By Ray Bourhis, Esq. & Alexander MacDougall, Esq.
Fibromyalgia is a disorder that causes widespread pain. It is accompanied by memory loss, mood issues and fatigue as well as TMJ symptoms, migraine headaches, anxiety and clinical depression. Symptoms like these are debilitating for anyone in any occupation but are especially calamitous for medical professionals such as anesthesiologists and ophthalmologists.
Like so many other disabling conditions, there is no cure for fibromyalgia though there are some medications that are prescribed in an attempt to reduce the symptoms including analgesics (acetaminophen, tramadol, or NSAIDs), antidepressants (duloxetine and fluoxetine), and anti-seizure drugs (gabapentin and pregabalin). As is often the case with prescription medications, the side effects of these medications can actually augment the disability that it is prescribed to alleviate. Beyond that issue, most painkilling drugs have other side effects and can become addicting. For these reasons attempting to perform the duties of a medical profession by taking painkilling drugs is really not a viable option. Additionally, because insurance companies are not permitted to force an insured to work in pain there really is no alternative to the carrier but to approve most fibromyalgia claims for total disability.
Because the legal definition of Total Disability depends on what the claimant is able to do post-disability relative to what they were able to do pre-disability, it is critical to understand exactly what duties the client is and is not capable of performing and how important those duties were in his pre-disability occupation. A periodontal surgeon, for example, performs such surgeries as osseous surgeries, bone grafting, guided tissue regenerations, free gingival grafts, extractions, root amputations, and crown lengthenings. These procedures require a high level of strength and dexterity. A periodontist with fibromyalgia would be unable to perform these procedures.
When advocating a claim to the insurer, some lawyers will avoid discussing certain topics or issues. We think that is a mistake. The difference, in our opinion, between and among lawyers settling disability cases comes down to thoroughness and credibility. Effective advocacy is not achieved by playing “hide the ball” but rather by having a thorough understanding of the case and of why you are correct in your analysis. The lawyer must be honest, thorough, and have a deep understanding of your disabilities, duties, and the policy. That is what makes the difference between a claim that can be settled fairly within a matter of months and a case that will be litigated by the carrier for years.