LTD AND THEE

By Joshua Potter, Esq., Attorney at Law
Pasadena, California

With increasing regularity, individuals are being denied access to their Long Term Disability (LTD) insurance benefits if the basis for these claims is FMS or CFS. Three independent rationales have emerged, one of which is wholly understandable and two which are quite dangerous. The first group of claims being denied exists where treating physicians reach a conclusion of FMS or CFS without any other significant notation within the patient's chart. FMS and CFS are not diagnoses of last resort and must be seen by the medical community as complete and discrete diagnoses. It is understandable that LTD carriers review and deny poorly documented, conclusionary, bare bones, or imaginative diagnoses of FMS or CFS. This is not to say that the claims are necessarily undeserved.

The second group of denials, which I find distressing, are claims that terminate 24 months after initiation because of the psychiatric limitation provisions in many LTD policies. Most, but not all, LTD policies provide for a limited period of benefits if the disabling condition is primarily a psychiatric condition. If the condition is anything but psychiatric, those same policies would pay benefits to age 65.1 If health practitioners are not scrupulously careful in describing whether or not the depressive problems are secondary to the chronic illness, valuable benefits may be lost. This places a tremendous burden on the physician, and the patient, to make sure that there is no ambiguity and that the chart notes that describe the disease are as complete as medically possible. Also, if a mental health care practitioner is consulted, that practitioner must be aware that emotional problems are secondary to FMS or CFS and indicate this in each chart note. Experience suggests that the LTD reviewing physicians and adjusters are careful, intelligent readers looking for a primary psychiatric diagnosis in order to limit their liability.

The third troubling occurrence is that some LTD companies are adopting the posture that FMS and CFS are not medically determinable diseases. This recently articulated position is in harmony with a minority of Federal Social Security Disability judges who have ruled that FMS, because there are no blood tests or X-rays which demonstrate its existence, is not a disease but a figment of the patient's imagination or an "escape valve" for a physician faced with a complaining patient. This denial of FMS and CFS is contrary to circuit law within the Social Security field. Many courts have found that FMS and CFS are disabling diseases. The CDC has criteria for evaluating CFS; Social Security has guidelines which describe the evaluation of CFS.

These problems should serve as a warning for patients on LTD to make sure their medical charts are current, complete, and accurate. Patients who are on LTD and are having difficulty with their HMO carriers might consider obtaining medical care outside of the HMO to ensure that their medical records accurately reflect their disease. For working people with LTD policies, the accuracy of their medical charts is extremely important. It is doubtful that any LTD carrier will discuss their policy on the payment of claims based on FMS or CFS; it is more likely that each claim will be independently evaluated.

Individuals seeking an LTD carrier would be well cautioned to make specific inquiry before they purchase any policies. The recourse for suspension of benefits of LTD policies may consist of one or two appeals. These appeals should be taken very seriously and professional help obtained. Those who have run unsuccessfully through their appeals are faced with Federal ERISA litigation. Identifying an attorney interested in and able to undertake such Federal ERISA litigation is not an easy task. It would be beneficial to have your medical records independently reviewed so that deficits in reporting can be identified and corrected before the matter proceeds into Federal Court.

When Long Term Disability is awarded, any money previously paid under Social Security Disability will be subtracted from the LTD. Under ERISA, this reduction does not apply to cost of living raises.

Post-Traumatic Fibromyalgia: A Case Report Narrated by the Patient by Frederick Wolfe, M.D. Arthritis Care and Research, 7(3):161-165, Sept. 1994 This 5-page report describes a case of FMS developing after a workplace injury. While compensation and work disability were not an issue at the time of the study, the "case" patient later applied for and received SSD. To obtain a reprint of this report, send an SASE (55 centss postage) to FM Network, PO Box 31750, Tucson, AZ 85751-1750. Please specify that you want Dr. Wolfe's Case Report.

Page 10 - Fibromyalgia Network a January 1995