Today marked a victory for people with Myalgic Encephalomyelitis (ME) in the U.S. who are fighting against insurance companies to maintain their disability benefits.
Former Washington Post science reporter, Brian Vastag, won a federal lawsuit against Prudential Insurance after the insurance company dropped his short-term disability benefits and denied his bid for long-term ones.
Vastag’s lawyers said that the ruling should make it harder for insurers to deny benefits to similar cases in the future.
After unsuccessfully appealing the denial of disability benefits, Vastag filed a lawsuit under the Employee Retirement Income Security Act.
Vastag underwent various tests to show the extent of his impairment from Myalgic Encephalomyelitis (also called Chronic Fatigue Syndrome (CFS) or ME/CFS), but Prudential Insurance hired several physicians – one certified in occupational medicine and a clinical neuropsychologist – to dispute the results of these tests, concluding that Vastag did not show evidence of significant cognitive symptoms. One of their arguments was that Vastag’s assessment did not include a psychosocial and psychiatric history.
The judge noted that the assessment by Prudential ” indicates a significant failure to understand the current state of medical knowledge about CFS and its devastating impact on Vastag.”
In her opinion, Judge Katharine S. Hayden of the District Court of New Jersey wrote:
“All of Prudentials’ reviewers appear either to reject or not be aware of the significance of a hallmark of CFS. According to the CDC: “ME/CFS may get worse after people with the illness try to do as much as they want or need to do. This symptom is known as post-exertional malaise (PEM).” In other words, people with CFS cannot snap out of their symptoms; when they force themselves to function, they get worse.”
The tests that Vastag underwent to demonstrate the effects of ME on his ability to work include:
- Cardiopulmonary Exercise Testing (”CPET”) with Chris Snell, Ph. D. The CPET is administered over two days. Subjects pedal on a stationary bike while resistance is added incrementally. The test monitors cardiovascular, respiratory, and recovery responses, workload, effort, and metabolic response/oxygen consumption. Someone with CFS will perform significantly worse on the second day, which is referred to as post exertional malaise (“PEM”). According to Dr. Levine’s report, the CPET is the gold standard for assessing capacity to work in CFS patients, something Prudential does not accept.Based on the CPET results, Dr. Snell issued a report stating that Vastag could not work above a sedentary level of exertion and his recovery time of over seven days exceeded the average time of 24 hours. He concluded that Vastag “demonstrates poor function and symptom exacerbation post-exertion; this will severely limit his ability to engage in normal activities of daily living and precludes full-time work of even a sedentary/stationary nature.”
- Quantitative Electroencephalogram (qEEG) with Marcie Zinn, Ph.D., whose research focuses on the cognitive neuroscience of infectious diseases, specifically CFS.Dr. Zinn concluded that the qEEG revealed abnormal activity in the frontal, temporal, parietal, and occipital regions of the brain, which is “often related to reduced speed and efficiency of information processing.”
- Vastag consulted with a clinical psychologist, Sheila Bastien, Ph.D.After reviewing the qEEG results and conducting an in-person interview, as well as administering various neurocognitive testing in her office, Dr. Bastien found that Vastag had significant problems with visual perception and analysis, scanning speed, attention, visual motor coordination, motor and mental speed, memory, and verbal fluency. (Id. at 139.)She noted that the results of the verbal fluency test “placed him in the below average range of impairment and brain dysfunction, and [his score] is only 7 words above the cutoff for what is considered the range of organic brain damage.”
Read the full opinion here.