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The problem with pain

According to the National Institutes of Health, approximately one in 10 Americans experience severe pain every day. This pain could be the result of any number of conditions. Because pain is a subjective experience, not every condition that causes pain is known -- but what is known is that pain can drastically affect your quality of life and ability to work.

Chronic pain can affect your ability to both sit for long periods of time and remain standing, interfering with your capacity to remain comfortable at home and on the job. As a result, individuals who suffer from chronic pain may need to apply for disability insurance benefits if the level of pain reaches a level of severity to precludes the continuation of work on a consistent and reliable basis.  For those who have reached that point, it is important to understand the process of applying for disability insurance and the common issues that arise in applying for these benefits.

Why diagnosing pain is difficult

As mentioned, pain can be difficult to diagnose because it is subjective – it does not appear on an x-ray or MRI, nor is it detectable in a blood test or even necessarily on electrodiagnostic testing (EMG). What you feel after surgery may not be the same as another person feels after the same procedure. Or even two people who have the same findings on a spinal MRI may experience drastically different levels of pain.  However, just because you may feel differently from another person does not mean you should be treated unfairly when seeking both long-term and short-term disability benefits under ERISA or under a private disability income insurance policy.

You have paid into these benefit plans expecting to have them available when you need them, but now you are having trouble with your claim. What’s next?

Is your pain diagnosed?

Unlike other conditions, chronic pain may not have a specific or detectable source, according to the New Yorker. This can often be a problem because disability insurance companies look for objective evidence in deciding on whether to pay a claim.  But even if you lack proof of a specific, identifiable cause for pain, many medical conditions are well-known to produce severe pain; and other indicia are recognized as factors that confirm the existence of pain.  The authoritative Guides to the Evaluation of Permanent Impairment (6th ed. 2008) published by the American Medical Association explains: “There is no objective way to quantify pain or its variable effects on the individual….” However, the Guides present a framework to the evaluation of pain that looks at 1) congruence of symptoms with established conditions; 2) consistency over time and situation; 3) consistency with anatomy and physiology; 4) agreement between observers; and 5) lack of inappropriate illness behavior.  The court’s observations in Diaz v. Prudential Ins. Co., 499 F.3d 640, 646 (7th Cir. 2007), are also instructive:

Diaz's testimony offers more than a long series of complaints spoken across the breakfast table. It demonstrates the kind of "long history of treatment" that we have found relevant in the past in comparable circumstances:

 

   What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits . . .

 

In other words, it is unlikely that someone would undergo extensive and often excruciating or medical procedures or take mind-numbing drugs if they were not actually experiencing the pain about which they complain.

Is your pain affecting your ability to do your job?

Pain can manifest itself in different ways in your life, but whether and how it affects your ability to do your job is an important consideration. If you work a job where you are on your feet all day, but your pain is only present when you sit for long periods of time, the pain may not be as significant a cause of disability as it would be for someone who has to sit on the job for eight hours a day.  But no matter what your job is, pain that interferes with the ability to concentrate and stay on task would obviously preclude working.

Each case is different

It is important to remember that your circumstances will be unique to you. Because pain is felt at an individual level, you can speak to a disability attorney to help overcome the complexities of your case. An attorney can be especially helpful if you feel that you are being treated unfairly in the claims process or the source of your chronic pain is not yet known. At DeBofsky, Sherman & Casciari, P.C., we’re here to help.

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