More UNUM Cases Throughout the United States

Welcome to Season 4, Episode 31 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "More UNUM Cases Throughout the United States." 

For a second iteration, 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 -  UNUM’s Termination of a Long-Term Disability Claim Paid for Twelve Years on the Basis That the Chronic Migraine Policyholder Was at Maximum Medical Improvement Is Overturned by Court

2 - UNUM Told to Pay $20,000 per Month in LTD Benefits to a Disabled Mergers and Acquisitions Attorney

3 - UNUM Called Out by Court for Using Nurse Consultant Rather than a Qualified Healthcare Professional

4 - Policyholder Triumphs in MS-Related Cognitive Impairment Disability Claim against UNUM

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 [00:00:15]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to winning isn't easy before I get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida Borrow association says, I've got to say this. So now I've said it. Nothing will ever 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. Unum, much like many disability carriers, has a history of arbitrarily denying disability claims.
 
 Speaker A [00:00:54]:
 In fact, they do it so frequently that today's episode is just our second iteration on the topic. Do you have a policy through Unum? If so, listening today's episode will give you insight into Unum's handling of various types of claims. And even if you don't have a Unum policy, you're going to get valuable insight about how disability carriers play the disability denial or termination game. So I'm going to talk about four things today. One, Unum's termination of a long term disability claim paid for twelve years on the basis that carotid migraine policyholder was at maximum medical improvement. Two, Unum is told to pay $20,000 per month in long term disability benefits to a disabled merger and acquisition attorney. Three, Unum is called out by the court for using a nurse consultant rather than a qualified healthcare professional in a claim denial, and policyholder triumphs in MS related cognitive impairment disability claim against Unum it's going to be a information packed full podcast, but before we get started, let's take a quick break. Welcome back to winning isn't easy.
 
 Speaker A [00:02:23]:
 Unum's termination of a long term disability claim paid for twelve years on the basis that the chronic migraine suffering policyholder was at maximum medical improvement. Now, just because a disability carrier approves and pays for a disability insurance claim for years doesn't mean that they're going to continue to do that until the end of the policy period. Unum is no exception. In fact, it's one of the primary offenders when it comes to creating reasons to terminate benefits. So let me tell you the story of Miss Aravani, who was a cosmetic beauty specialist for Saks Fifth Avenue. She became disabled because of chronic migraine headaches and degenerative disc disease. She was paid benefits from 2010 until her benefits were terminated in 2021. That's, you know, practically over ten years.
 
 Speaker A [00:03:16]:
 So what happened was that she was 61 at the time they terminated her benefits, and they justified this claim termination on the basis of the following, that there was convincing evidence of improvement in her medical records. Two, that her doctors were all in agreement she was at maximum medical improvement, and three, notwithstanding her pain, she was miraculously no longer disabled. Now, these reasons were created by a unum liar for higher peer review doctors who ignored, cherry picked and otherwise obfuscated crucial parts of her treating physicians records and opinions. In fact, Unum's doctors never spoke with any of her seven treating physicians. So what did the court do for her benefit? She had the de novo standard of review, which is the best standard of review that you can have. And so the court was not bound by the arbitrary and capricious standard of review and limited in the way it could analyze the evidence. So, using the de novo standard of review, the court disagreed with Unum's conclusion that there was sufficient evidence of improvement. In part, they were taking the position because she was not taking narcotic medication.
 
 Speaker A [00:04:38]:
 Now, just because you're not taking narcotic medication doesn't mean you've improved. And the judge did note that while her doctors agreed she was as good as she's going to get, in other words, at maximum medical improvement, they were still all the opinion that she was disabled because of the permanent restrictions on her ability to sit, stand and walk. So what happened, of course, was that Unum and Unum's doctor cherry picked the records to get the result that they wanted. And in fact, they used two of their favorite doctors. There's doctor Stuart Russell and doctor James Lewis. I see them all of the time in unum denial cases, in denial cases with other carriers. In fact, what I would suggest you do is use Google Scholar and put their names in and see the number of reported cases involving these two doctors. Using these two doctors opinion, Unum justified the termination of benefits.
 
 Speaker A [00:05:36]:
 But in fact, a close review of the medical records documented that she complained of consistent to moderate severe pain, describing her pain at a level of seven at its best, ten at its worst on a scale of one to ten. And as you read or as you read the medical records, the complaints were consistently documented in her medical records. In other words, there was this longitudinal history that was consistent and observed and recorded by more than one doctor. The court found that this was credible. In fact, the judge openly chastised Unum for its failure to explain how her chronic headaches and degenerative condition would improve over time, when in fact there had been no improvement. And in fact, in view of her age, the degenerative changes would expect it to get worse, not better. Thankfully, the court overturned Unum's wrongful denial of benefits and you can see that this is going to be consistent with Unum's approach to disability claims, using liar for hire peer reviewed doctors to back into reasons to justify a claim denial or a claim termination. Got it? Lets take a quick break.
 
 Speaker B [00:06:49]:
 When robbed of your peace of mind by 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 claims process. Request your free copy of the book@kvlaw.com. today.
 
 Speaker A [00:07:34]:
 Welcome back to winning isn't easy Unum's told to pay $20,000 per month in long term disability benefits to a disabled mergers and acquisition attorney. Now again, Unum, like many disability carriers, hates to pay benefits and particularly hate to pay large monthly disability benefits. And in the case of attorney Chung, Unum pulled out the stops in an effort to terminate benefits. Now, by way of history, Chung was insured by two Erisa governed long term disability plans, both insured by Unum. One was the law firm standard group plan and the second was a supplemental policy exclusively for partners. That exclusive policy paid benefits of $20,000 per month. Chung had problems with his neck and upper back with numbness and tingling in his extremities. Obviously, he had to stop work and apply for his benefits.
 
 Speaker A [00:08:32]:
 Interestingly enough, Unum initially paid benefits under both plans, but then decided to terminate only that $20,000 per month benefit under the supplemental plan. Wasn't that a great way to save money? Well, this supplemental policy or plan required that he proved he was unable to perform the duties of his occupation in any capacity, be it full time or part time, to get his benefits. This is part of the game that disability carriers will play, and that is, what's the definition of occupation in the policy or plan? There is no uniform definition, and you actually have to go to each policy or plan and read the definition of occupation because you have the burden, as did Chung, to prove that you're unable to do the material and substantial duties of your occupation. Now, sometimes what will happen is that the policy or plan will say that they're going to be using dictionary of occupational titles definition of a particular occupation for your benefit this dictionary of occupational titles book hasn't been updated since 1991. In fact, the Social Security Administration is no longer using the dictionary of occupational titles in Social Security cases to classify the nature of past work at step four. But I digress, udem. In an attempt to take advantage of the plan definition of occupation used the dictionary of occupational titles. Now, there is no specific definition of a mergers and acquisition attorney.
 
 Speaker A [00:10:09]:
 There's a generic definition of attorney. And so what happened was, you know, Chung says, look, I am a mergers and acquisition partner at a major international law firm. And Unum says, well, wait a second. You're just an attorney. So in other words, Unum was arguing that he had to be disabled from his occupation as an attorney, not as a mergers and acquisition attorney, to be entitled to his benefits under the supplemental plan. Ultimately, the court really has no choice but to agree with Unum because the policy said, you've got our plan said, you have to use the dictionary of occupational titles. However, much like the judges and courts are in Social Security cases, this judge noted that the dictionary of occupational Titles hasn't been updated since 1991. And Social Security judges, even federal judges who hear Social Security cases, and now federal judges who are hearing ERISA disability cases, are beginning to understand that the requirements of attorneys in the national economy has changed since 1991.
 
 Speaker A [00:11:18]:
 In fact, the requirements of any job or occupation listed in the DoT has changed. We've got increased reliance on computers and keyboard usage and pretty significant knowledge based elements of occupations that are overcoming more of the physical nature of occupations. So the argument, of course, is that the DoT is not only outdated and if we're stuck using it, that the way that occupation or job is described has changed so much that you really have to consider the occupation as performed. Now, the court didn't go so far as to agree that Chung should be using the mergers and acquisitions requirements of his occupation. You know, he's a subspecialist, if you will. But what the court did was say, look, we know that the way that the occupation of an attorney is, is being performed these days is completely different than it was in 1991. How many lawyers or any other professional used a computer? How many people used keyboarding? A lot of it was done by dictation that a secretary took, if you can remember that. So what the court did is they looked at the medical records and noted that he was unable to sit at a desk or in meetings for prolonged periods of time or to keep his neck in a static position for prolonged periods of time while looking at a computer screen.
 
 Speaker A [00:12:56]:
 The court also noted that he was unable to type for prolonged periods of time and that his occupation required high level of cognitive demands, including substantial document review, multitasking, and sustaining concentration. And these were required for extended periods of time, even if you were to do that kind of job on a part time basis, even on a part time basis, it required a significant degree of computer use and concentration. But, you know, unum wasn't done playing games. They had it as part of the claim termination game. Have him undergo an independent medical evaluation. Now, disability policies or plans generally permit a disability carrier plan to have an IMe of the policyholder plan beneficiary. But what's not unusual in practice is an IME physician who examines the policyholder or plan beneficiary for a whopping five minutes, ten minutes, maybe even sometimes as long as 30 minutes. But what Chung did was smart.
 
 Speaker A [00:13:57]:
 He brought it to the IME and IME watchdog, who was able to report, report on the length of the examination, the nature of the examination, and comment on what really happened during the course of the IME. Now, there's no doubt that courts will look more favorably on the claims of attorneys than any other occupation, because we all kind of look out for each other, if you will. The court found after a bench trial that unims termination of benefits was wrong and reinstated its benefits and awarded attorneys fees. So what are the lessons to be learned to? So these lessons apply generically, not only to unum cases. If possible, videotape the not so independent medical evaluation. If it isn't possible to videotape the IME, have a third party, preferably a nurse or an occupational medicine provider, attend the examination and prepare a report about the IME. Have your physician examine you the day before the IME, hire a vocational evaluator to attack the use of the dot by discussing the adequacies of the doT and how the occupational duties have changed since 1991, how the occupation is really performed today, and address, from a vocational standpoint, why you couldn't perform the occupation as it is performed today. These are very, very important lessons that I think are applicable to any ERISA disability claim at any stage.
 
 Speaker A [00:15:18]:
 Got it? All right, let's take a break. Welcome back to winning isn't easy. Unum is called out by the court for using a nurse consultant rather than a qualified healthcare professional. Now, disability carriers like Unum have many tools in their denial or termination toolbox, and one of those is to use in house nurses. To summarize the medical records, determine restrictions and limitations, and determine whether the claimant is getting appropriate medical care. Is that permissible? Well, let me tell you the story of Katherine Black, who was paid long term disability benefits until Unum terminated her on the basis that she was magically no longer disabled. She appealed, and ultimately this case ends up in federal court. And she argued that she didn't get a full Farron review required by the ErISA regulations.
 
 Speaker A [00:16:44]:
 She argued that Unum denied her claim based on a medical judgment by a nurse, and it failed to consult with a qualified healthcare professional on appeal. Well, what did Unum do? Well, Unum argued that the denial wasn't based on medical judgment, but it denied her claim because she no longer had any restrictions that prevented her from performing sedentary work. In my humble, but I think correct opinion, that's a rather stupid argument, because the only way the carrier could determine whether the claimant has restrictions and limitations is to consult with the medical providers and consult with their own staff. And in this particular instance, Unum consulted with their nurse, who magically reached a medical conclusion that there were no longer restrictions and limitations. So what did the court do with this argument? In the case of black versus Unum life, the court said, look, Unum's denial is really based on a medical judgment. Unum got updated medical records. They consulted Black's doctors about her medical conditions. They asked her doctors to whether her ability, she continued to have an ability to perform sedentary work, and then had their nurse case manager comment on that, rendering a medical judgment.
 
 Speaker A [00:18:03]:
 So the court obviously saw through this argument. Black also argued that univant violated ERISA regulations, which required a full and fair review of a claim. In other words, Unum is required to consult with a healthcare professional who has appropriate training and experience in the field of medicine. That is the basis of the claim. The ERISA regulations basically then prevent the disability carrier from using the same doctor that they used in the initial denial process during the appeals process. In other words, you know that if a doctor opined that there was no basis for the disability, they really weren't going to change their mind on appeal. So the ERISA regulations prevent this sort of double dipping by using the same doctor on the same question. And in this particular instance, Unum blew that ERISA regulation and once again were chastised by the court.
 
 Speaker A [00:19:04]:
 It's clear the carriers have to consult with a different physician on appeal than the one it relied on in the initial denial. Now, of course, the other issue here was that nurse Abbott, who was Unum's consultant, was a nurse and did not have appropriate training and experience in the field of medicine to address lax restrictions and limitations. And the issue, of course, was that this was problematic because Abbott, the nurse, had done more than just summarize the medical opinions of the treating physicians who were the same physicians who Unum had consulted with when it initially denied the benefits so, you know, they sort of play this both ways. They had the nurse review the records. They had the nurse get information from the treating physicians. She reviewed that information and rendered an opinion, but she was incompetent or qualified to render an opinion since she wasn't a specialist. And of course, the judge agreed. But unfortunately for black, the judge remanded the case back to unum to allow them to sort of fix the basis of the denial, shore up the denial and get it right the second time.
 
 Speaker A [00:20:18]:
 Now, the court's decision, in my opinion, was the correct decision, but sending it back for a redo, I think was a mistake. What do you think Unum's going to do this time? They're probably going to deny it after they clean up all their errors. Got it. All right, let's take a break.
 
 Speaker B [00:20:33]:
 Professional with questions about your individual disability policy. You need the disability insurance claims survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This one you dont want to miss. For the next 24 hours, were giving away free copies of the disability insurance claim survival guide for professionals. Order yours today@disabilityclaimsforprofessionals.com. dot.
 
 Speaker A [00:21:33]:
 Welcome back to winning isn't easy unum policyholder triumphs in MS related cognitive impairment did you know that there are three types of miss that can result in a disability insurance claim? There's relapsing remitting miss, known as rrms. Secondly, there's primary progressive miss. And lastly, there's secondary progressive miss. Many times, disability carriers not only don't understand the different types of miss, they don't understand the disabling symptoms, particularly the symptoms of relapsing remitting miss. Now this is a type of MS where symptoms get worse, followed by periods of recovery. As time passes, the period between the relapses becomes shorter and it becomes more difficult for your body to repair the damage caused by miss. Now, MS will cause many disabling symptoms that can result in a disability claim. But what carriers tend to do is ignore those symptoms and seize on the fact that there are periods of remission and that during those periods of remission, the person isn't disabled.
 
 Speaker A [00:22:39]:
 And so they'll deny the claim, but they continue to ignore the fact that the person, policyholder or plan beneficiary has symptoms. So what are those symptoms? Well, there's visual impairment, and that can include blurred vision, double vision or even loss of vision. There's muscular impairment, and that can include cramping, difficulty walking, an inability to change positions, involuntary movements, muscle paralysis, rigidity, muscle weakness, muscle spasm, stiffness, and problems with coordination. There are also sensory impairments, and that can include a pins and needle sensation, a reduced sensation of touch or a tingling or a burning sensation. There can also be speech impairment, which will include slurred speech and difficulty speaking. There's urinary impairment that can include excessive urination or leaking of urine, the persistent urge to urinate, and even urinary retention. There are tremors, vertigo, pain, and fatigue that can include whole body pain, which obviously can be disabling. The vertigo can cause significant issues with balance and can result in falls that even result in additional injury.
 
 Speaker A [00:23:52]:
 And, of course, fatigue. That debilitating fatigue can just wipe you out both physically and cognitively. There is cognitive impairment that includes difficulty thinking, understanding, concentrating, and staying on task. Now, unfortunately, as I said, disability carriers don't understand rmrs and the disabling symptoms and looking for a way to deny a claim. They're going to seize on episodes of remission. Let me give you an example of how they do that and ignore symptoms. This is the case of Akins versus unum, and it's an example of the denial game. So let's start out with the claims review procedure.
 
 Speaker A [00:24:34]:
 Jeffrey Akins was an equipment manager for Harrison Construction. He stopped working in 2018 because of his rmrs. He submitted a claim and Unum approved his benefits beginning in September of 2018. Under the plan's own occupation provision, Unum reminded him that he would be subject to a continuing review, which is code language that the disability carrier is always going to be looking for a reason to deny or terminate benefits. So in November of 2021, Unum did a review of Aiken's disability status. And guess what? As expected, they determined that he was not disabled from performing his own occupation. He had miraculously recovered, so Unum terminated his benefits. Akins filed an appeal, letters with his doctors testing to his disability and attesting to the results of further testing and the progression of the disease.
 
 Speaker A [00:25:34]:
 And of course, guess what Unum did. They upheld the denial, and Aikens filed a lawsuit in federal court. Let's talk about something that's really crucial to the resolution of these cases by the court, and that's the standard of review. There are generally no trials in an ERISA disability case. The federal judge's decision is based on a legal pleading that each side files with the judge. These pleadings are called a motion for summary judgment, and it's basically where the judge is looking at what was in the carrier's file at the time of the last denial, and both sides are making arguments as to why they're right in making the decision. The judge is going to look to the terms, the disability policy, or plan to determine if they can apply that more favorable standard of review called the de novo standard of review. Now, under the arbitrary and capricious standard, we have to prove that the decision to deny or terminate benefits was arbitrary or capricious.
 
 Speaker A [00:26:31]:
 Now, that sounds pretty easy to do, but every federal circuit in the United States has a different way to interpret it. And in my view, the arbitrarians capricious standard of review is a handcuff on judges that limits their ability to overturn a wrongful denial or termination, even if they think the carrier was wrong. The more preferable standard of review is the de novo standard of review that lets the judge exercise their own independent judgment and reach a fair decision without being handcuffed, if you will, by that arbitrary and capricious standard of review that says, unless you, the judge, find that this decision was arbitrary and capricious, you're stuck with our denial or termination. So, fortunately, in this case, applying a de novo standard of review to Unum's decision, the court found that the record demonstrates that Akins couldn't perform his light work occupation due to his MS and associated symptoms of extreme fatigue and spasticity. Now, these symptoms would have prevented him functioning safely in the workplace, both physically and cognitively. The court noted that his treating neurologists had issued opinions about the impact of fatigue and the spasticity before and after Unum terminated his benefits. The testing supported his cognitive decline, and the court looked at those medical records and then reviewed the Unum liar for hire peer review. Disability carriers, like Unum, justify claims to null or terminations by having liar for hire peer reviewed doctors review records and render an opinion.
 
 Speaker A [00:28:17]:
 In fact, Unum was highly criticized in a multistate attorney general settlement many years ago. They haven't changed their behavior. So what did they do in this case? Well, in this case, instead of having an MS specialist do the peer review, they had a urologist and a retinal specialist. And of course, as expected, both the urologist and retinal specialists said that Aikens wasn't disabled from a urological or a vision standpoint. But what you missed, Washington. The fact that he suffered from other disabling symptoms. He had the fatigue, the muscle spasticity. He had cognitive issues.
 
 Speaker A [00:28:58]:
 He had gait disturbances. And that was the reason that, in fact, Unum had paid the claim to begin with. Unum never addressed those issues or even addressed those issues by the right type of physician. Well, what was one of the other reasons that Unum tried to justify their. I, um, denial. Um, you know, relapsing, remitting, uh, miss, we can lead to the good day, not so bad day type of termination that we see. And that's exactly what Unum did. They tried to justify the termination on the basis of a good day, not so bad day.
 
 Speaker A [00:29:38]:
 So that's a common tool I see in their toolbox. And in this case, UNAMS reviewing doctors opine that his symptoms on a good day demonstrated that he could work on any day. Now, that's a leap, because one good day doesn't make for an ability to perform work the next day or the day after or for an entire week. The court debunked that argument and rejected Unum's termination justification reasons. Now, what did the court do? Well, let's talk about the course decision on Unum's wrongful benefit termination. The court ran a judgment in favor of Aikens and found that Unum had incorrectly terminated his benefits. And that is the right decision and a great decision for Aikens. I hope that you've learned a lot of lessons about how disability carriers will use different tools and different justifications to try to argue that what they did was right, when, in fact, we know that it's wrong.
 
 Speaker A [00:30:38]:
 Wrong morally wrong, ethically wrong legally. Got it? Well, I hope that you've enjoyed this week's episode of Winning isn't easy. Please like this page, leave a review, share it with your friends and family, and subscribe to this podcast. That way, you'll be notified every time a new episode comes out. Please tune in next week for another insightful episode of winning. Isn't.