Disability Insurance Attorneys Dell & Schaefer has represented policy holders when the disability insurance company denies a claimant benefits who has been on claim for many years. Insurance companies often deny claims even when the policy holders claim file is absent any evidence that there’s been any improvement in their condition.

GREG DELL: Hi, I’m Greg Dell, here with attorney Victor Peña. And, Victor, you brought a case to my attention that just came out recently out of the Circuit Court of Appeals for the 1st Circuit, which covers cases out of Massachusetts. I’m always intrigued by the cases where the disability insurance company denies a claimant that had previously been on claim for nine years and the thought process to say, outside of some video or some doctor saying the claimant’s better, did they find the cure to this person’s disease or did they just get that much better after nine years at their back?

So I know this was a claim against Unum, the world’s largest disability insurance company, and we see tons of denials from them. We’ve handled well over 1,000 Unum cases. But what was significant about this particular case that ended up being a reversal of the Unum denial and a victory for the claimant?

VICTOR PENA: Right, well, like you said, you see some patterns. So Unum’s one of those insurance companies that you see a lot of that with. So you see them on claim for a long time, then somehow they find a reason, after paying this claimant for so many years for this condition and then absent any evidence that there’s been any improvement in the condition, Unum still finds a way to cut them off. So that’s what happened here.

There were two policies at play. So there were few things that the claimant benefited from. There were two policies, both on were handled by Unum. There was a group, ERISA, government employer sponsored disability policy through them. And then she also had an individual policy through Provident Life, which is a subsidiary of Unum.

So they paid her for nine years for fibromyalgia and depression. She had symptoms from both of those conditions. At some point, they did an independent medical evaluation, so they had a doctor see her. There was some dispute as to the length of the evaluation. She’s claiming it was only a few minutes long. But either way, this doctor saw her in person and basically concluded that, yeah, these diagnoses are supported, but absent findings of abnormalities in the medical records of this condition, then she can do sedentary work. So they cut off her benefits after nine years based on that. She went through the appeal. Actually, she was unsuccessful, and then she ended up filing a lawsuit in Massachusetts.

So another one of the benefits, I think because she had an individual policy, that they were able to introduce some additional evidence, both were handled by the same insurance company, so I know there were some depositions – interrogatories that went around. So I think that that likely also helped her in the ERISA case, just because both of them were handled by Unum.

But also, the court was able to employ a de Novo standard review when they review the case. So unlike a lot of cases where we find that the insurance company gets the benefit of the doubt, they get arbitrary and capricious standard of review, they didn’t get that benefit here. So what the court touched on were two major issues here that we don’t see. They’re often contested, but we don’t see courts really go into detail.

So our conditions are fibromyalgia, which is a condition that’s based primarily on subjective complaints. There’s a lot of conditions like that insurance companies don’t like paying benefits for. So what the court stated was that it’s unreasonable for an insurance company to require objective proof of conditions that are primarily subjective in nature. So while claimant’s still required to provide objective proof that they’ve got physical limitations that result from whatever symptoms they may be having from these conditions, the insurance company can’t require objective proof of the actual condition itself.

So what claimants are able to do is, conditions like – or evidence like subjective complaints, while it’s tough to prove, it’s still something that the insurance company, they’re not allowed to ignore. So when there’s a significant amount of subjective complaints that’s corroborated by the doctors, that’s something that they have to take into consideration.

But also, one thing that was huge in this case was her treatment history. So her medical records, her level of treatment, the court found it unreasonable that, basically, Unum would look at this and say – expect her to have undergone all of this treatment, taking all of these drugs, very heavy medications, just to seem credible and just to get disability benefits. So that really weighed heavily there and weighed into their decision.

GREG DELL: So basically, the court was saying while you can’t produce subjective evidence of fibromyalgia, we’re going to look at the records and try to see what the – that there’s legitimate complaints, that there’s medication being taken, and that you’re continuing to undergo regular treatment. And so the court basically found Unum’s review to be unreasonable and said, no, we don’t see a reasonable basis to deny the claim.


GREG DELL: Was there a secondary issue in the case as well?

VICTOR PENA: So, yeah, even though they sided with her there, they didn’t leave it there. So they went on to a second issue that a lot of courts differ on, and also a lot of course just refuse to or decline to comment on or have any discussion on whatsoever, which is limitations in policies. So who has the burden of proof when there’s a limitation, where here, she also had a condition of depression, which would fall in a very common 24-month limitation to policy. The policy would only pay two years of benefits if you’ve got depression.

So they found that diagnosis was supported. So when they were reviewing the claim, they had to separate those two, and they did also conclude that her claim would be subject to a 24-month limitation. The court here, they stated that Unum would have the burden to show that this limitation would apply to limit benefits and that they hadn’t met their burden as well.

GREG DELL: OK, so I mean, this is a case where Unum was – why this happened, some new-claim person got on the file, they found a random doctor to review it, and after nine years looked at the record differently than someone else did. And Unum reviews the claim almost every year, and all of a sudden said, you’re better.

And it’s good that often the courts will cut through this clutter and nonsense and be like, look, they’re also like nine years. What changed? And nothing changed. The situations we see where they can support a claim is maybe they got some video surveillance, or maybe some other doctor did something totally different, or some new test came out that shows you don’t really have that condition, not the case with this type of fibromyalgia stuff. So this was a typical strong-arm technique by Unum. Obviously, it didn’t work for them. And it’s good to see that the claimant prevailed and that her benefits will continue for as long as she remains disabled.

So if you have a claim with Unum or any long-term disability insurance company, feel free to give Victor any of our long-term disability insurance attorneys a call. We represent clients in every state, and we always offer you a free immediate phone consultation. We encourage you to call us, and we look forward to the opportunity to speak with you.