Fibromyalgia and Your Long Term Disability Claim Part 2
Vocational Evidence of Inability to Work
There must be a causal relationship between your diagnosis and disability and your inability to work. This is another area where the Long Term Disability carrier will deny fibromyalgia claims. It’s not uncommon for the Long Term Disability carrier to acknowledge that you suffer from chronic fatigue or Fibromyalgia and that you are disabled yet you are still capable of working in some capacity.
It’s important to develop the medical evidence that fully explains your physical restrictions and limitations, side effects of medication and difficulty with concentration, pace and duration. More psychological testing can also document problems that you have with concentration, ability to follow instructions, sequencing and other common problems associated with Fibromyalgia.
One of the keys to establishing that there is a causation between Fibromyalgia and your inability to work is to have you evaluated by an independent vocational evaluator who can address the impact your symptoms have on your ability to do either your own occupation or any occupation.
Surveillance and Your Fibromyalgia Long Term Disability Claim
It is not uncommon for Long Term Disability carriers to use video surveillance in Fibromyalgia and chronic fatigue syndrome claims. Why? You are being asked to complete Activities of Daily Living forms and are giving reports to your physicians about what you are capable of doing.
Most treating physicians will rely on your reports of your limitations and will agree with you. Those limitations should be consistent with your diagnosis and support your claim for disability.
However, video surveillance may show you to be more active or engaging in activities that contradict what you put on your Activity of Daily Living form or even told your physician.
Courts in Florida have upheld the denial of Long Term Disability benefits based on video tape that show Long Term Disability applicants performing activities that contradict their described limitations.
In fact, Florida courts have rejected treating doctors opinions about the diagnosis and disability, based on statements from you that are contradicted by video tape. Onofrieti vs. Metropolitan Life Insurance Company 320f.supp.2d(1205)(N.D. Florida 2004). If your claim for Long Term Disability benefits has been denied you should immediately hire a Long Term Disability attorney. For example, Ms. Cavey will obtain a copy of your Long Term Disability file and review the surveillance film and your Activities of Daily Living forms. We will determine whether or not your Long Term Disability carrier has cherry picked or misrepresented your complaints to your treating physician or their peer review doctor. Ms. Cavey won’t hide the surveillance from your treating physician and in appropriate cases will have your doctor review and comment on it and obtain affidavits from you and your family members about what’s observed on the video tape.
Why You Need an Attorney in Your Fibromyalgia and Chronic Fatigue Disability Claim
As you can see Long Term Disability policies are written to limit coverage for Fibromyalgia or chronic fatigue syndrome cases. It is important for you to have an attorney so that you understand:
1. Whether your Fibromyalgia or chronic fatigue is covered.
2. If so, how long you are eligible for benefits.
3. The standard by the Long Term Disability carrier is going to evaluate your Fibromyalgia claim.
Additionally, you need to understand the games that are going to be played by Long Term Disability carriers in requiring from you:
1. Objective evidence of your diagnosis of Fibromyalgia.
2. Objective evidence of the basis of your restrictions and limitations.
3. Medical and vocational causal relationship documentation that establishes a relationship between your diagnosis and disability and your inability to meet the definition of disability.
It is crucial that you and your doctor understand what the standard of disability is that must be met to be successful in your Long Term Disability claim and that all the medical and vocational evidence be developed and tailored to meet that definition.
You also need to be prepared to deal with surveillance and requests for statements or even “independent medical evaluations”. Long Term Disability carriers take these claims very seriously because they simply don’t want to pay you benefits based on a condition that they think doesn’t really exist.
The Long Term Disability carrier will contact your doctor to determine your restrictions and limitations and may even schedule you for a functional capacity evaluation or an independent medical evaluation by a physician or a neuropsychologist. They may also have your file reviewed by their independent peer review providers. Independent is an oxymoron.
The Long Term Disability carrier may select a physician who has no experience in Fibromyalgia to render an opinion regarding your restrictions and limitations. Alternatively, they may also contact your doctor and we would suggest that you ask your doctor not to return the call and immediately consult with an experienced disability attorney.
More often than not, the Long Term Disability doctor won’t be experienced in chronic fatigue or Fibromyalgia and if they conference your doctor, they will misquote your doctor’s opinions. They will try to get your doctor to agree that you can engage in some form of sedentary employment, which will be used to justify the claims denial.
You must understand that the occupation definition generally means that you are unable to engage in any occupation in the national economy and your doctor needs to understand what the definition of disability is in rendering any opinion about your case.
Be assured that the Long Term Disability carrier will also send out your file to a vocational evaluator to determine that you are capable of working in some capacity despite your diagnosis, disability and functional restrictions and limitations.