Unum Exposed: The Tactics Behind Disability Claim Denials

Welcome to Season 6, Episode 25 of Winning Isn't Easy: Long-Term Disability ®. In this episode, we'll dive into Unum Exposed: The Tactics Behind Disability Claim Denials.

Claimants pursuing Long-Term Disability benefits face more than the burden of proving they cannot work, as they must also contend with insurers that aggressively scrutinize medical evidence, reinterpret policy provisions, and use procedural tactics to justify claim denials. In this episode, attorney Nancy Cavey examines how Unum evaluates disability claims by analyzing three recent federal court decisions that reveal common strategies used to challenge claims. By exploring these cases, she explains how claimants can anticipate insurer tactics, strengthen their evidence, prepare themselves, and protect their rights throughout the disability claims process.

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

One - Introduction to 29 CFR and Why It Is Important in ERISA Cases

Two - A Summary of Three Cases, the Games That Unum Tried to Play, and What the Courts Ruled

Three - What ERISA Policyholders Can Learn From These Three Cases

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.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Social Security ®. Give it a listen: https://wiessdpodcast.buzzsprout.com/


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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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 [00:00:00 - 00:00:45]

Foreign. Hey, if you're tuning in today, you're likely in the fight of your life. You're battling a severe medical condition, you're unable to work, and to make matters exponentially worse, your disability insurance company or plan is making you jump through impossible hoops just to get the benefits you you've already paid for. I know you're exhausted, you're frustrated, and you are looking for answers. I'm Nancy Cavie, National Arista and individual Disability Attorney. Welcome to Winning isn't Easy. Before we get started, I've got to give you that legal disclaimer. This podcast isn't legal advice.

Nancy Cavey [00:00:45 - 00:01:27]

The Florida Bar association says I have to say this. Now that I've said that, nothing will ever prevent me from giving you an easy to understand overview the disability insurance world, the games the carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now. Today I'm going to arm you with answers. We're going to take a hard look at a giant in the disability insurance world, Unum. I'm going to expose the specific games they play to deny legitimate claims and we're going to dive deep into three recent federal court cases where they got caught playing these games. And more importantly, I'm going to teach you exactly how to protect yourself and your family.

Nancy Cavey [00:01:27 - 00:02:02]

Now, just because I'm talking about UNUM doesn't mean that these aren't games that other disability carriers or plans play. So you'll learn what I think are the important games and how to protect yourself. I'm going to talk about why 29 CFR is so important in an ERISA disability case. I'm also going to summarize three of the cases and the games that UNUM tried to play and what the court did. And lastly, I'm going to talk about what ERISA policyholders can learn from these three cases. Let's take a break for a moment before we get into this episode.

Speaker B [00:02:04 - 00:02:22]

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Nancy Cavey [00:02:27 - 00:03:27]

The introduction to 29 CFR and why it's important in ERISA Disability cases. Now, before we talk about the bad behavior of a disability insurance carrier plan, I need to establish the rules of the game. If you get your long term disability policy or plan through your employer, your claim is most likely governed by a complex federal law called erisa. ERISA stands for the Employee Retirement Income security Act of 1974. It's a massive, complicated statute. This often feels like it's written to protect insurance companies and plans rather than to provide employees with benefits. But the part of ERISA that matters most to us right now in this discussion is found in the federal regulations, specifically Title 29 of the Code of Federal Regulations, or 29 CFR for short. So why is 29 CFR so incredibly important? It's the rule book that insurance companies and disability carriers and plans have to follow.

Nancy Cavey [00:03:28 - 00:04:20]

Insurance companies like Unum want you to think that they hold all the cards. They want you to believe that their internal claims adjusters are the final authority and that if they stamp your file with a denial, then that's the end of the road. But 29 CFR says otherwise. So because I'm a lawyer, I'm going to give you a legal site. 29 CFR section 256-0.5031 is pretty strict. The United States Department of Labor lays out rules for how an insurance claim is has to be handled. And this regulation requires that the insurance company or the plan provide you what the law calls a full and fair review of your claim. So what does that mean in the real world? Well, it means that the disability insurance company or plan can't simply ignore the detailed medical records provided by your treating physicians.

Nancy Cavey [00:04:20 - 00:05:24]

And that means that if they decide to deny your claim or terminate your benefits, they just can't give you a vague reason. They have to tell you exactly why you were denied, pointing to the specific policy or plan provisions. And they have to tell you exactly what additional medical or vocational information you need to submit to perfect your claim. Furthermore, a full and fair review means that they have to give you, upon request and free of charge, copies of all the documents, records and internal notes they use to deny your claim. Now, that's a bit of a roadmap for you to see what their quote unquote thought process is and their motivation. But you also need to understand that you're not necessarily going to get everything, because I think, at least in my experience, they hide behind other different walls. Now, you have the right to see what they are saying behind at least one set of closed doors. And when you appeal the denial, as you should, the review of that appeal has to be conducted by a completely different person than denied your claim the first time.

Nancy Cavey [00:05:24 - 00:06:24]

And it has to be somebody who wasn't involved in initial denial and somebody who's not the subordinate of the person who originally denied it. Now, there's another critical provision buried in this regulation. If the insurance company or the plan denies your claim based on medical judgment, the regulations require that they consult with a healthcare professional who has appropriate training and experience in this specific field of medicine involved in your particular claim. So think about what that means. Let's say you're suffering from a complex neurological disorder like Ms. Or pd, or you have a rare autoimmune disease like Long Covid. The insurance company or the plan should not be giving your file to a general practitioner or to a pediatrician to paper review your claim. They have to use somebody who's genuinely qualified.

Nancy Cavey [00:06:24 - 00:07:21]

Now, I think the bottom line in this regulation is that it's a shield and it can also be a sword. What do I mean by that? When disability insurance companies or plans play games, they are almost always violating the spirit, if not the exact letter of the federal regulations. They're making a calculated bet that you don't know the rules. They bet that you're too sick, you're too tired to fight back, and they bet that you won't hire a disability attorney who knows how to hold them accountable. But when we hold their feet to the fire using these federal regulations, federal judges take notice. So in the next segment, I'm going to show you exactly what happens when an insurance company like Unum forgets or doesn't apply these rules. I'm going to break down these three recent federal court cases involving Unum, and we're going to look at the specific tactics that they tried to use and how a federal judge shut them down. Stay with me because this is where the law gets real.

Nancy Cavey [00:07:21 - 00:08:22]

And these are games that disability carriers across the board play, just not Unum. Let's take a break. Welcome back to Winning Isn't Easy. Let's talk about a summary of three cases, the games that Unum tried to play and what the courts ruled. Now I want to talk to you about these cases because I think they're a master class in tactics that disability insurance companies and plans use to deny legitimate claims and terminate benefits. They also show us how federal judges respond when these tactics are dragged into the light. So I'm going to start with a case out of the District of Minnesota federal court called Weisberg versus Unum. And the game that Unum tried to play here is a classic one.

Nancy Cavey [00:08:22 - 00:09:02]

Let's ignore the mind and let's just focus on the body. Anna Weisberg was a highly successful, high powered trademark and copyright attorney. She was a shareholder at her Firm. And like most lawyers, she regularly worked 60 hours a week. In October of 2018, her life as she knew it came to a halt when she was diagnosed with bilateral invasive breast cancer. She underwent chemotherapy, radiation, and a bilateral mastectomy. Unum initially approved her claim and then paid benefits. Eventually, Ann tried to return to work on a very limited part time basis and she managed only 10 to 15 hours a week.

Nancy Cavey [00:09:02 - 00:09:41]

Now Unum seized on her attempt to go back to work. They terminated her long term benefits and they argued, look, if you could sit at a desk and work part time, you're capable of working full time. But Unum ignored the brutal reality of her condition. She wasn't just dealing with the physical fatigue associated with her treatment. She had severe cognitive impairments known as chemo brain. She also had dysautonomia, vertigo and dizziness. Now, being a high level attorney is not just about having the physical ability to sit in a chair. It requires intense mental focus, complex legal analysis, advising clients, and litigating cases.

Nancy Cavey [00:09:42 - 00:10:25]

So Unum sent their file out to their liar for hire peer review doctor. And they used a generic occupational description that completely omitted the severe and significant cognitive demands of an attorney. They had the reviewing doctor, who's a familiar name in ERISA litigation, Scott Norris, review the file. Now, these reviewers never examined Ann. They just looked at paper and decided that she could work. So a federal judge fortunately saw through this and conducted based on the standard of review in the policy. A de novo review and de novo review is really important. There are generally two standards of review.

Nancy Cavey [00:10:26 - 00:11:27]

There is the arbitrary and capricious, which is not what it sounds like, and there's the de novo standard of review. Under the arbitrary and capricious standard of review, basically you have to prove that the carrier's or plan's decision was wrong, that there wasn't a sufficient basis for the denial or termination of benefits, and, and that the decision was not influenced by bias. Now that's a sort of a quick summary of the arbitrary and capricious standard of review. Each circuit, federal circuit, has their own standard of review under the arbitrary and capricious standard of review. And by that I mean they have their own analysis of different factors. But that's generally what you have to prove. The de novo standard of review is great. It does not give discretion to the disability carrier plan to make the decision and it allows the judge to make their own independent judgment, not handcuffed by the arbitrary and capricious standard of review.

Nancy Cavey [00:11:27 - 00:12:24]

Because under the arbitrary and capricious standard of review, the Judge, the court has to give deference to a decision even if they think the decision is wrong, if it is supported and it does not reflect any evidence of bias. Now, in this particular case, the judge said, oh no, no, no, we are using the arbit, I mean the de novo standard of review based on the terms of the policy. And there was no deference given to Unum. The judge basically slammed Unum, finding that Unum completely failed to engage with Anne's cognitive impairments. And the court noted that there's no logical reason to assume that just be that someone can work a 60 hour week just because they push through 10 hours a week. In other words, 10 does not equal 60. And of course they didn't consider the cognitive aspects of her occupation. So they didn't.

Nancy Cavey [00:12:24 - 00:13:11]

They improperly extract extrapolated the ability to do 10 hours of work to 60 hours of work and ignored the cognitive requirements of her occupation. Unum was ordered to retroactively reinstate her benefits and pay attorney's fees. Now let's talk about case number two, which is out of Massachusetts, Rogers versus Unum. And the game played here is I think one of the most frustrating games that we encounter in a risk of disability case. And that's called the records only review. Now Dr. Robert Rogers was a senior scientist suffering from connective tissue disorder, emphysema and profound fatigue. He had four, four separate treating physicians spanning primary care, rheumatology, orthopedics and psychiatry.

Nancy Cavey [00:13:11 - 00:13:48]

All of them agreed that his symptoms prevented him from working and Unum even approved his short term disability benefits based on this exact medical evidence. But when he it was time for his long term disability benefits to kick in, Unum suddenly denied the claim. So how did they justify this? Well, they handled this by sending this particular claim to Dr. Scott Norris, who performed a paper review. Dr. Norris never met Dr. Rogers, never examined him and never spoke to him. Yet he concluded, as one would expect, that Dr.

Nancy Cavey [00:13:48 - 00:14:53]

Rogers could perform his job, which Unum generously classified as simple light work. The internal reviewer dismissed the severe fatigue and the pain because he claimed there wasn't any objective testing or not enough objective testing. But Unum had a massive problem because years ago, after an intense investigation by state regulators into their claims handling practices, Unum was forced to sign a multi state regulatory settlement agreement known as an rsa. Now the RSA is a binding agreement that explicitly gives Unum, I'm sorry, requires Unum to give significant weight to the opinions of the treating physicians. And if Unum wants to reject these treating doctors opinions, the RSA demands that they provide a detailed explanation grounded in the medical records. Now, in this case, the federal court found that Unum's denial was arbitrary and capricious. That was the applicable standard of review. And the judge pointed out that Unimum completely failed to follow the rsa.

Nancy Cavey [00:14:54 - 00:15:32]

They discounted four treating doctors without adequate explanation. They failed to reconcile his actual job demands with his fatigue. And they offered no logical explanation for why they approved his short term disability benefits, but denied his long term disability benefits using the exact same medical records. And the court ordered Unum to pay the benefits. Now, I will tell you that there are some federal judges who say, look, that agreement happened so long ago, it's not really germane or relevant. I absolutely disagree with it because that agreement is still binding on Unum. So let's look at another case. It's a Massachusetts case called Mosley v.

Nancy Cavey [00:15:32 - 00:16:07]

Unum. So what's the game here? They hit the ball and they denied the claimant the right to an independent examination. So Susan Mosley had been receiving disability benefits for two years. But what happens is under many disability insurance policies, benefits for conditions that are classified as mental illnesses are capped at 24 months. It's called the mental nervous policy, or plan limitation. So Unum cut her off, claiming that her disability was psychological and she had hit that two year limitation. Now, she fought back. She argued that her disability was not just a mental illness.

Nancy Cavey [00:16:07 - 00:16:55]

It. And she argued that it was physical, specifically chronic and persistent Lyme disease. Now, Unum, as it always does, argues that there was a lack of objective medical evidence to establish the Lyme disease. There wasn't any positive lab tests to prove that she had Lyme disease. And to settle this dispute, Susan and her legal team said, you send me to an ime. Send me to a neutral third party doctor so they can perform the blood work and physically examine me to prove that my condition is physical. And guess what? Unum, who had the right to an IME in the terms of its policy, flat out refused, saying an exam today would not prove what her condition was a year ago. Now, the federal court was not amused.

Nancy Cavey [00:16:56 - 00:17:46]

The judge ruled that Unum's refusal to provide an IME upon request was such a severe procedural error that made their decision inherently arbitrary and capricious. And once again, the judge pointed to Unum's regulatory settlement agreement, which clearly states that an IMA should be provided whenever the claimant requests one. And the judge recognized the game for what it was. Unum was denying the exam to prevent Susan from gathering the very evidence that they claimed was missing. So by denying the ime, Unum failed to act as a fiduciary attempting to fairly decide claim, the court said no, too bad, so sad. And remanded the case back. Now I wish that the judge had simply said too bad, so sad you have to pay the benefits. But that's what the not what the court did.

Nancy Cavey [00:17:46 - 00:18:11]

So what do we see here? In these three different cases, there are three manipulative games and three times the federal court stepped in and said no more. In the final segment of this podcast and I'm going to tie it all together. We're going to talk about what you, as an ERISA policyholder or plan beneficiary, can learn from Weisberg, Rogers and Moseley and the exact steps you need to take to protect your claim. Stay right here for our next segment.

Speaker B [00:18:13 - 00:18:48]

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Nancy Cavey [00:18:51 - 00:19:38]

welcome back to Winning Isn't Easy what ERISA policyholders or plan beneficiaries can learn from these three unum cases. Now, I've covered the fundamental rules under 29 CFR and we have seen exactly how disability carriers like UNUM tend to bend or break the rules. We have seen them use flawed paper reviews. We've seen them completely ignore severe cognitive symptoms of demanding professions. And we have seen them actively deny claimants the right to physical exams just to suppress medical evidence. So let's talk about what you can do about this. And you know what you can learn from these three cases. How do you armor up and protect your livelihood? So lesson number one.

Nancy Cavey [00:19:38 - 00:20:24]

You never let the insurance company or the plan ignore your mind. If you have a demanding physical job, whether it's a doctor, a lawyer, a scientist, an executive, or any role that requires high level thinking, your cognitive duties are important. They're material to your occupation. And again, you have to go look at the applicable definition of occupation. But cognitive abilities are generally material to the performance of that occupation. And insurance companies or plans are always to try to reduce your occupation to its lowest physical denominator. They'll look at your file and say, well, you know you can lift 10 pounds. You can sit in a chair for six hours, you're capable of working.

Nancy Cavey [00:20:25 - 00:21:05]

But you have to aggressively fight this narrative. You have to ensure that you're treating. Physicians are meticulously documenting your cognitive deficits. So every time you go to the doctor, you want to report your brain fog, your lack of focus, your mental fatigue, your memory loss, your and debilitating side effects of medication. Just don't tell your doctor that your back hurts. Tell your doctor that you can't concentrate on spreadsheets, for example, for more than 10 minutes without losing your place. If your job requires high level executive functioning, remember, a physical ability to sit at a desk doesn't equal the ability to do that occupation. You need to look at that definition of occupation as defined by the policy or the terms you want to.

Nancy Cavey [00:21:05 - 00:22:07]

To look at how your employer has defined your occupation. And I generally suggest that my client write their own official job description. We want to, if possible, create a composite of those types of documents and provide it to your doctor. We want the insurance company to evaluate not only the physical demands, but the mental demands of your occupation. And to do so, you, your doctor, needs to understand what in fact your occupation might be. Now, lesson number two is demand an exam, an IME if you need it, and use your own rules against you. Now, in the Moseley case, as I've said, Unum tried to categorize this case as a physical illness and as a mental illness. And what they did was of course, when the definition of disability changed from an inability to do one's own occupation to any occupation.

Nancy Cavey [00:22:07 - 00:23:36]

And at the same time, when the mental nervous policy limitation kicked in, they tried to now categorize basically her illness as one that was mental, not physical, because they wanted. Didn't want to pay benefits based on a physical disability. So she called her bluff and asked for an IME to prove that her physical condition was in fact disabling. And what of course happened was when Unum refused, that caused them to lose because they violated their own regulatory settlement agreement. So if a carrier is denying your claim because they say there's no objective evidence for your physical condition, or you don't have the restrictions and limitations that would prevent you from doing your own occupation or any occupation, or they're coming up with other arguments like there's no objective basis of the diagnosis, you could demand an IME and call their bluff, put it in writing. If they refuse to let or schedule an IME so that you can get the objective evidence, they're setting themselves up for a massive procedural failure in Federal court, they can't claim that there's a lack of evidence while simultaneously blocking your ability to get it. And that's particularly true in UNUM cases because of the regulatory settlement agreement. That's something to consider, of course, if you don't have a UNUM case.

Nancy Cavey [00:23:37 - 00:24:52]

But most disability carriers, policies or plans do offer or allow them to get an ime. And in that case, you can demand the ime. And if they refuse it within a reasonable time, I generally will arrange for an IME for my client by a doctor that I select and who has an understanding of ERISA disability issues. Lesson number three, and this is particularly true in UNUM cases, internal paper reviews don't have the final say, but you've got to build an overwhelming medical record to beat them. And, and in the Rogers case, UNUM relied heavily on an internal doctor who only looked at the medical records and never actually examined Rogers. This internal doctor ignored the consistent findings of four different treating specialists who actually saw Rogers in person, examined him, and treated him. So don't let a record, only record review only intimidate you into giving up. I think federal courts are becoming increasingly skeptical of insurance companies doctors who dismiss subjective symptoms like chronic fatigue, pain, or dizziness from the comfort of their cubicles or their living rooms without ever laying eyes on you.

Nancy Cavey [00:24:52 - 00:25:42]

Now, again, remember, in the UNUM case, there is this special binding settlement agreement. And under that agreement, UNUM is legally supposed to give significant weight to your treating physicians. If they refuse to do so, they have to explain why their paper review doctors know better than the specialist who's been treating you for years. That's not, as I've said, necessarily the case with non UNUM cases, because generally under ERISA and by the terms of some policies, they get the right to pick who they want to believe. There's no treating physician rule, but that doesn't mean that you can't build a case. I think your records have to be bulletproof. You need to see your specialist regularly. You need to consistently report your symptoms, and you need to follow through on all recommended treatments, referrals, and testing.

Nancy Cavey [00:25:42 - 00:26:36]

And I think if your medical record is thick, consistent, and fully supports your inability to work, it's hard for a judge to look at that paper review by an insurance company doctor and side with the insurance company. And you may even have to bolster it with functional capacity evaluations or independent medical evaluations of doctors of your own proceeding. But you want, you want to build this case because the ERISA appeals process is not a fair fight. It's a minefield and it's designed to trip you up. They have endless resources, armies of claims adjusters, internal medical reviewers, and corporate lawyers whose sole job it is is to protect the disability carrier plan. Bottom line, they look at your claim as a liability to be managed, not as a promise to be kept. But you have rights. And I think the protections of 29 CFR regulations are important.

Nancy Cavey [00:26:36 - 00:27:19]

And of course, if you have a unum case, that RSA settlement agreement I think can be a bludgeon. If you've been denied your short or long term disability benefits, you shouldn't be giving up. And you should understand that the insurance company or the plan doesn't always have the last word. So you need to be consulting with an experienced ERISA disability attorney to help you protect your rights. Now that's a wrap for today's episode of Winning Isn't Easy. Thank you for tuning in. If you found this episode helpful, please take a moment and like our page, leave a review, share it with your family or friends, and subscribe to this podcast. That way, you'll get notification when a new episode drops.

Nancy Cavey [00:27:19 - 00:27:25]

Join us next week for another insightful discussion. And thanks for listening to Winning Isn't Easy.