November 18, 2013 Vol 24 Issue 4
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In Life, Health and Disability Featured Articles
The Controversy Surrounding Lyme Dia ERISA Disability Claims
by Ronald M. LaRocca
Lyme dia disability claims can prent unique difficulties for claims administrators. The dia can be tricky to diagno and its disabling ability is shrouded in controversy.Wor yet, Lyme dia symptoms can be similar, if not the same, as tho found in conditions normally subject to benefit limitation provisions. Becau Lyme dia is an organic dia not normally subject to benefit limitations, claimants and their supports may attempt to attribute their symptoms to Lyme dia rather than the conditions subject to limitations. Understanding Lyme dia, how medical professionals diagno the dia, its symptoms, and the controversy surrounding its long-term impact on the human body is critical for a thorough and legally-sufficient respon to this strategy.
1. Lyme Dia
In the early 1970s, a spike in rheumatoid arthritis diagnos in children living in and around Lyme, Connecticut sparked significant rearch and study. Rearchers focud their attention on ticks after determining that the children lived and played by wooded areas, their symptoms first aro in the summer, the height of tick ason, andthey often experienced rashes following tick bites. By 1981, Willy Burgdorfer, a Swiss-American scientist working for the NIH’s National Institute of Allergy and Infectious Dias (NIAID), connected a bacterium carried by ticks with the illness.[1]
思维的基本形式
Today it is commonly-known and accepted that this bacterium, called Borrelia burgdorferi(Dr. Burgdorfer’s good deed did not go unpunished),is the culprit that caus Lyme dia. The bacterium transmits into humans through the bite of an infected blacklegged tick (typically the tick must be attached to the skin for 36 hours).[2] While first affecting the skin in a localized area, it travels through the bloodstream to become a multisystem inflammatory dia, spreading to the joints, nervous systems, and potentially other organ systems. Symptoms typically include fever, headache, fatigue, joint pain, and a characteristic skin rash that occurs in 70-80% of cas called erythema migrans. Neurologic and cardiac symptomsare possible when Lyme dia goes untreated.[3]
In August 2013, the Centers for Dia Control and Prevention (CDC) reported that about 300,000 new Lyme dia cas occur in the United States each year, ten times higher than previously reported. Becau of this immen number, the CDC referred to Lyme dia as “a tremendous public health problem.”This is especially true in the Northeast and upper Midwest, where the dia is most heavily concentrated. In fact, 96% of cas occur in 13 states,including the Mid-Atlantic States, New England States, Wisconsin, and Minnesota. While Lyme dia can occur outside tho states (Borrelia burgdorferi can be found as far away as California), it is much less common.[4] 2. So, what’s the controversy?
Diagnosing Lyme dia can be trickyfor the 20-30% of patients who do not experience erythema migrans. This is becau abnt that telltale sign, Lyme dia symptoms arethe same as tho from a variety of other mental and physical illness. After a few weeks of infection, however, medical professionals can ba a Lyme dia diagnosis on the clinical manifestations plus rologic evidence from a two-step lab testing procedure.If
From the Chair
Medical Emergencies at Your Hotel, Restaurant or Business: An Analysis of Duty, Risk and Liability Continued Expansion of Post-AMARA Equitable Relief: Kenth v. Dean Health Plan, Inc.
Two for the Price of One: Does Denial of STD Benefits Make a Claim for LTD Benefits Futile?
The Controversy Surrounding Lyme Dia ERISA Disability Claims
Defining Deference: Plan Language that Confers Discretion Under ERISA
The Fiduciary Exception to the Attorney-Client Privilege in ERISA Litigation
Circuit Court Cas
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Seminar caught sufficiently early, medical professionals typically prescribe a treatment of oral antibiotics that almost always cures Lyme dia.
Standard oral antibiotics are sometimes ineffective in the treatment of “late” Lyme dia. “Late” Lyme dia occurs when the illness goes untreated beyond the first few weeks of infection. In the cas, symptoms may linger despite oral antibiotics. Studies show that following a finite cours
e of IV antibiotic treatment, however, “late” Lyme dia sufferers will likely experience a slow and gradual improvement and eventual resolution of their persisting symptoms.[5]
It is here where the controversy begins. Aminority of patients and medical providers argue that antibiotics do not always cure Lyme dia. They believe it is possible for Lyme dia’s mental and physical symptomsto persist without resolution –sometimes with devastating results. The individuals arguethat Lyme dia can be a chronic conditionthat can, in some cas, disable an individual mentally and/or physically.
舒缓的背景音乐The International Lyme and Associated Dias Society (ILADS) vehemently supports the individuals. ILADS is non-profit group dedicated to the support of tho who suffer from what it terms as “chronic Lyme dia.” It educates medical professionals as a means to increa awareness and counters majority arguments, including CDC conclusions, through studies and articles written by supporting medical professionals. Itadvocates politicallyand has utilized plaintiff attorneys to advi its members on how to support disability claims and fight adver insurance decisions.
ILADS is not alone. Simple Google arches reveal a wealth of support on filing claims for disability
in a social curity and private insurance context (with much of that information from plaintiff attorneys). More helpful information and support can be found in a 2008 award-winning documentary film entitled “Under Our Skin” chronicling chronic Lyme dia and the fight to recognize it as a legitimate illness.
The CDC, NIAID, American Lyme Dia Foundation (ALDF), and the Infectious Dias Society of America (IDSA), however, all refute –at some level –ILADS and chronic Lyme dia.[6] For example, in a question and answer format on its website, the CDC writes:
I heard that if I get Lyme dia I will always have it. Is that true?
No. Patients treated with antibiotics in the early stages of the infection
usually recover rapidly and completely. Most patients who are treated
in later stages of the dia also respond well to antibiotics, although
嘴角向上
some may have suffered long-term damage to the nervous system or
joints. Approximately 10-20% of patients experience fatigue, muscle
aches, sleep disturbance, or difficulty thinking even after completing a
recommended cour of antibiotic treatment. The symptoms cannot
be cured by longer cours of antibiotics, but they generally improve
on their own, over time.
Despite this, ILADS and its supporters remain steadfast and committed to their belief that Lyme dia can be a chronic illness that could disable an individual. Indeed, some states have rewarded chronic Lyme dia supporters by passing laws that require health insurers to pay for chronic Lyme dia treatment and protect physicians who treat chronic Lyme dia.
3. What claims administrators and attorneys should know.
Claimants armed by ILADS, internet support networks, physicians,
and/orplaintiff attorneysmay u Lyme dia as a mechanism to avoid common limitations in group long-term disability policies. For instance, Lyme dia can be a tool for claimants suffering from mental/nervous syndromes, fibromyalgia,chronic fatigue and/or pain to dodge plan limitations b
y arguing that Lyme dia caud their disabling symptoms. Unlike mental illness, nervous conditions, fibromyalgia and chronic fatigue and/or pain syndrome, Lyme dia is not typically subject to benefit limitations in group long-term disability policies. To exploit this plan language gap, well-prepared claimants will inundate an administrative record with medical support of a Lyme dia diagnosis and disabling symptoms.
Becau claimants and their supporters argue Lyme dia is a chronic condition not subject to plan limitations, they demand full disability benefits pursuant to the plan language. This is precily the scenario prented in Gent v. CUNA Mut. Ins. Society, 611 F.3d 79, 85 (1st Cir. 2010) (discusd in further
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Print to PDF detail below), featuring a group disability plan limiting benefits for mental disabilities and a claimant with a history of medical illness attributing her disability to Lyme dia. The same argumentcan be found in Berquist v. Aetna U.S. Healthcare, 289 F.Supp.2d 400, 404-05, 411-12 (S.D.N.Y. 2003),Harrison v. Catholic Healthcare West Group Long Term Disability Plan, 612 F.Supp.2d 1099, 1112-1114 (C.D.Cal. 2009), and McDonnell v. First Unum Life Ins. Co., 10 CV 8140 RPP, 2013 WL 3975941 (S.D.N.Y. Aug. 5, 2013).
An accurate and thorough respon to this onslaught–that will withstand judicial scrutiny –requires a two-step questioning process:
a. First, is the Lyme diagnosis supported?
It is impossible for an individual to be disabled by chronic Lyme dia without a properly supported Lyme diagnosis. Accordingly, claims administrators must first examine the diagnosis. In the abnce of erythema migrans and with only non-specific symptoms attributable to many ailments, medical professionals are likely to subject a patient to a two-step laboratory testing procedure: an initial “EIA” (enzyme immunoassay) test and, if positive or indeterminate/equivocal, animmunoblot test commonly known as a “Western blot” test. If the EIA test is negative, the CDC does not recommend further testing as this will likely lead to a fal positive. A valid diagnosis requires the existence of clinical symptoms and positive laboratory testing from both tests.
While this may em simple, Lyme diagnos can be anything but simple. Gent v. CUNA Mut. Ins. Society featured a controversial Lyme diagnosis. The Gent plaintiff had a history of mental illness and a variety of symptoms that can be found in Lyme dia cas, including evidence of “large red rings” on both of her arms. The plaintiff’s Western Blot test,however,was negative. Nevertheless, nine doctors debated the Lyme diagnosis. Four supported a Lyme diagnosis bad on the symptoms and possible erythema migrans while fiverefuted the diagnosis bad in large part on the failed Western blot test. The First Circuit ultimately held in a de novo review that the anti-Lyme argu
ment was better-supported. The Court relied on the failed Western blot test and a history of mental illness as persuasive.Id.at 85-86.
Claims administrators and attorneys should also be aware that not all laboratory testing is made equal. In fact, testing interpretation can be a significant source of controversy, especially when a laboratory reports a positive result using criteria not in accord with CDC reporting requirements. , Harrison,612 F.Supp.2d at 1112.
b. Second, can Lyme dia disable?
The question transitions to the cau of the disabling symptoms if a claimant has a properly supported Lyme diagnosis. The medical documentation submitted by a well-supported claimant will connect his or her chronic symptoms to Lyme dia and disconnect tho symptoms fromconditions subject to benefit limitations.It is critical at this point for claims administrators to recognize the Lyme dia controversy and ek the proper outside medical experti to review the record and shed light on the Lyme dia claim. Failure to ek proper experti may lead to a decision that will not withstand judicial scrutiny becau administrators may not arbitrarily refu to credit reliable evidence.SeeBlack & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). After
all, the Court reviews the administrative record; it is not the venue to decide whether chronic Lyme dia is a legitimate illness.渔阳郡
ILADS works tirelessly to change medical and public opinion on chronic Lyme dia. Achieving victories in court is a significant step in this process and can create great momentum in their cau. With hundreds of thousands of new Lyme dia infections each year, the pool of potential claimants grows exponentially. That is why it is critical for claims administrators and their attorneys to understand their operating environment and determine an appropriate cour of action when a claimant attributes his or her disability to Lyme dia.
Ronald M. LaRocca
Pierce Atwood, LLP
Providence, RI
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日本最美俳句原文
[1]www.v/topics/lymedia/understanding/pages/intro.aspx
[2]/lyme.shtml
[3]v/lyme/Treatment/
[4]/usmap.shtml
[5]/lyme.shtml#treatment // Statement of Hou Foreign Affair Committee
[6]
www.v/topics/lymeDia/understanding/Pages/chronic.aspx; /lyme.shtml#treatment
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