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Victory for ME Disability Claim – U.S. Court Upholds Plaintiff’s Lawsuit After Being Denied Disability

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.

 

 

Categories: Advocacy, All News, Featured news, United States

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6 comments on “Victory for ME Disability Claim – U.S. Court Upholds Plaintiff’s Lawsuit After Being Denied Disability
  1. Justin Reilly says:

    This is so great. Thanks for posting. Seyfarth Shaw, which represented Prudential, is a major firm. Nice to see Brian, Barbara Comeford and team spank them nicely!!

    This is a great opinion! It is more symbolic than anything, since no court is required to follow it’s precedent since it is not an appellate court, BUT it is just great to read. There’s a lot there and future claims in Federal court can present this as hopefully persuasive. Plus good to use in negotiations/fighting with insurers in their own internal case reviews (before it has to go to court, God forbid).

    A court that gets it!! Just so gratifying to read! Yay!

  2. Maschelle Mashburn says:

    I’m overcome by the fact that a Federal Judge quoted the CDC as part of the schooling she gave Prudential Ins. Co. lawyers!
    That means that the hard work advocates have been doing in dealing with the CDC has worked! They’ve been on the CDC to get with the current research and correct their info on ME-CFS on their site to reflect the now accepted medical facts about ME-CFS. It has been is so crucial that the CDC change their language! The importance of this has now been underscored shortly after the CDC finally changed it! A Federal Judge went to the Federal Medical Experts on all things Disease in this country and got accurate information!
    😭😭😭 I’m so happy for this man! I’m so grateful for the advocacy! And I am feeling validated as a sufferer who has a part-time caregiver but has been afraid of losing that since it’s based on my mobility and visual navigation issues. Instead of going through a doorway I body check it… things like that cause a lot of falls and I can’t operate a power chair. I drive it like I’m drunk and am constantly going “off-road”. I’m not able to get help with other important things because the fatigue and pem aren’t recognized by the government yet. (maybe the new disease tracking decision will put ME-CFS in Health and Human Service’s list of debilitating diseases.. as of now it isn’t even coded.
    So much is starting to change regarding Government awareness of ME-CFS.. I’m guardedly excited. But this decision, and how the Judge came by her info, makes me feel validated!

  3. Cheryl Boese says:

    Congratulations to Brian ! What a huge victory. This sets a precedent that is monumental for the ME community. When I was at my very sickest, my short term disability expired. When I asked what I could do, my employer’s (a County Hospital) Risk Management Administrator told me that I would not be able to receive long term disability unless I had evidence that I would be able to return to work within a few months. I was so ill, and cognitively impaired that I believed him and resigned my position. I later realized that his whole agenda was to intimidate me into not applying for the Long Term Disability Benefits to which I was entitled. I was already awarded Social Security Disability, likely because of my 2 day CPET results. I surely could have fought for LTD and won. I consulted a few lawyers once I understood thus, but was told that I lost all my rights by resigning my position. Bottom line, do not let your employer and their LTD insurance company off the hook. Do not resign if you are disabled. Fight, or find an advocate or attorney that can fight for you!

  4. Liz Willow says:

    Frankly, the main reason Vastag won his case is due to the sloppy way the disability benefit plan was drafted. Had his employer specifically stated that the claims administrator (in this case, Prudential) had discretion to determine eligibility and interpret the terms of the plan, the judge would not have been able to use her own judgment in reviewing Prudential’s denial. Most plans explicitly state this which makes most cases like this much harder to win.

    1. ahimsa says:

      Thanks for that insight! There are so many tricky issues when it comes to ERISA laws (according to lawyers I’ve spoken with who specialize in that area).

  5. Suellen Tritt says:

    YAY Attorney Comerford! Prudential is nasty indeed…. they were the strawman for my LTD claim against ADP, who at that time was self-insured! They ‘played dirty’ – lying about me & the FACTS of the Case. They ignored objective medical evidence, and lied about others’ quotes. They hired an “IME” who admitted, on record, that she was NOT ‘An Expert in CFS” at the 1st SOS Conference in Virginia in Oct 2000. ADP (& Prudential) were in cahoots with my ex husband – I’ve proof via their own records), who had an axe to grind in my having left him at that juncture. OIMOHO&E, ADP (my former employer) arranged to change Judges, apparently to foment a victory. Further, my initial attorney in Conn. seems to have been compromised, he actually poisoned all other ERISA attorneys against me to sour them on taking me on after he fleeced me for more than double what we’d agreed the case would cost. Then he slapped on massive overcharges, anticipating mediation would halve the amount – which they predictably did. HE also hoodwinked me into a non-Jury Trial – which only now have I realized! However I persisted, and my newer Council stuck up for me with him & I settled for a fraction thereof. I also have proof that my initial attorney lied to his own wife about substantial $s, so what should I expect! I had the longest back pay ever owed for LTD in US Federal Court History! My case was so, soooo corrupted, thus it was lost! It’s evidences a huge imbalance of power – ADP was founded by a US Senator – in it’s blatant injustice. As such I no longer can salute the Flag that my dad & father-in-law, and Darling Hubby, and my Beloved s-son (he served in Special Forces for 6 years, and they had the gaul to deny he was ‘in combat’! It’s entirely amazing as to what they think they can get away with!) fought for. The latter two have GWS, and the VA has denied both the latter having earned disability benefits… long sad stories on both, but for another time. Disgracefully, OIMOHO&E, there is NO LIBERTY & JUSTICE for ALL anymore!

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