# Fibro/CFS & Disability Law



## M&M (Jan 20, 2002)

This was posted to the Co-Cure list, and I thought it might help some who are needing to pursue a disability case:


> quote:The recent denial of a fibromyalgia patient's disability claim, as ruled bythe California 9th Circuit Court (1,2) highlights several vitally importantaspects of preparation of disability claims.The mere diagnosis of a medical condition such as Fibromyalgia or CFS/ME is inthe eyes of the courts not enough to prove disability. The key factor is theindividual's functional capacity. The courts demand evidence that the person'sfunctional capacity is so reduced that they can not function in gainfulemployment. Written or verbal testimony by the claimant of diminished capacityis not enough. Evaluation by a disability evaluation specialist is an importantcomponent of preparing for a disability hearing.Another vital component is well prepared medical testimony from doctors.In the court ruling of Jordan v. Northrop Grumman, (Travelers, MetLife) it appearsthat the plaintiff's doctors did not present adequate written testimony addressing"prognosis regarding eventual return to work." Travelers demanded "what objectivefindings prevented her from performing sedentary work." The court record statesthe doctor did not respond. Eventually the claimant's doctor reported, "under hercurrent state of affairs, she is medically disabled from her job as a secretary,"but not explaining why. In opposition to Jordon's claims Travelers consultingdoctor wrote, "there is little objective evidence for a disabling medical dx[diagnosis] and I wonder about a nervous/mental dx such as depression/anxiety."It is essential that doctors present detailed information. The crux of the matteris in disability cases it matters not what the medical diagnosis is but rather whatobjective evidence there is of actual disability.If objective medical tests can be obtained that reveal physiologic abnormalitiessuch as severe autonomic dysfunction, immune abnormalities, severe cognitiveimpairments... and then the doctor/s report that such conditions are directlycausing X symptoms and in turn an X percent decrease in functional ability thecase will be much stronger.It is also helpful to present copies of articles written by highly respectedexperts in the field of FMS/ME/CFS (and also possibly health department articles)that refer to the incapacitating effects of the illness.It is tremendously difficult for the disabled person to physically, economicallyand emotionally go about building such a case of evidence and making sure thedoctors involved prepare the necessary written testimony. In the end though whatgoes into it correlates directly with the success or failure of a disability case.-----------------------(1) ERISA Plan Administrator Had Discretion To Deny Disability Benefits ToEmployee With Fibromyalgia, Jordan v. Northrop Grumman Corp. http://www.proskauer.com/news_publications...rnia/2004_07_00 Jordan v. Northrop Grumman Corp., 370 F.3d 869 (9th Cir. 2004)Vicki Jordan worked as a senior administrative secretaryfor Northrop from 1984 to 1995 at which time she appliedfor long-term disability benefits following her diagnosiswith fibromyalgia - a syndrome whose cause is unknownand symptoms are entirely subjective. Northrop's planadministrator denied Jordan's disability claim afterdetermining that her "condition is not of such severityas to preclude [her] ability to work at [her] sedentaryoccupation" as a secretary. The Ninth Circuit affirmedthe district court's judgment, holding that Northrop'sERISA plan administrator is entitled to deferential reviewand, in any event, did not arbitrarily deny benefits toJordan. The Court held that the administrator did not havea "serious conflict of interest" sufficient to breach itsfiduciary duty to Jordan even though it had demanded"objective" proof of a medical condition that cannot beobjectively established. Of particular importance to theCourt's determination was the fact that Jordan'sphysicians had failed to respond to repeated requests forexplanations of why her fibromyalgia disabled her fromworking. Cf. Aetna Health Inc. v. Davila, 542 U.S. ___,2004 WL 1373230 (June 21, 2004) (state-law claimsagainst HMOs for failure to exercise ordinary care whenmaking health-care treatment decisions were completelypreempted by ERISA and removable to federal court).-----------------------


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