ERISA Disability and Life Insurance Litigation
Oral arguments from various courts of appeal across the federal circuits involving long term disability or life insurance claims governed by ERISA.
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ERISA Disability and Life Insurance Litigation
How Do Self-Reported Symptom Policies Apply to Reinstating Denied Claims?
The claimant, a former sociology professor at Rollins College, dedicated her career to teaching, advising students, developing courses, grading papers, and contributing to academic research and writing. Unfortunately, her career and daily life were significantly impacted by Chronic Fatigue Syndrome (CFS), fibromyalgia, and a spectrum of associated symptoms, including persistent pain and fatigue.
When the claimant applied for long-term disability benefits due to her debilitating conditions, she encountered a significant challenge. Unum Life Insurance Company of America, her insurer, denied her claim based on a provision in her employer’s plan. This provision limited benefits to a 24-month period for disabilities "due to mental illness and disabilities based primarily on self-reported symptoms." Unum determined that the claimant's conditions—CFS and fibromyalgia, characterized by symptoms such as pain and fatigue—fell under this limitation because they were primarily based on self-reported symptoms.
In response to the denial, the claimant filed an appeal, determined to overturn Unum's decision. She meticulously compiled additional medical information for review, including office notes from a gastrointestinal specialist and updated records from her treating physicians. She also submitted results from the CPET conducted by an exercise physiologist. This test was specifically designed to objectively measure functional capacity and assess the recovery response to physical stressors. The appeal aimed to demonstrate that her disabilities were not solely based on self-reported symptoms and that she had indeed provided objective evidence of her functional limitations.
This is the oral argument in the 1st circuit court of appeals.
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So I wonder just what kind of Pandora's jar we're opening up if we bought into that definition.
Speaker 2:Your Honor. To answer your first question, I think the case can be resolved by adopting Wisenkamp and Chronister and that the evidence is actually overwhelming, given that Unum conceded she had fibromyalgia and Unum conceded she couldn't work.
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Speaker 4:The case today is Rhonda Ovest versus Unum Life Insurance Company of America at All, appeal number 201464. Attorney Feigenbaum, please introduce yourself on the record.
Speaker 2:Good afternoon again. May it please the court, Jonathan Feigenbaum for Rhonda Ovis. May I reserve two minutes of my time for a rebuttal.
Speaker 5:Your Honor, yes, you may.
Speaker 2:Thank you. In this case, unum agrees that Professor Ovis was diagnosed with fibromyalgia and Unum conceded she was occupationally impaired. In fact, in the final adverse benefit determination letter Unum wrote, quote we do not refute that Ms Ovis is unable to work. That's at page 378 of the record.
Speaker 5:Counsel. We've read the briefs, we know the issues move on.
Speaker 2:I'd like to begin my arguments focusing on why this circuit should follow Weissenkamp and Chronister, in time permitting, address the burden shifting arguments. This court should resolve the case in favor of Professor Ovis and follow both Weissenkamp and Chronister. Here's why, in both of those cases, unum was the defendant. In both of those cases, unum had discretion to interpret the benefit plan. In both of those cases, the disabling illness was fibromyalgia. In both of those cases, the plans contain a self-reported symptoms limitation clause that is identical. In both of those cases, the seventh circuit and eighth circuit held that fibromyalgia is verifiable by clinical examination standardly accepted in the practice of medicine and that exam is the trigger point testing. In both of the cases, the planned participants proved functional loss. So did Professor Ovis. In addition to providing what I would call copious medical history as to her functional limitations, professor Ovis delivered with her appeal cardiopulmonary exercise testing, cpet testing, and that testing will say documented with data for functional limitations. The central issue that this court needs to resolve is whether the self-reported symptoms clause relates to diagnosis or to symptoms. In both Wisenkamp and Chronister, the seventh and eighth circuit held that the clause applies to diagnosis and not disabling symptoms. Because of the way the clause is written and principally because fibromyalgia is diagnosed by trigger point testing and this qualifies as a clinical examination standardly accepted in the practice of medicine. To avoid the holding of Wisenkamp in this case unum is raising two inconsistent arguments, for the most part for the first time on appeal. First, unum in its brief concedes the cases about functional loss and this follows along the first circuit cases beginning with Boardman, which essentially holds that for certain conditions functional conditions and a plan fiduciary cannot demand what we'll call laboratory-type testing but can demand objective proof of loss of functionality. So what I'd say is so far, so good. But then when unum has to address the two-day CPET testing that Professor Ovis provided that documented her functional losses, unum really changes its tune. At page 34 of its brief unum wrote quote not one of Ms Ovis's treating physicians cited the CPET as an objective evidence of her diagnosis. So what I take from that is unum is saying the way the clause reads is that it entails diagnosis and it also entails functional loss. And as the seventh and eighth circuit held the way, the clause needs to be read in connection with at least a fibromyalgia-based claim. It only goes to diagnosis If the impairing symptoms are pain. The claim is outside the clause. Other points I'd like to make relating to the CPET test is in some sense it does provide objective verification of the diagnosis. It's not directly on point like a laboratory test, but it is some type of data point providing additional information beyond what the patient reports or what the physicians observe or any of the other healthcare providers.
Speaker 2:I'm suggesting to the court that Unim's interpretation was not reasonable. It's an abuse of discretion. One way to measure an abuse of discretion can be substantive or procedural. Interpreting a plan in different ways depending on the facts, particularly when you have circuit courts going against the preferred reasoning for one of the parties is indicative of an abuse of discretion. The Chronister was decided in 2006, whites and Camp in 2011.
Speaker 2:If Unim didn't like the way that the courts were interpreting the plan, unim could have amended the plan, for example the one that was sold to our Rollins College.
Speaker 2:I would say to this date from litigating other Unim cases, this language appears in the plans in the same way and has never been amended. I'd say Unim has been on notice as to what the correct interpretation of that particular language means. The seventh circuit was particularly troubled about Unim's purported interpretation because literally read and the circuit reached the conclusion that the language didn't mean that was that any pain condition, including things that are just obviously painful and debilitating, could allow Unim to impose this limitation and cut off benefits after 24 months. The seventh circuit rejected that position, which actually Unim admitted to in oral argument. It's documented in the court's opinion. Moving to the second issue, your Honors, which the Department of Labor will speak more about, I'm suggesting that this court should tackle the issue to the burden shifting. I propose the following In an orisa litigation where the plan has an exclusion or limitation, the orisa plan should bear the burden approved by a preponderance of the credible evidence when imposing a limitation on a participant who otherwise qualifies for benefits absent the limitation.
Speaker 1:Excuse me, mr Fagan Mom. I have two questions. Answer them in whichever order you prefer.
Speaker 1:My first question is why should we go near the burden of proof issue? The facts are not really disputed in this case. It's a question of what those facts add up to. Do those facts add up to a condition that does or does not fall within the limitation of the policy? That's simply a question of interpreting the limitation clause. It's not a question, as I see it, of burden of proof. My second question is if we were to adopt the proposed definition that you just read. My knowledge of insurance policies, which is not encyclopedic but which comes from some years of experience, is that I can't begin to tell you the number of causes, covenants, sentences and the like in the typical insurance policy that could, particularly by an artful lawyer, be characterized as limitations. I wonder just what kind of Pandora's job we're opening up if we bought into that definition.
Speaker 2:Your Honor. To answer your first question, I think the case can be resolved by adopting Wisenkamp and Chronister and that the evidence is actually overwhelming, Given that Unum conceded she had fibromyalgia and Unum conceded she couldn't work.
Speaker 1:If we think Wisenkamp is wrongly decided, the case can also be decided without going to the burden of proof. That's my whole point. This is simply a question of measuring what everyone agrees, the symptoms, the loss of function, the results of this 18-point testing, and measuring that against the policy language and coming out. So I'm struggling with the notion and have been since getting the Secretary's brief as to why we should wade into this burden of proof issue gratuitously.
Speaker 2:May I answer your Honor? Sure, two reasons. One, unum's position is under the planned terms. It's a limitation and somehow Professor Ovid's had to prove what I'd call a negative proposition, that she has to show that she doesn't fall under this limitation. These limitations and exclusions show up in these plans and I understand the the Cerebonian bog quagmar that you're suggesting might develop because of traditional insurance law. But these plans contain exclusions and limitations. The district courts have wrestled with it. I argue this for the first time in a case where the CENT versus CUNA and the panel decided actually I think Judge Selle, you were on the panel decided that would pass on it, and it's come up three other times and I see comments from you haven't spread it for consistency then right, yeah, okay, you're on. I see district courts on occasion saying and you left me out too.
Speaker 5:I've passed on the question because I thought it was an extremely hard question not to be reached unless necessary.
Speaker 2:Your Honor, you passed on it twice in Dukovic and I think you bet and, for example, if we go to Aruta, Judge Lach raised it and said hey, this is a thorny issue. How do we resolve this? And I'm suggesting that the First Circuit provides some level of clarity to the district courts.
Speaker 5:You may not like the clarity we provide if we were to get there. Anyway, what's wrong with the Supreme Court providing some clarity?
Speaker 2:It's never wrong, your Honor. All right, anything else, no I think Mr Toomey said I've gone over my time, so I'll wait. Thank you very much.
Speaker 4:Thank you, Mr Feigenbaum. You can mute your device at this time. Attorney Hamilton, if you could unmute your device and please introduce yourself on the record again, please.
Speaker 6:Thank you, mr Toomey. Good afternoon, your honor. It's Joseph Hamilton for the Pelley's Unim Life Insurance Company of America and Unim Group. I'll jump right into the Whiteson Camp issue if you will. Your honor, I think.
Speaker 6:To get there, it's important to emphasize that Ms Ovis disability arose from three conditions chronic fatigue syndrome, depression and fibromyalgia and when you review the record, you will see that during the administration of the claim, the primary condition being set forth by her physicians was the chronic fatigue syndrome, with the fibromyalgia being a secondary diagnosis.
Speaker 6:Then, in 2012, the major depression became a factor as well. Now, in the last 20 years, the court has addressed all three of those conditions in numerous times in the context of an Orissa benefit claim. As far as the mental illness goes, ms Ovis psychologist did file a report saying she was unable to work at all due to major depression and that would be within the limitation provision. That's been addressed a couple of times by the court Ghent in 2010, and Dukowice has been mentioned as well in 2015, both upholding the limitation provision for a mental illness disability. As regard to the chronic fatigue syndrome and the fibromyalgia. This court's addressed that as well, and, I think, the Whiteson camp case as well as Ms Ovis tying her case to that decision is contrary to the direction given by this court going back to 2003. And the decisions in this multiple ones have all said that your chronic fatigue syndrome and fibromyalgia do not lend themselves to objective clinical findings. But have we?
Speaker 1:ever said that in a case in which this 18 point testing has been proffered and proof that there is some test for fibromyalgia.
Speaker 6:So here's how we came up judge and the Denmark case, which I believe you wrote the opinion in 2007,. The court noted in two more than once in the decision is noted that Ms Denmark was found to have a positive trigger point test and despite that I think Mr Faganbaum said he represented Ms Denmark in that case Ms Denmark argued in that case that it was unreasonable to require her to produce objective evidence of her inability to work, and that's with the existence of the 18 point trigger test. So this court had that information in front of it, ms Denmark had that information and neither in that case or in any of the other cases that this court has decided has that been found to be an objective indication of fibromyalgia. In fact, in Denmark, this court held that fibromyalgia, along with chronic fatigue syndrome, are conditions that are not subject to objective verification because it is a condition lacking abnormalities in blood testing or specific abnormalities in physical exam.
Speaker 6:And the conundrum has always been that, yes, you can touch these various points and say, does that hurt, does that not hurt? And the patient can respond, but you're, at the end of the day, you are relying completely on their self-report, which, when you look at the provision of the plan, your Honor, it states that the manifestations of the condition, that is, the pain, the fatigue, has to be verified by, that's, a series of tests, diagnostic, technical examinations, et cetera. So while this trigger point test, which really is being de-emphasized by the American College of Rubinology, is used, that does not make it a clinical examination that verifies because, as this court has repeatedly found, you can't verify it. So Orissa Plans have gone forward since 2003. And in fact, thank you, and in fact administered these claims in exactly the way that this court has instructed to do. To say we know there is not objective evidence clinically on these things, so we have to rely on what are the functional limitations?
Speaker 7:So do you do it differently depending on where the claimant lives? Do you apply the SRS limitation in a different way depending on where the insured happens to reside?
Speaker 6:I can't speak for the company nationally. Your Honor, I do know that if we were in the my understanding is no, unless there was a direct such as Weizenkamp if we went before that court we would be required to do unless we could convince the court to overturn that decision.
Speaker 7:So now if the claimant is insured by Unum in different parts of the?
Speaker 3:country. This podcast is brought to you by Ben Glass Law, a national leader in long-term disability insurance claims. We help doctors, lawyers, entrepreneurs, ceos and other C-suite executives get paid for their long-term disability benefits. Visit us at benglaslawcom or give us a call at 703-591-9829. Case Facing inconsistent application of that limitation right.
Speaker 6:Yes, I would say the majority of the decisions, your Honor, apply it exactly the way that we do, and that Weizenkamp is the outlier.
Speaker 6:It's not the norm, and the reason for it that Weizenkamp is the outlier is that it has taken this position that's contrary to what most other courts have found is that this one single test is not a verification of the condition. You can't, because what we then are left with is tomorrow, anyone with that alleges they have fibromyalgia can go in, get this one clinical examination, then file a claim and say, okay, I have this diagnosis based upon these 18 points by my doctor says I can't work Based upon. That case is over and we're basically back to where we were before 2003, in which I think everyone has agreed that this is not a condition and Rubatologists have been struggling with this for 20 years, and the current view, based upon the American College, is it's a pain index, it's a rule out other conditions. How long have you had it? So it's this. It says diagnosis by exclusion, and that's Specifically what this provision is entitled, is meant to do.
Speaker 1:The other thing I would say but there is still a judge, will plant has put his finger on an equity, because what you've created is a situation where if mr Fagan mom had decided to file his case in the northern district of Illinois rather than in the district of Maine, his client would probably Be entitled to this, to this coverage.
Speaker 6:We wouldn't, we have venue discussion in this case. Your honor, we probably would have had one then, and my, my position is that just because a the seventh circuit and argue has made an error Does not mean that this circuit should just go along with it.
Speaker 1:Simply, for that probably true, but wouldn't it make more sense? And view of the seventh circuit decision and the eighth circuit decision. Simply for unum, to clarify the policy language a little, exclude this trigger point test.
Speaker 6:Yeah, that, yes, you're on. That's always the. The point made by claim is that if you don't specify and you could have that somehow the plan is deficient. The problem is you then, once you specify one and you haven't specified others, now you specify that one, but you didn't specify this one and it becomes a real problem. So the standard here is whether or not the company has made a reasonable reading, a reasonable interpretation of the plan. The discretionary language in the plan specifically grants to your life the authority to interpret the plan.
Speaker 6:Limitation Every district court in this circuit that has looked at this, has upheld the interpretation Reputation that was made in this case. So it's not as if and those go before and after Weiss and camp, so it is not as if this has applied without some support, not only within this circuit but within others. I Would strongly request at this court not feel it is somehow bound by Weiss and camp, which we think is an inappropriate decision. If Ms Ovest had filed in her circuit in Florida rather than coming up to Massachusetts, the law is similar there as it is here. She didn't choose to go, didn't choose to go to Wisconsin, she chose to come here to Massachusetts. We think the guidance that this court has given Since 2003 as to how to treat these conditions is the way to go. And the last thing I would say is Not until this appeal has been filed, has fibromyalgia become the headliner in terms of the reason for the disability. The mental illness has been there since 2012. The chronic fatigue syndrome has been Counsel.
Speaker 5:You've now circled back to your opening argument.
Speaker 6:All right now time.
Speaker 5:Thank you very much.
Speaker 6:Thank you, thank you, arms.
Speaker 4:Attorney Hamilton at this time. If you could mute your device, attorney Lou, if you could introduce yourself on the record.
Speaker 8:May it please the court, katrina Lou, for the secretary of labor, as a amicus curiae, as the secretary is here to weigh in on the question of burden shifting for limitations and the secretary's position is that the burden should rest with the plan. Now judge Lynch, now judge Lynch. You are absolutely correct that this is not an easy question. So the secretary's role here is to assist the court and want to address the question.
Speaker 5:The secretary go to Congress if it wants a nationwide rule rather than making arguments to Individual courts of appeals. So the.
Speaker 8:The question of how to assign the burden is really a judicial function. Doesn't have to be.
Speaker 5:Congress can easily specify it, or you could ask the Supreme Court I to take a case and come up with a national judicial rule. But to the extent people are worried about lack of uniformity, seems to me, you're inviting even more of it.
Speaker 8:Yeah, so the secretary's powers essentially are. So the secretary doesn't legislate right. So and the relationship with Congress is not it is not typically our position to propose some rule for uniformity. Generally, the way Arissa is implemented is that there is a body of federal common law that develops under the statute that Congress did enact, and it is this federal common law that ensures the uniformity of the administration of Arissa plans nationwide, and so the secretary's role here is to ensure that this enforcement of these Arissa plans is one that's taking place uniformly, because one of the benefits of Arissa, particularly for employers and plans, is that certainty of that uniformity.
Speaker 1:But even the secretary would agree. I would think that the federal courts should not reach out to decide issues gratuitously, that is, to decide issues when it is unnecessary to decide that issue to resolve a particular case.
Speaker 8:Yes, so I wanted to answer this question of yours just all yet, and so, to be clear, the secretary has no position on whether this court must decide the issue, but there are reasons why it may want to. So the first is that the sixth circuit has now weighed in specifically on this burden shifting question and found that, for limitations, the plan should have the burden to prove them.
Speaker 1:But that has nothing to do with whether it's necessary for us to decide the burden of proof issue in this case. That is important in terms of the development of the law in the direction you'd like to see it developed, but my concern, frankly, isn't whether your position is right or wrong. My concern is with judicial restraint, with whether this court should plunge ahead at the secretary's request and decide an issue that we don't have to decide in order to resolve the case and controversy that is before us.
Speaker 8:So specifically to this case, that so the secretary again takes no position on whether the court has to but the burden in this specific case. It may matter, it may not. So the district. What we know, though, is that the district court made an explicit ruling that the burden to prove the SRS limitation rested on OVST.
Speaker 5:Pardon me so is your fallback position that, even if the court of appeals finds we don't have to decide the issue, that we should vacate the district court ruling on that point? Is that your fallback position?
Speaker 8:Your honor. If this court vacates, it should articulate the proper legal role for the district court to apply.
Speaker 5:So that's not the question I asked you. Why would we Refrain from? You're assuming that we want the question answered. I Don't recall your brief saying even if you don't answer the question, you should tell the district court the question still open.
Speaker 4:I see five minutes remaining.
Speaker 8:Yeah, your honor the secretary has no position on what the court must do if it does not decide this question. Okay and so if it does decide the question, though, the remedy then would be to articulate the proper legal framework for burden shifting and then to remand to the district court to determine in the first instance whether the burden shift impacts the case. And so I also wanted to address judge Celia's second question, which was the idea that, depending on how we assign the burden, this could open up a Pandora's box, and it could be end up in a lot of confusion for plans and for participants and understanding who has to prove what and what a provision actually is, so that confusion already exists. We have a split among district courts, some that assign the burden to the participant, some to the plans.
Speaker 5:I Pardon me, but I'm not sure you quite grasp the point. You think it's self-evident what a limitation is. However, insurance policies have a lot of different terms. There is a Coverage that may be subject to limitations but still considered part of coverage. Then there are exclusions, then there are endorsements. I just decided a Environmental insurance case where some endorsements are labeled limitations on coverage that is granted, some endorsements are labeled exclusions and None of them are contained in the basic. The Pandora's box that Judge Celia is talking about is very real. Not only is it a Pandora's box for Orissa cases, but it's a Pandora's box because your underlying principle has to do with the common law of insurance and Different states have different common laws of insurance.
Speaker 8:Okay, your honor. Yes, you're right, and I believe the case you're referencing is performance transportation. Okay, I understand the question. Now the issue, when reading plan terms of whether that term is a term of coverage or an exclusionary term or an endorsement, this is this would be a task for courts that that that would not be new, regardless of how this court decides on the burden issue. So plans can be written in many different ways and the courts Roll then is to interpret the plan provision to determine whether it is a term of coverage, and if it is a term of coverage, the participant bears the burden approving. She's entitled to coverage.
Speaker 5:Yes, and your position in this case appears to be that a policy that labels this as a coverage term of the policy, nonetheless, because it contains a limitation, is not a coverage term, correct?
Speaker 8:Your honor. The secretary's position is that a limitation is its own.
Speaker 5:Regardless of where in the policy it is and regardless of how the agreed upon language of the policy Characterizes it.
Speaker 8:That's correct. It is a yes, and we see a provision is a limitation or a term of coverage or an exclusion, depending on how that term functions. So it's not.
Speaker 1:It's not as easy as that council, because a coverage term, depending on how it's written, may contain within it Limitations, because coverage terms have very specific definitions and have exceptions within those definitions which a lawyer could very easily and probably understandably characterize as Limitations. And I think what both judge Lynch and I are suggesting To you is that we regard this burden of proof problem, particularly using the definition of or the proposed language that the Fagan bomb gave us during his argument, as considerably more nuanced. Then either he regards it or that, then your brief indicates the secretary of labor regards it.
Speaker 8:Certainly there are Difficult close cases where it is, part that may finish the sod Sure, where it's difficult to distinguish between a term of coverage or a limitation or an exclusion. That is not a test that the court need addressed here, because it is undisputed that the SRS limitation is a limitation. The question, though, is whether you treat it like a term of coverage, in that the participant needs to bear the burden, or treat it like an exclusion, in which the plan must bear the burden.
Speaker 5:Okay, we've got the argument, thank, you very much, thank you.
Speaker 4:Attorney Lu, you may mute your audio and video at this time. Attorney Feigenbaum, you have two minutes. Please reintroduce yourself to the record.
Speaker 2:Jonathan Feigenbaum again for the appellant Rhonda Ovitz. A few quick comments I'd like to make. My colleague, mr Hamilton, seemed to be insinuating at some level that one of the concerns of the plan fiduciary about these self-reported symptoms-based claims is that some of the claims are fake. Maybe in some instances, but not this case. As I would like to remind the court, unam had three of its doctors admit or concede that Professor Ovitz had fibromyalgia and in its final adverse benefit determination UNAM conceded she couldn't work. So any issues of sneaky behavior or phony claims just aren't based in reality on this claim.
Speaker 2:The other point I'd like to make is looking at the self-reported symptoms language. What it excludes is claims that are not verifiable using test procedures or quote clinical examination standardly accepted in the practice of medicine and, as I've repeated, as the seventh circuit found, the eighth circuit found, trigger point testing is a clinical standard exam. There's other well-known illnesses Alzheimer's. You really can't diagnose that until after someone's dead and you look at their brain under a microscope. Same kind of thing for chronic traumatic encephalopathy Can't really make a definitive diagnosis until after death. But those are types of medical conditions that I think we could all agree that are diagnosed clinically. I could probably go on and on and name a number of other ones, but the point is that UNAM's language uses this term clinical examination standardly accepted in the practice of medicine, and that does not mean that the claimant has to show a laboratory type test for some condition for which there is none.
Speaker 4:That's time.
Speaker 5:Thank you, thank you all, thank you.
Speaker 4:That concludes the arguments for today. This session of the Honorable United States Court of Appeals is now recessed until the next session of the court. God save the United States of America and this honorable court. Counsel, you may disconnect from the meeting.
Speaker 3:The proceeding has been a production of Ben Glass Law, a Fairfax, virginia based personal injury and long term disability law firm. For a free evaluation of your claim, visit us at benglaslawcom or call us at 703-5-5-5.