A recent decision from the United States District Court for the Middle District of Tennessee established strong arguments in support of total disability for an OB/GYN suffering from an injury to her right index finger. In Nylander v. Unum Life Insurance Company of America (Unum) the Court was tasked with ruling on a Motion for Summary Judgement filed by Unum in which Unum was asking the Court to dismiss Dr. Nylander’s claim for total disability benefits. For reasons discussed below the Court denied Unum’s motion and in doing so allowed Dr. Nylander’s claim for total disability to proceed through to trial.
There are certain legal factors that must be determined by a Judge when entering a ruling on a Motion for Summary Judgment, the most important being a determination as to the existence of a material issue of fact for a decision maker (Jury) to consider. This article will focus on the factors that the Court deemed were sufficient to establish a material issue of fact in Dr. Nylander’s claim for total disability benefits that resulted in the case not being dismissed. It should also be noted that Dr. Nylander’s disability insurance policy was an Individual Disability Income/Insurance (IDI) policy and not an employer provided group disability policy governed by ERISA. As such Dr. Nylander has a great deal more rights as it relates to trial- including a jury trial, live testimony, the ability to take depositions, etc.
Dr. Nylander applied for disability benefits under her Unum policy as a result of an injury she suffered while performing a surgery, which resulted in the tendon of her right index finger being severed. Dr. Nlyander underwent treatment, was eventually cleared by her doctor to return to work, and did in fact return to working in her full capacity as an OB/GYN. However, during a surgical procedure she experienced complications stemming from her finger injury that convinced her that she would pose a potential risk to the safety of her patients if she were to continue performing surgeries. Dr. Nylander in turn resumed her claim for total disability benefits with Unum on account of the fact she was ceasing surgical duties.
Although Dr. Nylander was claiming total disability due to her inability to perform surgical duties, Unum’s review and subsequent Motion for Summary Judgement was directed at establishing that (1) Dr. Nylander was not disabled, and (2) that if she were disabled, she was not totally disabled, but rather at most only residually disabled. During the course of its review of her claim for benefits Unum subjected Dr. Nylander to an Independent Medical Examination (IME) to determine functional limitations on account of her right index finger injury. Unsurprisingly, Unum’s IME doctor determined there was no objective medical evidence to support Dr. Nylander’s position that she would be precluded from performing surgery. Unum in turn denied Dr. Nylander’s claim, a lawsuit was filed, and Unum filed a motion to have her case dismissed.
The Court addressed two main factors in denying Unum’s motion to dismiss the case: (1) what constitutes a “material and substantial” duty and (2) the requirement for objective medical evidence when a policy does not require such evidence in order to receive benefits. These issues arise quite often in disability claims for medical professionals, including dentists, where there is a combination of job duties and billing codes for surgical and non-surgical duties.
The issue of what constitutes the “material and substantial” duties for a doctor is always a point of contention with disability insurance claims for medical professionals and this case proved to be no different. As an OB/GYN not all of Dr. Nylander’s occupational duties consisted of performing surgery. Unum argued that based on its analysis of her pre-disability CPT billing that it did not believe the ability to perform surgery was a substantial and material duty of Dr. Nylander’s practice leading up to her injury, and therefore the inability to perform surgery did not constitute a total disability. However, during the course of the court action, Dr. Nylander was able to establish that 20-25% of her actual time and 5-9% of her CPT billing codes was related to performing surgical procedures and that despite a minority of her time being devoted to surgery, 40-50% of her revenue was derived from the surgeries performed. As such, Dr. Nylander argued that surgery was a material and substantial duty of her occupation due to the revenue it generated. The Court sided with Dr. Nylander on this issue, and in its opinion it quoted existing case law:
[T]ime spent is not necessarily the only consideration. For some occupations, a few activities that do not take up very much time might be so exceedingly important that they determine an individual’s ability to engage in the occupation.
Essentially, the Court’s focus on how the loss of the ability to perform what may seem like a minor part of one’s duties (from a time perspective) could result in a significant loss of income that could render an insured totally disabled under a policy as opposed to being deemed residually disabled.
The Court also addressed Unum’s requirement of “objective” medical evidence of disability that Unum insisted was lacking when it denied Dr. Nylander’s claim. The Court noted that:
[W]hile Dr. Nylander’s complaints may have been generally subjective in nature, she had particularized knowledge from decades of experience in the practice of gynecology and surgery that reasonably enable her to evaluate whether her injury affected her ability to manipulate surgical tools and tie sutures (and thereby prevented her from safely performing surgery).
The Court determined that on account of same, along with medical evidence before it, that the IME report of Unum’s doctor (which found no objective evidence of impairment) was not dispositive of the matter and that the difference in medical opinions was enough to create a genuine issue of material fact that was for a jury to decide. The Court also went one step further and commented that Unum’s assertion of a requirement of objective medical evidence to secure disability benefits created a requirement that was not found within the policy and to require same would effectively and inappropriately rewrite the language of Dr. Nylander’s policy.
As noted, the Court’s denial of Unum’s motion does not mean that Dr. Nylander has “won” her case – only that there is enough evidence in dispute for a jury to decide and as such the case should not be dismissed. Regardless, this is a great victory not only for Dr. Nylander but also for other medical professionals who find themselves in similar situations when it comes to determining ones occupational duties and the abilities to perform same.
Our office did not represent Dr. Nylander in her claim with Unum, but we have argued the same points on behalf of our clients to multiple insurance companies. If you are a medical professional thinking about filing for disability, or on disability and have questions about your policy or how your carrier is evaluating your claim please feel free to contact our office for a free consultation.