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Cheatin’, Lyin’ & Mental Stamina: A Story of Pain

Posted by David P. Martin | Dec 22, 2020 | 0 Comments

Some folks struggle with chronic pain, pain which is regular, maybe even daily. When it becomes severe and frequent, it will mentally wear them down. While they can try to alleviate or lessen some of the pain with medication, often that has the effect of leaving them in a mental fog. It is a Catch 22 of sorts – they are frustrated and depressed because of the constant pain, or they are in a mental fog from the pain medication. Either way, they have no mental stamina.

Melissa Jefferson knew a thing or two about mental stamina. She was middle-aged with a good job at the local cable company. She remained close to her two grown daughters and, by all accounts, led a happy life. She was considered very smart and mentally tough. She could handle just about anything, and she never seemed to have a bad day.

She worked as a customer service representative. She loved her work and the new challenges that it provided every day. She spent most of her days sitting in an office chair taking calls from customers. The calls could range from helping with simple technical issues to customers who were unreasonably furious. Melissa was a problem solver and very good at successfully handling even the unruliest customers. Her job was not physically demanding, though she did have to sit for long periods of time, it was mentally challenging. She was expected to make quick assessments of customer problems and communicate clearly and with tact. She performed her job well, receiving raises and promotions over the years.

Then, Melissa started experiencing problems with her hands. She was diagnosed with carpal tunnel syndrome. Neither surgery nor less invasive treatments helped. Her hands would begin hurting a few minutes after she started keyboarding. As if that wasn't enough, she developed fibromyalgia. Pain and achiness spread all over her body. Melissa tried to maintain her toughness. She was a fighter. She tried to hide her pain from everyone. She was determined to whip these setbacks!

However, all the mental determination in the world cannot alleviate the pain brought on by fibromyalgia and carpal tunnel syndrome. Her problems worsened. She tried to keep the pain from affecting her work, but it intensified. It wore her down. She would sleep all weekend long trying to recover from the workweek, so she could make it through the next. It was not working. She thought taking time off in the middle of the week would help. It didn't. She began feeling hopeless.

The constant pain affected her job. Her calls became much longer. She sounded confused to customers, and she began sending out more technicians because she could not fix the customers' problems on her own. On February 16, she had to stop working due to the pain. She was approved for both Family Medical Leave (FMLA) and short-term disability (STD), and when those ended, long-term disability (LTD). But the story doesn't end there.

A year after she quit working, Melissa's daughters noticed her slipping into a depression. Though she was no longer working, she still experienced a great deal of pain. She hardly ever left her house. They invited her to join them to go shopping at her favorite thrift store. They thought it would do her good. She reluctantly agreed to go. She could not stay on her feet for more than 15 minutes. She frequently would stop to rest on a couch in the store. The trip lasted only 40 minutes.

A couple of months later, Melissa received a letter from her insurance company saying that she had been under surveillance, and accordingly, her claim was terminated. Her benefits were discontinued. The company claimed that she was not disabled and could return to work full time. It's primary reasoning? Her shopping trip with her daughters. The insurance company claimed that it had footage of her shopping, walking, and standing for two hours, though her doctor said she could only stand and walk for one hour.

Melissa hired us four months later. We requested the footage and notes. We learned the insurer had based this decision on three minutes of video of her shopping and notes from the investigator that Melissa was in the store for 40 minutes. Of course, the insurance company did not know how much of that time Melissa had spent seated or if she had taken pain medication while there. It terminated her benefits with no evidence of her actual physical ability. When we reviewed all of the company's claim file, it was clear that an age-old legal principle would apply – they were lyin' and cheatin.'

Besides, how does spending a few minutes shopping in a thrift store equate to resolving complex technical problems, delicately dealing with irate customers, and tediously keyboarding the details of every encounter? Sadly, we see this type of claim termination frequently in our practice. It happens far too often. It is an injustice often tolerated in the ERISA world.

After diligently obtaining further information from Melissa's doctors, a vocational expert, and various witnesses, we filed an appeal on Melissa's behalf. The insurance company bucked. After repeated efforts to convince them otherwise, we were forced to file suit to seek justice for Melissa. A few months later, we were able to negotiate a lump sum settlement of her claims.

Regardless of what insurance companies think, pain is real! And while it cannot be seen or objectively measured, the circumstances giving rise to the pain, the conditions that are known to cause it, and the credibility of the claimant can be examined and shown. Pain is not something to be disregarded nor dismissed as some fictitious condition. We fight every day to rebuild justice for our clients – one case at a time. We are your employee benefit advocates regardless of the condition.

About the Author

David P. Martin

Senior & Managing Attorney


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