Kentucky Employment Law Blog

Unum's Termination of Disability Benefits, After Paying for Five Years, Reversed

After paying disability benefits for five years to a OB/GYN doctor whose diminished use of her left arm left her unable to perform surgery and uninsurable, Unum terminated her benefits.  This decision was reversed by the Sixth Circuit in Kramer v. Paul Revere Life Insurance Company, No 07-1557 (April 8, 2009).  The court observed that "there is no explanation for the decision to cancel benefits that had been paid for some five years based upon the initial determination of total disability in the absence of any medical evidence that the plaintiff's condition had improved during that time."  

Dr. Lois Kramer, an OB/GYN, had disability insurance policies with Paul Revere Life Insurance Company and Provident Life and Accident Insurance Company (which later were acquired by Unum).  Beginning in the mid-1990's Dr. Kramer began experiencing back and spinal cord problems, eventually undergoing a C6-C7 laminectomy.  Further treatment including nerve root injections proved ineffective and she eventually lost full use of her left arm.  As a result, she struggled to perform routine office tasks and could not perform surgery and related procedures.  Her claim was approved and she began receiving disability benefits in late 1998.

Unum paid the benefits through 2003.  In the interim, at least two medical file reviewers reviewed Dr. Kramer's file and affirmed that she remained disabled and entitled to benefits.  Nonetheless, in late 2003, Unum terminated payment of the benefits based on two more reviews, one by a Dr. Phillip Mayer and another by a Dr. Geron Brown, both of whom opined that Dr. Kramer could resume working as a OB/GYN.  Dr. Kramer appealed the termination of her benefits, presenting additional medical evidence along with evidence that she could not obtain medical malpractice insurance because of her disability.  

Kramer filed suit for reinstatement of her benefits.  The district court ruled applied a de novo standard of review to the termination of benefits under the Provident policy and reinstated her benefits.  However, the district court applied an arbitrary and capricious standard to the Paul Revere policy and affirmed the termination of benefits.  

The Sixth Circuit ruled that Unum's termination of the benefits under the Paul Revere policy was arbitrary and capricious.  The court was disturbed by Unum's disregard for the opinions of numerous treating physicians and rejected its reliance on the opinions of the file reviewers it had hired:

there is no explanation for the decision to cancel benefits that had been paid for some five years based upon the initial determination of total disability in the absence of any medical evidence that [Kramer's] condition had improved during that time.  The best that can be said of the opinions of Dr. Mayer and the other company consultants is that they support the proposition that Dr. Kramer was, in fact, never disabled from her 'own occupation.'  But that conclusion flies in the face of all the other evidence in the record, and the plan administrator's reliance upon it can only be described as arbitrary and capricious.   

Robert L. Abell
www.RobertAbellLaw.com

First Unum Slammed By Court For Deceptive Denial of Disability Benefits

Reciting First Unum's long history of abusive and deceptive claims-handling practices, as well as its conflict of interest as both claims decider and payor, the Second Circuit Court of Appeals has ruled that First Unum acted arbitrarily and capriciously in denying the claim and awarded back benefits, interest, attorney's fees and costs to the claimant. McCauley v. First Unum Life Insurance Company, No. 06-5100 (December 24, 2008).  

The claimant, McCauley, worked as a tax attorney and developed advanced colon cancer. He received radical treatments in 1991 that saved his life.  McCauley suffered additional medical problems over the next few years including liver cancer and the cancer treatments inflicted quite a toll.  He attempted bravely to continue working before realizing that he could not continue.  McCauley applied for long-term disability benefits to First Unum, which provided disability insurance to McCauley's employer and served as both its administrator and payor of benefits.  

First Unum denied McCauley's claim on May 19, 1995.  He appealed and submitted additional medical information.  Nonetheless, First Unum again rejected McCauley's claim on September 14, 1995.  McCauley then attempted to resume employment and converted the disability insurance policy by assuming payment of its premiums.  McCauley's health problems again proved insurmountable and he again filed a claim for long-term disability benefits which First Unum denied in 1996.  McCauley then filed suit.

The Court ruled that McCauley was entitled to benefits, although it ruled that First Unum's initial denial of his claim was not arbitrary and capricious based on the limited medical information presented in support.  That medical information indicated only that McCauley's cancer had been successfully treated and that his restrictions were only against very long hours and physical exertion.  

In support of his appeal from First Unum's denial of his claim, McCauley submitted a memorandum listing his medical conditions as (1) chronic diarrhea, (2) chronic and acute renal impairment, (3) progressive vascular sclerosis, (4) high cholesterol, (5) insomnia, and (6) incisional scarring and pain. The memorandum detailed how these conditions affected McCauley on a daily and continuing basis, at times leaving him unable to function in any capacity and in constant and substantial pain.

The Court observed that the memorandum "flatly contradicts First Unum's finding that McCauley was capable of performing a sedentary occupation and completing the ordinary tasks of a tax attorney." While First Unum claimed that the information in McCauley's memorandum had been considered in the initial denial of McCauley's claim, the Court asserted that "the record plainly reflects that they were not."  The Court also criticized First Unum's argument that the memorandum was not signed by McCauley's doctor, a deficiency it had never informed McCauley of until he filed suit.  

The Court strongly criticized First Unum's failure to consider McCauley's memorandum:

This kind of wholesale embrace of one medical report supporting a claim denial to the detriment of a contrary report that favors granting benefits was determined in Glenn to be indicative of an administrator's abuse of discretion. 

First Unum lied to McCauley that an on-site physician had reviewed his claim and supporting information.  "In fact, the court observed, "no records were reviewed by a physician at First Unum." This lie was additional evidence supporting McCauley's claim.

The Court also cited First Unum's long history of abusive and deceptive practices as further support of McCauley's claim:

First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges.  A district court in Massachusetts wrote that "an examination of cases involving First Unum ... reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics. Radford v. First Unum Life Ins. Co., 321 F.Supp.2d 226, 247 (D. Mass. 2004), rev'd on other grounds, 491 F.3d 21, 25 (1st Cir. 2007).  That court listed more than thirty cases in which First Unum's denials were found to be unlawful, including one decision in which First Unum's behavior was "culpably abusive."  Id. at 247 n.20. Also, First Unum's unscrupulous tactics have been the subject of news pieces on "60 Minutes" and "Dateline," that included harsh words for the company. Id. at 248-49. First Unum has fared no better in legal academia. See John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA, 101 Nw. U. L. Rev. 1315 (2007). In light of First Unum's well-documented history of abusive tactics, and in the absence of any argument by First Unum showing that it has changed its internal procedures in response, we follow the Supreme Court's instruction and emphasize this factor here. Accordingly, we find First Unum's history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley's claim for benefits.     

Robert L. Abell

www.RobertAbellLaw.com

Failure To Fully Pay Life Insurance Benefits Breached UNUM's Fiduciary Duty Under ERISA

Beneficiaries of group life insurance policies must be fully paid the policy benefits upon proof of their claim, the First Circuit has ruled in Mogel v. UNUM Life Ins. Co., No. 08-1334 (November 6, 2008).  UNUM issued group insurance policies to employees at a number of companies.  Plaintiffs were beneficiaries of those policies and presented proof substantiating their benefits claims.  However, instead of paying the policy benefits, UNUM sent the beneficiaries a checkbook and a letter advising them that (1) their benefits had been deposited in a "UNUM Security Account"; (2) checks from $250.00 up to the balance of the account could be written; and, (3) interest on the account would be paid at a varying rate.

The court ruled that UNUM breached its fiduciary duty by retaining control and use of the beneficiaries' money in what the court referred to as a "euphemistically named 'Security Account.'"  Sending the beneficiaries a checkbook "was no more than an IOU which did not transfer the funds to which the beneficiaries were entitled" and constituted a breach of UNUM's fiduciary duties under ERISA.

Robert L. Abell

www.RobertAbellLaw.com