Plaintiff, through Kantor & Kantor, requested the Court to find that Unum wrongfully terminated her LTD benefits because she remains disabled from “any occupation.” Plaintiff also requested the Court to find that Unum failed to properly calculate her monthly benefit.
Since 2007, our client has undergone three significant back surgeries in an effort to alleviate her severe back pain. The first surgery occurred on August 7, 2007 and was not a success. Two additional spine surgeries also did not relieve her disabling back pain. Unable to work, our client made a disability claim to Unum and the Social Security Administration. Both found her to be disabled from her sedentary occupation as an Administrative Assistant (aka Secretary).
Over a year after our client’s last surgery, Unum reached the conclusion that “claimant would only be able to perform approximately 4 hours of sitting in an 8 hour day….” According to Unum, four hours of sitting falls into the “frequent” category (34-66%). Unum recognizes one must be able to sit at least six (6) hours a day to be capable to perform a sedentary job. Six hours of sitting falls into the “constant” category (67%-100%). Hence, Unum’s vocational consultant reached the conclusion that our client’s ability to sit frequently “would not allow for capacity for sedentary work” Multiple legal cases have reached the same conclusion.
As a result of this finding, Unum advised our client: “Based on the facts of your claim, as well as our clinical review, we do not anticipate a change in your medical status and therefore, have made the decision to extend our approval of your benefits through February 20, 2030”
A MRI taken on October 3, 2011 confirmed that the degenerative disease in our client’s spine had not changed. Inexplicably, however, Unum determined that our client was able to perform full-time work. Unum’s justification for its change of position was patently erroneous. As explained by Unum’s internal paper only medical reviewer Dr. Robert J. Clinton: “My reasoning is that the insured’s back pain has been stable….” According to Unum, because our client’s condition had not deteriorated further, she was no longer disabled. This is exactly the logic the Ninth Circuit has said is unreasonable under the more deferential abuse of discretion review.
Unum hoped to find support for its unreasonable conclusion by sending our client to a medical examination. The medical examiner, Dr. Kamran Hakimian, came to the conclusion that our client would be able to work a sedentary job on a part-time basis – provided she was allowed a 10 minute break every hour.
As part of her appeal of the termination of benefits, Kantor & Kantor sent our client to undergo objective testing of her functional capacity. The testing showed that she had even more severe limitations than assessed by Unum. She was limited to occasional sitting (1-33%) with a continuous duration of less than 30 minutes. This is far less than necessary for sedentary work.
The functional capacity evaluation also included validity factors verifying that our client “gave maximum effort with testing.” Perhaps most telling: “The client’s heart rate rose significantly corresponding with reports of pain during activities.”
Nothing sounds more fun than proving my pain in a functional test — which Unum is requiring that I have and pay for. Of course, the vast majority of the time, these tests are used against claimants to prove they’re no longer disabled. Good deal for Unum — have the claimant pay for the tests, which Unum reviews and uses to make the decision to terminate benefits (regardless of what the results actually say) — it must save this corporation a lot of money. And the potential problem of Unum’s doctors showing bias and profit motives is almost erased, because the claimant chooses the doctor to perform the test.
But does having a good doctor and an appropriately performed functional test guarantee that Unum will agree with the results? Uh, no. Perhaps if I could afford a well-known and respected doctor, that might give me some support. But I know I can’t afford the prices of a doctor like that.