Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added).

So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms?

Here’s a new case that highlights that the limitation still applies even when there might be some weak evidence in the medical records verifying the diagnosis. That’s because the diagnosis rested “primarily” on self-reported symptoms. Floerke v. SSM Health Care Plan and Unum Life Ins. Co., 2018 WL 5045770 (W.D. Wisc. October 17, 2018)(Relying on nurse reviews, Unum properly discontinued benefits after concluding the diagnosis of headaches was primarily based on self-reported symptoms and discontinued benefits).

FACTS: Floerke sought ERISA-governed disability benefits as a result of “chronic daily persistent headaches” and anxiety. UNUM, vested with discretion in making the claim determination, discontinued benefits after 12 months under the “self-reported symptoms” limitation, which applies to disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Italics added). Floerke sued alleging wrongful denial of benefits.

ISSUES: Whether Plaintiff’s chronic migraine diagnosis was primarily based on medical records, tests and physical exams which sufficiently verified her condition?

DISTRICT COURT HELD: NO. Unum did not abuse its discretion in discontinuing benefits.

  1. Plaintiff argued the self-reported symptoms limitation should not apply because the diagnosis was primarily based on her medical history, physical exam, and “a process of exclusion diagnosed through standard clinical practice.” This medical information included “evidence of increased spinal pressure,” and muscle tenderness and range of motion limitations. Op. at 17.
  2. “[T]he self-reported limitation applies only to the method used to diagnose the sickness or injury that [led] to the disability, and not the symptoms of the claimed disability itself.” Op. at 17.
  3. Floerke’s clinical migraine diagnosis was based primarily on self-reported symptoms. Op. at 18.
  4. Evidence of “increased spinal fluid pressure” was not verifiable evidence confirming the headaches because the medical records did not consistently establish she had increased spinal fluid pressure, or that it was the cause of the headaches. Op. at 19.
  5. Unum properly relied on nurses’ analyses concluding that the medical records failed to verify Floerke’s headaches. Op. at 23.
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.