{4:45 minutes to read} Sometimes insurance companies will require that your subjective complaints of pain be supported by objective evidence.
While not legal in all states, there may be a provision in your insurance policy that requires such proof. Insurance law dictates what can and can’t be in an insurance policy. In some jurisdictions, the requirement of objective proof of a subjective complaint of pain is illegal, as it is in New York. Nonetheless, insurance companies will try to sneak it in there by saying, “Your subjective complaints of pain are in excess of what your objective test results show.”
This arises most frequently when people have a nerve injury that doesn’t always show up on an MRI, x-ray or CAT scan. You could have a failed back surgery that appears successful “on paper”:
Your lumbar and cervical discs are perfectly aligned.
There’s no impingement on your spinal cord.
And yet, you have tremendous pain. You can’t bend over. The pain wakes you up at night. But how can you ever prove that?
There are very few disabling conditions that don’t involve pain. For example, cancer, in and of itself, is not disabling. It’s the pain that comes from having cancer that disables.
In fact, the American Medical Association (AMA) states, and other guides to the evaluation of permanent impairment also state, that pain is entirely subjective, and its presence can’t be readily validated or objectively measured.
If the most disabling condition is pain and the AMA says it’s completely subjective, why have long-term disability insurance if the insurance companies are going to cut you off when your only disability is a pain?
Some courts have taken an approach that says the subjective element of pain is an important factor to consider to determine disability. In a federal appeals court decision in 2013—Miles v. Principal Life Insurance Company—the court provided a roadmap of how to evaluate subjective complaints of pain:
1. Insurers can’t just discount complaints of pain because they are subjective.
2. Subjective complaints of pain are an important factor to be considered in disability.
3. If an insurance company is required to provide the specific reasons for its decision, it must explain why it is disregarding those subjective complaints—in other words, simply pointing out that the evidence of disability is subjective is not a proper basis to reject the evidence.
The court went on to say that the insurance company can give less credence to subjective complaints if it identifies other objective findings that it would have reasonably expected to see in conjunction with a subjective complaint.
Examples
If a dentist were to complain of hand pain, one would expect to see evidence of possible radiculopathy, nerve damage, rheumatoid arthritis, osteoarthritis, inflamed nerves leading to a conclusion of carpal tunnel syndrome, and so on.
If a dock worker has a flawless record, shows up to work every day for 12 years, and suddenly complains he can’t work anymore, his excellent past performance suggests that more weight should be afforded to his subjective complaint of pain.
In assessing the weight of the claimant’s subjective complaints, the court in Miles ruled that an insurance company could rely on collateral evidence, such as a previous positive work history, that supports the credibility of the claimant’s subjective complaints.
How effectively does your long-term disability insurance protect you from pain?
Evan S. Schwartz
Founder of Schwartz, Conroy & Hack
833-824-5350
[email protected]
