A district court found in favor of a CFIDS ERISA claimant, and against Provident’s conclusion that the claimant could perform “any occupation” based on its Functional Capacity Evaluation (FCE), surveillance, and the fact that the claimant worked after she began suffering from Chronic Fatigue Immune Dysfunction Syndrome. As seems to be the trend, this Court recognized that Provident’s FCE conclusions were invalid based on the unknown amount of time in which the claimant was evaluated, the observations of the claimant laboring to complete tasks and often needing rest periods, and the Court’s general lack of understanding of how the results of such testing can be translated into the ability to perform sedentary work on a sustained basis. With regard to the surveillance, the Court found that observations of sporadic activities were consistent with Chronic Fatigue Syndrome and did not establish that the claimant could do sedentary work on a sustained basis. Quite refreshingly, the Court also failed to conclude that because the claimant worked with her CFS for a time, she was not prevented from working subsequently due to such illness. Rather, the Court found instructive the difficulties she was having due to working and the fact that she was forced to modify her work schedule as a result, as well as evidence from her co-workers and supervisor that reflected memory problems, the need to work from home and days she could not come to work at all. While this case was determined under a de novo standard, a more favorable ERISA claimant standard that the more common arbitrary and capricious standard, the Court’s analysis on these issues is helpful. Perryman v. Provident, February 18, 2010.
