Self-Reported Symptoms Limitation

I have previously discussed the self-reported symptoms limitation found in many LTD policies (LTD Exclusions and  Soft Tissue Exclusion). In Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011), the claimant’s benefits were discontinued by Unum under the plan’s self reported symptoms limitation.  The Plan also claimed an overpayment due to the claimant’s receipt of SSDI benefits.  The Weitzenkamp case provides a great discussion on the exclusion, and thus, rather than summarizing, I am quoting the important language from the decision with some emphasis supplied, as follows:

To determine whether the self-reported symptoms limitation applies here, we begin with the language of the plan, which provides in relevant part:

Disabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse have a limited pay period up to 24 months.

Self-reported symptoms means the manifestations of your condition which you tell your doctor that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

The plan limits payment for “[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms,” but the parties disagree as to what this clause means. Unum alleges that the focus is on whether the limitation on function is primarily based on self-reported symptoms. Although Weitzenkamp’s argument is convoluted at times, she argues at least in part that the focus must be on whether the diagnosis of the disease itself is primarily based on self-reported symptoms.

Although one can read the clause literally as Unum proposes (the plural self-reported symptoms clause modifies the plural “Disabilities” rather than the singular “illness or injury,” suggesting that if the inability to perform work is self-reported, the limitation applies), when the clause is considered in context and in light of actual application, the only viable conclusion is that the self-reported symptoms limitation applies to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported. The contrary interpretation advanced by Unum would sweep within the limitation virtually all diseases, leaving only a small subset for coverage beyond that time period. For most illnesses or injuries, the disabling aspect is not the disease itself, but the pain, weakness, or fatigue caused by that illness or injury. Even diseases that are extremely likely to cause an inability to work, such as stage IV cancer or advanced heart disease, are disabling because of the pain, weakness or fatigue. Under Unum’s interpretation, however, those diseases would fall within the twenty-four-month limitation because pain, weakness and fatigue are self-reported symptoms that are difficult if not impossible to verify using objective medical evidence. In fact, at oral argument, Unum conceded that under its interpretation the provision would limit coverage for all conditions in which the disabling symptom is pain. Unum even maintained this was true regardless of the etiology of the pain, so that even if the underlying condition were highly likely to cause pain, the limitation would apply because the pain itself is self-reported and not verifiable. Despite this bold assertion, we have no indication that Unum actually applies or proposes to apply this limitation to disabilities based on diagnoses that can be objectively verified by clinical tests, procedures, and clinical examinations. Neither could this court countenance a reading that would allow Unum arbitrarily to disallow any illness or injury that it preferred not to cover while not making that explicit in its SPD. Although we must give deference to the administrator’s interpretation of the plan terms, see Marrs v. Motorola, Inc., 577 F.3d 783, 787 (7th Cir. 2009) (citing Ross v. Indiana State Teacher’s Ass’n Ins. Trust, 159 F.3d 1001, 1011 (7th Cir. 1998)), we cannot conclude that Unum’s interpretation is reasonable.

The remaining question is whether the diagnosis of disabling fibromyalgia in the present case was based primarily on Weitzenkamp’s self-reported symptoms or on objective medical evidence. Weitzenkamp was diagnosed following the 18-point “trigger test” for the condition. We have recognized that the trigger test can “more or less objectively” establish the disease where the findings of the test are consistent with fibromyalgia. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003). Chronister v. Baptist Health, 442 F.3d 648, 656 (8th Cir. 2006), held that the  [**17] claimant’s fibromyalgia was not within the self-reported symptoms limitation in light of that court’s having already accepted that the trigger test “qualifies as a clinical examination standardly accepted in the practice of medicine.” Significantly, even Unum does not dispute that the diagnosis is objectively verifiable. Because the disabling illness in this case, fibromyalgia, is not primarily based on self-reported symptoms, but rather can be based on the verifiable evidence of its manifestations, the self-reported symptoms limitation does not apply in this case. . . .

If you have a claim against Unum and need assistance, feel free to contact my office.

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About tngadisabilitylawyer
Disability Lawyer in Tennessee and Georgia.

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