4/4/2012, Clarke v. Unum Life Ins. Co. of America


A few weeks later, on October 6, 2008, Unum sent Senior Field Representative Paul Weiss, ALHC, to interview Plaintiff at her home. (Weiss Field Report, FU-CL-LTD-000631-639 — SEALED). Mr. Weiss spoke with Plaintiff for about 95 minutes on various topics, including her condition and daily activities. He noted that she did not appear to him to be in any physical distress or to be suffering from any cognitive difficulties. On the contrary, he observed that she appeared “animated,” that her answers were “on point and thorough,” and that she maintained her own claim file at home, which to him evinced a “well-organized person.” Id…

On April 1, 2009, while the surveillance was underway, Unum referred Plaintiff for a functional capacity evaluation (“FCE”) to determine the extent to which her condition would affect her ability to work. The evaluation was performed by Mylah Garlington, P.T. of the Heartland Physical Therapy Provider Network. Based on Plaintiff’s performance on a number of physical tasks, Ms. Garlington determined that Plaintiff was capable of working full-time in the “light” physical demand category. She noted that although Plaintiff exhibited pain with certain tasks, some of which she was unable to complete, she believed Plaintiff was restricting her effort and not allowing her full capacity to be measured. (Garlington FCE, FU-CL-LTD-001152-1159 — SEALED)…

Further, it noted that Unum’s reviewers found the hand tests and the neurorehabilitation report to be largely unreliable because of the lack of symptom validity testing, Plaintiff’s mostly normal performance on the cognitive evaluations, the inconsistencies between the two reports, and the apparent mismatch between the abilities tested by the hand test and the requirements of Plaintiff’s occupation. The opinion also noted that Plaintiff’s counsel had requested copies of any internal medical reviews that Unum conducted prior to its appeal decision and stated that that request was denied, as Unum was not obligated to provide those reviews until after the appeal process was complete. (Appeal Decision, FU-CL-LTD-004283-4289 — SEALED)…

Since Plaintiff met her initial burden of proof, Unum was required to identify substantial contrary evidence to justify terminating her benefits. Even giving Unum’s decision all of the deference that is due to it, the Court simply cannot find any such evidence in the record…

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