If you are reading this blog and a subscriber to Lauren Freedman’s Uninvisible Pod, you are likely a member or ally of the invisible illness community. I am a Bay Area ERISA benefits lawyer who represents individuals with disabilities in claims for disability insurance benefits — provided through employer-sponsored health and welfare benefit plans. What many people in the invisible illness community do not realize until they need to rely on their employer-provided disability plan is that their medical condition is subject to a limited pay period, one that does not apply to disabilities caused by conditions that are observable by certain “objective” testing or evidence.
What does it mean that your disability from work is subject to a limited pay period? Below is an example of a limited disability benefits clause from a group disability policy provided by Metropolitan Life Insurance Company (“MetLife”). Note that not all disability policies are the same, which is why it is important to obtain a copy of your plan documents before you need to apply for the benefits. Fortunately, access to plan information is one of your rights under ERISA.
For Disabilities Due to:
Mental or Nervous Disorders or Diseases
Neuromuscular, Musculoskeletal or Soft Tissue Disorders
Chronic Fatigue Syndrome
If You are Disabled due to:
- Mental or Nervous Disorders or Diseases;
- Neuromuscular, musculoskeletal or soft tissue disorder including, but not limited to, any disease or disorder of the spine or extremities and their surrounding soft tissue; including sprains and strains of joints and adjacent muscles, unless the Disability has objective evidence of:
- Seropositive Arthritis;
- Spinal Tumors, malignancy, or Vascular Malformations;
- Traumatic Spinal Cord Necrosis; or
- Myopathies; or
- Chronic fatigue syndrome and related conditions.
We will only pay benefits for 24 months of Disability, including the Elimination Period, per occurrence. In no event will We pay benefits beyond the Maximum Benefit Period.
Mental or Nervous Disorder or Disease means a medical condition which meets the diagnostic criteria set forth in the most recent edition of the Diagnostic And Statistical Manual Of Mental Disorders as of the date of Your Disability. A condition may be classified as a Mental or Nervous Disorder or Disease regardless of its cause.
The MetLife policy from which the above was quoted provides payment for only 24 months if your disability is caused by the listed conditions. For all other conditions, it will pay to at least age 65. These limitations are generally legal and enforceable. Mental health parity laws that apply to health insurance plans do not extend to private disability plans. The disputes that arise from such provisions usually involve whether a condition is subject to the limitation, whether “objective evidence” exists that takes the condition out of the limitation, or whether one has another non-limited medical condition which is independently disabling.
A tactic employed by insurance companies to cabin claims under the limited benefits provision is to prioritize the significance of the limited conditions over the non-limited conditions. For example, if a claimant has disabling depression as well as seropositive rheumatoid arthritis, it may approve the claim based on depression and not on the arthritis so that it can terminate the claim in 24 months. When a claimant receives a claim approval letter, they often do not pay much attention to the basis of the approval. If you have multiple diagnoses, including limited and non-limited conditions, it is important to know if your claim was approved on the limited condition only so that you can appeal the decision. Most, if not all, group disability plans require a claimant to also apply for Social Security Disability Insurance (SSDI) benefits. The Social Security Administration does not limit payment for disabilities caused by mental illness or the other conditions listed above. Thus, it is possible for a claimant to receive SSDI benefits until retirement age but have their private disability claim denied by the insurance company due to the limitations provision.
Insurance companies justify these limitations because the conditions are easier to fake. They are not subject to verification by X-ray or MRIs. They are not “visible.” The reality is that they want to save money by limiting claims for conditions that afflict many people. According to the National Institute of Mental Health, in 2019 approximately 20.6% of all U.S. adults have a mental, behavioral, or emotional disorder. Approximately 5.2% of all U.S. adults (13.1 million) have a serious mental illness. Fibromyalgia, another condition that comes under the above 24-month limitation, is one of the most common chronic pain conditions and affects about 10 million people in the U.S. Myalgic Encephalomyelitis/Chronic Fatigue Syndrome affects 2.5 million people in the U.S., and it is estimated that about 90% of people with this condition have not been diagnosed. The list goes on.
While group disability policies often limit payment for disabilities caused by mental illness and other invisible illnesses, there are many categories of invisible illnesses that are typically not subject to limitation. It is important to know exactly what your company’s policy (or your own individual policy) provides with respect to payment of certain claims. This is so you can set up your claim with the greatest likelihood of getting it approved. Not all limitations can be avoided entirely. Most policies will limit mental illness claims, and only some will limit other conditions as noted above. If you are disabled entirely due to a mental illness it will be important that you evaluate your entitlement to SSDI benefits since those benefits will not be subject to a time limitation. If your employer has a disability policy with significant limitations, you should consider asking your Human Resources department to switch disability insurance policies to one that does not contain so many limitations. This may result in higher premiums, but the difference is minor compared the value of the benefits payable when fewer conditions are limited. Lastly, given the complexities of ERISA law, if an insurance company has denied your claim for disability benefits, it is important to consult with an experienced lawyer before you attempt to appeal on your own.
1. ERISA is the acronym for the Employee Retirement Income Security Act of 1974. It is a federal law that governs most employer-provided benefits such as pension, health, disability, and life insurance benefits. It does not cover church plans or government plans.
2. ERISA § 104(b)(4); 29 USC §1024(b)(4) (“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.”)
3. There is one case which found that Montana’s mental health parity law required Liberty Life to provide the claimant the same benefits for her mental illness that it would have had her disability been physical. The court voided the mental illness limitation because it conflicts with Montana’s mental health parity law. See Sand-Smith v. Liberty Life Assurance Co. of Bos., No. CV 17-0004-BLG-SPW, 2017 WL 4169430 (D. Mont. Sept. 20, 2017). This is the rare exception and was based on Montana’s specific mental health parity law.
4. See e.g., Meiringer v. Metro. Life Ins. Co., No. CIV. 06-1565-PK, 2009 WL 1788588 (D. Or. June 19, 2009) (holding that it was not error for a plan administrator to accept the determinations of the insurer’s consulting physicians regarding the categorization of fibromyalgia as a neuromusculoskeletal and soft tissue disorder); Winz-Byone v. Metro. Life Ins. Co., No. EDCV 07-238-VAP, 2008 WL 962867 (C.D. Cal. Mar. 26, 2008), aff’d, 357 F. App’x 949 (9th Cir. 2009) (upholding MetLife’s decision to apply the 24-month limited benefits provision to the claimant’s diagnoses of bilateral carpal tunnel syndrome, fibromyalgia, and reflex sympathetic dystrophy).
5. See e.g., Hennen v. Metro. Life Ins. Co., 904 F.3d 532 (7th Cir. 2018) (holding that MetLife’s decision to terminate long-term disability benefits pursuant to the limitation for neuromusculoskeletal disorders was arbitrary and capricious where it was based on the finding that the claimant did not suffer from active radiculopathy); McClenahan v. Metro. Life Ins. Co., 621 F. Supp. 2d 1135 (D. Colo. 2009), aff’d, 416 F. App’x 693 (10th Cir. 2011), and aff’d, 416 F. App’x 693 (10th Cir. 2011) (holding that MetLife acted reasonably in finding insufficient objective evidence to support the radiculopathy exception to the 24-month limitation).
6. See e.g., Doe v. Prudential Ins. Co. of Am., 245 F. Supp. 3d 1172, 1174 (C.D. Cal.), modified, 258 F. Supp. 3d 1089 (C.D. Cal. 2017) (finding that the claimant’s disability was not “due in whole or part to mental illness” subject to the mental illness limitation where evidence showed that the claimant had cognitive deficiencies caused by brain damage); Seeman v. Metro. Life Ins. Co., No. CA 12-498-GMS, 2013 WL 3948945 (D. Del. July 30, 2013) (finding that even though the claimant had severe mental disorders, MetLife was arbitrary and capricious in deciding that her remaining physical diagnoses did not independently render her disabled).
7. Some insurance companies will give you the ability to appeal a limited approval right away, whereas some insurance companies will wait until the 24 months have passed before affording you the opportunity to appeal. See Pagendarm v. Life Ins. Co. of N. Am., No. 5:17-CV-04131-EJD, 2017 WL 6405617 (N.D. Cal. Dec. 15, 2017) (dismissing the complaint where the claimant filed suit before the end of the 24-month mental illness limitation, finding that claimant was presently receiving benefits and the claim is premature).
8. Social Security Administration, Disability Evaluation under Social Security, 12.00 Mental Disorders – Adult, available at https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm (last accessed February 27, 2021). No limitation is specified for these disorders.
9. National Institute of Mental Health (NIH), Mental Health Information, Statistics, available at https://www.nimh.nih.gov/health/statistics/mental-illness.shtml (last accessed February 27, 2021).
10. Id. NIH defines Serious mental illness (SMI) “as a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities. The burden of mental illnesses is particularly concentrated among those who experience disability due to SMI.”
11. National Fibromyalgia Association (NFA), Fibromyalgia Prevalence, available at https://fmaware.net/fibromyalgia-prevalence/ (last accessed February 27, 2021).
12. Centers for Disease Control and Prevention, What is ME/CFS, available at https://www.cdc.gov/me-cfs/about/index.html (last accessed February 27, 2021).