This article was initially published in the Chicago Daily Law Bulletin on February 16, 2017.
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari, P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at email@example.com.
A federal court in Michigan recently issued a ruling accusing an insurance company of committing a logical fallacy in adjudicating a disability benefit claim involving fibromyalgia.
In Tobin v. Hartford Life & Accident Insurance Co., 2017 WL 510338 (W.D. Mich., Feb. 8, 2017), the plaintiff, Mary Beth Tobin, had been employed in Florida by Disney Worldwide Services as manager of costuming operations. Tobin had to cease working, though, on Oct. 2, 2012, on account of fibromyalgia and hypertension. She moved to Michigan.
Despite the support of her treating doctors, Hartford denied Tobin's disability insurance claim based on the results of two file reviews.
Tobin challenged that determination with additional medical evidence along with a vocational assessment. However, Hartford upheld its determination.
The U.S. District Court overturned Hartford even though the court applied an arbitrary and capricious standard of judicial review.
Michigan's ban on discretionary clauses in disability insurance policies was found inapplicable because Tobin was living in Florida when she ceased working. Florida permits the inclusion of such provisions in disability insurance policies.
The first issue analyzed by the court was a determination of the nature of Tobin's occupation. Hartford had utilized the Dictionary of Occupational Titles to classify her position as "Manager, Department," a sedentary occupation. Tobin claimed her occupation was more exertionally demanding, though and her vocational consultant had suggested a DOT title of "Manager, Theater."
The court accepted Hartford's use of the DOT, finding that even though Tobin's job required her to travel back and forth between several Disney theme parks, it was not unreasonable for Hartford to use a more generalized occupational description rather than consider Tobin's specific job.
However, the court found that Hartford's evaluation of limitations due to fibromyalgia was arbitrary. The court followed prior 6th U.S. Circuit Court of Appeals rulings involving fibromyalgia - Rose v. Hartford Financial Services Group Inc., 268 Fed.Appx. 444, 452 (6th Cir. 2008), and Preston v. Secretary of Health and Human Services, 854 F.2d 815, 819 (6th Cir. 1988), which both defined the nature of the condition and its characteristics.
Although both cases stand for the proposition that an insurer may require objective proof of functional limitations, the cases recognize that since medical science has yet to develop an objective diagnostic test for fibromyalgia, it is unreasonable to require a claimant to produce such evidence.
But that is exactly what Hartford did.
Hartford focused on a lack of evidence supporting subjective complaints of pain, the hallmark of fibromyalgia.
The court identified four problems with the findings generated by Hartford's reviewing doctor. First, he discounted the fibromyalgia diagnosis based on a lack of supporting objective evidence, which is improper with fibromyalgia cases since there are no objective diagnostic tests for that condition.
Second, the reviewing doctor discounted the treating doctor's reports of pain, even though the 6th Circuit has repeatedly held that file-review doctors cannot make credibility findings disputing symptom allegations in the absence of an in-person examination.
Third, the reviewing doctor claimed there was an absence of trigger point examination findings, the key diagnostic marker for fibromyalgia, a conclusion which was untrue since such findings were provided.
Finally, the reviewing doctor ignored or was never supplied with the treating doctor's statement of functionality.
The appeal denial was also deemed defective. The court complained of the reviewing doctors' failure to assess the effect of fibromyalgia on Tobin's functional capacity.
"Hartford cannot use the file reviews as a basis for concluding that Tobin's fibromyalgia does not prevent her from performing one or more of the essential duties of her job," the court found.
"Recall that fibromyalgia is diagnosed by testing for tenderness in focal points and also by eliminating or ruling out other possible conditions. Drs. Payne and Brock concluded, from the perspective of their areas of specialization, that tests in Tobin's medical history show normal results.
"But, in fibromyalgia cases, the purpose of performing those tests is to rule out other potential diagnoses, like neurological and rheumatological problems. Tobin's results should not have been surprising. The 6th Circuit has 'recognized on more than one occasion, however, that fibromyalgia patients generally "present no objectively alarming signs.' Kalmbach v. Commissioner of Social Security, 409 Fed.Appx. 852, 861 (6th Cir. 2011) (citations omitted); see Swain v. Commissioner of Social Security, 297 F.Supp.2d 986, 883 (N.D. Ohio 2003) (observing that, in typical fibromyalgia cases, the patient presents 'normal physical and neurological findings.')."
The court also accused Hartford of engaging in "the logical fallacy sometimes called the red herring.
"The fallacy occurs when the proponent introduces a new issue, usually one the proponent is prepared to address, in an attempt to distract or avoid the subject or topic of discussion. Tobin claimed disability from fibromyalgia.
"By pointing to a lack of evidence to support a different cause of disability, Hartford distracts from or avoids addressing the question of whether Tobin is disabled by fibromyalgia. For example, when Dr. Payne concluded that Tobin's file contains no objective evidence to support an impairment related to any rheumatological processes, he does not address whether Tobin has functional impairments from her fibromyalgia.
"Critically, neither Dr. Payne nor Dr. Brock explained why someone with fibromyalgia would be expected to present evidence of neurological or rheumatological impairments. Without that necessary connection, that a person with fibromyalgia would be expected to have some evidence of neurological or rheumatological impairments, the opinions of Drs. Payne and Brock provide no useful information for Hartford for its decision."
The court next disallowed Hartford's contention that the lack of objective medical evidence is a further reason to support its determination because the policy lacked an objective proof requirement and because Hartford did not raise that argument during the claim process and prior to litigation.
Hartford also failed to offer a reasonable explanation for disregarding the treating doctor's assessment of functionality. Thus, the court found Hartford's actions arbitrary and capricious and overturned the denial.
The court's critique of Hartford's use of the red herring, and its reliance on the absence of findings that are wholly irrelevant to fibromyalgia are the most useful aspects of this ruling.
Those are frequent problems that arise in insurers' evaluation of fibromyalgia claims and this ruling will be a useful addition to existing case law debunking the use of such tactics.