Disability due to pain is difficult to prove

This article was initially published in the Chicago Daily Law Bulletin on November 15, 2018.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky Sherman Casciari Reynolds 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 protected].

Proving an entitlement to disability benefits on account of pain can be challenging as a recent federal court ruling from Massachusetts recognized.

The case of Kamerer v. Unum Life Insurance Company of America, 2018 WL 4539693 (D. Mass., Sept. 21, 2018), involved a claim brought by Judith Kamerer, a former employee of Accenture, who became disabled in 2004 due to fibromyalgia and depression. Her employer’s disability insurer, Unum Life Insurance, approved Kamerer’s claim and paid benefits from 2004 to 2013. However, despite the absence of any evidence showing medical improvement, Unum terminated Kamerer’s claim in 2013 and denied an ensuing appeal.

The U.S. District Court overturned the denial.

The court found there was no dispute as to the fibromyalgia diagnosis and further observed that under 1st U.S. Circuit Court of Appeals precedent, "it is unreasonable to require objective evidence supporting a diagnosis such as fibromyalgia that inherently evades objective verification." Cook v. Liberty Life Assurance Co., 320 F.3d 11, 21 (1st Cir. 2003).

Nonetheless, the court acknowledged the plaintiff was still required to provide objective proof as to "the physical limitations imposed by the symptoms of such illness." Boardman v. Prudential Insurance Company of America, 337 F.3d 9, 16 n. 5 (1st Cir. 2003). To meet that burden, though, the court explained that "even if Ms. Kamerer does not provide objective evidence that her symptoms preclude her from fulfilling the physical requirements of her occupation, she may still satisfy her burden of proof if the totality of the evidence demonstrates that she is unable to fulfill them." (Emphasis in original.) Gross v. Sun Life Assurance Company of Canada, 734 F.3d 1, 22 (1st Cir. 2013) ("Although many of [plaintiff’s] physical complaints may not be readily susceptible to objective confirmation, findings of chronic pain may not be automatically dismissed … for lack of confirmable symptoms").

The court reviewed the medical records and took Kamerer’s symptom complaints into consideration, finding that "while subjective reports of pain are difficult to prove, they should be accorded some weight on the ledger."

The court further noted that the plaintiff’s history of treatment buttressed her symptom complaints. Although Unum had obtained an examination of Kamerer from a doctor of its choosing, the court was skeptical of the "diligence" of the exam and found the examiner’s conclusion "dubious."

The court also questioned Unum’s file reviews performed by in-house physicians, recognizing that such "reviews may be given less weight when credibility is central to a plaintiff’s disability claim." Thus, the court concluded that Kamerer submitted sufficient evidence to meet her burden of establishing her inability to perform the duties of her regular occupation.

That conclusion did not complete the court’s work, though, because Unum invoked the policy’s mental illness limitation that cuts short the payment of disability to 24 months if the disability is due to a behavioral health condition.

The court acknowledged that different courts have taken contrary positions as to which party bears the burden of proof on whether such limitations apply, but found the "better approach" was to shift the burden of proof to the defendants.

"If Unum wants to then reduce her benefits," the court explained, "it seems appropriate that they should demonstrate why Ms. Kamerer is not entitled to those benefits. Moreover, that the burden rests with Unum seems especially fitting given the facts of this case. For almost 10 years, Unum paid Ms. Kamerer benefits uninterrupted.

"In September 2013, Unum contended that Ms. Kamerer was not physically disabled within the meaning of her plans. When her treating physicians began to contest that conclusion, Unum reinstated benefits under a reservation of rights. Shortly thereafter, and for the first time, Unum seemingly changed course and alleged that Ms. Kamerer’s disability was due to psychological conditions. Given these circumstances, it is fitting that Unum bear the burden of demonstrating the limitation applies. See Jarillo v. Reliance Standard Life Insurance Co., 2017 WL 1400006, at *10 (S.D. Cal., April 19, 2017) (holding that the insurer bears the burden of proof when insurer ‘did not rely upon the mental disorder limitation until the final denial of benefits’ after nearly five years of paying physical disability benefits)."

Under that analysis, the court found Unum failed to meet its burden of proving by a preponderance of the evidence that Kamerer’s disability was "due to" or "caused by" mental illness. Applying George v. Reliance Standard Life Insurance Co., 776 F.3d 349, 355-356 (5th Cir. 2015), and similar rulings, the court placed the burden on Unum to show "but for" the mental illness, the plaintiff would not be disabled.

Although the court agreed that Kamerer had co-morbid depression, she was disabled on account of fibromyalgia. Moreover, Unum’s consulting psychiatrists did not deem Kamerer disabled due to a behavioral health condition. Thus, the court concluded, "That her depression is influencing her fibromyalgia, however, does not rise to the level of but-for causation."

The Kamerer opinion covers a lot of ground and offers many valuable lessons. The court’s analysis of the requirement of providing "objective evidence" of functional limitations recognizes the obvious — that someone experiencing constant excruciating pain is hardly a candidate for regular work, and that the proof of disability can be drawn from a variety of sources, including the claimant’s subjective complaints and the surrounding circumstances of the nature and course of medical treatment.

On the mental illness issue, the court also justifiably placed the burden of proof on the defendant as a matter of common sense. The fact that Unum had paid Kamerer for so long without raising the mental illness limitation also supported the court’s burden-shifting analysis, since Unum’s invocation of that issue had not been raised earlier.

The "but-for" point is also not unique and was made by the 7th Circuit in Krolnik v. Prudential Insurance Co., 570 F.3d 841 (7th Cir. 2009), but certainly bore repeating here — just because someone has a mental illness is not enough to invoke the limitation when that individual also suffers from a physical condition that is independently disabling.

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