This article is
just one example of the many practical and informative stories you
will find in the CFIDS Chronicle, which is
published quarterly by
the CFIDS Association of America, Inc.
Finding Success in the Disability Wars
By Justin Frankel
and Jason Newfield, Guest Contributors
Feel like you’re playing a war game with your
insurance company? Does it seem like they make all the rules and hold all the
good cards? Learn how long-term disability claims are being examined by
insurance companies and steps you can take to improve the odds that your claim
will ultimately succeed.
Diagnosing chronic fatigue immune dysfunction syndrome
(CFIDS) and fibromyalgia (FM) is extremely difficult since most of the symptoms
can’t be objectively verified. Currently there is no medical test available that
will clearly diagnose either condition. Neither illness presents one single
physical trait that can easily be recognized by a physician, and without a
lesion or tumor to biopsy for a quick diagnosis, or a universally accepted lab
test to rely on, physicians are often reluctant to diagnose these “invisible
Similarly, insurers are often equally reluctant to treat these
illnesses seriously, and they routinely use the lack of medical certainty about
CFIDS and FM against patients who file disability claims. While this practice
puts a greater burden on the patients to prove their cases, and it sometimes
puts patients in an adversarial relationship with their insurers, there are
steps you can take to significantly enhance the chances of your claim being
The purpose of this article is to provide individuals who
suffer from CFIDS or fibromyalgia with practical information to assist them in
their pursuit of long-term disability benefits and to identify common problems
Handling of claims by insurers
individuals suffering from chronic illnesses are frequently surprised to find
that their disability insurer refuses to approve their claim. Here are the most
common positions taken by insurance companies when denying claims:
1. Lack of objective evidence. Insurance
companies routinely delay or deny CFIDS and FM claims because the claimant
failed to provide objective evidence substantiating the disability, even
though it’s well known in the medical community that objective tests don’t yet
exist to confirm such conditions. Claims are delayed or denied while claimants
attempt to develop support for their claims. Unfortunately, many treating
physicians are either unwilling to assist the claimant or are unfamiliar with
the insurers’ claim requirements and don’t adequately support the claim with
the kind of information and documentation that is needed.
2. Skepticism about the existence of these
conditions. This skepticism causes many claims to be delayed or
denied. This can result in instances of secondary depression for patients,
which sometimes leads insurers to conclude that the claimant’s condition is
actually psychological, not physical.
3. Self-reported illness. Some insurers
deny claims because of the subjective, self-reported nature of many symptoms
related to CFIDS and FM. Some policies actually require objective support for
the disabling condition, while other policies limit benefit periods for
self-reported claims, essentially treating those suffering from CFIDS or FM
differently than other claimants.
4. Mental condition. Many medical
professionals and insurance companies attribute the complaints and symptoms to
psychological or psychiatric disorders, or worse, to malingering. Claimants
are left with delayed or denied claims. When coverage is provided, insurance
companies often limit benefits to two years under a “mental or nervous”
limitation clause in the policy.
Claim requirements for CFIDS and FM
To be entitled to disability benefits, a claimant suffering
from CFIDS or fibromyalgia must demonstrate that as a result of injury or
sickness, you are “disabled” as that term is defined in the policy. It is
therefore critical to understand what the definition of disability is in your
policy. Although the terms vary among policies, there are generally two
Own occupation. Here, disability is defined as the inability
to perform the material and substantial duties of your “own occupation,” and as
being under the regular care of a physician. Insurance companies will also
define an individual’s own occupation as how the job is performed in the
national economy as opposed to how you actually perform your own job.
Any occupation. Usually after 24 or 36 months of disability,
policies routinely change the definition of disability to a less restrictive
definition. Instead of determining whether you can perform your own occupation,
the policy changes to an analysis of whether you can perform “any occupation”
for which you are reasonably qualified by education, training and experience.
Insurance companies often perform a vocational analysis to determine if you’re
capable of performing any job in the economy, even if no job is actually
So how do you ever win a
claim when the insurance companies have so many weapons in their arsenal?
Fortunately, there are effective and proactive steps you can take to increase
your chances for success.
When you’re preparing to file a long-term disability claim for
benefits, you must review and analyze (or have a professional review and
analyze) the policy to understand what the insurer actually requires from you in
order to issue benefits. For instance, careful attention must be paid to the
material and substantial duties of your occupation, and thought must be given to
articulating how you are unable to perform such duties. Having a disorder or
syndrome does not make you disabled under a policy of insurance; rather, the
symptoms, restrictions and limitations of the disorder or syndrome determine
When you experience chronic pain, concentration difficulties
and chronic fatigue, those symptoms are likely to limit you in the performance
of many occupational duties. You must have your treating physician address these
symptoms and relate them to employment. It’s absolutely essential to work with
your doctor and make sure your medical records reflect how you are disabled in
terms that relate to the language of your policy. That’s why knowing your policy
is so important.
The insurer may take the position that the pain is
self-limiting, but not objectively verified, that the concentration difficulties
are not supported by neuropsychological testing or that the fatigue is
not disabling. Consequently, it’s imperative that you provide as
much support for the limitations as possible. To do this effectively, you can
maintain a journal or diary of activities, describe your physical condition
after engaging in various activities and address the lack of functionality you
experience. This may constitute some supportive evidence for the
restrictions and limitations you’re claiming.
Avoiding potential claim investigation
There are several common tools utilized by insurance companies
to verify disability either before your claim is approved or to deny continuing
coverage at some point after you have begun receiving benefits. Each of these
techniques poses potential problems for CFIDS and fibromyalgia claimants.
Contractual support for many of these tools may be buried in your insurance
policy. However, any request by an insurer to invoke any contractual rights must
be balanced with a reasonableness standard.
1. Independent Medical Examination (IME).
The IME is actually a PME (Paid Medical Examination), and the results are
often skewed as such. If the PME physician is being paid by the insurer, it’s
safe to assume that objectivity can be questioned. Claimants faced with an IME
must arm themselves for battle. You should bring a witness, request to
videotape the examination and request the insurer to demonstrate the validity
and/or necessity of the testing.
When an insurer exercises a contractual right to an
examination, a claimant usually has the obligation to attend an examination.
However, in any policy there are implied terms of good faith and fair dealing
which guide the process. Thus, it may be unreasonable for an insurer to
require you to undergo invasive testing by the insurer’s doctor, or it may be
improper to require you to travel a significant distance to have an
examination performed, or it may be unreasonable to schedule an examination on
two days’ notice. You do have some control over the process.
2. Functional Capacity Evaluation (FCE). An
FCE is an entirely different scenario. An FCE is not generally contractually
required, but insurers nonetheless act as if it’s mandated. This test is
utilized by insurers to test your maximal effort, which can then be used to
extrapolate that you can work full-time on a sustained basis due to your
ability to perform a myriad of tests one time. The results are inherently
unreliable, and the tests lack validity.
3. Peer reviews. An insurer peer review of
the claim relies upon a non-examining physician to address a claimant’s
functional abilities. This has inherent problems because it precludes you from
receiving an appropriate evaluation of the claim. Even when an outside
physician is used, it’s difficult for a doctor who has never examined you to
opine properly on your restrictions and limitations from just a review of the
records. Thus, you must ensure that your own treating physician provides
well-developed, organized office notes and narrative reports to support your
4. Field investigations. Field
investigations are common in subjective complaint claims. An investigator will
often stop by unannounced to speak to the claimant. The investigator wants to
ascertain your activity level, determine whether you are working in another
interest or gather other information to be used by the insurer. Caution should
always be used when speaking to your insurance company or their investigator.
Remember that the investigator is not on a social call.
As noted above, insurers are supposed to adhere to a
reasonableness standard, so you should feel free to advise an investigator who
shows up unannounced that the timing isn’t convenient and that while you are
willing to meet, it must be a scheduled visit.
5. Surveillance. Surveillance is a common
technique used by insurers in CFIDS and FM cases because of the subjective,
self-reported nature of these illnesses. It’s also used in high-benefit claims
where the insurer is willing to invest significant money to terminate or deny
a potentially expensive claim. Claimants must be wary not only of their
activity levels while on claim (including going to the gym, even if physician
prescribed), but of statements made to the insurer about their daily
activities. Inconsistencies can be fatal to a claim, and the expression “a
picture is worth a thousand words” holds true with regard to surveillance.
We hope this article has provided helpful information to
guide you in filing long-term disability claims and in navigating the
minefields in the claim process. In a future article, we will provide more
in-depth information regarding treatment by the courts on specific cases and
issues that commonly arise in disability claims based on CFIDS or
FIVE COMMON LONG-TERM DISABILITY CLAIM MINEFIELDS
. . and what you can do to avoid them
1. Submitting a long-term disability insurance claim form
or giving an interview to the insurer without fully understanding the
significance of the statements you make.
Insurance companies are very skillful at utilizing your own
claim form to deny a claim. A dentist with CFIDS may answer a question about the
activities she performs in her job with, “I perform chair dentistry, I sometimes
assist the other dentists in their procedures and I submit insurance claims and
pay bills.” The problem is that the insurer can then deem this dentist only
residually or partially disabled because she can perform administrative
functions as well as be a “dental assistant.”
2. Not working with your attending physicians
so they fully understand the definition of disability contained in your
long-term disability insurance policy.
Even physicians who support your claim need guidance on the
terms and conditions of your policy. You should get a copy of your medical
records and review them carefully. Then set up an appointment with your
physicians to explain the definition of disability contained in your policy and
ensure that both your medical records and the report they submit detail how your
illness restricts or limits your ability to perform the material duties of your
occupation. Make sure you include all your health care providers in this
process, including rehabilitation counselors, exercise physiologists and any
others who are familiar with the functional limitations you experience.
3. Attending an Independent Medical Examination or
Functional Capacity Evaluation at the request of the insurer without preparing
Appear at IMEs and FCEs only after significant negotiations
with the insurer regarding the examiner, the testing to be conducted and the
scope of the examination. In addition, have a third person appear at these
examinations with you to record events.
4. Not hiring an attorney who is experienced in
disability insurance litigation.
Only a small number of attorneys in the
how to handle disability cases. Litigating such claims is very different from
handling other contract claims. Interview candidates by phone or in person
before hiring a lawyer, and check out the firm’s website.
5. Failing to engage counsel early enough in the claims
process to avoid costly delays.
Effective assistance of counsel at the outset of a long-term
disability claim can prevent delays in claims processing. Insurers rely on the
relative inexperience of claimants to manipulate and delay the claims process.
An experienced attorney can work with your physicians to get needed
documentation, negotiate the terms of an IME or FCE with your insurer, help you
understand your policy, file your claim and handle an appeal if your claim is
About the authors
Justin Frankel and Jason
Newfield are the founders of Frankel & Newfield, P.C., a
York law firm focusing on
disability insurance claims and litigation. They are the authors of LTD
Management, a quarterly publication addressing various issues concerning
disability claims. They have handled a multitude of disability insurance claims,
appeals and litigation involving chronic conditions, including CFIDS and FM.
They can be reached with any questions at 516-222-1600, or by e-mail at
email@example.com. Or visit