Another day, Another Court, Another LTD Insurer Gets CFS Wrong

We recently discussed the devastating disease chronic fatigue syndrome or CFS and its impact on the ability to work. Many long-term disability insurers have denied CFS-based claims, at least in part, because of the subjective nature of CFS symptoms and the difficulty of proving CFS disability when an insurer insists on “objective” proof.

We also blogged about the medical community’s increasing understanding of CFS, an incurable condition that may be linked to immune-system disruption from stress or an infectious agent (especially Epstein Barr Virus or EBV, Ross River virus or Coxiella burnetii).

Common symptoms include sore throats, allergies, joint pain, fatigue, malaise after exertion, headaches and more.

Brian Vastag is an award-winning international science reporter, most recently for the Washington Post. He did significant work on the Japanese nuclear plant meltdown. In 2012, Vastag suddenly experienced a serious flu-like illness with fever and dizziness. Blood work showed EBV and Lyme disease.

Over the next year, he saw at least four doctors (including two CFS specialists) about his “continued symptoms of malaise and fatigue — both physically and cognitively.” He also had tingling in his arms and feet, swelling in the spinal cord, breathing problems, sore throat and more. He was diagnosed with CFS and fibromyalgia.

By 2014, Vastag could no longer work. He received short-term disability benefits through a work policy, which was taken over by Prudential. Prudential sent out questionnaires to treating doctors. Dr. Susan Levine, a national CFS expert, said in response that the claimant could not work full or part time, was unable to engage in “sustained walking, sitting or interacting with others over the phone for more than 20 minutes without a break” nor was he capable of any “sustained physical or mental exertion.”

Prudential’s reviewing nurse said that there were no examination or diagnostic findings to explain Vastag’s claim, which Prudential again denied. Vastag appealed and also applied for LTD, both of which were denied, in part based on a reviewing doctor’s conclusion that there was no objective medical evidence of disability based on CFS.

This reviewing doctor called for more medical assessment, which Vastag got. Cardiopulmonary exercise testing or CPET, called by Dr. Levine the “gold standard for assessing capacity to work in CFS patients,” showed that exertion severely worsened Vastag’s symptoms such that he could not work full time, even if the work were sedentary or stationary.

The test also showed serious curtailment of cardiac and breathing responses, indicative of a “debilitating form of CFS.”

Vastag scored only seven words above the score for organic brain damage on a verbal fluency test. He also showed impaired motor and memory skills. His doctor said that he was “severely impaired and cannot handle the cognitive demands or work …”

On further appeal, Prudential again denied the claims after hiring more reviewing doctors. Vastag sued Prudential in federal court under ERISA, the federal law that imposes standards of fairness when group disability claims are administered.

A federal judge in New Jersey issued an opinion on May 31 called Vastag v. Prudential Insurance Company of America, available on Westlaw at 2018 WL 2455921. The judge noted that Vastag’s medical file before the insurer was “robust” and included CFS experts’ conclusions he was disabled as well as relevant test results, some with objective evidence of decreased physical functioning.

He had even been accepted as a subject of a federal study on CFS.

The judge wrote that on the strength of this medical record, it was “perplexing” that Prudential would say the medical evidence does not support limitations on functionally, even at the strenuous level of exertion required of a reporter. She questioned Prudential’s assertions that there were insufficient exams and diagnostic findings, when there were many of both. In addition, Prudential’s reviewers were not fluent in CFS and the claimant’s treating doctors were.

Finally, the judge expressed concern that Prudential’s analysis showed “significant failure to understand the current state of medical knowledge about CFS and its devastating impact on Vastag.” She found that the record does contain “objective” evidence of debilitating CFS.

This significant opinion shows that federal judges are becoming aware of the advancing medical understanding of CFS.