District Court Finds Unum Erred in Terminating Cancer Patient’s Claim for Partial Disability Benefits

In Hardy v. Unum Life Ins. Co. of Am., No. 23-CV-563 (JRT/JFD), 2024 WL 4043540 (D. Minn. Sept. 4, 2024), on cross-motions for judgment pursuant to FRCP Rule 52, Minnesota District Judge John R. Tunheim granted judgment in favor of Plaintiff and against Unum finding that Plaintiff demonstrated by a preponderance of the evidence that he continued to be disabled as of the date Unum terminated his long-term disability (LTD) benefits.

Plaintiff is a 56-year-old medical malpractice trial attorney and partner in the law firm of Geraghty, O’Loughlin & Kenney, P.A., where he had been employed since 2003. After fracturing his hip while running in October 2016, Plaintiff was initially diagnosed with a plasmacytoma. After two subsequent hip and pelvis fractures within three months of each other, doctors diagnosed Plaintiff with multiple myeloma, an uncurable cancer. Plaintiff underwent surgery and began high-dose triple chemotherapy, followed by a bone marrow transplant. Following a brief leave to recover from the transplant, Plaintiff began long-term maintenance chemotherapy and resumed full-time work in February 2018. Plaintiff, however, struggled from the sequelae of his treatments, suffering fatigue, nausea, memory issues, lack of stamina, peripheral neuropathy and pain in his pelvis, sleep difficulties and anxiety. In February 2019, he reduced his hours to part-time and submitted a claim for partial disability benefits. Unum approved Plaintiff’s claim effective May 2019, and recertified Plaintiff’s benefits in July 2020, after an annual review. However, just weeks later, Unum initiated a reinvestigation of Plaintiff’s claim reporting that his “capacity for full time is unclear.” Plaintiff asserted that although he was able to do household chores, biked daily, had a trainer, and would also hike, when possible, he was unable to return to the rigors and long hours of being a trial attorney.

Unum terminated benefits after two medical reviewers, Dr. Robert Nosaka, an internist and Dr. Herbert Dean, an oncologist, and a vocational specialist all concluded that, contrary to Plaintiff’s treating physician’s opinion, Plaintiff was not prevented from full-time activities as required by his occupational duties. Plaintiff appealed, challenging both the medical reviewers’ opinions and the vocational assessment. In addition to an updated opinion from Plaintiff’s primary treating provider explicitly detailing Plaintiff’s restrictions and limitations, the appeal also included declarations from co-workers outlining the rigors of Plaintiff’s occupation as a medical malpractice trial attorney (including 18-hour trial days, and the need to maintain focus and readiness), as well as an Independent Employability Assessment finding that Plaintiff’s part-time work schedule was his maximum vocational capacity, and that occupational information from the employer was more reliable than the DOT and OOH data used by Unum. After a further vocational assessment, wherein Unum reaffirmed its opinion that the eDOT, DOH and OOH data spoke to Plaintiff’s occupational duties, and another medical review by internist, Dr. Neal Greenstein, who also concluded that the medical evidence was insufficient to support Plaintiff’s claim, Unum upheld its decision on formal appeal, and the instant lawsuit followed.

On de novo review, the Court found that Plaintiff demonstrated by a preponderance of the evidence that he remained disabled as of the date benefits were terminated. In reaching this conclusion, the Court found that Plaintiff’s “regular occupation” was the specialized occupation of medical malpractice attorney, and not the generic descriptions offered by the DOT, particularly given that the policy defined “regular occupation” for attorneys as “the specialty in the practice of law which the insured was practicing just prior to the date disability started.” The Court further disagreed with Unum’s challenge of Plaintiff’s subjective symptoms noting (1) Plaintiff’s treating physician explained that his symptoms could not be objectively measured; (2) there was no evidence of a lack of credibility for Unum to discount his symptoms; and (3) Plaintiff’s self-reported symptoms were supported by medical literature and corroborated by his spouse and others. The Court found that Unum’s reliance on Plaintiff’s ability to exercise as a basis for alleging improvement in his condition was of “little consequence” as Plaintiff’s occupation required more than just physical demands. The Court noted that in assessing Plaintiff’s fatigue and lack of stamina from a cognitive standpoint, it took “little effort” to understand that Plaintiff struggled to cognitively perform all material duties of his occupation due to “susceptibility to fatigue” despite his ability to engage in physical activities unrelated to his occupation. Additionally, the record reflected that Plaintiff experienced near-daily nausea, persistent watery diarrhea, and chronic pelvic pain from bone damage and radiation therapy, causing physical limitations.

The court further concluded that the opinion of Plaintiffs’ treating provider was entitled to significant weight, particularly given that he was a specialist in treating multiple myeloma, and two out of three of Unum’s medical reviewers were internists and none of them specialized in treating myeloma. The court also reasoned that the opinion of Plaintiff’s treating physician was entitled to greater deference than Unum’s reviewers given his personal observations and the length of time he had treated Plaintiff. The Court also relied on the independent employability assessment secured by Plaintiff as the vocational expert also had the opportunity to observe that Plaintiff’s energy level, rate of speech and overall demeanor diminished. Finally, the Court found no evidence of significant improvements in Plaintiff’s condition in the record. And the Court noted a lack of a significant change in Hardy’s physical activities when Unum terminated his benefits. It reasoned that while Unum based its termination of benefits in part on Plaintiff’s level of physical activity, it already knew about some of Plaintiff’s physical activities when it recertified his benefits.

The Court ordered Unum to reinstate Plaintiff’s benefits and to pay retroactive benefits through December 10, 2020, with prejudgment interest. It also awarded reasonable attorneys’ fees and costs to Plaintiff.

If Unum or your insurer has denied or otherwise limited your disability insurance claim, contact us for assistance.