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First Circuit Upholds Unum’s Application of Long-Term Disability Policy’s Self-Reported Symptoms Limitation

In Ovist v. Unum Life Ins. Co. of Am., No. 20-1464, __F.4th__, 2021 WL 4304547 (1st Cir. Sept. 22, 2021), the First Circuit considered whether Unum Life Insurance Company of America (“Unum”) abused its discretion when it applied a self-reported symptoms limitation (“SRS limitation”) contained in a long-term disability (“LTD”) plan to a claimant disabled due to Chronic Fatigue Syndrome (“CFS”), fibromyalgia, and related symptoms. The First Circuit found that Unum did not abuse its discretion in requiring objective evidence of functional limitations. In so doing, the First Circuit declined to follow the Seventh Circuit’s SRS limitation test set forth in Weitzenkamp v. Unum Life Insurance Company of America, 661 F.3d 323 (7th Cir. 2011), which applies the SRS limitation to illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported.

Plaintiff Rhonda Ovist became disabled from working as a sociology professor in 2011 based on CFS, cytomegaloviral illness, sleep apnea, chronic sinusitis, and parvovirus. She filed a claim for LTD benefits under her employer’s plan which was insured and administered by Unum. Unum approved and paid her claim through February 2015. Based on medical reviews of Ovist’s claim, Unum terminated her claim based on the following SRS limitation in the policy: “The lifetime cumulative maximum benefit period for all disabilities due to mental illness and disabilities based primarily on self-reported symptoms is 24 months. Only 24 months of benefits will be paid for any combination of such disabilities even if the disabilities: are not continuous; and/or are not related.” The plan defines 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.”

Ovist appealed the denial and submitted additional evidence, including the results of a September 2015 Cardiopulmonary Exercise Test (“CPET”) which “is designed to determine functional capacity and assess the recovery response to a standardized physical stressor.” The results of the CPET showed a high probability of Ovist running out of energy on the second day of testing. Notwithstanding the CPET, Unum upheld its denial, explaining that the SRS limitation applied to her claim because her reported impairing symptoms and her functional loss were inconsistent with and/or not supported by clinical examinations, diagnostic findings, or other objectively verifiable evidence in her file. Unum also determined that the CPET was not time relevant and Ovist did not exhibit full effort on all tests.

The First Circuit considered Ovist’s challenges to Unum’s interpretation and application of the SRS limitation. First, Ovist argued that it was unreasonable for Unum to require objective evidence of her functional loss after concluding that she was unable to work, and in the alternative, the CPET did provide objective evidence. The court rejected this argument based on “settled precedent within this circuit” where the court has “repeatedly held that it is unreasonable for an insurer to require objective evidence in support of diagnoses, like fibromyalgia and CFS, which are not subject to objective verification” but an insurer can require “objective evidence of the functional limitations resulting from a claimant’s conditions.” The court also found that Unum’s conclusion that Ovist’s functional limitations were not supported was based on substantial evidence and consistent with a reasonable review of the record as a whole, including the CPET results.

Next, Ovist argued that the Seventh Circuit’s interpretation of a nearly identical SRS limitation in the Weitzenkamp decision should control. The First Circuit declined to follow the reasoning and holding in Weitzenkamp, “as they are in tension with this circuit’s long-held diagnosis-disabling symptom distinction as articulated in [Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 15 (1st Cir. 2003)] 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.” (cleaned up). Even if Ovist tested positive for fibromyalgia based on tender points, Unum can still require that Ovist provide objective evidence of her functional limitations. The objective evidence requirement is reasonable because it “calls for the claimant to establish a causal connection between his or her disability and his or her alleged functional limitation(s) before being awarded long-term disability benefits beyond 24 months” and it furthers the purpose of the SRS limitation to address the inherent difficulty of determining functional limitations caused by certain conditions. The court concluded that Unum’s interpretation of the SRS limitation is not arbitrary or capricious.


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*Please note that this blog is a summary of a reported legal decision and does not constitute legal advice. This blog has not been updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. The case above was handled by other law firms, but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Roberts Disability Law, P.C. may be able to advise you so please contact us.

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