Life, Health, Disability & ERISA Litigation e-Alert

Group Co-chair

Group Co-Chair

Joseph M. Hamilton, Co-chair
Mirick O'Connell's Life, Health, Disability & ERISA Litigation Group represents clients throughout New England. With offices in Boston, Westborough and Worcester, our attorneys are within an hour of all the major courts in Massachusetts, Hartford, Connecticut, Rhode Island, and southern New Hampshire. In addition, our attorneys are admitted to practice not only in Massachusetts, but in Connecticut, New Hampshire and Rhode Island as well. We have repeatedly and successfully represented clients in each of these jurisdictions. So remember, we are not here for you just in Massachusetts - think New England!
First Circuit Finds Plan Not Arbitrary or Capricious in Finding Chronic Fatigue and Fibromyalgia Encompassed within Self-Reported Symptoms Limitation Provision

In Ovist v. Unum Life Insurance Company of America, 14 F.4th 106 (1st Cir. 2021), the First Circuit Court of Appeals affirmed a decision by the District Court of Massachusetts that Unum Life’s decision limiting Ovist’s benefits to 24 months under the self-reported symptom provision of the ERISA plan was proper. In doing so, the First Circuit rejected a contrary decision by the Seventh Circuit in Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011).

Ovist, a college professor, became disabled due to chronic fatigue and fibromyalgia. Unum Life determined that Ovist was disabled but informed her at the outset that her benefits would be limited to 24 months in accordance with the self-reported symptoms provision of the plan. When Unum Life ended benefits, Ovist brought suit.

The district court found in favor of Unum Life on cross motions for summary judgment. Ovist then appealed.

The key dispute in the case was whether fibromyalgia was encompassed within the self-reported symptom provision. Ovist, relying primarily on Weitzenkamp, argued that because the trigger –point test is used to diagnose fibromyalgia, it qualified as a clinical examination accepted in the practice of medicine and thereby fell outside of the provision. She also argued that the results of a Cardiopulmonary Exercise Test (“CPET”) made her condition one that was verifiable using a test standardly accepted in the practice of medicine.

At the outset, the First Circuit acknowledged that Unum Life was granted discretionary authority under the plan. The court found that Ovist raised three challenges to Unum Life’s determination. First, that it was unreasonable for Unum Life to require objective evidence of her functional loss; second, that she did provide such evidence through the CPET results; and three, that Weitzenkamp should control.

The court first held that it was reasonable for Unum Life to require objective evidence of Ovist’s functional limitations. In doing so, the court cited multiple decisions it had rendered on the ability of an insurer to require objective evidence in support of diagnoses like fibromyalgia and chronic fatigue which are not subject to objective verification. The court also stated that the fact that Unum Life had found Ovist unable to work did not have any relevance given that the self-reported symptom limitation was designed to pay those who were disabled but only for 24 months. The court found that Unum Life simply followed the plan’s provision.

The court next found that Unum Life’s denial of benefits on the information presented to it was reasonable. The court found that Unum Life’s conclusion that Ovist’s functional limitations were inconsistent with or not supported based on clinical examinations or diagnostic findings, procedures or other clinical findings was supported by substantial evidence and consistent with a reasonable review of the record as a whole.

With regarding to the CPET results, the court noted that Unum Life’s medical consultant had reviewed the results and concluded that the test was not time relevant and did not reflect Ovist’s maximal effort. The court held it was not unreasonable for Unum Life to credit its consultant’s opinion over the therapist who administered the CPET. The court did note, however, that the CPET arguably provided some objective proof of Ovist’s functional loss.

Finally, the court rejected Weitzenkamp on the grounds it was in conflict with First Circuit law. The court did so on the grounds that Weitzenkamp was in tension with the First Circuit’s long-held diagnosis-disabling symptom distinction as articulated in prior cases and the underlying principle that the physical limitations imposed by the symptoms of such illnesses as chronic fatigue and fibromyalgia do lend themselves to objective analysis. The court found that Unum Life’s requirement that Ovist provide objective evidence was reasonable because it calls for the claimant to establish a causal relationship between her disability and her alleged functional limitations and furthers the purposes of the self-reported symptom limitation.

Joseph M. Hamilton represented Unum Life Insurance Company of America.
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