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We recently came across a new long-term disability court decision in favor of the insurance company in a 4th Circuit ERISA case that could have been avoided (Refaey v. Aetna Life Ins. Co.). This was a difficult case from the beginning because the claim, which was based on a subjective complaint (chronic fatigue syndrome), had no strong evidence to back it up. Our hope is that this unfortunate case can shed light on what was missed early on and in turn, teach about what the plaintiff could have done to help boost the credibility of their case.

Overview of the Case

The plaintiff’s main argument was they were suffering from chronic fatigue syndrome. There is nothing wrong with this argument – courts have recognized that chronic fatigue syndrome is real and can be disabling. However, the insurance company had multiple surveillance videos that showed the plaintiff engaging in a program of strenuous physical exercise at the clinic where they were consistently increasing the level of exertion, along with active participation in daily occupational therapy. The plaintiff reported improvement of their symptoms and increased functionality after their time at the clinic.

What Did the Plaintiff Do Wrong?

Why is this a problem? The goal of a treatment program is to help you get better, right? The problem arises when your treating providers are not documenting, “the other side of the story,” while they are documenting your improvement. The insurance company will assume that your peak performance during therapy is your normal performance at all times – and usually, that is far from the truth. In order to qualify for disability benefits, it’s important to show that not only is treatment working (which is great) but that it hasn’t worked well enough yet to enable you to return to work.

The best way to do that is to work with your doctors to have them put their statements in your medical record in context. Instead of just writing, “Jane is making great progress,” they can tell the whole story: “Jane is making great progress. She puts forth maximum effort in physical therapy and then needs to rest at home in bed for the rest of the day. When she started our program, she was unable to get out of bed the day after therapy, but now she is able to be up and functional for a few hours. She is able to complete small household tasks for an hour or two at a time before napping for 3-4 hours during the day.”

In this case, the plaintiff didn’t have those notes in their record. They also presented no detailed statement about their overall functional capacity, no statements from family and friends, and no recorded evidence of their daily lifestyle to prove the complaints of chronic fatigue. As humans, we often live by the motto, “you have to see it to believe it,” and this applies directly to court cases. Evidence is one of the most important elements of making and winning a case in court.

Lessons to Be Learned from This Case

There is always a lot to be learned from poorly handled cases. Details matter and even small mistakes can derail a case. In any case, but especially in cases where there is little objective evidence of disability in the form of test and/or exam results, you should focus on three main points.

1. Make Sure Your Doctor Supports Your Claim

The success of your claim rests first and foremost on what your doctors say about you and your functional capacity in their office visit notes. Your doctor is required to:

  • Describe your diagnosis
  • Explain why your disability prevents you from working.

2. Be Honest With Your Insurance Company

Former law professor and attorney Michael Josephson said: “Honesty doesn’t always pay, but dishonesty always costs.” Especially in cases like this, where there is little objective evidence to support the claim, surveillance evidence showing you doing something you said you couldn’t do is often a claim-killer. You are relying on the judge to believe you are credible, and a picture (or video) showing that you may not be is incredibly damaging. The solution? Be honest. If you can drive short distances, don’t say you cannot drive. If you can go to the gym for therapy for an hour before you have to go home and rest for the remainder of the day, don’t say you can’t exercise. Remember – being able to walk your dog for 10 minutes is not the same as working an 8-hour day and 40-hour week! If the insurance company can’t see that, then hopefully a judge will.

The insurance company will likely have you fill out forms and will interview you over the phone. Be very honest about what you can and cannot do. If surveillance later “catches” you doing something you already told them you could do, it’s more likely to work in your favor, to show that you are credible and honest.

3. Provide Evidence Supporting Why a Subjective Complaint Should Qualify for Disability Benefits

If your disability is largely based on subjective complaints, let the insurance company see other evidence supporting your claim, such as:

  • A detailed statement from you about your restrictions and limitations and why you can’t work
  • Statements from family members and friends who knew you when you could work and will describe your decline
  • Videos of daily lifestyle, limitations, etc.

Think outside the box – how would someone who did not know you know that you’re disabled? The only way to add evidence to your claim file is to send it through the insurance company. This can be during a regular update, or whenever the time seems right to you. Just send what you have to your claim manager with a note, “please add this to my claim file.”

What is a Subjective Complaint?

If you can’t work because you have, say, degenerative disc disease, your condition is documented with X-rays, MRIs, maybe CT scans, EMG studies, etc. There are also tests your doctor can do during a physical exam (such as a “straight leg raise test”) to document your condition. Those tests and exam results are known as “objective evidence.”

Many disabling conditions, such as fibromyalgia and chronic fatigue syndrome, are not detectable by traditional tests and exams and so cannot be supported by “objective evidence.” Diagnosis depends largely on how you describe your symptoms to a doctor who specializes in these difficult diseases. These are called subjective complaints.

Courts have ruled that subjective complaints are real, and subjective evidence is evidence. To prove disability based on a subjective complaint, you must be seeing a specialist in your disease (so it’s important to have your primary care physician refer you to the appropriate specialist). Your doctor must record your complaints and explain why they support your diagnosis. Both you and your doctor need to explain why your condition is disabling – we call this answering the “why can’t you work?” question.


No one takes a case through the rigors of an insurance appeal and then to court unless they are sure they are disabled (let’s be real: working a steady job is easier and pays better).

Unfortunately, knowing that you are disabled and being able to prove it in court can sometimes be very different. It’s important to be honest with the insurance company and document your claim while it is still being managed by the insurance company. If your appeal is denied, no new evidence can be added to the record.

In this case, hindsight is 20/20, but we see a lot that should have been addressed in the record before the case ever made to court. By that time, it was too late, and another person who thought they had a valid claim, and the security of a disability insurance policy was left with nothing.

If you have any questions about this article or your claim in general, please give us a call at (703) 584-7277. We will give you our honest assessment and can schedule a flat-fee consultation if you’d like us to review your policy and existing records and give you guidance on what could help strengthen your claim. And denial letter reviews are always free.

Ben Glass
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Ben Glass is a nationally recognized ERISA disability & life insurance attorney in Fairfax, VA.