District Court Finds Unum Wrongfully Terminated Disability Benefits for Attorney Disabled After Breast Cancer Treatment

In Wessberg v. UNUM Life Insurance Company of America, No. CV 22-94 (JRT/DLM), 2024 WL 3444044 (D. Minn. July 15, 2024), District Judge John R. Tunheim, found in favor of Plaintiff Wessberg, an attorney who became disabled following treatment for bilateral invasive breast cancer, in her lawsuit against Unum for payment of long-term disability benefits under ERISA. The court ordered Unum to reinstate Plaintiff’s benefits and pay reasonable attorneys’ fees, costs, and prejudgment interest.

Prior to her diagnosis of breast cancer in October 2018, Plaintiff had been working around 60 hours per week as a Trademark and Copyright attorney. Through her firm, she had long-term disability coverage insured by Unum. Plaintiff underwent chemotherapy and radiation treatment, a bilateral mastectomy, and bilateral breast reconstruction surgery. With support from her treating oncologist, Plaintiff filed a disability claim, asserting that she could only work a reduced schedule as she was receiving ongoing treatment and recovering from chemotherapy. Unum approved Plaintiff’s LTD claim, finding her disabled as of November 19, 2018.

During her treatment, Plaintiff continued to work part-time for about six months. Then she started reporting issues with vertigo/dizziness and fatigue. She also began treatment for anxiety and depression in connection with her cancer treatment. On August 6, 2019, her doctor reported that she was unable to work as an attorney due to mental and cognitive difficulties. Unum re-evaluated Plaintiff’s claim and focused primarily on the physical demands of being an attorney, and not the cognitive requirements. Plaintiff returned to part-time work several months later, working about 10 hours per week, while maintaining a partial disability claim with Unum. At this point, Unum again evaluated Plaintiff’s ongoing disability claim and terminated benefits on the basis that one of her doctors stated that she was capable of performing the duties of her regular occupation on a full-time basis.

Following a re-evaluation of her claim and later Plaintiff’s appeal of the termination of her benefits, Unum continued to uphold its decision based on medical reviews done by Dr. Brown and Dr. Scott Norris. The court noted that as of 2021, neither doctor had treated a patient in more than a decade, neither doctor spoke to or examined Plaintiff, and neither doctor specialized in oncology or cognitive difficulties. The court noted that several courts have criticized, rejected, or gave little weight to Dr. Norris’s opinions.

In finding that the preponderance of the evidence supported that Plaintiff is disabled from her own occupation, the district court made several notable findings:

• Unum failed to consider that Plaintiff’s ongoing disability was based on cognitive impairment and Plaintiff consistently provided Unum with evidence substantiating her reports of cognitive impairment.
• Unum focused on Plaintiff’s physical capabilities rather than her cognitive capabilities.
• The Court considered Plaintiff’s cognitive complaints and self-reported symptoms to be credible. The disability policy does not prohibit consideration of self-reported symptoms.
• The providers who evaluated Plaintiff in person are better able to assess credibility of subjective symptoms than Unum’s reviewers who never examined Plaintiff.
• Plaintiff had more than a dozen examining providers who all concluded that she was experiencing symptoms that impaired her cognitive abilities.
• Unum considered Plaintiff’s self-reported symptoms when it continued her disability based on a mental health claim but rejected similar self-reported symptoms when it came to her cognitive abilities.
• The court found that Plaintiff’s activities of working 20 hours a week, driving, exercising, acting as a primary caregiver of her children, and traveling, were not inconsistent with her inability to work full time. Many of her activities did not have the same cognitive demands as her job, nor did her reported activities indicate she could complete all the material and substantial duties of an attorney on a full-time basis.
• Unum could not reject test results on the basis of not being “time relevant” if the results connect the pre-termination disability to the eventual diagnosis.
• Though Plaintiff did not submit neurocognitive testing, Unum’s reviewers did not refer her to neurocognitive testing.
• In considering the demands of Plaintiff’s occupation, Unum should have used the e-DOT occupational description that included both cognitive and physical requirements when it was eliciting provider opinions about Plaintiff’s functional capabilities.
• Unum’s reviewers consistently found that because Plaintiff could work part-time as an attorney she could attempt to work full-time as an attorney. The court found that this reasoning faulty: there’s a significant difference between working 10-15 hours a week versus 40 or more hours a week.

In sum, the court found that Unum’s termination of benefits relied on faulty medical reviewer opinions and failed to engage with evidence supporting Plaintiff’s disability. Because Plaintiff demonstrated she could not complete the material and substantial duties of her regular occupation, she is entitled to an award of long-term disability benefits.

If Unum has denied your long-term disability insurance claim, contact us for assistance.