Many medical conditions that result in a disability cause an individual to be disabled not on account of medical test findings, but due to the symptoms caused by the disabling impairment.

For example, neither fibromyalgia nor chronic fatigue syndrome are susceptible to laboratory or radiology testing and are instead diagnosed clinically based on the patient’s symptoms and appearance over a period of time. Several insurers have addressed concerns regarding potential fraudulent claims relating to such conditions by incorporating provisions in their policies that limit the duration of payment for “self-reported” symptoms such as pain and fatigue.

In the 7th U.S. Circuit Court of Appeals, Weitzenkamp v. Unum Life Insurance Company of America, 661 F.3d 323 (7th Cir. 2011) is the leading case on such policy limitations. There, the court found that self-reported symptom limitations in disability insurance policies are applicable only to “disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported.” The court reached that conclusion after recounting that the defendant conceded during oral argument that it sought to apply the limitation to “all conditions in which the disabling symptom is pain” regardless of etiology; and the court refused to permit such an expansive reading.

The 1st U.S. Circuit Court of Appeals recently had an opportunity to follow Weitzenkamp but declined to do so. In Ovist v. Unum Life Ins. Co. of Am., 2021 WL 4304547 (1st Cir., Sept. 22), the court upheld an insurer’s application of a self-reported symptom limitation. The case involved Rhonda Ovist, a sociology professor at Rollins College who qualified for disability benefits in 2011 on account of chronic fatigue syndrome. Although there was no dispute that Ovist remained disabled after 24 months, and despite the insurer’s continuance of her benefits well beyond the initial 24-month period, it subsequently applied the limitation and terminated the plaintiff’s benefits in 2015.

The policy defined self-reported symptoms as:

“The manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.”

After terminating Ovist’s benefits, Unum invited an appeal on the question of whether “the records support functional loss and/or [restrictions and limitations] due to physical medical condition/symptoms that are verifiable using tests, procedures or clinical examinations as of [Feb. 17, 2015] forward[.]” The plaintiff responded by submitting records and reports from treating doctors, along with a Cardiopulmonary Exercise Test (“CPET”) conducted by an exercise physiologist. The test results showed significant fatigability and lack of stamina; and basic cognitive testing that was administered as part of the CPET protocol showed significant impairment in “immediate and delayed recall of simple information” and in her concentration.

Unum rejected that evidence and upheld its denial.

Ovist raised several challenges to Unum’s decision, which included an assertion that Unum should have had the burden of proving the applicability of the limitation and failed to do so. The 1st Circuit sidestepped the burden of proof, issue, though maintaining that which party bore the burden of proof did not affect the outcome of the case.

Upholding Unum’s decision and the lower court’s finding, the court of appeals began by finding it reasonable for a disability insurance to require objective proof of functional limitation based on its ruling to that effect in Boardman v. Prudential Insurance Company of America, 337 F.3d 9, 15 (1st Cir. 2003). The court further determined that Unum’s rejection of the CPET testing as objective evidence supporting functional impairment was a reasonable exercise of the insurer’s discretion. The court also shielded Unum’s refusal to credit Ovist’s other evidence under the same cloak of discretionary authority even though one of the treating doctors reported the plaintiff’s symptoms were “confirmed by physical examination … and laboratory data” showing “impaired immune function … and latent virus reactivations.”

Finally, the court concluded that the Weitzenkamp ruling conflicted with 1st Circuit precedent, maintaining that ruling was contrary to a requirement in the 1st Circuit that the plaintiff submit objective proof of functional limitations and that a “causal connection must be established to confirm that Ovist is unable to work due to her recognized, diagnosed medical conditions, as opposed to her unverifiable perceptions.”

In Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Supreme Court ruled that when the same party adjudicates and funds payment of a claim, there is an inherent structural conflict of interest that must be taken into consideration in every case. Despite that admonition, the 1st Circuit did not even mention Unum’s conflict of interest or even its documented history of unfair claim adjudication as reported in Langbein, “Trust Law as Regulatory Law,” 101 Nw. U. L. Rev. 1315, 1323-1324 (2007), which was cited in the Glenn decision. The fact that the self-reported symptom limitation was not raised until more than one year after the 24-month period elapsed should have raised concerns about Unum’s determination to apply the limitation. Had the court placed the burden of proving the applicability of the limitation on Unum, rather than not addressing that issue, it could have affected the outcome based on the chronology of events.

Second, the 1st Circuit has recognized since at least 1994, when it issued a ruling in a Social Security case, Rose v. Shalala, 34 F.3d 13 (1st Cir. 1994), that chronic fatigue syndrome is an elusive condition because its cause is unknown and laboratory findings are normal. Fibromyalgia is much the same since the only confirmatory test is a manual examination that elicits “trigger points.” Unum would have been aware of such limited test findings when it approved Ovist’s claim, so if there was any reason to invoke the limitation, Unum should have done so at the outset of the claim submission.

Third, the court only reported some of the Weitzenkamp ruling. The 7th Circuit recognized in Weitzenkamp the danger that a disability insurer that might act in its own self-interest, particularly if its decision were clothed in discretionary authority. Unum could easily have specified chronic fatigue syndrome and fibromyalgia are conditions that explicitly fall within the 24-month limitation, but made the deliberate choice not to do so.

Fourth, the 1st Circuit seemed to confuse its Boardman ruling and Weitzenkamp even though the two are entirely distinct. Indeed, the 7th Circuit has a ruling that imposes the same objective proof of functional limitations requirement as in Boardman — Williams v. Aetna Life Ins. Co., 509 F.3d 317 (7th Cir. 2007). Further, since Unum acknowledged Ovist’s symptoms were disabling, the only remaining question was whether her diagnosis could be viewed as self-reported. She should not have needed to, but did in fact supply objective proof of her functional limitations.

Fifth, the 1st Circuit’s finding that Professor Ovist did not submit a timely CPET report is unfair since there was no suggestion that her condition was worse when she was tested than when benefits were terminated. Had Unum given her fair warning that such evidence could be useful, she would undoubtedly have secured it earlier. In another 7th Circuit ruling, the court flatly rejected the time-concurrence argument Unum advanced. Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 776 (7th Cir. 2010), pointed out that rejecting later submitted evidence “would mean that MetLife’s initial termination of benefits for lack of supporting evidence could never be successfully appealed if the claimant had not already undergone functional testing (that satisfied MetLife’s precise but not-yet-unarticulated specifications) before the August 2005 termination decision.”

Finally, it is troubling that the court here accepted at face value the opinions of non-examining in-house Unum doctors over a host of specialists who examined Professor Ovist and explained their findings. The only “missing” objective tests were the type of tests that simply do not exist in cases involving chronic fatigue syndrome and fibromyalgia. Reports from Dr. Nancy Klimas, one of the world’s leading authorities on chronic fatigue syndrome, explained the test results that led to her diagnosis. The court simply accepted the word of Unum’s doctors over Ovist’s physicians because Unum had discretionary authority. It also appears somewhat dubious that Unum questioned the plaintiff’s diagnoses after accepting them for more than three years. The only remaining question should have been whether she supplied objective proof of her functional limitations, but that is exactly what the CPET test results provided. Thus, had the court followed Weitzemkamp, which sensibly rejected efforts to expand the reach of self-reported symptom limitations, Ovist would likely have won her case.

I represented the plaintiffs in the Holmstrom and Williams cases cited in this article.

The original article was published in the Chicago Daily Law Bulletin on October 7, 2021.

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