Archives for April 2, 2018

Pain is a highly subjective, personal phenomenon. Only the person suffering from pain can adequately describe that pain and how that person is affected by the pain. And we know that one person may be capable of tolerating a completely different threshold of pain when compared to another person. Similarly, reports of fatigue vary widely from person to person. Because of the nature of pain, fatigue and other such disabling symptoms, determining whether subjective complaints render an individual disabled for the purposes of long-term disability benefits necessarily relies on the individual claimant’s personal statement/description. Put another way, the individual must explain what he or she goes through firsthand. Not only does this aid in the insurer’s understanding of the insured’s disability, it also serves as a powerful, compelling statement of what the disabled individual has been through, in his or her own words.

In a recent long-term disability insurance case governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), Kibel v. Aetna Life Ins. Co., 2018 WL 832870 (9th Cir. Feb. 13, 2018), the Ninth Circuit emphasized the importance of a claimant’s personal statement regarding the subjective symptoms that she suffered, such as pain, fatigue and other such complaints. In this article, we discuss Kibel, and the value of a disability claimant’s personal statement. From a practical perspective, we outline some of the key features that every disability claimant’s personal statement should include, as well as further support in the form of corroborating statements from colleagues, friends and family members who have witnessed the disabling symptoms firsthand.

Kibel v. Aetna, 2018 WL 832870 (9th Cir. Feb. 13, 2018)
In Kibel v. Aetna, Plaintiff-Appellant Margueritte Kibel (“Kibel”) appealed from the district court’s judgment in favor of Defendant-Appellee Aetna Life Insurance Company (“Aetna”). The district court concluded that Aetna properly denied Kibel’s claim for long-term disability benefits. In doing so, it determined Kibel not totally disabled under her employer-sponsored long-term disability plan. On appeal, the Ninth Circuit reversed and remanded, finding that Kibel met her burden; she adequately proved that her multiple sclerosis (“MS”) prevented her from performing the duties of her occupation as a Relationship Manager at City National Bank from February 20, 2013 forward.

Like many plans, Aetna’s long-term disability plan provided the following definition of “Total Disability:”

[Y]ou will be deemed to be totally disabled on any day if, as a result of disease or injury, you are unable to perform with reasonable continuity the substantial and material acts necessary to pursue your own occupation and you are not working in your own occupation.

Applying that definition, the Ninth Circuit first underscored the client-centered nature of Kibel’s position. Her job placed a heavy emphasis on client development and management, requiring her to devote approximately sixty-five percent of her time to outside sales and finding, identifying and developing new clients while cultivating strong partnerships with centers of influence in and around the community.

Unlike Aetna and the district court, the Ninth Circuit placed little weight on the physician’s “labels” of Kibel as “healthy,” “doing ok,” and “normal.” Instead, the Court focused on the history and practical effects of Kibel’s condition, in particular, her fatigue. For example, in 2011 Kibel collapsed twice: first with clients and a second time with her supervisor. Following those incidents and her confirming diagnosis of MS, Kibel attempted to return to work several times to no avail.

Ultimately, the Kibel Court found that “the district court and Aetna clearly erred in failing to consider the personal statement that Kibel submitted explaining that her fatigue did, in fact, render her totally disabled.” In her personal statement, Kibel described her fatigue as “an overpowering feeling of extreme tiredness, exhaustion, [and] weakness[.]” In this personal statement, Kibel further explained how it left her “completely drained” and caused “a complete slowdown of [her] brain and body[.]” The Court found that, this evidence in the form of Kibel’s own personal statement, when appropriately considered, further supported a finding that Kibel’s condition prevented her from performing the duties of her occupation. For that reason, the Ninth Circuit reversed and remanded, instructing “the district court to direct an award of benefits to Kibel[.]”

The Kibel court relied on Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 904–07 (9th Cir. 2016) for the rule that a district court and disability insurer must “consider a claimant’s subjective account of pain” when deciding whether she is disabled. Id. at *2.

As detailed above, a personal statement can be the difference between a denial and an award of long-term disability benefits; it was for Kibel. With this in mind, personal statements must be relevant to the circumstances and should include the following information: 1) a detailed description of the duties of your occupation as you performed them, 2) a detailed discussion of the history of your condition, 3) a detailed discussion of your symptoms and 4) how those symptoms, such as pain and fatigue, impact your ability to perform the duties of your occupation; 5) how your disability has also impacted your overall quality of life and 6) a discussion of the things you could previously do but can no longer do. It is also important that you write your own personal statement. It should sound authentic and the best way to achieve that is by writing it in your own words. Moreover, because personal testimony is a form of proof that typically raises credibility issues, it is likewise important that you gather corroborating statements from colleagues, friends and family. Like the disability claimant’s personal statement, these corroborating statements should discuss each person’s firsthand account of your decline as the result of your condition.

A positive for ERISA disability claimants, the Ninth Circuit’s ruling in Kibel has wider applicability than just ERISA cases. Because most long-term disability insurance policies do not define disability materially differently between ERISA and Non-ERISA policies, personal statements can be valuable whether you have an individual disability insurance policy governed by state insurance bad faith laws or an ERISA-governed group policy.