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How insurance companies treat fibromyalgia or chronic pain cases.Another outrageous limitation that appears in some policies is on so-called “self- reported conditions.” Sometimes the insurance policy will list specific conditions like chronic fatigue, fibromyalgia, chronic pain, headache, migraines and the like, but other times it will not.

The insurance company uses this clause to say that, in spite of your long history of seeing many physicians and specialists, extensive documentation of your condition, and numerous treatment attempts you have spent time and money on, there is no “objective medical evidence” of your disability. A clause that limits or denies benefits for “self-reported symptoms” means that the insurance company will only pay if there is a specific test or study or scan that will show definitively whether you have a certain condition.

In denying these claims these insurance companies will say that without any one test to show with objective medical evidence that you have this condition, your diagnosis is based on your own report of pain or fatigue. Therefore, it is “self-reported” and we either will not cover you or we will limit your benefit severely.

There are many common, well-recognized, and documented diagnosable conditions related to pain and/or fatigue. There are good and expert physicians who make these diagnoses after exhaustive testing, often to rule out other conditions. The fact that there is sometimes not any one test or lab study that can be done to diagnose these chronic pain and fatigue conditions should not be a reason an insurance company is allowed to limit or eliminate benefits.

In Smith v. Continental Insurance Company, the Fourth Circuit Court of Appeals upheld that it was legal for insurance policies to include—and abide by—clauses that state that “pain can never support a finding of disability.”

This case sends a clear warning to America’s workers that they need to review and understand their employer’s long-term disability policy before they need it to see if it will truly protect them and their families in the case of a disability which prevents them from working.

Neal Smith was a vice-president of sales for J.J. Haines & Co., a wholesale floor- covering distributor. He applied for disability benefits under his company’s policy after a long history of back problems and an acute back injury that occurred in January 2001. Smith also filed for, and was awarded, Social Security benefits for his injury. Continental, however, denied that he was unable to work and refused to pay.

Continental’s disability policy contained several provisions that worked to greatly restrict benefits. Had Smith known how weak this policy was before he became injured, he probably would have thought twice about putting his family’s financial future in the hands of his employer’s disability plan if he became injured.

First, the policy gave Continental the “discretion to determine benefits.” A discretionary clause limits the court to a deferential review of the insurance company’s process. Basically, the insurance company’s decision is presumed to be correct and will only be reversed if it is a totally unreasonable decision.

Additionally, Smith’s employer was duped into buying a policy that unreasonably limited coverage to two years if the disability was one that was primarily diagnosed by fatigue, pain, headaches, stiffness, soreness, tinnitus, dizziness, numbness or loss of energy. Most group policies do not have this restriction.

Employers who truly desire to provide real financial protection need to learn how to read beyond the glossy sales brochures to understand the insurance policies they are buying. If they will not take this time, they should stop providing the “benefit” altogether and tell folks to buy their own private polices. This way, at least, no one will be surprised like Smith was to find that the “great coverage” he was so “lucky” to have offered no protection for his back pain when it was too late to buy his own policy.

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