District Court Finds First Unum Improperly Terminated Long Term Disability Benefits and Remands for “Any Occupation” Disability Determination

In Goodman v. First Unum Life Ins. Co., No. 2:21-CV-00902-BJR, 2023 WL 3224481 (W.D. Wash. May 3, 2023), Washington Western District Judge Barbara Jacobs Rothstein granted Plaintiff’s Rule 52 motion for judgment, and remanded the matter to First Unum to determine whether Plaintiff can “perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training or experience,” pursuant to the relevant ERISA benefit plan.

Plaintiff was a Vice President and Group Account Director for Aegis Media Americas, Inc. In January 2018, she was involved in a motor vehicle accident and was diagnosed with post-concussive syndrome and visual impairments. Her subjective symptoms included sensitivity to light, ongoing nausea and vomiting for several weeks, headaches, numbness and drooping on the right side of her face. Plaintiff also described difficulty with memory and feeling that she was “not as sharp” as she was prior to the accident. Plaintiff continued to work after the accident, although she missed some days of work each week. By her own report, Plaintiff was working at 50-60% of the level she worked at prior to the accident and described feeling irritable, indifferent, depressed, and hopeless at times. Plaintiff stopped working on May 30, 2018, and submitted a disability claim. Unum paid STD benefits for the maximum 26-week duration and thereafter approved and paid LTD benefits until December 16, 2020, when it concluded that Plaintiff was no longer disabled.

Unum terminated benefits after it had obtained two medical record reviews performed by Dr. Andrea Brown and Dr. Jamie Lewis, both of which opined that Plaintiff’s activities were consistent with an ability to perform the physical, visual, and cognitive demands of her occupation. Dr. Brown further reported that Plaintiff was able to compose thoughtful, relevant, and grammatically correct social media posts, care for and home school her 5-year-old special needs child as a single mom with shared custody, watch movies, use her smart phone to keep in touch with family and friends, do yoga at home, perform ADLs, do some reading, drive, and shop at Trader Joe’s and Costco. Ultimately, Unum concluded that Plaintiff was subject to the 24-month policy limitation for mental health conditions, noting Plaintiff’s symptoms of significant anxiety and depression and concluding that the reported severity of her symptoms warranted a psychiatric evaluation to consider appropriate psychotropic medication as well as weekly cognitive behavioral psychotherapy.

Unum upheld the termination on appeal after an additional medical review by Dr. Scott Norris, which included review of updated visual impairment evaluations and a 2020 Social Security disability award, opined that contemporaneous examination findings were limited and were inconsistent with the severe level of impairment, and concluded that the medical records did not support Plaintiff being unable to fulfill her occupation demands on a full-time basis.

The Court found that Plaintiff established that she remained disabled at least through December 16, 2020, when Unum terminated her LTD benefits. Noting that the record evidence did not support Unum’s position of no physical disability, it found that Unum’s reliance on treating provider questionnaires was misplaced given that the questionnaires did not inquire into Plaintiff’s ability to exercise frequent near visual acuity or to perform cognitively demanding management tasks, even though Unum itself had identified these as job requirements.

The Court further noted that the medical reviews of Drs. Brown and Lewis both relied heavily on the same questionnaire responses and the belief that Plaintiff’s out-of-work activities were inconsistent with her diagnoses and reported symptoms. The Court reasoned that the activities Dr. Brown described in her report indeed established that Plaintiff was not bedridden but found there was a significant gap between those activities and the demands of Plaintiff’s full-time job. The solicited opinion of Dr. Scott Norris on appeal was no different. The Court found that as with the other opinions, the evidence Dr. Norris cited showing that Plaintiff was able to complete various tasks of daily living did not establish that she was able to perform the evidently more demanding tasks required for full-time employment involving frequent near acuity.

The Court also rejected Unum’s alternative arguments finding: (1) the evidence did establish that Plaintiff suffered from mental illness concomitant to her visual symptoms; (2) Unum did not provide any medical evidence to support its assertion that that Plaintiff’s self-treatment with unorthodox remedies such as unprescribed drugs and a hyperbaric chamber may have contributed to her symptoms; and (3) Unum did not notify Plaintiff that it believed she was failing to receive regular care for her visual symptoms, and the record reflected more than regular medical care.

Finally, the Court denied Plaintiff’s claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3), noting that although it did not find Unum’s position on disability persuasive, the record reflects that Unum had a reasoned basis for the rejection of the findings of Plaintiff’s treating providers and the Social Security Administration and did not arbitrarily ignore evidence.  The Court remanded the matter to Unum for determination of whether it is obligated to extend benefits beyond the 24-month “regular occupation” period.

As this case demonstrates, it can be difficult to convince insurers of continued disability even after the insurer has approved your LTD claim and with continued treating physician support. If First Unum Life has denied or terminated your disability insurance claim, contact us for assistance.