Pain Disorders and Long-Term Disability Benefits
Many claimants who suffer with Chronic Fatigue Syndrome (CFS), fibromyalgia, lyme, and migraines, have cognitive difficulties (and not simply depression). The attorneys of MyLTDbenefits.com use a battery of tests that can be administered in neuropsychological testing to help to identify how or where a claimant is suffering cognitively, and effective utilization of such testing can help us demonstrate our client's impairment.
We find that one challenge associated with such testing is that often, our client's baseline intelligence cannot be fully appreciated, potentially leaving a gap where one's functioning is "average" or comparable with age based controls. The issue would be to contrast pre-morbid functioning (particularly where one was at a high level) against current abilities, or deficits. There is a subjective element to interpreting the results, such that when considering the raw data, two medical professionals can arrive at different conclusions based upon the same evidence. Accordingly, in most claims where neuropsychological testing forms the basis of an adverse claim determination, MyLTDbenefits.com lawyers must establish credible evidence of cognitive dysfunction through the use of a countervailing neuropsych report.
The insurer's attempt to use a functional capacity evaluation (FCE) to disprove a pain disorder disability presents an additional challenge to the claimant in cases handled by MyLTDbenefits.com. In a recent long-term disability suit against Unum, the court held that the administrator abused its discretion by relying on an inconclusive and incomplete FCE in denying benefits to a claimant suffering from Fibromyalgia, degenerative disc disease, and "lupus erythematosus." Although Unum's physician relied on the FCE as the basis for concluding the insured could perform a sedentary occupation, the court disagreed that the FCE supported this conclusion. The court explained:
during the FCE [the claimant] exhibited pain when her flexibility and range of motion were tested. She "gave out" before her strength could be measured. She could not walk fast enough for the physical therapist to assess her aerobic capacity, and she could only walk for four and a half minutes at 1.2 miles per hour before succumbing to hip and leg pain. The physical therapist halted the testing after only two and a half hours because it did not appear that [the claimant] could complete the tests, suggesting [the claimant]'s exertion could not be sustained for much longer than two and a half hours.
The court concluded the FCE results entirely accorded with the claimant's evidence that her condition was so disabling as to prevent her from engaging in any occupation. Consequently, the court held the insurer unreasonably denied the claim.
In another recent Fibromyalgia case, that court held, "We further recognize that tests of strength such as a functional capacity evaluation ("FCE") can neither prove nor disprove claims of disabling pain, nor do they necessarily present a true picture in cases involving Fibromyalgia where the symptoms are known to wax and wane, thereby causing test results potentially to be unrealistic measures of a person's ability to work on a regular, long-term basis.") The attorneys of MyLTDbenefits.com recognize the critical need to challenge the veracity of the insurer's FCE and also provide an independent FCE which is more sound, thorough, and relevant to the claimant's specific type of pain disorder.
Contact the attorneys of MyLTDbenefits.com to discuss your long-term disability benefits claim in detail.