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Problems In Subjective Complaint Claims

Wednesday, February 18th, 2009

Where a claimant suffers from a condition that is not readily diagnosed by objective testing, there is often great difficulty in having the insurers accept liability of the claim.  Some of the more common symptoms faced with these problems include claims of fibromyalgia, chronic fatigue syndrome, depression, and even cases of rheumatoid arthritis or back injuries.  Even in cases where herniated discs appear on MRI, insurers will often challenge the claim for disability, arguing that there is no impingement upon nerves or that the condition is simply degenerative.

The key to succeeding on claims with subjective complaints is in having the treating physician strongly advocate for the claimant, providing well documented clinical findings, restrictions and limitations.  Where the treating physician lacks zeal for the claimant, the claim is often doomed to be denied.  Thus, working with the doctor is imperative in such claims.

While some disability policies contain language requiring objective medical evidence in support of a claim, the majority of policies do not contain such provisions.  Nonetheless, many insurers inject the requirement into the claim process unilaterally, knowing that such a requirement will be impossible for the claimant to satisfy.  Symptoms such as fatigue, pain, energy, focus and concentration are difficult to demonstrate objectively.  The medical personnel for these insurers are likely to opine that the claimed restrictions and limitations are not supported or are self-limited.

Many courts, however, have required insurers to take into consideration a claimant’s subjective complaints when deciding upon the validity of the claim, if the claimant’s credibility is not challenged. 

Justin C Frankel

Written By:

Justin C. Frankel - Disability Insurance Attorney

Justin Frankel is a founding partner of the disability insurance law firm Frankel & Newfield and is a highly skilled litigator and advocate. He has published numerous articles on the challenges facing clients with private or individual disability insurance policies and those who own group or ERISA disability insurance policies.

Learn more about Justin | See Justin’s Publications



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