Life, Health, Disability and ERISA Litigation Group :
Joseph M. Hamilton , co-chair

April 28, 2020
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 , 2020 WL 1931958 (D. Mass. 2020), the U.S. District Court of Massachusetts adopted the report and recommendation that Unum Life’s decision limiting Ovist’s benefits to 24 months under the self-reported symptom provision of the ERISA plan was proper. The report and recommendation is found at 2020 WL 1931755 (D. Mass. 2020)
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.
After cross motions for summary judgment were filed, the case was referred to a magistrate judge for a report and recommendation. The magistrate recommended that Unum Life’s motion be allowed and the District Court adopted that recommendation. 
The key dispute in the case was whether fibromyalgia was encompassed within the self-reported symptom provision. Ovist, relying primarily on Weitzenkamp v. Unum Life Ins. Co. of Am. , 661 F.3d 323 (7 th Cir. 2011), 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 self-reported symptom limitations provision. 
The magistrate rejected this argument and held that while the trigger-point was used as an objective evaluation tool for the diagnosis of fibromyalgia, it was not dispositive as to whether a claimant was entitled to benefits under the self-reported symptoms limitation provision. Rather, the court agreed with the decision reached in Decorpo v. Unum Life Ins. Co. of Am. , 2013 WL 4794345 (D. N.H. 2014), where the court found that a claimant’s reaction to the trigger-point test, complaints of pain, are based on the claimant’s self-reporting and therefore proof of whether the claimant was unable to work was encompassed within the self-reporting symptoms limitation provision. The court found that Unum Life was not arbitrary or capricious in its decision. 
The magistrate also rejected Ovist’s contention that Unum Life had the burden to show the limitation provision applied because it was an equivalent to an exclusion of benefits. The magistrate noted that the provision was not an exclusion given that Unum Life paid benefits. Thus, the provision was a limitation, not an exclusion and therefore the burden was on Ovist to show her entitlement to benefits beyond the payments that she received. 
The case is currently under appeal. 
Joseph M. Hamilton represented Unum Life Insurance Company of America.
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