Disability insurance companies often demand objective evidence to prove a condition is disabling. But, is it reasonable to require proof of disability be objective? In the context of disability insurance claims, courts around the country seem to arrive at different conclusions. Increasingly, courts seem to be ruling that it is unreasonable to require objective evidence for conditions that are inherently subjective in the absence of language in the insurance policy requiring objective evidence.
Objective evidence could be in the form of:
- CT Scans, or
- Laboratory results
Medical testing or imaging does help establish the presence of certain medical conditions. For instance, rheumatoid arthritis can be confirmed through the presence of elevated erythrocyte sedimentation rate (ESR, or sed rate) or C-reactive protein (CRP), which may indicate the presence of an inflammatory process in the body.
Not all conditions, though, lend themselves to objective evidence. Pain-related disabilities can, at times, be difficult to support through objective testing. MRIs or CT Scans that show abnormalities can indicate the cause of pain, but pain itself is inherently subjective.
In cases involving pain, CFS, fibromyalgia, or any other inherently subjective conditions, the Eleventh Circuit’s rulings in Oliver v. Coca Cola Co. and Creel v. Wachovia are helpful for disability claimants. In Oliver v. Coca Cola Co., the Eleventh Circuit recognized Oliver’s condition was inherently subjective:
. . . much medical evidence, especially as it relates to pain, is inherently “subjective” in that it cannot be quantifiably measured. Indeed, the only evidence of a qualifying disability may sometimes be the sort of evidence that Coca-Cola and Broadspire characterized as ‘subjective,’ such as physical examinations and medical reports by physicians, as well as the patient’s own reports of his symptoms.
Oliver v. Coca Cola Co., 497 F.3d 1181, 1196-97 (11th Cir. 2007), vacated in part on other grounds, 506 F.3d 1316 (11th Cir. 2007). (emphasis added)
The Oliver Court pointed-out the “Plan does not exclude from its coverage pain-related disabilities, such as fibromyalgia or chronic pain syndrome, merely because they are not subject to diagnosis by ‘objective’ laboratory tests.” Id., at 1197. Notably, the Court articulated that:
Although in some contexts it may not be arbitrary and capricious to require clinical evidence of the etiology of allegedly disabling symptoms in order to verify that there is no malingering, we conclude that it was arbitrary and capricious to require such evidence in the context of this Plan and [Oliver’s diagnosis].
Id. (emphasis added).
That is, it was arbitrary and capricious to require objective evidence in the context of a plan that does not state objective evidence is required and where the condition is inherently subjective. Conceivably, the Court’s reference to “some contexts” means claims similar to the Watts line of cases, but those do not apply here for the reasons the Court in Oliver enunciated.
Following Oliver, the Eleventh Circuit revisited the issue of requiring objective evidence for subjective conditions in Creel. In doing so, the Court looked to its decision in Oliver for guidance:
Our prior cases provide guidance for assessing the reasonableness of benefits denials for disabilities that involve some subjective element, such as migraines, fibromyalgia, and chronic pain syndrome.
Creel v. Wachovia Corp., 2009 U.S. App. LEXIS 1733, *23 (11th Cir. 2009).
As it did in Oliver, the Eleventh Circuit again drew an important distinction between those ERISA plans which explicitly require objective medical evidence and those, such as the instant policy, which do not. The Court explained:
When a plan requires claimants to provide objective medical evidence, an administrator’s decision to deny benefits for failure to produce such evidence is reasonable, even though such evidence might be impossible to obtain for that condition.
. . .
When the plan has no such requirement, however, we evaluate the reasonableness of the decision in light of the sufficiency of the claimant’s subjective evidence and the administrator’s actions. Assuming that the claimant has put forward ample subjective evidence, we look at what efforts the administrator made to evaluate the veracity of her claim, particularly focusing on whether the administrator identified any objective evidence that would have proved the claim and on what kinds of independent physician evaluations it conducted. Accordingly, an administrator’s decision to deny benefits would be unreasonable if it failed to identify what objective evidence the claimant could have or should have produced, even if the administrator submitted the file for peer review. See Oliver v. Coca-Cola Co., 497 F.3d 1181, 1196-97 (11th Cir. 2007), vacated in part on other grounds, 506 F.3d 1316 (11th Cir. 2007) (finding it arbitrary and capricious to deny benefits for fibromyalgia and chronic pain syndrome when claim was supported by ample evidence and administrator never requested any particular kind of evidence).
Id., at 23-25 (emphasis added).
Decisions like Creel and Oliver are very helpful to disability claimants who seeks benefits under an ERISA disability plan or policy when facing an objective evidence argument from their insurance company. Courts are increasingly issuing favorable rulings on this issue, which will further increase the chances that disability claimants with subjective conditions collect their benefits.