More on UNUM, P4

Welcome to Season 4, Episode 41 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "More on UNUM, P4." 

For another 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 UNUM denial tactics and failures. 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 -  Is UNUM Legally Required to Tell You about Medical Evidence in Any Denial or Termination Letter?

2 - Combating and Attacking Common UNUM Failures to Win Your Benefits

3 - Is the Federal Court’s Job in Reviewing an ERISA Disability Insurance Claim to Weigh the Evidence, or Determine if There Is a Reasonable Basis for a Claim Denial?

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://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

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


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Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Nancy Cavey [00:00:15]:
 Hey, I'm Nancy Cavey, National ERISA and individual disability attorney, and I want to welcome you to Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. The Florida Bar association says I have to say this, and now that 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. UNUM is an infamous disability carrier, so much so that this is part four of our More on Unum series dealing with unum. Today I'm going to cover litigation against UNUM as well as some UNUM case stories because I think you can learn many lessons from unum's behavior that are applicable not only to Unum but to other disability carriers. These are the games that disability carriers play. UNUM just is sort of better at it and does it more often than a lot of other disability carriers. So I'm going to talk about three things today.
 
 Nancy Cavey [00:01:22]:
 First, is UNUM legally required to tell you about medical evidence in any denial or termination letter? Two, how to combat and attack common UNUM failures to win your benefits and three, is the federal court's job in reviewing an ERISA disability insurance claim to weigh the evidence or determine if there is a reasonable basis for the claims denial? Let's take a break for a minute before we get started with this episode.
 
 Speaker B [00:01:48]:
 Been 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.
 
 Nancy Cavey [00:02:12]:
 Welcome back. Is UNUM legally required to tell you about medical evidence in any denial or termination letter? Let me give you a little history before I answer that question. UNUM was the subject of a multi state litigation because of its biased claims handling practices and it entered into a multi state settlement agreement in 2004 with the Department of Labor and nearly 50 state insurance regulators. This settlement agreement was subsequently amended and under the terms of the amended settlement agreement, UNUM is legally required to give significant weight to the opinions of the treating providers or attending physicians when that attending physician is properly licensed and the claimed medical condition falls under the attending physician's customary area of practice. Now there is an exception and that is if the opinion lacks support by medically acceptable clinical and diagnostic standards and is inconsistent with other substantial evidence, UNUM does not have to give that Medical opinion significant weight. UNUM has gone so far as to adopt this language in many of its policies and we see them hide behind this in their manner or methodology in denying claims. Now, case law has made it clear that UNUM still has to include specific reasons why the opinion isn't well supported by medically accepted clinical or diagnostic standards and is inconsistent with other evidence in the record. And that's found in a case called Rogers vs Unum Life in a case out of Massachusetts in March of 2024.
 
 Nancy Cavey [00:03:58]:
 So in other words, UNUM simply can't say that they're accepting their liar for hire peer review doctors or IMEs. They got to give an explanation. So let me tell you more about this Rogers case. Rogers was a scientist who was disabled because of physical, autonomic and psychiatric problems. UNUM paid the benefits and then without any medical evidence of improvement, terminated benefits, relying on multiple peer reviewed doctors and an ime. However, when it issued its denial letter, it didn't comply with the settlement agreement or the terms of the policy. The UNUM termination letter explained that its four peer review doctors and IME disagreed with Rogers six doctors and described factors that supported their opinion that Rogers was able to work. Of course, now this case ends up in court and the question is going to be whether UNUM lived up to the settlement agreement that it reached and whether or not it also is living up to the policy terms.
 
 Nancy Cavey [00:05:03]:
 What the judge said was look, generally when evaluating the opinions of attending or treating physicians and the carrier's consultant, the court generally declines to determine how much weight would be given to each opinion because ultimately it's in the discretion of the disability carrier plan to do that. However, the court said in this particular case, this general rule isn't applicable to UNUM because of its regulatory settlement agreement and their adoption of that settlement language in their policy. What the judge did, unfortunately though, was to send the case back to UNUM to redo the denial letter to explain why each attending physician's opinion was either not well supported or inconsistent with the other medical evidence. You know, I don't like remands because that gives carriers like Unum a second chance to get it right, if you will. Because ultimately, again, the general rule is that a judge is not going to second guess the weight that's to be given by the disability carrier of the plan to each medical provider's opinion. But of course, in this case there is this particular exception. So remember, the general rule is that there is no treating physician rule and that disability carriers or plans don't have to give greater weight to the opinion of a treating physician than that of their own liar for hire peer review doctors. In fact, it's often the liar for higher Doctors and their IMEs who have created reasons to allow the carrier to justify his claim, denial or termination.
 
 Nancy Cavey [00:06:36]:
 It's not fair. But that, unfortunately, is the world of disability litigation under the ERISA statute. Got it. Let's take a break. Welcome back to Winning isn't Easy combating and attacking common unum failures to win your ERISA disability benefits. When a disability carrier like Unum wants to deny or terminate benefits, they will aggressively have your medical records reviewed by their liar for hire peer review doctors who are looking for reasons to cherry pick the medical records regarding your symptoms, your complaints, the diagnostic findings, your doctor's opinion regarding your restrictions and limitations. And often then when they are deciding to deny the claim and they write that denial letter or termination letter, they don't really explain why they're doing what they're doing or how they're doing what they're doing, which is often a violation of ERISA regulations. And this gives us a way to combat and attack these inadequate and legally insufficient denial or termination letters.
 
 Nancy Cavey [00:08:21]:
 So what I want to do, obviously, and what you should be doing, is to review that denial letter very closely and outline it. I summarize each reason that they give for the denial because that, in my view, is where the battle plan starts. We always obtain the claims file. Now, the claims file should include everything in the file. Generally it doesn't. And sometimes when it doesn't, we have to write and ask for more information. But what we want to do is look at the claims file. We start out with the claims adjusting notes because that gives us a sense of what they're doing and their reasoning or lack of reasoning.
 
 Nancy Cavey [00:09:00]:
 We also look at every document that is in that claims file and we identify those that are the basis of the denial. We want to take that particular document apart with a fine tooth comb and identify each mistake we think has been made. Perhaps the doctor, the liar for hire doctor, is reviewing an improper summary of the medical records, has cherry picked the medical records, misconstrued the policy terms. But in any event, we're trying to create an outline of those things that we want to attack. It might be that we need to have the statement of your doctor taken or your statement, or we need you to undergo a functional capacity evaluation, or we need you to get a. Or we need rather to get vocational opinion to address issues that have been raised. So there are all sorts of medical and legal Issues that need to be attacked sometimes. For example, the carrier like Unum will use the wrong standard of disability.
 
 Nancy Cavey [00:10:05]:
 They may say, hey, you have to have objective evidence. But that requirement isn't in the policy of the plan. They may misinterpret policy plans and misapply them. We're always looking for case law that will address those kinds of issues. Now, remember, you'll only have 180 days under the ERISA statute to file an appeal, and that appeal is the trial of your case. This isn't something you want to do by yourself. My appeal letters, for example, are 25 to 65 pages long. They are full of medical reports, medical literature.
 
 Nancy Cavey [00:10:42]:
 They're for full of statements, they're full of additional reports, be they vocational reports, FCE reports, Social Security decisions, and of course, they're full of legal argument. So it really takes, I think, a craftsman and an expert in the world of ERISA to be able to review the claims file, review the denial letter, review the policy or plan, and come up with a winning strategy and then to implement that strategy and in a fashion that is persuasive to the disability carrier or plan, because obviously we want them to reverse their decision. And quite frankly, the likelihood that you will make mistakes in trying to write your own appeal letter is pretty significant. And that can doom your case because many times there is only one level of appeal. So you get to do your appeal letter. And if they uphold the denial, you can't do another appeal. You can't add any new evidence, you can't add any new arguments, because only at that point can you file a lawsuit. And the judge is limited to whatever was in that claims file at the time the denial last denial letter or termination letter was issued.
 
 Nancy Cavey [00:11:55]:
 So it's really crucial that you understand the common mistakes that carriers make, identify them, implement a strategy, and write a winning appeal letter. That's just some of the reasons why you should have an experienced ERISA disability attorney represent you if your benefits have been denied or terminated. All right, let's take a break.
 
 Speaker B [00:12:15]:
 Professional with questions about your individual disability policy, you need the Disability Insurance Claim 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 is one you don't want to miss. For the next 24 hours, we are giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order yours today@disability claimsforprofessionals.com.
 
 Nancy Cavey [00:13:15]:
 Welcome back to Winning Isn't Easy Is the Federal judge's job in reviewing an ERISA disability insurance claim to weigh the evidence or to determine if there's a reasonable basis for the claims denial. Unfortunately, it's not uncommon for a risk of disability insurance or plan claims that have been denied or terminated to end up in federal court. Now, I find that most policyholders and plan beneficiaries don't understand the role of a federal judge in an ERISA disability lawsuit. Before I explain this, I want to contrast the role of a federal judge with that of a state law judge. If you bought your insurance policy through an independent agent, or if you have a plan that is a church plan, or you got your benefits through your employer who is a state or municipal agency, most likely that claim is not going to be governed by the ERISA statute. And that's great news for you. If your benefits are denied or terminated, you can file a lawsuit in federal court alleging that there's been a breach of contract and a breach of fiduciary duties that the carrier or the plan owes to you. These claims are heard by a judge or by a jury.
 
 Nancy Cavey [00:14:35]:
 Now, if you decide to have a judge decide your claim, then the judge becomes a trier of fact and plays an important role in the case. The question for the judge, or better yet, if you choose a jury, is whether or not the disability carrier plan breaches contractual and fiduciary obligations to you and if so, what are you owed? Now, you also, by the way, can claim interest and cost bad faith damages depending on what state you're in, and even attorney's fees. Now that is, in my view, the perfect world, because on the other hand, under the ERISA statute, there is no jury trial and basically the judge is limited to looking at what was in the claims file at the time of the last denial or termination. Generally, nothing new can be added. And that's why the appeal is so important. You'll have 180 days in which to file an appeal and the appeal is really the trial of your case. So what is the role of the federal judge? I want to give you an example in the case of Galvin Byfernick versus First Unum. It's a case out of Tennessee.
 
 Nancy Cavey [00:15:52]:
 Galvin Byfernick sustained serious injuries as a result of a motor vehicle accident and she applied for and was paid her long term disability benefits until First Unum terminated her benefits. She filed an appeal and ultimately this case ended up in federal court. So the first thing, the very first thing the federal judge had to decide was what was the standard of review that was applicable that would determine the judge's role. There are two standards of review generally in the ERISA world, and they can make all the differences to whether or not you win or lose. The first, and the one I love the most, is the de novo standard of review. The federal judge finds that they're not bound by the denial and they can make their own independent decision about whether that termination or denial was right. But the more common and less friendly standard of review is called the arbitrary and capricious standard of review. If the plan or the policy gives the disability carrier or plan discretionary authority to determine the eligibility for benefits or to construe the terms of the plan, the benefit determination is reviewed under the arbitrary and capricious standard of review.
 
 Nancy Cavey [00:16:58]:
 Now you'll find the answer to which applicable standard of review applies to you is in the disability policy or plan. There's language that will tell us which standard of review it is, and obviously that's something that we want to know right away. I wish I could say to you that arbitrary and capricious sounds like arbitrary and capricious. It isn't. A decision is not arbitrary and capricious if it's possible to offer a reasoned explanation for the decision based on evidence. And there are decision to deny or terminate benefits is a result of a deliberate principled reasoning process and is supported by substantial evidence. Now that sounds great, but in practice it isn't. Courts are going to uphold a denial or termination if they rely on the medical opinion of one doctor over another.
 
 Nancy Cavey [00:17:57]:
 In other words, there is no treating physician rule and the disability carrier plan gets to pick which doctor they rely on. Now I will tell you that arbitrary and capricious can be if the disability carrier or plan ignores key pieces of evidence, they selectively reviewed evidence, they in certain cases failed to conduct physical examinations. In other words, they didn't exercise their rights to an ime. Or they really rely heavily on the non treating physicians and that physicians that they're relying on are not necessarily competent or qualified. So you got to understand that a decision is not arbitrary and capricious just because the carrier plan accepts their liar for hire opinions over that of your treating physicians. Remember, they've created that substantial evidence by hiring liar for hire doctors and they'll do multiple reviews by multiple specialists in an effort to convince the judge that they have actually engaged in behavior that is reasonable, that's appropriate, and that they have considered these well thought out medical opinions that differ from your treating physicians. I will tell you that unfortunately courts rarely look behind this denial game. And they really either don't want to or don't understand the games that disability carriers play.
 
 Nancy Cavey [00:19:27]:
 Like Unum. In creating evidence, I find there's rarely anything that's principled about this process. And because they're creating this evidence, they use the same physicians or peer review companies over and over. There are many doctors who report all you really have to do is change the name of the policyholder and they say the same thing. One of the things that we have done in our practice is to collect the opinions of these common liar for higher doctors and kind of track what they have to say. So that if we have a certain doctor who's been used by the carrier or a different peer review company, we've got a ready made argument attacking these physicians or providers. Because we've been tracking all of this evidence. Does that necessarily mean the judge is going to agree with us? No, not always.
 
 Nancy Cavey [00:20:19]:
 But you need to understand that it is not the court's job to weigh which party's evidence was more credible or reasonable, only to determine if there was a credible basis for the decision. And as could be expected, the judge upheld the denial. The standard review can make all the difference. And so let me give you an example of how it works in the 11th Circuit, which is where we are primarily based, which is Florida, Georgia and Alabama. And I'm going to boil it down to three questions. The standard is a little longer than that. But as I explained to my clients, the first question is does the judge agree or disagree with the decision? If the judge agrees with the decision to deny or terminate benefits, you lose. The next question is whether or not there's enough stuff in the carrier's file that explains why they did what they did, not whether or not the judge agrees with what the carrier did.
 
 Nancy Cavey [00:21:17]:
 But is there enough substantial stuff to justify the claims denial? That is where those liar for hire doctor reviews come in. If the judge says, look, you know, I don't like this decision, but I see that there's enough stuff in the carrier file, you lose, Then what happens is if the judge says, look, I don't like this decision, I don't think there's enough stuff in the file, then the judge has to determine whether the decision that the carrier or plan made to deny or terminate benefits was influenced by their dual role as the decider and the payer. Now, at least in the 11th Circuit, it can be hard to get to this information about bias. Did the liar for hire doctor issue 10 other reports that say the same thing? Did the liar for hire doctor get a bonus? Did the claims adjuster get a bonus? How many times do they use this liar for hire? Dr. There is a case called Howard v. Hartford out of the 11th Circuit that makes it difficult for us to get at this bias. Now, other circuits have different standards of review, but Again, in the 11th Circuit, we have to establish to the judge's satisfaction that the decision is wrong, that it's not justified by the information in the file, and that the decision to deny or terminate benefits was influenced by their bias and conflict based on their dual role as the payer and as the decider. You gotta meet all three or you lose.
 
 Nancy Cavey [00:22:48]:
 So you can see that this standard of review, this arbitrary and capricious standard of review makes it very difficult for a denied or terminated policyholder or plan beneficiary to win. Got it? It all comes down to the standard of review I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please like our page, leave a review, share it with your family or friends, and of course, subscribe to this podcast. This way, you'll be notified every time a new episode comes out. I hope you tune in to next week's episode for another educational and insightful episode of Winning Isn't Easy. Thanks.