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Residual Disability: W.D. Wash.

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  • Residual Disability: W.D. Wash.

    In a recent case out of Washington, the court discusses "residual disability" and its impact in a matter where the parties have moved for Judgement on the Administrative Record. The court reviewed the Defendants' denial of coverage de novo, and elected to resolve the dispute on the administrative record rather than on summary judgment. As the opinion leans towards the lengthier side, below are some of the case's highlights with respect to the issue of residual disability:

    “[F]ibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective . . . . Objective tests are administered to rule out other diseases, but do not establish the presence or absence of fibromyalgia.” Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006). The Ninth Circuit has held that “the lack of objective physical findings” is insufficient to justify denial of disability benefits. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 669 (9th Cir. 2011). A disability plan's reliance on normal diagnostic or clinical results in the face of credible evidence suggesting impairment due to fibromyalgia or chronic fatigue is an abuse of discretion. Salomaa, 642 F.3d at 676.
    Defendants argue that Plaintiff failed to demonstrate that he meets the definition of “residually disabled” pursuant to either his LTD policy or his IDI policy. Under Plaintiff’s IDI policy, the insured qualifies as residually disabled if he is receiving a physician’s care, and is either unable to perform one or more of the important duties of his occupation, or unable to perform the important duties of his occupation for more than 80% of the time normally required to perform them. Under Plaintiff’s LTD policy, the insured qualifies as “disabled” if he is limited from performing the “Material and Substantial” duties of his occupation due to his sickness or injury and has a 20% or more loss in his monthly earnings due to that sickness or injury. “Material and Substantial” duties are defined as duties that are normally required for the performance of the insured’s occupation and cannot be reasonably omitted or modified.

    Plaintiff argues that he meets the definitions of “residually disabled” and “disabled” under his policies because the important duties of his occupation include “long hours, and cognitive and physical stamina, which [Plaintiff] does not possess to workfull-time.” Dkt. # 42. It is clear from the record that having cognitive and physical stamina qualifies as an important or material and substantial duty of Plaintiff’s occupation as a land use litigation attorney at a law firm. Plaintiff’s occupation requires the ability to analyze scientific and technical information, develop legal strategy, engage in negotiations, draft documents, appear in court hearings, and engage in other litigation. All of these activities require cognitive stamina.
    Several of the medical reports on the record indicate that Plaintiff suffers from fatigue and that this fatigue is disruptive of his cognitive processes. Plaintiff’s cognitive test results showed “evidence of significant weakness below predicted levels in processing speed, delayed memory processing and on a number of problem solving tasks dependent on speed,” and “physiological fatigue which will be disruptive of executive, administrative, and cognitive processes.” IDI 1300-1316; IDI-913. During testing, Plaintiff reported feeling “foggy and tired” and reported being unable to concentrate for longer than four to five hours a day, if at all. LTD-815; LTD-1207-1208. While Defendants emphasize that Plaintiff’s neurological examinations did not show objective evidence of myopathy or significant sensory neuropathy and that Plaintiff’s treating medical professional, Schaefer-Alfonse, indicated that Plaintiff was able to engage in all of the activities needed to function at his job, these conclusions did not include an assessment of how prolonged pain and fatigue affects Plaintiff’s ability to engage in those activities or his cognitive stamina. IDI-172-173. Further, Schaefer-Alfonse did state that Plaintiff needed to work reduced hours because long hours increase his pain and fatigue. Id. This assessment was supported by Dr. Mease, the physician overseeing Schaefer-Alfonse. LTD-1592. Dr. Mease indicated that cognitive fatigue, or dyscognition, is a typical symptom of fibromyalgia patients. LTD-1593-1594.
    The entire opinion is attached below.
    Attached Files