This article was published in the Chicago Daily Law Bulletin on June 23, 2015.
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari, PC. 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 firstname.lastname@example.org.
Many disability insurance plans require objective proof of disability as a condition of receiving benefits. But what happens when a claimant suffers from a condition that cannot be diagnosed by objective testing. Migraine headaches constitute such a condition.
More than 10 percent of the world’s adult population are afflicted by migraine headaches annually, according to 2012 figures from the World Health Organization. Headaches on 15 or more days every month affect 1.7 percent to 4 percent of the world’s adult population, See, who.int/mediacentre/factsheets/fs277/en/.
In a recent court ruling, Hegarty v. AT&T Umbrella Benefit Plan No. 1, 2015 WL 3638542 (N.D. Calif., June 11), the court dealt with a disability claim involving a migraine headache sufferer who had been denied disability benefits.
Plaintiff Frederick Hegarty had worked as a testing technician for the phone company from 1999 until he became disabled in 2013 due to increasingly severe headaches.
After ceasing work, Hegarty applied for short-term disability benefits, but AT&T’s benefits administrator, Sedgewick Claims Management Services, denied the claim. Hegarty’s appeal was also denied following file reviews performed by Drs. Jamie Lee Lewis, Michael Rater and Charles Brock, none of whom examined Hegarty.
Although AT&T maintained that its denial was reasonable, the court disagreed. The defendant argued that Hegarty’s claim was fatally flawed because three reviewing doctors concurred that he failed to provide "objective medical information" substantiating his claim. However, the court determined that a similar argument was made and rejected in Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2011), a case involving chronic fatigue syndrome.
Salomaa found that in situations where objective test findings are beyond the ken of medical knowledge, "conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious." Salomaa also ruled that its holding was reinforced by the plan’s failure to obtain its own examination or rebut the findings of the treating doctor.
The court noted that Lewis based his opinion on the absence of a "neurological deficit," limitation of the plaintiff’s range of motion or other "observable objective findings." Moreover, Rater was found to have offered "no meaningful opinion" other than to exclude a mental health condition. And Brock’s findings were similar to Lewis’.
The court thus opined: "Similar to the medical findings discussed in Salomaa, Sedgewick’s doctors based their conclusion on the lack of objective proof, which is not likely to exist for plaintiff’s migraine pain. Collectively, Sedgewick’s doctors note that plaintiff’s medical records do not evidence:
- a ‘neurological deficit’ (AR at 456);
- ‘observable objective findings’ in how plaintiff would be restricted;
- ‘a mental health condition’ (AR at 463);
- ‘demonstrated cognitive abnormalities’ (AR at 467);
- ‘demonstrated focal neurologic abnormality.’
The court then observed that while the collective findings of the reviewing doctors "may rule out other conditions," they "do not disprove the one at issue — migraine pain."
The court thus cited
Salomaa, as well as
Ortega v. Chater, 933 F.Supp. 1071, 1075 (S.D. Fla. 1996), which recognized that patient self-reports are generally the only means available to prove the presence of migraine headaches.
Hence, based on Salomaa, the court held that Sedgwick’s "reliance on the absence of medical evidence that cannot exist was ‘arbitrary and capricious’ and thus ‘unreasonable.’" 642 F.3d at 678 (‘We now establish as holding … that conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious.’)."
The court thus remanded the matter, but also approved an award of fees and costs.
One issue the court failed to address is whether the plaintiff could have objectively proved his functional limitations caused by his severe migraines. Just as there is no test to establish the presence of migraine headaches, physical functional testing would not be able to prove or disprove the ability to work. However, it seems self-evident that someone suffering from extreme headache pain would be unable to stay on task.
The court laid out a road map in this case that is valuable both to plaintiffs and insurers. The key to this ruling was in the fact that the plaintiff presented very detailed medical records and reports documenting the progression and severity of his condition.
In response, Sedgwick collected medical opinions that relied on illogical reasoning suffering from what Aristotle called the "fallacy of accident," which Merriam-Webster’s online dictionary defines as "the fallacy that consists in arguing from some accidental character as if it were essential or necessary."
Saying someone does not have certain findings that would be applicable to different conditions such as neurological, musculoskeletal or psychiatric disorders is neither a valid nor a logical explanation for rejecting the claimed disabling condition.
Cases such as Salomaa — and now Hegarty — have recognized this problem and have thus protected claimants who legitimately suffer from disabling impairments from having their claims rejected on account of a lack of objective medical evidence, when providing such evidence is impossible.