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1st Circuit upholds ERISA plan’s self-reported symptom limit

Benefits terminated for participant with chronic fatigue, fibromyalgia

The administrator of a benefits plan governed by the Employee Retirement Income Security Act could apply a self-reported symptoms limitation to terminate the long-term disability benefits of a plaintiff who suffers from Chronic Fatigue Syndrome and fibromyalgia, the 1st U.S. Circuit Court of Appeals has determined.

Defendant Unum Life Insurance terminated the LTD benefits of plaintiff Rhonda Ovist after 43 months on grounds that she was unable to provide objective proof of functional loss due to the pain and fatigue attributable to her previously diagnosed Chronic Fatigue Syndrome and fibromyalgia.

The plaintiff sued under ERISA for restoration of benefits, arguing it was unreasonable for Unum to give effect to a self-reported symptoms benefit limitation in the plan. In making that argument, the plaintiff urged the panel to follow the 7th Circuit’s decision in Weitzenkamp v. Unum Life Insurance Company of America. In the 2011 case, the 7th Circuit concluded that a nearly identical self-reported symptoms clause applied only to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which disabling symptoms are self-reported.

But the panel in Ovist found no reason to depart from 1st Circuit precedent in the form of the court’s 2003 decision in Boardman v. Prudential Insurance Company of America.

“[We conclude] instead that Unum’s objective evidence requirement is permissible under this circuit’s precedent and is consistent with a reasonable interpretation of the SRS limitation provision,” wrote U.S. District Court Judge Joseph N. Laplante of New Hampshire, who was sitting by designation. “Further, we find that Unum’s determination that Ovist lacked objective proof of her functional limitations rests on substantial evidence in the record, and is thus not arbitrary or capricious.”

The 41-page decision is Ovist v. Unum Life Insurance Co. of America.

‘Unreasonable’ benefits determination?

Unum’s application of an objective evidence requirement to the plaintiff’s claim was unreasonable, according to her attorney, Jonathan M. Feigenbaum of Boston.

In an email, Feigenbaum pointed out that Unum conceded in its final adverse-benefit determination letter that the plaintiff was occupationally disabled. Feigenbaum also emphasized that his client provided objective evidence of impairment through cardiopulmonary exercise testing.

“The Unum-employed doctor, who never examined Professor Ovist, raised questions whether some of the CPET was valid,” Feigenbaum wrote. “No physician or other exercise physiologist ever said the overall testing was not valid, nor were her reported symptoms contradicted by other evidence in the record.”

The plaintiff is currently evaluating whether to seek a rehearing en banc by the 1st Circuit or petition for review by the U.S. Supreme Court, Feigenbaum wrote.

Unum’s attorney, Joseph M. Hamilton of Worcester, Massachusetts, declined to comment.

The U.S. Department of Labor filed an amicus brief in the case, arguing that the lower court improperly placed the burden on the ERISA plan participant to prove that the self-reported symptoms limitation did not bar her from eligibility for benefits.

The DOL in its brief urged the 1st Circuit to recognize that the plan bears that burden.

“When a participant presents a prima facie case for coverage and the plan seeks to limit her benefits based on plan language, the plan should bear the burden of proving the limitation,” the DOL wrote. “This comports with the general common law rule that the burden shifts to the insurer to prove an exclusion applies.”

morse“I’m seeing a lot of people [lose their benefits] because of these two-year self-reported symptom clauses.”

— Mark B. Morse, Providence

Providence attorney Mark B. Morse said he has found that most ERISA disability plans contain a two-year termination window for self-reported symptoms.

“Oftentimes these chronic illnesses — like Chronic Fatigue Syndrome and fibromyalgia — fall into the category of self-reported illnesses, so it’s a real battle,” Morse said. “I’m seeing a lot people [lose their benefits] because of these two-year self-reported symptom clauses.”

Morse added that he sees the divide between the 1st and 7th Circuit approaches as being fundamental.

“Whereas Weitzenkamp said that the underlying illness itself needs to be established by objective evidence, the Ovist case says, no, the underlying illness does not necessarily need to be supported by objective evidence, but the symptoms that result from that underlying illness do need to be supported by objective evidence,” Morse said.

Boston ERISA attorney Stephen Rosenberg said Ovist exemplifies how the 1st Circuit has struggled with benefit determinations involving Chronic Fatigue Syndrome and fibromyalgia — conditions recognized by the medical community — under an ERISA disability regime based on “objectively verifiable” injury.

According to Rosenberg, Ovist represents the 1st Circuit’s continued adherence to a “middle ground” on the issue.

“What the court is saying here is that a plan can’t reject a claim of disability or diagnosis simply because it falls with these categories of ailments that don’t have objective manifestations,” Rosenberg said. “But on the other hand, it’s OK [for a plan] to require objective evidence of limitations. There are plenty of rehabilitation specialists and plenty of testing available, so that [requirement is] not unreasonable.”

Rosenberg said he reads Ovist as affirming the principle that an ERISA plan can design a regime that limits the amount of coverage for disability due to medical conditions such as chronic fatigue and fibromyalgia, without imposing a blanket prohibition on coverage.

Termination of LTD benefits

According to court records, the plaintiff was a sociology professor at Rollins College when a doctor diagnosed her as suffering from Chronic Fatigue Syndrome and fibromyalgia. In 2011, she successfully applied for LTD benefits under her employer’s plan.

The terms of the plan provided for a maximum benefit period of 24 months for “disabilities due to mental illness and disabilities based primarily on self-reported symptoms.” The plan defined “self-reported symptoms” as the “manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.”

Unum invoked the self-reported symptoms provision to terminate the plaintiff’s benefits in February 2015.

In her administrative appeal, the plaintiff provided Unum with the results of a September 2015 cardiopulmonary exercise test conducted by an exercise physiologist. The physiologist reported that the CPET revealed the plaintiff suffered from abnormal fatigue.

Questioning the validity of the results of the plaintiff’s CPET, Unum denied the plaintiff’s administrative appeal, concluding that “any and all loss of function is based on disability due to mental illness and based primarily on self-reported symptoms.”

The plaintiff filed an ERISA action against Unum in Massachusetts federal court. In February 2020, U.S. District Court Judge Timothy S. Hillman adopted a U.S. magistrate judge’s report and recommendation to grant Unum’s motion for summary judgment.

The magistrate judge in his report concluded that Unum acted reasonably under the terms of the plan and consistent with 1st Circuit precedent when it terminated the plaintiff’s benefits.

Specifically, the magistrate judge concluded the termination of benefits was justified by operation of the self-reported symptoms limitation and based on a finding that Ovist’s impairing symptoms — pain and fatigue — were based on her self-reporting rather than objectively verifiable diagnostic or other tests.

Sticking to precedent

Relying on the 1st Circuit’s decision in Boardman, the panel in Ovist rejected the plaintiff’s argument that it was unreasonable for Unum to require objective evidence of her functional loss after concluding that she was unable to work.

“In [Boardman], we drew a distinction between requiring objective evidence of conditions that do not lend themselves to objective verification and requiring objective evidence of the functional limitations resulting from a claimant’s conditions,” Laplante wrote.

The judge added that since Boardman, the 1st Circuit has “repeatedly invoked this principle and Boardman’s diagnosis-disabling symptom distinction when reviewing plan administrators’ benefit determinations.”

Laplante proceeded to explain that Unum was fully within its rights to enforce the LTD benefits plan in accordance with its terms.

“Unum simply followed the Plan’s blueprint, then, by first determining that Ovist was unable to work (and thereby granting her benefits), and then reasonably requiring objective proof of her functional loss in order to determine if her disabilities were ‘based primarily on self-reported symptoms,’ and thus subject to the associated benefit limitation,” the judge wrote.

Rejecting the plaintiff’s invitation to follow the 7th Circuit’s approach, Laplante wrote that the reasoning and holding in Weitzenkamp were “in tension with this circuit’s long-held diagnosis-disabling symptom distinction as articulated in Boardman, and the underlying principle that ‘the physical limitations imposed by the symptoms of such illnesses [as CFS and fibromyalgia],’ including pain and fatigue, do ‘lend themselves to objective analysis.’”

Accordingly, Laplante explained that even if the panel accepted that Ovist had tested positive for fibromyalgia, “we still conclude that it was reasonable for Unum to require that Ovist provide objective evidence of her functional limitations, and to apply the SRS limitation based on the relative absence of this evidence.”

On that score, Laplante wrote that the critique of the plaintiff’s CPET by Unum’s doctor “provides a reasonable basis for Unum to find that the CPET results alone did not compensate for the considerable absence in the record of objective evidence of Ovist’s functional loss, and therefore to conclude that Ovist’s ‘functional limitation was based primarily on self-reported pain and fatigue.’”

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