the debilitating pain and fatigue associated with Fibromyalgia there is a less known symptom of the condition that has as great an impact- memory problems known as “Fibro Fog.” Prior to filing a claim for disability benefits our client was a shareholding partner for a large national law firm who had spent nearly 35 years of her life in the practice of law. During that time she had risen to the top of her designated legal specialty and headed the department for her firm in one of its largest offices. Unbeknownst to many she worked with she was quietly and privately suffering from the effects of fibromyalgia- pain, fatigue, and issues with memory and concentration. For some time she was able to hide the effects of her condition due to her position in the firm. Her absence from the office could be reasonably attributed to her continual networking duties to maintain and seek new clients; and her reduction in billable hours was a presumed decline due to a potential early retirement. However, the truth was her illness was wreaking havoc on her body and mind and instead of networking and meeting with clients she was at home knocked down by crippling fatigue, constant pain and the inability to mentally keep up with the pace of work that she was accustomed to and that was expected of her from her firm.
Our client held onto the career she loved and spent her entire life dedicated to until it became abundantly clear to her that she was no longer able to work at the level the she expected of herself and that her clients and firm demanded of her. At that time she filed her claim for long term disability benefits with Standard under her employer’s group disability insurance policy and the supplemental individual plan available to partners.
The First Denial of Benefits
During the course of its review of her application for benefits Standard made contact with her treating physician to determine any applicable restrictions and limitations as it related to her ability to perform her occupational duties. Standard also contacted her firm’s HR department to gather information related to her work schedule, billable hours, earnings and work duties with the firm. The latter proved to be especially damaging to our client’s claim as the HR department for her firm was located in a different city and the no one from the HR department ever actually worked with our client. As such, their actual firsthand knowledge of her role in the firm was limited. When providing information to Standard our client’s HR department’s ability to provide requested information came down to tangible numbers (billable hours, work schedule, earnings), many of which they could not adequately provide or properly assess in order to accurately respond. Standard used the foregoing issues as its basis to argue that our client’s drop in earnings and work duties was not due to any specific reason that could be determined and that the reduction of duties and earnings was unrelated to her medical condition.
During the course of its medical review Standard’s Physician Consultant communicated with our client’s treating physician in an attempt to better understand the change in our client’s condition that warranted her filing for disability. As it would turn out, Standard’s doctor was only attempting to find a way to discredit our client’s medical condition/complaints as the basis for her claim for disability. Following the conversation with our client’s treating physician the Physician Consultant determined that there had been no change in our client’s medical condition that would justify her ceasing work activities and that the medical records did not provide sufficient evidence of impairment to support her claim for disability. Essentially, Standard was arguing that our client’s subjective complaints of pain, fatigue and cognitive impairment were unsupported , unverifiable and unreliable.
At that time our client contacted Attorneys Dell & Schaefer and spoke with Attorney Stephen Jessup to discuss the steps necessary to Appeal the decision, and most importantly how to ensure our client had the best chance of winning her case. Having handled numerous claims for Fibromyalgia, Attorney Jessup evaluated our client’s medical records with focus on the complaints that our client deemed most prevented her from performing her work duties, as well the specific requirements of her occupation and position within the firm.
As it related to her occupation, in denying her claim for benefits Standard paid minimal lip service to her duties as an attorney. The denial letter provided the generic definition of the duties of a attorney/lawyer as set forth in the dictionary of occupational titles. After providing the bare minimum occupational information Standard further reduced her occupational duties down to simply being able to perform at a Sedentary demand level. Although every occupation does have some minimal physical requirement, as any attorney knows- you don’t get paid for the ability to sit at a desk for 8 hours. For Standard to insinuate that the material and substantial duties of an attorney, let alone that of a department head partner, is the ability to perform at a Sedentary demand level is not only inappropriate, but insulting.
In preparing our client’s appeal Attorney Jessup focused heavily on the cognitive requirements of her occupation and our client’s reported inability to meet these demands. To objectively establish any potential cognitive limitations our client underwent neuropsychological testing. The exam findings indicated verifiable cognitive deficits, which were associated to our client’s Fibromyalgia that in the opinion of the examiner would prevent her from performing the cognitively demanding material and substantial duties of her occupation. Attorney Jessup then had her treating physician complete a targeted Attending Physician’s Statement that addressed how our client’s Fibromyalgia based chronic pain and fatigue would impair her physical ability to meet the demands of a full time work schedule.
Despite prolonged attempts by Standard to deny her appeal, Standard ultimately approved our client’s claim for disability benefits after one of its hired outside reviewing doctors agreed with the findings of the neuropsychological report. However, the concurring opinion came with a caveat- Standard’s position was that the cognitive limitations were a result of a mental health condition. This was yet another attempt by Standard to dismiss the realities of the effects of Fibromyalgia and ignore the medical evidence presented. Although all past due benefits and ongoing monthly benefits are being paid under the policy, in determining her claim to be due to a mental health condition Standard is attempting to apply the 24 month limitation for Mental Health claims to the group disability insurance policy. This is a tactic common not only to ?Standard but to most disability carriers. Attorney Jessup is continuing to fight Standard’s erroneous position and is confident that Standard will lift the mental health limitation placed on the claim.
If you suffer from Fibromyalgia and your disability insurance carrier is fighting your claim, or you have questions or concerns as to how your claim is being handled please do not hesitate to contact our office to speak with one of our disability insurance attorneys.
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