Disability Benefit Claims Law Blog : Disability Benefits Lawyer & Attorney : Dell & Schaefer : Disability Insurance Claims Law Blog

Many long-term disability cases revolve around the issue of what constitutes the ability or inability to work in any gainful employment for which you “are reasonably fitted by education, training or experience.” The following case is another example.

In July of 2001, Linda Gardner stopped working as an operating room nurse. She had been diagnosed with avascular necrosis (AVN) in both of her knees, explaining the severe pain she had been suffering from. One of the symptoms of AV is its progressive nature. Temporary or permanent loss of blood supply to affected bones destroys the bone tissue and causes collapse. The resulting pain in an affected joint can limit movement severely.

Click here to continue reading Appellat Court Reverses Unum's Denial Of Disability Benefits To A Registered Nurse ("RN") And Trial Court Victory

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An opinion issued by the United States District Court for the Middle District of Pennsylvania in November 2009 highlights the challenges an attorney faces when a complaint for denial of disability insurance benefits involves parties from different jurisdictions. An attorney must be very knowledgeable regarding insurance contract law in their state, because the laws of the state in which the contract is signed are the laws that will apply unless preempted by ERISA.

The case we are going to consider involves Edward J. Zaloga, a doctor of osteopathy. He filed his complaint originally in the Court of Common Pleas for Lackawanna County, Penn. in December 24, 2008. Because the claim exceeded the value of $75,000 and neither Provident Life & Accident Insurance Company (Provident Life) nor Unum Group (Unum) had corporate offices in Pennsylvania, jurisdiction over the case resided with the U.S. District Court.

Click here to continue reading Unum's Attempts To Dismiss A Physician's Bad Faith Disability Lawsuit Are Denied By Pennsylvania Federal Court

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In a federal court in Peoria, Illinois, a jury ruled against Unum Company (NYSE: UNM)and awarded more than $300,000 in disability insurance benefits the insurer withheld from a general surgeon it had claimed was capable of conducting major surgeries, despite the surgeon’s difficulty standing for more than one hour at a time.

The eight-person jury, which included an employee from State Farm Insurance, headquartered nearby, ruled that Dr. Yogihn Parikh, who was a general surgeon at Hammond Henry Hospital in Genesco Il, was partially disabled, and as such was entitled to long-term disability benefits Unum had withheld under the disability insurance policy that Parikh purchased from them.

Click here to continue reading A General Surgeon And His Legal Team At Attorneys Dell & Schaefer Win Disability Insurance Jury Trial Against Unum

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Individuals who pay for disability insurance premiums hope to be able to rely on the disability benefits if they are ever unable to work for any extended period of time. However, many times these employees’ claims are denied without any reasonable basis for denial. As in the case below, it is often abusive claims handling tactics by disability insurance companies that leads to disabled individuals being denied their benefits and forced to try and support their families in any way that they can.

Click here to continue reading New York Federal Court Exposes Unum's Disability Claims Handling Tactics

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Our client, an ophthalmological surgeon, was diagnosed with bi-lateral carpal tunnel syndrome following a traumatic accident. The client attempted to continue working for a few months following her injury in hopes that her hand numbness and pain would stop. While the pain stopped, the lost of sensation in her fingers remained. The client was forced to stop performing all eye surgeries a few months after her injury, but she continued her practice in a non-surgical capacity.

Approximately six months following her injury, the client submitted her claim with Unum seeking long-term disability benefits. Over the next several months, our client provided Unum with all of the medical and financial documents they had requested. These documents included medical records, monthly profit and loss statements, CPT production reports and tax returns. After evaluating the claim for several months, Unum requested that the client attend an Independent Medical Exam with a hand surgeon, in order to further evaluate her medical condition. Due to scheduling conflicts and advice from her prior attorneys, the IME exam never took place and Unum advised that they were unable to make a claim determination.

Our client had retained the services of three different attorneys prior to retaining Attorneys Dell & Schaefer. A lawsuit was pending at the time that Dell & Schaefer was retained. Once retained, Dell & Schaefer immediately amended the Complaint in order to submit additional allegations which our client’s prior attorney failed to plead. Within approximately two months of being retained, the case was resolved with a confidential settlement.
 

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Our client, a general surgeon for 25 years, was forced to stop performing surgery due to chronic degenerative cervical disc disease. Fortunately, our client had purchased a long-term disability policy from Paul Revere Insurance Company (acquired by Unum), during the early years of his career. The Unum long-term disability policy provides a monthly disability benefit in excess of $12,000 in the event our client is unable to perform the substantial and material duties of his occupation.

Disability insurance attorneys Dell & Schaefer were retained in order to advise our client of his contractual rights to long-term disability benefits and to assist with the submission of his application for benefits. Through a coordinated effort led by Attorney Gregory Dell, our client’s physicians, employer, and accountant provided all of the information necessary to submit the application for long-term disability benefits. Once the application was submitted, Unum requested to speak with our client, and that conference was attended by Attorney Gregory Dell and his client. Within 30 days of submitting the application for long-term disability benefits our client’s claim for long-term disability benefits was approved. Dell & Schaefer was able to assist our client in obtaining a quick approval for long- term disability benefits, as Dell & Schaefer has submitted disability applications on behalf of hundreds of disability claimants. Attorneys Dell & Schaefer continues to handle our client’s long-term disability claim on a monthly basis and Unum is required to direct all communications directly to our office.

Attorney Gregory Dell stated, “It is important to anticipate and be prepared to submit every relevant document the disability carrier may request, otherwise a claimant’s application process can take six months to a year to obtain a claim decision. After deposing the claim representatives and reviewing the internal claims handling manuals of every major long-term disability insurance company, my team of lawyers has a great understanding of exactly what the disability insurance companies need to see in order to approve a claim.”

Attorneys Dell & Schaefer represents disability claimants at all stages of their claim for long-term disability benefits. For additional information call 888-Say-Dell or visit www.diAttorney.com.
 

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Our client was a successful, experienced financial advisor who operated her own practice. In December of 2008, while stopped at a red light, her car was hit from behind by a cement mixer. As a result of the accident she sustained multiple herniated disks in her neck, and pain that radiated into her shoulders and down her arms. Despite her efforts to continue working following the auto accident, she was unable to do so. No longer able to advise her clients as to important financial decisions affecting their futures, she was left with little choice but to apply for long term disability benefits under her individual disability policy purchased from Unum. In April of 2009 she contacted Dell and Schaefer to assist with her application for long-term disability benefits. Despite our client contacting us in April of 2009 and her continued attempts to work, we were able to prove that her date of disability should be the same as the date of her accident.

After gathering all the information necessary to properly present her claim for disability benefits, Dell and Schaefer submitted her disability application in mid May 2009. From the time the application was submitted, Unum began to delay the processing of her claim. Despite overwhelming medical support of a severe neck injury, which her doctors indicated would require surgery to repair; Unum sent her claim for two separate medical reviews. Unum had our client’s reviewed by both their in-house medical doctor and an outside medical doctor. Unum required an hour long field interview, asking questions already answered in her application and in subsequent responses to requests for information, all in an attempt to find any inconsistency with which to deny her claim. Unum continued to “evaluate” her claim for over a month and a half, citing medical records review and vocational reviews as reasons for the delay. Attorneys Dell and Schaefer sent multiple letters and made numerous phone calls to demand payment of disability benefits to our client.

In August of 2009, unable to deal with the pain and discomfort, she underwent surgery to fuse two vertebrae in her neck. Attorneys Dell and Schaefer contacted Unum immediately regarding the same and forwarded the applicable records to ensure Unum would not try to delay any longer. Within a week Unum finally approved her claim and forwarded a check for all back and present benefits due. However, this will most likely not be the end of the fight with Unum. Within two weeks of her surgery Unum was already demanding updated forms inquiring as to her intent to return to work and her daily activities. Unum made it very clear that approval for long term disability benefits is a month to month evaluation. Attorneys Dell and Schaefer will continue to fight for her rights to long-term disability benefits while she focuses on recovering from surgery.

Attorneys Gregory Dell and Stephen Jessup assisted her in applying for, and maintaining her benefits. Attorneys Dell and Schaefer assists numerous clients each month in maintaining their claim, acting as the liaison between the insurance company and our clients.

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Our client, a trial attorney representing parents and children in dependency, delinquency, and guardianship cases contacted Attorneys Dell & Schaefer to see if she would be eligible for long-term disability benefits under her individual disability income and business overhead expense policies purchased from Unum. Upon consultation with attorney Robert Kerr, the client retained the law firm of Attorneys Dell & Schaefer to assist with the filing of her application for disability benefits under both types of policies based on paresthesias in her hands and feet. Additionally, her diabetic neuropathy was causing increased difficulty with walking, numbness and tingling in her feet and hands, and intense pain when sitting, standing, and walking.

Attorney Kerr guided the client through the process of preparing her long-term disability claim, instructing her as to the best approach to obtaining appropriate medical support. Once her claim was properly documented, based on Dell & Schaefer’s extensive experience in filing applications, Mr. Kerr worked closely with the client to complete the necessary paperwork. He then submitted it to Unum on her behalf and advised Unum to direct all correspondence to the office of Attorneys Dell & Schaefer only.

Attorneys Dell & Schaefer then responded to all inquiries made by Unum during the application process. Mr. Kerr followed up repeatedly with Unum to make sure that a decision was made in a timely manner. Within 60 days of submitting our client’s application for long-term disability benefits, Unum approved both the individual and business overhead expense long-term disability claims.

Mr. Kerr and the team at Dell & Schaefer will continue to handle our client’s claim on a monthly basis and document her ongoing disability to ensure that she remains eligible for benefits as long as she is disabled.
 

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During the week of July 13, 2009, Attorney Gregory Dell spent several days in Portland, Oregon deposing multiple employees of The Standard Disability Insurance Company. Prior to taking the depositions, The Standard refused to make their employees available for deposition and instructed their attorney to file a motion preventing Attorney Gregory Dell from taking the depositions. The court received multiple motions and entered an opinion stating that our client has the right to take the depositions and The Standard must produce their witnesses. The Standard’s motion for attorney fees against our client was denied. It is obvious that the Standard did not want their claims handling practices exposed through deposition testimony.

Attorneys Gregory Dell and Cesar Gavidia filed a lawsuit in Federal Court, after The Standard denied our client long-term disability benefits. Our client, an invasive cardiologist, has been unable to work in his occupation as result of neck, back and shoulder problems. Our client purchased his long-term disability policy as a benefit offered through his membership in the Southern Medical Association. Our client has been unable to perform the duties of an invasive cardiologist due to the requirement that her wear a heavy lead apron during most of the cardiac surgeries he performs on patients. Our client’s claim is supported by his treating neurologist.

The Standard relies on the paper review of our client’s file by two neurologist in order to deny disability benefits. Moreover, while reviewing the claim, the Standard never bothered to take into consideration what percentage of our client’s occupational duties required him to wear a lead apron. During the recent depositions of The Standard employees, none of the employees had any idea how much a lead apron weighs, how long our client would need to wear the lead apron during a procedure, or specifics about the procedures that an invasive cardiologist performs. The Standard was of the opinion that our client should have no restrictions and limitations, and that the only reason he gave up his career as an invasive cardiologist was so that he could work as a chief medical officer for a medical tool manufacturer.

It is interesting to note that our client had a long-term disability policy with Unum Provident and the definition of disability during the first two year of benefits was almost identical to the definition of disability in the The Standard long-term disability policy. Unum Provident evaluated our client’s claim and determined that he was unable to perform his duties as an invasive cardiologist. Furthermore, Unum Provident’s outside neurologist reviewed our client’s medical records and opined that our client should not wear a lead apron and therefore would be prevented from working as an invasive cardiologist. During deposition of the Standard employees, they did not have any explanation as to how Unum Provident’s doctor could find that our client had restrictions and limitations, but The Standard’s doctors found that our client was perfectly healthy.

The Standard recently filed a Motion for Summary Judgment and basically alleged every possible defense they could think of, in hopes that something would stick. Attorneys Gregory Dell and Cesar Gavidia believe that the motion filed by the Standard is a desperate attempt to further their denial of long-term disability benefits. A response to the motion for Summary Judgment is currently being drafted and the jury trial is set for October 2009 in Federal Court.
 

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The Second Circuit U.S. Court of Appeals has denied First Unum Life Insurance Co.'s request to reconsider a decision in which it found the company arbitrarily denied long-term disability benefits to a tax attorney with colon cancer.  First Unum, a unit of Unum Group (NYSE: UNM), filed the petition for rehearing with the New York-based federal appeals court in January, saying that the court "misapprehended key facts and law" (BestWire, Jan. 9, 2009). Attempts to speak with Unum Group to see if First Unum plans to appeal to the U.S. Supreme Court were not immediately successful.  According to the December 2008 decision, written by Circuit Judge John M. Walker Jr. for a three-judge panel, First Unum operated under a conflict of interest because it was both the claims administrator and payor of benefits.

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To hear company officials tell it Unum is emphatically on the mend, this after the disability insurer was wracked by scandal and losses earlier in the decade. In 2005, Unum reached a costly settlement with attorneys general in 49 states over allegations of unfairly terminating or denying coverage to disabled clients. That was after a 60 Minutes exposé pilloried the company.

Its other big problem was in the profit department, the result of horribly underpricing policies sold to doctors, lawyers and other professionals. Those policies are now in "run-off" mode, with beefed-up reserves for claims, meaning they can die a slow but less costly death. In fact, the Chattanooga, Tenn., company (ticker: UNM) has reported three profitable years, including 2007, when it said it made $679 million, or $1.91 a share, and 2008, when it said it earned $553 million, or $1.62. Unum's latest estimates call for profit of $2.44 to $2.55 a share for 2009, no small feat in these tumultuous times. With the stock around $10, well below book value of about $19 a share, investors may be tempted to jump aboard the Chattanooga Choo Choo, as Unum is known in the industry. Our advice: Book a plane ticket or drive. If past is prologue, there could be unfortunate surprises down the tracks. Indeed, even the recent profit gains might not be all they appear to be.

Back in 2005 & 2006 Barron’s ran several negative articles on Unum, as the stock was trading in the low 20s. Among other things, the stories examined Unum's then-rogue culture, in which top-performing employees were given "Hungry Vulture" awards inscribed with the maxim "Patience, my foot...I'm gonna kill something." Those honors have been discontinued.

We also described several major "finite" reinsurance deals that the company had struck over the years. These purported to reduce claims losses, the largest cost item on any insurer's income statement, by getting the reinsurers to assume much of that burden. Yet the finite deals were, in effect, disguised loans, with Unum passing along agreed-upon premiums, reserves and profits to reinsurers in future years. Unum and other insurers pulled back from this practice after a regulatory crackdown in 2005.

But one problem still hangs over the company: a history of alarming setbacks. Unum Group has periodically reported large losses as a result of having to take mammoth reserve charges after several years of sprightly, but apparently illusory, earnings growth. Spectacular blow-ups occurred in 1999, 2003 and 2004, with annual losses of up $386 billion. "Look, maybe Unum is operating in a more disciplined manner, as management has claimed over the past couple of years, but two years of good results isn't enough for me to completely trust them," says one analyst who is neutral on the stock. "I'll need another couple of years of good earnings without big write-offs before I'll completely buy in to the story."

One place in Unum’s financials where investors might want to look closely is the company's reserves for future claims. As insurance icon Warren Buffett points out, reserves in essence are self-graded exams allowing insurers, depending on their assumptions, to boost or punish earnings. Here, Unum may have proven decidedly optimistic. This becomes apparent when one looks at a special reserve account called Incurred But Not Reported, for money set aside to cover claims that past experience tells insurers they will face even though the claims haven't yet been filed. Over the past six years, this account has fallen from 6.3% of Unum's total reserve (before mark-to-market adjustments) to 4.9% last year.

By paring this account, Unum has sharply boosted profit. The maneuver added $292 million to 2007's pretax earnings of $1.1 billion, while a smaller IBNR release in 2008 pumped up pretax income by $138 million, to $1.3 billion. Company officials attribute the IBNR releases and the generally improved insurance results across their product lines to a variety of factors: policy-premium increases, improved claims-management efficiencies, a purge of lower-margin business, and a better selection and mix of insurance risks. The company further argues that the IBNR releases went into reserves for actual claims. But that is arguably a distinction without a difference: Without the IBNR money, earnings would be penalized directly by a beefing up of those reserves.

Investors also should remember that Unum is operating in a competitive environment in which premium boosts are difficult to come by. The company, likewise, operates at a distinct disadvantage to such disability insurers as StanCorp (SFG) and MetLife (MET) because of Unum's lower rating of claims-paying ability, as measured by industry arbiter A.M. Best.
The profit gains from cutting the IBNR have helped compensate for the disappearance of finite reinsurance. And there are signs that Unum may be carrying out other accounting maneuvers to burnish earnings.

Consider the company's allowance for doubtful accounts money set aside for when customers fail to pay premiums. In 2006 and 2007, Unum tapped this account for $16.5 million and $4.5 million, respectively, with those sums going straight to profit. Last year, Unum drew down only $2 million from the allowance -- but it withdrew and added to earnings $7.3 million from a real-estate reserve account. Unum argues this was all the result of a better book of business than in the past.

Frequent accounting changes at Unum make tracking the company's year-to-year financial performance difficult. For instance, according to a footnote in Unum's fourth-quarter 2008 Statistical Supplement, the company was able to report $530.8 million in statutory, or regulatory, income in 2007 due to a new valuation system employed for its individual disability reserves. The change resulted in a $194 million gain in after-tax statutory income. That measure of income is closely watched by analysts because it is more conservatively calculated than earnings under GAAP.
Unum has operated in a conservative manner in at least one area its investment portfolio. As JPMorgan analyst Jimmy S. Bhullar points out in a recent report, the quality of Unum's $32 billion portfolio is better than that of many other life companies. Unum, for example, has no subprime securities and little in the way of non-government-guaranteed mortgage-backed and commercial real-estate risk.

Yet the company could have further investment charge-offs. More than 40% of its bond portfolio is rated triple-B or below, compared with its peer average of 23%, according to Bhullar. Also, the portfolio has nearly $2 billion in gross, unrealized losses that have been carried on the balance sheet for a year or more.

Unum claims those losses are the temporary result of swollen risk spreads in the bond market, rather than a measure of actual default risk. But given the length of time these losses have existed, Unum's accountants might insist that the securities be adjudged permanently impaired, resulting in a huge charge to earnings.

It is often said a picture is worth a thousand words; in this case, it is worth at least 200 words. Look at the nearby chart, which reflects activity in Unum's key group-disability business. Notice how the "benefit ratio" the percentage of each premium dollar eaten up by claims and administrative expenses,  traces a beautiful glide pattern lower, dropping about half a percentage point every quarter and two full percentage points each year. Is this picture too good to be true? It is difficult to say. But look at the results posted by MetLife, operating in the very same business over the very same period. Its quarterly underwriting ratio jumps all over the place in what appears to be a random walk. Unum officials attribute MetLife's results to the fact that MetLife does business with bigger employers, which Unum contends have more volatile patterns of claims. But that seems like a stretch, at best.

In "short-tail" insurance businesses like auto, claim expenses are far harder to manipulate. The insurer knows exactly what the body shop is charging to repair the vehicle of one of its insureds.
But long-term disability payments are typically made over a period of years, and ultimate claims losses depend on a host of malleable assumptions, such as how long a claimant will be on disability before making a satisfactory recovery. In other words, disability insurers must bring more judgment to the table.

MetLife appears to accept the real world, with all its inherent volatility, while Unum prefers a picture of order and smoothed results. But in the end, pretty pictures are only that ...pretty pictures.
 

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Feb 3, 2009- Unum Group said on Tuesday that net income fell sharply in the fourth quarter, hurt by investment losses, but operating earnings beat Wall Street expectations by a penny.

Unum, the largest long-term disability benefit insurer in the United States and Britain, said net earnings fell 74 percent to $41.8 million, or 13 cents a share, from $160.5 million, or 44 cents a share, in the year-earlier quarter. Chattanooga, Tennessee-based Unum said it had $167.6 million in net realized investment losses, largely the result of writing down impaired investments. Earnings from continuing operations, which analysts use to measure performance, were $209.4 million, or 63 cents a share, compared with $213.1 million, or 59 cents a share a year earlier.

Analysts, on average, had expected earnings of 62 cents a share, according to Reuters Estimates.The company expects its earnings from continuing operations to be between $2.45 and $2.55 a share in 2009, shy of analysts' average expectation of $2.63 a share. The company said it is looking for a new chief financial officer to replace Robert Greving, who is retiring later this year, according to a separate statement.

Gregory Dell, a disability income attorney with Attorneys Dell & Schaefer stated, "despite Unum's recent financial performance they have been actively pursuing lump-sum buyouts from individuals that are currently collecting long-term disability benefits."

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Our client, a chiropractor, fractured his arm and tore his rotator cuff as a result of a skiing accident in March 2008. Despite his injuries our client attempted to return to full-time chiropractic performing manual spinal adjustments. His treating physicians advised him that he should cut back on the number of patients he was treating pre-accident and see if he can handle a limited patient load. This client came to Dell & Schaefer for guidance and help in filing his disability claim.

After reviewing the client’s long-term disability policy he had purchased from National Life of Vermont and now administered by UNUM, Attorneys Gregory Dell and Robert Kerr advised him of his options moving forward. The client retained Dell & Schaefer to advise him of his contractual rights and to guide him through the process of applying for long-term disability benefits. During the application process, UNUM requested several years of tax returns, profit and loss statements, CPT annual and monthly production reports and medical records from all of his treating physicians. Despite overwhelming and repeated documentation from the client’s treating physicians that our client was unable to perform his job as he once did, Unum continued to refuse to pay our client, claiming they did not have sufficient evidence of his inability to perform his job as a chiropractor.

We performed an extensive analysis of our client’s activities for the time periods before and after his accident. Based on our client’s billing, it was clear that the time he was spending performing manual manipulation, the basis of his practice,  was significantly decreased following his accident. This information was presented to Unum as further evidence of his inability to do his job as a chiropractor, along with the numerous doctors’ reports where his doctors repeatedly told him that he should not be performing manual manipulations. It was our opinion that the client was clearly eligible for partial disability benefits as a result of his loss of income caused by his injuries.

After several months of providing sufficient evidence of disability and Unum refusing to pay our client, Dell & Schaefer filed a complaint with the Florida Department of Financial Services in anticipation of litigation. Shortly thereafter, Unum made the decision to pay our client, finally agreeing that our client is partially disabled pursuant to the terms of his disability contract.

Since originally reducing his hours, our client has had to stop working, and as a result sold his practice. He is now totally disabled from his former occupation as a chiropractor specializing in spinal adjustments. Dell & Schaefer is handling his transition from partial disability to total disability and will monitor our client’s claim moving forward.

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A federal jury in Boston found that Unum, the nation’s largest disability insurer, had committed fraud in some cases by requiring customers to apply for Social Security benefits even though it knew they were not eligible.

But the verdict, based on a sample of six claims, contained enough ambiguity to leave both sides declaring victory in the case, filed on behalf of the Social Security Administration. In a verdict returned Wednesday, the jury found that two of the disability claims had been fraudulent and two others had showed no evidence of fraud. The jury was unable to reach a decision on the other two cases.

Both sides had agreed to present a small sample to the jury to keep the lawsuit from bogging down in complexity. Unum processed almost 400,000 disability claims in 2007, and paid out more than $4 billion in benefits.

In the next phase, the two sides will seek a decision on what the sample reveals about Unum’s overall behavior, and the extent to which it harmed the Social Security program.

Jim Sabourin, a spokesman for Unum, said the finding that only two of the six claims involved fraud showed that the lawsuit was without merit.

“The jury rejected the claim that there was any systemic problem with the way Unum adjudicates its claims,” Mr. Sabourin said. He said Unum intended to appeal the part of the verdict that had found fraud.  Gregory Dell, a disability insurance attorney representing claimants nationwide,  commented that "it is unconsciable that UNUM continues to deny fraud after a jury has found them guilty".  Unum and most of the other long-term disability insurance companies routinely make claimants apply for social security disability when the disability carrier knows that claimant is not eligible.   

A spokesman for the Social Security Administration, Mark Hinkle, said the agency was monitoring the lawsuit but would not comment on it.

The lawsuit was filed under a federal whistle-blower statute that allows private citizens to sue on behalf of government programs if they believe they have evidence of fraud. The lawsuit is being tried in United States District Court in Boston.

The lawsuit is one of two federal cases contending that Unum and another disability insurer, Cigna, are forcing able-bodied people to repeatedly apply for Social Security disability benefits, under the threat that if they do not, their insurance payments will be cut. The Social Security Administration defines “disabled” more stringently than the insurance companies generally do, and many people who qualify for disability insurance benefits do not qualify for Social Security.

The lawsuits assert that sending claimants into the Social Security system allows Unum and Cigna to reduce their claims reserves, which in turn raises the insurers’ profitability.

Unum and Cigna say that referring claimants to Social Security is a standard practice in the industry and that there is nothing wrong with it.

The lawsuits assert that the referrals are clogging Social Security with questionable applications, and forcing taxpayers to pay needless processing costs. People whose applications are rejected are entitled to a review of their cases by an administrative law judge, and the administrative courts have a huge backlog.

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Our client, a window coverings salesman, began developing significant vision loss in November 2006 and approached Attorneys Dell & Schaefer for assistance in applying for long-term disability benefits with Unum. His policies stated that he would be entitled to benefits for the rest of his life if he were totally disabled prior to his 65^th birthday or if he qualified as totally disabled under the “Presumptive Total Disability” provisions of his polices. The policy defined total disability as “inability to perform the substantial and material duties of your occupation.” Through the efforts of Attorneys Dell & Schaefer, our client will now receive total disability benefits for the rest of his life.

Finally, in January 2009, Unum accepted liability for the claim, acknowledging that our client had suffered total and irreversible loss of his vision, and had been blind as of April 30, 2007. These two determinations by the insurance company mean that our client will receive total disability benefits under the terms of his three policies for the remainder of his life. 

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Pamela A. Ray, an attorney, was insured under a UNUM disability policy. A Denver trial court ruled recently ruled in her favor that working in a large office building was a material duty of a disability claimant’s occupation as an attorney specializing in major real estate, oil and gas and mining transactions. The court determined that UNUM Life insurance Company of America’s denial of benefits was arbitrary and capricious.

On appeal the 10^th Circuit reversed and remanded with instructions for the District Court to apply the de novo standard of review and to consider new evidence. In affirming the Circuit court ruled that the District court did not err in finding that working in a large office building environment was material duty of the plaintiff’s occupation. The majority noted that working from home was not an effective alternative and that her practice was not easily transferable to another firm. Even if the plaintiff could find equivalent work it would most likely be located in a large office building environment, therefore she is totally disabled.

Pamela A. Ray v. UNUM Life Insurance Company of America, Nos. 05-1284, 05-1420, 10^th Cir,; 2007 U.S. App. LEXIS 7234)

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Larry Mack claimed that he is totally disabled from his occupation as a marriage and family therapist due to diabetes. He sued his disability insurer, Unum Life Insurance Company, after being denied his claim for long-term disability benefits. Unum argued that Mr. Mack is not entitled to long-term benefits because he did not receive “appropriate care” as required by his policy. Mr. Mack admitted to not seeking help from his internal medicine doctor for long periods of time but argued that during these months he was “self-treating” his diabetes by taking Glucophage daily and by monitoring his diet.

The court said such “self-treatment” does not meet the policy requirement that the claimant be under medical treatment in order to receive benefits. The court reasoned that Mr. Mack failed to abide by the standard of care his internal medicine doctor prescribed for diabetic patients, U.S. Judge Linnea R. Johnson granted partial summary judgment to Unum.

Larry B. Mack v. Unum Life Insurance Company of America, No. 06-80308, S.D. Fla.; 2007 U.S. Dist.

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Nancy Mikrut, a pediatric nurse practitioner for Danbury Health Systems, was insured under the company’s group disability plan administered by Unum Life Insurance Company of America. In 1999, Ms. Mikrut was injured in an automobile accident and was unable to return to work due to severe back pain. In January 2000, Ms. Mikrut was diagnosed with spinal stenosis and filed for long-term disability benefits. After an intradiscal electrothermal therapy, Ms. Mikrut has a second surgery in March 2001.

After 24 months of benefits, Unum re-evaluated Ms. Mikrut’s claim. Without meeting her, a Unum medical consultant found Ms. Mikrut capable of full-time sedentary work. In August 2002, Ms. Mikrut’s treating physician told Unum that she was disabled from any occupation in which she had to bend, lift, pull, sit, or stand for periods of time. Unum terminated Ms. Mikrut’s benefits and she filed suit, seeking benefits under the Employee Retirement Income Security Act.

U.S. Judge Stefan R. Underhill of the District of Connecticut found that Unum failed to account for subjective complaints of pain and the treating physician’s opinions before terminating Ms. Mikrut’s benefits. The judge ruled that Unum did not adequately consider an award of benefits by the Social Security Administration. Judge Underhill held that Ms. Mikrut is eligible for continued long-term disability benefits under the plan since she is unable to perform the duties of any gainful occupation. While Unum is not required to credit treating physician’s opinion over other evidence, Judge Underhill stated that Unum cannot “arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of treating physicians.”

Nancy P. Mikrut v. Unum Life Insurance Company of America, No. 3:03cv1714, D. Conn.; 2006 U.S. Dist.

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