UNUM Cases Throughout the United States - Exploring and Dissecting UNUM's Handling of Disability Claims

Welcome to Season 4, Episode 9 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "UNUM Cases Throughout the United States." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses UNUM, one of the disability world's most prominent carriers. UNUM, much like its competitors, does not make it easy for disability policyholders to get the benefits they paid for, and deserve. In this episode of Winning Isn't Easy, host Nancy L. Cavey walks through a number of cases with variations in location and cause of disability, but one commonality - in each, the policyholder fought against UNUM. This episode will show you firsthand how vicious UNUM can be when it comes to protecting their bottom dollar. Even if you're not with UNUM, this episode will show you tactics that are commonplace amongst disability carriers when it comes to denying claims.

In this episode, we'll cover the following topics:

1 - Lack of a Diagnosis and Ability to Work in Other Medical Facilities Dooms Urgent Care Physician’s Claim for UNUM Disability Benefits Based on Multiple Chemical Sensitivity

2- Vertebral Compression Fracture and Wedging Claim Denial by UNUM Overturned by Federal Judge 

3 - UNUM’s Claim That Policyholder’s Back Pain Was Out of Proportion to the Evidence of Radiculopathy on Exam Reversed by Federal Judge

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Transcript

Speaker A [00:00:11]:
 Hey, I'm Nancy, KV, national ERISA and individual disability attorney. Welcome to Winning isn't easy before we get started, I've got to give you a legal disclaimer. This podcast isn't legal advice, but I will tell you that nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. This episode's topic is unum. And Unum, much like other disability carriers, has a history of arbitrarily denying disability claims. If you've got a policy through Unum, this is the episode for you because this will give you insight as to the games that Unum will play with various types of claim. I'm going to be telling you about four stories that I think illustrate the games that unum play.
 
 Speaker A [00:01:03]:
 But if you don't have a unum disability policy, don'tune. Out. These are also games that other disability carriers will play. It's in the disability carrier denial handbook. First, I'm going to start with talking about the five reasons that Unum used to justify denying a long term disability claim by an emergency room physician with breast cancer. Second, I'm going to talk about how the lack of diagnosis and the ability to work in other medical facilities doomed an urgent care physician's claim for unum disability benefits based on multiple chemical sensitivity. Thirdly, I'm going to talk about a vertebral compression fracture and wedging claim that was denied by unum and ultimately overturned by a federal judge. And last, I'm going to talk about Unum's claim that a policyholder's back pain was out of proportion to evidence of radiculopathy on exam was reversed by a federal judge.
 
 Speaker A [00:01:57]:
 Let's take a break for a moment before we get into this exciting episode about Unum.
 
 Speaker B [00:02:03]:
 Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:02:24]:
 Welcome back to winning isn't easy. You're ready to get started. I'm first going to talk about the five reasons that Unum used to justify denying a long term disability claim by an emergency room physician with breast cancer. Emergency room physicians are on the front line every day dealing with at a high level of cognitive, emotional and physical demands. So what does a disability carrier like unum do when the policyholder is diagnosed with stage four metastatic breast cancer. Often unum will wrongfully deny a claim and force a physician into stressful and needless litigation. That doesn't have to be a physician. They don't seem to have a lot of sympathy with breast cancer claims.
 
 Speaker A [00:03:06]:
 And that's what happened in the case of Kaiserman versus unum life. Now, Dr. Kaiserman, who was in the state of Washington, was an emergency room physician at Harbor View Medical center. She was diagnosed with stage four metastatic breast cancer. There's a 27% survival rate at five years. The cancer had metastasized to her liver and to her ribs. She took a full year of medical leave, and she underwent chemotherapy, a lumpectomy, hormone treatment, and even a liver ablation. A year later, with the approval of her oncologist, Dr.
 
 Speaker A [00:03:41]:
 Kaiserman returned to work in the emergency room on a 50% schedule with no night shifts. I think that was amazing. Now, Unum paid a year of residual disability benefits based on her reduced hours and then terminated her benefits, saying, you can now work full time. So what were the five reasons that Unum gave to justify this claims denial? I find that they often will create reasons to justify claims denial, and this case is no exception. So, Unum first said that your emergency room physician job is a light duty job. Secondly, they said that the treating oncologist improperly created reasons to restrict Dr. Kaiserman to part time work after the denial, notwithstanding the fact that Unum had accepted the part time restrictions assigned by the treating physician and had paid Dr. Kaiserman residual benefits.
 
 Speaker A [00:04:39]:
 Talk about talking out of both sides of your mouth. Number three, unum improperly argued that exercising, doing yoga, or vacationing with her family was inconsistent with her complaints of fatigue. Unum improperly ignored the known side effects of treatment. And lastly, Unum ignored the obvious immunological issues that arise with working in an emergency room setting and certainly in the age of COVID Fortunately, the federal judge threw out all these bogus reasons and found that Dr. Kaiserman was entitled to her unum benefits. But let's talk about the lessons that were learned in this case. And I think there are five lessons that were learned. First, it's not uncommon for disability carriers, including unum, to misclassify or mischaracterize your occupation.
 
 Speaker A [00:05:31]:
 So don't be afraid to challenge that. Now that will require that you or your lawyer hire a vocational evaluator. Secondly, you want to make sure that your medical records and the attending physician statement forms your doctor completes, document your symptoms, how those symptoms interfere with the material and substantial duties of your occupation and why, for example, you can only work part time. Thirdly, I think you have to explain why personal activity isn't the same as your occupational duties and the price that you pay for those personal activities. Number four, you should document the side effects of the treatment and give examples of how the side effects may impact the material and substantial duties of your occupation. So, for example, in breast cancer cases, it's not uncommon to go through chemotherapy and radiation therapy. There can be serious side effects from that treatment, including fatigue, but you can see cases of tingling and numbness in people's fingers and hands. Now, if you're in the emergency room and you have difficulty using your hands, that can be a big problem.
 
 Speaker A [00:06:37]:
 And lastly, you should get an affidavit from your oncologist about your immunological issues with supporting medical literature that explains why you have these immunological issues and why working in a particular environment is inappropriate for you. All right, I hope you have learned the five reasons that disability carriers like Unum will use to justify a claims denial and more importantly, the five lessons learned from this case. Let's take a break. Welcome back to winning isn't easy. Let's talk about how the lack of a diagnosis and ability to work in other medical facilities dooms an urgent care physician's claim for unum disability benefits. Because of multiple chemical sensitivity. A disabled policyholder or plan beneficiary has the burden to prove that they're disabled as required by the terms of the policy or plan. And I'll be frank, that can be very hard to do in a multiple chemical sensitivity claim.
 
 Speaker A [00:07:57]:
 What is multiple chemical sensitivity? Well, it's an unrecognized and controversial diagnosis. It's characterized by chronic symptoms attributed to an exposure to low levels of commonly used chemicals. Unfortunately, the symptoms are vague, they're nonspecific, and they can include things such as fatigue, headaches, nauseousness, and dizziness. There are several theories that explain the cause of multiple chemical sensitivity, and that can include allergies and even neurobiologic sensitization. Nonetheless, there are terms in a disability policy or plan that are going to be in play in a MCS claim, and these policy or plan terms can make it even more difficult to get your disability benefits. Let's start out with a common definition of disability. It's the inability to perform the material and substantial duties of your regular occupation because of sickness or injury. Now, this definition, in my opinion, has two key terms.
 
 Speaker A [00:09:00]:
 The first term is material and substantial duties and the second is sickness. A disability carrier is going to start their analysis of the claim by determining whether you have a sickness which is commonly defined as an illness or disease. Now, continuing on this line of thought, disability carriers will dispute the diagnosis of multiple chemical sensitivity as not even existing, but certainly not being the equivalent of an illness or a disease. It can be particularly hard to prove that one has an illness such as sick building syndrome or multiple chemical sensitivity. Often there aren't any objective findings for the physical reaction to workplace exposures. You could be exposed to cleaning agents, fragrances, chemical irritants, sanitizers, pesticides. And I will tell you that's a particular problem because I happen to be allergic to substances like colognes and certain types of detergents. When tested by my allergist, my testing is normal, but if someone comes into my office wearing perfume, I can lose my voice.
 
 Speaker A [00:10:10]:
 In fact, it's so bad, we tell people not to come into my office if they are wearing perfumes, colognes, or that sort of thing. The problem, of course, is that multiple chemical sensitivity isn't even recognized as an illness by some physicians. And many disability insurance companies have physician papers that dispute the legitimacy of MCs and the diagnosis of MCs. Now, as I've said, one of their first lines of defense is going to be, you don't meet the policy definition of sickness or illness. But the second line of defense is the inability to perform the vocational demands of your occupation. What the carrier says is, look, you've got the burden to prove that you don't have the capacity to perform the material and substantial duties of your occupation. And we're going to question whether you could perform those occupational duties with a different employer in an environment without the exposure to the chemical irritants, or whether there is some other reason why you can't work in a different kind of environment. Now, if they can show that you can work in a different environment, that maybe a different location, a different employer, they're probably going to deny the claim.
 
 Speaker A [00:11:31]:
 And that's going to be particularly true if the policy definition of occupation is the inability to perform your occupation as it's normally performed in the national economy instead of how you perform it for a specific employer or a specific location, because generally that's the problem. It's generally something that's at the workplace environment that is a trigger. And if this definition is in play, you're going to have a much more difficult time in getting your benefits. The disability carrier or the plan administrator is going to take the position that it doesn't matter what you're exposed to at your employer's place of business or your reaction to that environment, because that's not the standard definition of occupation. In other words, the work environment is not materially insubstantial to the duties performed in your occupation. Now, the plan or policy may not require under the definition of occupation that you perform your duties at a particular location or in a specific environment. And if that's the case, the courts are going to bite on this argument that disability carriers make, and they will uphold a denial of an MCS claim. That's exactly what happened in the case of McFarland versus unum life.
 
 Speaker A [00:12:49]:
 This is another Washington state case. McFarlane worked as an urgent care physician, rotating among various facilities. He had specific reactions at just one of their medical facilities. His physicians didn't really give him a diagnosis, even went so far to say that, look, he could practice medicine so long as he avoided exposure to chemical irritants. He filed a claim, and of course Unum denied the claim on the basis that there was no diagnosis and no proof that he was unable to perform his occupation as that term was defined in the plan. Of course, this case ended up in court, and the judge upheld denial on the basis that McFarland could in fact, did practice medicine, so long as he limited his exposure to chemical irritants and avoided certain facilities. The judge also noted that the building in question had been tested for air quality in past, and that didn't help McFarland's case. So you can see how difficult chemical sensitivity cases or sick building syndrome cases can be.
 
 Speaker A [00:13:54]:
 You've got to look to the terms of the policy, the definition of sickness or injury, and certainly the definition of occupation. Let's take a break.
 
 Speaker B [00:14:04]:
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 Speaker A [00:14:40]:
 Welcome back to winning isn't easy. Let's talk about a vertebral compression unim claim and what one federal judge did. In my many years of practice, I have learned that one of the most painful back injuries is what's called a compression fracture of the spine. Now, this can result in wedging of the vertebral bodies. I kind of think of this as a stack of Oreo cookies. The cookie is the vertebral body, the cream is the disc. And so when you have a compression fracture, sometimes the cookie, if you will, will move and will wedge. That's going to result in loss of the vertebral height of the vertebral body and the bone of a spine can collapse and wedge.
 
 Speaker A [00:15:23]:
 The spinal bone can also fracture and fragment. So think of the cookie fracturing and fragmenting. This is known as retropulse fragments. And these fragments can be displaced into the spinal canal, potentially causing a spinal cord injury. Very, very painful. Now, in an analysis of a vertebral compression fracture claim, I always want to start with what's the common cause and symptoms? The common causes are due to trauma, like ejection from a car, an ejection seat, or something simple, if you will, as osteoporosis, tumors, or even infections. What are the symptoms that can be disabling? Now, this is key. It can include the back pain, the loss of height and a hunched forward posture.
 
 Speaker A [00:16:11]:
 And it isn't unusual for the pain to increase with repetitive back motion. Walking, standing and even static sitting. And all of those positions or activities can result in a disability insurance claim. Now, while treatment can include medication and injections, there is the more radical surgery of bone replacement surgery. But that isn't even an option when there are bone fragments that can be pushed further into the spinal canal or compress the spinal nerves. So ultimately, the treatment at best is palliative. It's not curative unless you have this radical surgery. So this is something you're going to be living with quite some time, with a lot of pain.
 
 Speaker A [00:16:53]:
 Disability carriers, when they get a vertebral compression fracture claim, is going to start their analysis by looking at the type of work the policyholder or plan beneficiary did, when and why they stopped working, what was the treatment and the response to the treatment? Now, if the medical records are silent on the nature of your symptoms, when you stop working, what symptoms cause you to stop working? You're in trouble from the very beginning, and the carrier will deny the claim or they'll even get an IMe to help justify the claim's denial. I promise you that an IME, which I call an insurance medical evaluation by a liar for hire, is for the purposes of denying a claim and saying that you can return to work. I think it's really crucial in a vertebral compression fracture claim that you get something called a functional capacity evaluation as part of the claim, and certainly to get it if the claim is denied because you've got to rebut the liar for hire doctor if your physician refuses to fill out an attending physician statement form or you have to undergo a liar for hire insurance medical evaluation, that's not favorable. One way to combat these problems is to get that functional capacity evaluation. It's going to measure your functional status. In other words, how long you can sit, stand, walk, stoop, bend, how much you can lift. Now, functional capacity evaluations, I think, are the gold standard for determining a person's functional capacity. In fact, here in the 11th Circuit, courts recognize FCE as being sort of the gold standard test.
 
 Speaker A [00:18:32]:
 But one of the new arguments the disability carriers are making is that the functional capacity evaluation isn't time relevant, notwithstanding the fact that their own ImE isn't time relevant. What do the courts do with this argument? Let me tell you about the case of Boykin versus unum life, which is a California case. The court noted that Boykin had the burden of proof to establish that he met the standard of disability. Nothing new. But in this case, Boykin had returned to work after sustaining a compression fracture in a motor vehicle accident. He worked for almost eight months with increasing back pain and leg pain, as documented in his medical records. Now, Unum, of course, in their indubitable fashion, didn't get those medical records, and the judge wasn't impressed with this. But ultimately, when his claim was denied, Boykin got a functional capacity evaluation, which Unum said, too bad, so sad.
 
 Speaker A [00:19:25]:
 It's too late. We're not going to look at it. The court said, oh, not so fast. Unum noted that the FCE provider's observations were the same as the treating physician's observations, and the court held that the FCE was, in fact, time relevant because of the consistency in the medical records. Those records showed a progression of the symptoms and a lack of response to medical treatment. And you can see that the FCE can be a crucial piece of evidence in winning and keeping your disability benefits in a vertebral compression fracture case. Let's take a break. Welcome back to winning isn't easy.
 
 Speaker A [00:20:25]:
 Let's talk about another defense tactic, if you will. It's a tactic that disability carriers like Unum will use from their toolbox, and it's the argument that your back pain, or whatever pain you have is out of proportion to the medical evidence. And in this case, we're going to talk about a unum claim, an argument that the policyholder's back pain was out of proportion to the evidence of radiculopathy on examination. Now, that's the common sort of they're out of proportion, exaggerating their symptoms and functionality type argument. Many times, disability carriers will get away with this argument because a disability plan or policy has a get out of jail free card that grants the administrator or the carrier the discretion to determine whether or not you're disabled. It can be extremely hard to legally prove that a disability carrier has abused their discretion in denying a claim, and as a result, this get out of jail free card, this arbitrary and capricious standard of review, is used to not only justify a denial, but to convince the court that the court shouldn't and can't reverse the denial. Now, that's not necessarily the case. If the ethical standard of review is what's called a de novo standard of review, that's the best standard of review you can get.
 
 Speaker A [00:21:46]:
 And that means that the federal judge can substitute their judgment for that of the disability carrier. So let me tell you what happened in the case of Chico versus first unum. This is a New York case. Ms. Chico was a tax accountant, and in 2013, she started to have fatigue, weakness, and body pains. Her diagnosis from her doctors was fibromyalgia and radiculopathy. She tried all sorts of treatment, and she attempted to return to work, but by 2019, she just couldn't do it anymore. So she stopped work, and she applied for disability benefits.
 
 Speaker A [00:22:20]:
 Utum reached into their denial toolbox and said, okay, her reported pain is out of proportion to the evidence of radiculopathy on examination, and we think she can work. Therefore, we're denying the claim. They even suggested that if she was in so much pain as she claimed, her treatment would be more extensive and her abilities at home would be more limited. Well, fortunately for her, the judge was able to apply the de novo standard of review. The judge looked at the medical records, looked at her reports of her activity, and said, look, the subjective and the objective medical evidence support her claim. Her treating physicians think she's disabled. And of course, the judge noted that every one of Unum's liar for hire doctors who had never examined her discounted all of the relevant medical records. The judge said, oh, no, and basically said, you are wrong, Unum.
 
 Speaker A [00:23:18]:
 You've got to pay these disability benefits. And that was a great win for Ms. Chico. You need to understand that disability carriers have lots of tools in their toolbox to deny a claim. And if the carrier, like Unum, says, hey, the physical findings are out of proportion, I'm sorry, your pain is out of proportion to the physical exam findings, then it's time for you to, in my view, hire an experienced ERISA disability attorney. The attorney should be reviewing your medical records to see what the report of your difficulties were to your physician and what you reported on your activity of daily living. Your attorney should be looking at the exam findings and if those exam findings are minimal, consider getting what's called a functional capacity evaluation to objectively measure how your pain impacts your ability to function. We want to get out of the weeds by arguing that the issue is how the pain impacts functionality, not whether or not it's out of proportion to the evidence of radiculopathy or other findings on exam.
 
 Speaker A [00:24:30]:
 And I think that's important because the severity of findings on examination are not consistent generally with the level of functionality. People experience pain in different ways. Some people will muscle through the pain, some people won't muscle through the pain. But I think all of that's relevant. And if necessary, you should consider getting your own independent medical evaluation by a consultant who can evaluate the physical findings on exam, conduct their own findings, take apart the disability carrier liar for higher peer review analysis of your medical records, and endorse the functional capacity evaluation. You can see there's a lot of work that goes into filing a disability claim and certainly overcoming a wrongful claim denial in the appeal process. I hope you've enjoyed this week's episode of Winning isn't easy. If you've enjoyed this episode, please consider liking our page, leaving a review or sharing it with your friends and I would love it if you subscribe to this podcast.
 
 Speaker A [00:25:30]:
 By the way, I want to let you know that our 2022 KVLAW scholarship is up and running. We're taking entries until August. I want you to head over to kvlaw.com scholarships to enter or certainly tell any high school student about this scholarship or college student because we want to support people in their educational efforts. I hope you tune in next week for another insightful episode of winning isn't easy.