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Four Recommendations for Success
One of the frequent issues we see in ERISA long-term disability claims based wholly or
partially on pain is: how do you prove that? There’s no objective medical test for pain.
Oftentimes, the underlying medical condition that is causing the pain, such as fibromyalgia or
nerve impingement, is also difficult to diagnose or prove. In addition, pain is inherently
subjective. Different people have different levels of pain tolerance and different responses to
pain stimuli. But if it’s your responsibility as an ERISA long-term disability claimant not only to
show that you suffer from pain, but also that the pain prevents you from performing the essential
functions of your job, how can you do that?
Fortunately, a recent case involving the National Football League disability plan provides
some guidance on this subject. In Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan,
Charles Dimry, a former NFL cornerback for 12 seasons, alleged that he was entitled to total and
permanent disability benefits under the plan on account of pain from neck and back degenerative
disc disease, knee injuries, kidney disease, and Crohn’s disease. The court found that Mr. Dimry
was disabled based on those conditions and more specifically the pain they caused. In finding
that Mr. Dimry was entitled to long-term disability benefits, the court pointed to several factors it
found convincing to show Mr. Dimry’s level of pain and how it affected his ability to maintain
employment:
1. The plan itself did not require objective medical evidence to support a disability claim
so the plan’s use of an objective standard for pain assessment was in error;
2. The Social Security administrative law judge found that Mr. Dimry’s complaints
about pain and their restrictions on his activity were consistent with his underlying
medical conditions (in other words, that neck and back degenerative disc disease,
knee injuries, kidney disease, and Crohn’s disease could cause the type and severity
of pain about which Mr. Dimry complained); and
3. That all of Mr. Dimry’s medical providers had recorded his complaints of pain in
their medical notes during the providers’ treatments and examinations of Mr. Dimry.
Using the factors the Dimry court found persuasive, here are several considerations for showing
that pain is either causing or contributing to an individual’s inability to perform his or her job
duties:
1. Does the plan require objective evidence of medical conditions, including pain?
Make sure that whatever the standard for proving disability, you as the claimant are
meeting it.
2. Have your medical providers consistently recorded your pain issues/complaints in
their medical notes? Having those notes, as was the case in the Dimry matter,
provides a medical basis for recognizing the pain as a disabling condition.
3. Can you show that the type and degree of pain you’re experiencing is typical of that
experienced by others with your condition? Medical textbooks and articles can be
helpful in this regard.
4. If you have received a Social Security disability award or workers’ compensation
award, did the award address your pain issues? Having other disability
determinations that address your pain can help validate it with respect to your long-
term disability claim.
While there’s no exact method of proving pain, these and other factors can help show an
insurance company or court that an individual is disabled because of pain caused or contributed
to by underlying physical medical conditions.