In Berg v. Unum Life Insurance Company of America, 2023 WL 2619015 (E.D. Mich. Mar. 23, 2023), Michigan Eastern District Judge Terrence G. Berg granted judgment to Plaintiff finding that under a de novo review, Unum did not meet its burden of proving that Plaintiff’s disability arose from a psychological, as opposed to a physical condition.
Plaintiff is a 67-year-old former attending anesthesiologist, who left work on medical advice after being diagnosed with invasive ductal carcinoma in her right breast in January 2019. Plaintiff underwent surgery to remove the cancer, followed by radiation therapy and hormone therapy (prescription anastrozole) thereafter. Prior to her cancer diagnosis, in September 2018, Plaintiff began therapy with a social worker, who diagnosed Plaintiff with Generalized Anxiety Disorder. The “main theme” of Plaintiff’s twice-monthly therapy sessions was Plaintiff’s interpersonal relationships, particularly with family members. Plaintiff continued therapy throughout her cancer treatment, but session notes reflect that from January 2019 forward, Plaintiff’s concentration and focus became impaired due to her preoccupation with her cancer diagnosis, fatigue and mood swings caused by the prescription anastrozole (hormone therapy).
Unum approved Plaintiff’s LTD claim and paid benefits for about a year until April 2020, after two medical reviews concluded that Plaintiff’s symptoms no longer prevented her from returning to work as an anesthesiologist. Despite unified treating physician support, Dr. Joseph Antaki, and in-house Medical Director, Dr. Herbert Dean, both concluded that Plaintiff’s cancer was in remission, and while Plaintiff was experiencing mild side-effects to the anastrozole, she could try another medication if those symptoms increased.
Plaintiff appealed, submitting additional treating provider evidence, accompanied by a report by Dr. Nicolette Gabel, a psychologist who had examined her and administered cognitive tests revealing executive dysfunction and problems with sustained vigilance consistent with Plaintiff’s self-reported difficulties. Unum upheld its decision on appeal after three further medical reviews (Dr. Chris Bartlett, in-house psychiatrist Dr. Peter Brown, and neurologist Dr. Jacqueline Crawford) all concluded that Plaintiff was not cognitively disabled by her cancer treatment and cognitive side effects of medication were not supported by the medical records. Dr. Crawford opined that research on the effects of aromatase inhibitors had been “mixed and complex,” and anastrozole was an unlikely culprit. Despite rebuttal information from Plaintiff’s treating providers Unum and its reviewing physicians declined to change their conclusions, noting that the cognitive effects of aromatase inhibitors “is a topic of intense research.”
Adopting the position articulated by the Sixth Circuit in Okuno v. Reliance Standard Life Ins. Co., 836 F.3d 600, 607-8 (6th Cir. 2016), the Court held, under a de novo standard of review that Unum failed to show, by a preponderance of the evidence that mental disability was a “but-for” cause of Plaintiff’s total disability. The Court reasoned that: (1) Plaintiff introduced ample evidence that her cognitive impairment is caused by cancer and her cancer treatments, include the testing performed by Dr. Gabel; (2) the contrary opinions of Unum’s reviewers were not sufficiently persuasive to meet Unum’s burden, particularly given that Unum failed to connect Plaintiff’s initial diagnosis of generalized anxiety to the cognitive symptoms she was experiencing post cancer treatment, Unum over-relied on a treating physician’s description of the side-effect of anastrozole as “mild”, and Unum failed to consider that even mild cognitive impairment would preclude work as an anesthesiologist; and (3) the opinions of Plaintiff’s treating doctors were entitled to more weight than Unum’s file reviewers who had never examined Plaintiff.
The Court also rejected Unum’s assertion that Plaintiff’s symptoms were encompassed by the DSM-5 diagnosis of “Substance/Medication-Induced Major or Mild Neurocognitive Disorder” and therefore subject to the 12-month mental illness limitation in the LTD Policy. Unum argued that under a de novo review, it may introduce this new rationale during the litigation. The Court disagreed citing a recent Ninth Circuit decision stating that “a district court cannot adopt post-hoc rationalizations” not presented to a claimant during the administrative process “protects the same procedural fairness concerns” outlined in the ERISA statute, regardless of what standard of review applies. Collier v. Lincoln Life Assurance Co. of Bos., 53 F.4th 1180, 1186-88 (9th Cir. 2022)
As this case demonstrates, it can be difficult to convince insurers of continued disability, particularly in cases of mixed physical and psychological conditions. If Unum has denied or terminated your disability insurance claim, contact us for assistance.
*Please note that this blog is a summary of a reported legal decision and does not constitute legal advice. This blog has not been updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. The case above was handled by other law firms, but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Roberts Disability Law, P.C. may be able to advise you so please contact us.
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