At the heart of this issue is the reasonableness of requiring objective medical evidence for conditions that are inherently subjective. Disability claimants with certain conditions are more likely to face push-back from insurance companies who will demand objective evidence.
Some of these conditions are:
Watts v. Bellsouth Telecomms., Inc is an Eleventh Circuit ERISA disability case insurance companies often cite. In that case, the Court stated, “where a plan puts the burden on the claimant to prove that she is disabled, it is implicit in the requirement of proof that the evidence be objective.” However, insurance companies are incorrect in applying Watts and similar cases to situations where the disability is largely subjective.
Courts increasingly have recognized that unlike other disabling medical conditions, there is no purely objective-dipstick test for CFS or fibromyalgia, for example. See Salomaa v. Honda Long Term Disability Plan, 637 F.3d 958, 968 (9th Cir. 2011); see also Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir. 1999).
Further, the Eleventh Circuit’s rulings in Oliver v. Coca Cola Co. and Creel v. Wachovia provide a more thoughtful analysis on the issue. Unlike Watts and the line of cases following it, Oliver and Creel – handed down afterWatts – specifically addressed the issue of an administrator requiring objective medical evidence of a condition that does not lend itself to such evidence. In both cases, the court found it unreasonable (and, thus unlawful) to require objective evidence in the absence of plan language setting forth such a requirement.
When facing this argument, the ERISA plaintiff’s attorney should argue the insurance company acted arbitrarily and capriciously by demanding objective medical evidence for disabilities that are inherently subjective when the plan does not require evidence of the sort.
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