By: Denise Martin
Some employers provide their employees with a benefit package that includes long-term disability coverage. All too often, insurers deny claims for long-term disability benefits on the basis that the claimant has not provided sufficient evidence to support a finding of a physical or mental disability. This is particularly true with respect to disabling conditions that are not characterized by obvious objective physical symptoms, such as broken bones or heart attack. One issue with which our law firm has frequently dealt is the claim by an insurer that there is not sufficient diagnostic evidence to support a finding of disability when a participant has been diagnosed by their physician with Lyme disease. The Commonwealth of Virginia has taken significant steps to respond to the spread of Lyme disease within its borders and to inform its residents about the difficulties in diagnosing the disease. The actions of the government of Virginia provide support for a long-term disability claimant’s appeal of the termination or denial of benefits, particularly where the claimant is a Virginia resident.
In response to the significant and growing number of Virginians infected with Lyme disease, Virginia Governor Bob McDonnell and Secretary William Hazel convened a task force to study Lyme disease and make recommendations in the following areas: diagnosis, treatment, prevention, impact on children, and public education. See Commonwealth of Virginia, The Governor’s Task Force on Lyme Disease: Final Report, June 30, 2011, available at: http://wolf.house.gov/uploads/Report_of_the_Virginia_Task_Force_on_Lyme_Disease_Final.pdf. The Task Force’s Final Report began in Section I with various general observations, which it stated “should be considered by all to be non-controversial.” The Task Force observed that “Lyme Disease and other tick-borne related illnesses are affecting significant and growing numbers of Virginians” and that such diseases are present in all parts of Virginia. In fact, Virginia is in a particularly “vulnerable geographical location”, with tick populations expanding into the state from both the north and the south. The Final Report states: “Lyme disease is caused by a spirochete bacterium in the same family as syphilis. It can invade multiple organ systems and has a variable multi-stage progression with a tremendous range of symptoms.” The Task Force further observes that the “CDC case definition for Lyme disease is for epidemiological purposes only and is not now and never has been the singular valid basis for a diagnosis of Lyme disease.”
In Section III(A), the Task Force makes the following specific findings and recommendations, among others, related to the diagnosis of Lyme disease:
1. As acknowledged by the CDC, Lyme disease and many related tick-borne illnesses cannot be adequately diagnosed by serology alone in many cases.
2. There is no serological test that can “rule out” Lyme disease.
3. Clinical diagnosis that may be supported by serology remains the proper method for the diagnosis of Lyme and related illnesses.
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7. . . . We encourage the use of clinical judgment at all stages due to the significant limitations of current serology.
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9. Since ticks often carry multiple pathogens and we received testimony that many Virginians have multiple tick-borne illnesses that may require comprehensive analysis and treatment, the medical community should be educated on the presence of co-infections.
10. . . . [E]arly treatment is very important to prevent many serious complications of Lyme disease.
In Section III(A)(2), the Task Force asserted that a typical criterion for determining that a Lyme disease patient is well is “when the symptoms have resolved and the patient feels better.” In addition, the Task Force acknowledged testimony from lay witnesses, who discussed the propensity of the medical community to treat person who were ultimately diagnosed as late stage Lyme disease as needing psychological evaluation or treatment.
In addition to convening a task force to study the problem, Virginia legislature recently signed into law a bill regarding the diagnosis and treatment of Lyme disease. 2012 Va. H.B. No. 1933. This bill showcases the state’s response to both the rapid growth of Lyme disease within Virginia and the difficulty in diagnosing the condition of Lyme disease. The bill requires physicians who order a laboratory test for the presence of Lyme disease to provide patients with the following information:
According to the Centers for Disease Control and Prevention, as of 2011, Lyme disease is the sixth fastest growing disease in the United States. . . . Current laboratory testing for Lyme disease can be problematic and standard laboratory tests often result in false negative and false positive results . . . If you are tested for Lyme disease and the results are negative, this does not necessarily mean you do not have Lyme disease. . . .
The above bill illustrates that the Virginia legislature has acknowledged the high risk of false negative and false positive test results associated with Lyme disease testing. This code provision, which will be effective July 1, 2013, provides that negative Lyme disease test results do not necessarily mean the patient does not have Lyme disease. Confirming the knowledge of the medical community, the statute creates public awareness that it is impermissible to rely solely on the results of laboratory testing to diagnose or rule out Lyme disease. Such testing has been found to be highly unreliable. The CDC has noted that the diagnosis of Lyme disease is properly a clinical diagnosis, based upon current medical standards and practice. Thus, it would be contrary to medical knowledge and standards, as well as public awareness, for a long-term disability insurer to assert that a participant does not suffer from Lyme disease based solely on serological test results.