The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Eleven: Personal Statements and Witness Statements

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim to handling a claim denial, through preparing a case for litigation.  In Part Eleven of this series, we discuss personal statements from claimants and third-party witness statements in support of a claimant’s disability, which can help to support a disability claim that is based upon subjective symptoms like pain and fatigue.

We often see claimants who suffer from subjective conditions like Chronic Fatigue Syndrome, fibromyalgia or generalized chronic pain face difficult hurdles in getting their disability benefits paid precisely because of the subjective nature of these conditions. See our blog post regarding our recent trial victory in DeVries v. Aetna in which our client suffered from Chronic Fatigue Syndrome.

Under the Employee Retirement Income Security Act of 1974 (“ERISA”), judicial review of an insurer’s denial of benefits is typically limited to the administrative record that existed at the time the appeal was denied.  After a complaint has been filed in federal court against an insurance company, generally, very limited discovery is allowed, and witnesses are normally not permitted to testify.  Therefore, before an insurer reaches an appeal decision, it is important that the claimant submit as much information as possible to the insurer in support of their disability.  For conditions like depression, chronic headaches, chronic pain, Chronic Fatigue Syndrome, fibromyalgia and other ailments, it may be impossible to supply objective evidence to prove that one suffers from these conditions.  Because of this, courts recognize the importance of personal statements and third-party witnesses in support of a disability claim.

The Ninth Circuit’s recent decisions require insurers and the courts reviewing disability claim denials to take these types of statements into account when deciding an employee’s claim, including the claimant’s subjective self-reports of their symptoms and pain level.  In a fairly recent long-term disability insurance case governed by ERISA, Kibel v. Aetna Life Ins. Co., 725 F.App’x. 475 (9th Cir. 2018), the Ninth Circuit emphasized the importance of these statements.  In Kibel, the claimant, Margueritte Kibel, submitted a personal statement to her disability insurer Aetna regarding the subjective symptoms that she suffered, such as pain, fatigue and other such complaints.  The court found that “the district court clearly erred in failing to consider the personal statement that Ms. Kibel submitted explaining that her fatigue did, in fact, render her totally disabled.”  In her personal statement, Ms. 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 Ms. Kibel’s own personal statement, when appropriately considered, further supported a finding that Ms. Kibel’s condition prevented her from performing the duties of her occupation.  For that reason, the Ninth Circuit reversed and remanded, and instructed the district court to direct an award of benefits to Ms. Kibel and conduct any further proceedings consistent with the order.

The Kibel court relied on the Ninth Circuit’s opinion in Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 904‑07 (9th Cir. 2016)for the rule that both a district court and a disability insurer must “consider a claimant’s subjective account of pain” and corroborating friend/colleague statements when deciding whether she is disabled.  See also Godmar v. Hewlett-Packard Co., 631 F.App’x 397 (6th Cir. 2015).  In Godmar,the court considered the claimant’s statement that was submitted with his appeal, in which he explained that he was on morphine 24 hours per day, could no longer drive and slept more than 20 hours per day several times per week, to support a finding that the insurer had abused its discretion in denying benefits.  Similarly, in Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092, *12‑13 (C.D. Cal. Dec. 5, 2016), the court considered the claimant’s subjective personal accounts of her migraine-related pain and found that her policy did not require objective medical evidence to support her disability claim.

These findings are further supported by the Ninth Circuit’s holding in Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011), in which the court held that a “lack of objective physical findings” does not necessarily justify a denial of benefits; that is, a disability insurer may not condition coverage on proof by objective indicators such as blood tests when the condition is recognized even though no such proof is possible.  In Salomaa, the court looked at a statement by the insured’s boss, who wrote that before his disability Samuel Salomaa “was one of the few people in southern California to walk or jog to work, and had been a superb employee until he got sick, and that those at Honda aware of his difficulty getting his disability benefits were ‘appalled.’”  The court also considered a statement by Mr. Salomaa’s brother-in-law, who wrote that he got to know Mr. Salomaa when they were students at Harvard and MIT, that Mr. Salomaa had been very energetic and intelligent, but that more recently he had noticed that Mr. Salomaa had profound apparent changes in comprehension, ability to plan and stamina.  His brother-in-law recounted the time when he “drove [Mr. Salomaa] and their daughter from Los Angeles to Arkansas.  For the entire trip [Mr. Salomaa] was either fully or partially reclined in the back of their Honda Element…  When stopping to eat, [Mr. Salomaa] could not manage to eat in the restaurant.  I would go in to order the food, and then bring it back to [Mr. Salomaa] to eat in the car.”  These accounts are compelling evidence of disabling conditions that can be hard to objectively measure, like Chronic Fatigue Syndrome, chronic pain syndrome, fibromyalgia and chronic migraines.  In addition, observations made by persons with first-hand knowledge of a claimant’s disability must be considered by the administrator, but administrators rarely address or scrutinize these statements in their denials.  Indeed, we typically see administrators ignore these types of statements.  Courts often place emphasis on these omissions by administrators in choosing to overturn a denial of benefits.

Personal statements and third-party witness statements can be the difference between a denial and an award of long-term disability benefits; this was the case for Ms. 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; (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 no longer can.  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.  We often see powerful corroborating statements from spouses who witnessed first-hand how the claimant has been affected by the disability, close friends who saw a marked decline in a claimant’s activity level or abilities or co-workers who could speak to a claimant’s work capacity both before and after the onset of disability.

Even though disability plan language rarely requires objective proof of conditions that are subjective in nature, we often see insurers deny disability benefits for claims based on such absence.  At the appeal stage, it is important, often crucial, to send to the insurer a personal statement written by the claimant.  In addition, witness statements from friends, family members or co-workers can have a powerful impact on a reviewing court when it assesses the credibility of the claimant.  Given the lack of discovery in ERISA matters, these statements could mean the difference between a benefit denial and a favorable result.

We have significant experience in handling ERISA and non-ERISA disability insurance cases in which an insurer denied a claim based on a lack of objective evidence or a claimant has a disability condition that is subjective in nature and difficult to prove and measure.  If your insurer or plan administrator has denied your disability claim, please contact McKennon Law Group PC for a free consultation so that we may assess your matter.

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