The Seventh Circuit Recognizes Fibromyalgia Disabling Based on Subjective Complaints

Recently, in Kennedy v. The Lilly Extended Disability Plan, the Seventh Circuit Court of Appeals upheld the district court’s award of summary judgment for long-term disability benefits to Cathleen Kennedy. Kennedy primarily suffered from the debilitating disease fibromyalgia. The Seventh Circuit affirmed that it was unreasonable for her insurance provider, “Lilly,” to conclude that fibromyalgia did not support Kennedy’s disability based solely on an absence of abnormal test results. Writing for the majority, Judge Posner argued that currently available information, and the evidence provided, shows that fibromyalgia is in fact a disabling disease even if it is often diagnosed based on subjective complaints. The court also noted that it would be “error to demand laboratory data to credit the symptoms of fibromyalgia—the crucial symptoms, pain and fatigue, won’t appear on laboratory tests.” Posner’s holding refutes the contention often advanced by insurance companies, that the subjective complaints of pain described by the insured are not sufficient to demonstrate a disability.

The majority also took issue with the fact that Lilly failed to accurately indicate what new job or type of job Kennedy would be able to perform at, and at what level that potential performance would be. Physician testimony provided that Kennedy, being diagnosed with fibromyalgia, will have to suffer through monthly “flares” of pain, and the court noted that this further hampers the possibility of her ever being able to work a normal schedule. Finally, the majority found the fact that Lilly was both the initial adjudicator and the party responsible for paying the claims was a conflict of interest, which constituted  “another questionable aspect of the case.”

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