Pain can limit people from working. We all know that. If you hit your thumb with a hammer, you will see how difficult it is to focus on other matters. The problem for long-term disability insurers is that pain is subjective and varies between people. You cannot take an x-ray or a blood test to measure it. Therefore, there is concern that people may exaggerate their pain to obtain a benefit. On the other hand, insurers are profit-driven, and the more claims they deny, the more profitable they become.

To evaluate pain, you generally must look for a diagnosis or conditions that are generally associated with restrictive levels of pain. You also must examine the credibility of the claimant. However, some insurers do not want to put the effort into such a determination, if they can take the easy way out. So, many opt to play a game where the goal is set too high, such that the claimant can never reach it and prove their case. We see that game in the recent case Cochran v. Reliance Standard Insurance Company.

Cochran v. Reliance Standard Insurance Company – Facts

• Mr. Cochran had a complicated medical condition, chronic fatigue syndrome and/or fibromyalgia which arose from co-morbidities of fatigue, irritable bowel syndrome, cognitive difficulties and fibromyalgia.
• In 2011, he became unable to perform his job because of his medical conditions, sought care from many different sources, and underwent therapy to regain his ability to work. This failed.
• Accordingly, Reliance Standard Life Insurance Company approved his claim.
• Then, in 2012, it terminated his claim, finding he was no longer disabled.
• Mr. Cochran appealed the claim with the help of his ERISA attorneys.
• In 2013, Reliance Standard reinstated his benefits.
• In 2014, Mr. Cochran received Social Security disability benefits.
• Because he received back Social Security benefits, Reliance Standard determined that it had overpaid the long-term disability claim and demanded the back benefits.
• Reliance Standard terminated Mr. Cochran's benefit again despite any evidence that his condition had improved.
• With the help of his seasoned ERISA attorneys, he appealed the claim again. He still had the disabling pain noted before.
• Reliance Standard, while considering the appeal, performed surveillance on Mr. Cochran's home which provided no information.
• It also did a pharmacy canvas only to learn he was actively utilizing pain medications.
• Thereafter, Reliance Standard sought to have two more independent medical evaluations performed.
• One doctor contended that Mr. Cochran's complaints of fatigue and pain were all subjective, self-reported, and no objective testing to support the complaints existed.
• The other doctor contended that the plaintiff's examination was normal.
• Mr. Cochran filed suit and won his case.

The court had seen this game before. It noted that conditions such as chronic fatigue syndrome and fibromyalgia are difficult for insurance companies because there can be no objective proof such as x-rays or blood tests. You must instead evaluate the credibility of the claimant. In this particular instance, the court cited several cases in which it had been adequately demonstrated that objective tests are not possible to establish the presence or absence of fibromyalgia and chronic fatigue syndrome.

Reliance Standard had set the standard of proof for disability at an impossible level and had done so inconsistently with its prior determinations. It had also found Mr. Cochran's complaints to be credible previously. Now to suit its own self-interest, it determined that it would no longer believe him.

Reliance Standard had invested so much money trying to terminate Mr. Cochran's claim, to no avail. Its own surveillance underscored the lack of activity by Mr. Cochran. It had paid many doctors to review the claim with only the last two being helpful. It paid for a pharmacy canvas only to find Mr. Cochran also routinely filled his pain medications as prescribed.

The game played here is seen in many cases with this insurer. Set the goal at an unprovable level. Maybe no one will notice. Reliance Standard knows if it looks long enough, it can find a doctor to provide the information it wants. It can then seize on that to terminate the claim, as here contending that there is no objective evidence to support the complaints of pain. Some courts have seen these games and are beginning to take note.

Even more of a reason to refer your clients' long-term disability cases to seasoned ERISA attorneys who know how to play the game with the insurers and win.