A Federal judge in Oregon has ruled that a severely disabled attorney is not entitled to her ERISA-governed long term disability benefits due to a small gap in her medical records. Her case serves as a cautionary tale on how pitiless insurance companies can exploit technical weaknesses in a claim and have their decision rubber-stamped by a court. The outcome of Ms. Gary’s case may have been far different if she had provided timely notice of claim, kept a diary of her symptoms, sought out medical studies that would have objectified her subjective complaints of pain, and ensured her physicians reported all of her restrictions and limitations. The case is Gary v. Unum Life Insurance Co. (U.S. Dist. Oregon April 2019).
Ms. Gary practiced law for a 400-plus attorney West-Coast law firm. Ms. Gary suffers from Ehlers-Danlos Syndrome. Ehlers-Danlos Syndrome (“EDS”) is a connective tissue disorder which is characterized by hypermobile joints and a deficiency in connective tissue that often results in clumsiness, repeated injury, frequently dislocated joints, and the inability to regulate body temperature, along with bladder and bowel control issues.
In Ms. Gary’s case, her brainstem was putting increased pressure on her brain due to EDS. As a result, she suffered from cognitive problems, weakness, impaired coordination, bladder problems, numbness, tingling, and frequent and unpredictable fainting spells. Symptoms of EDS forced Ms. Gary to stop working as an attorney in November 2013. Thereafter, she continued to see her physicians on a regular basis and in October 2014, underwent a dangerous operation to relieve the pressure on her brain.
Early postoperative results were encouraging. Ms. Gary’s doctors’ medical records swelled with aspirational statements like, “[m]ay be able to return to her law profession in a year or two,” and other statements that she “she has done very well,” noting she looked much brighter and had improvements in brain fog, difficulty swallowing and speaking. While many of Ms. Gary’s brainstem issues resolved or improved, other significant disabling EDS symptoms persisted, such as spasm induced falls, heat and cold intolerance, vertebral subluxations, chronic fatigue, frequent joint dislocations as well as hallucinations in her peripheral vision.
Unfortunately, Ms. Gary and her physicians failed to document these persistent and disabling EDS symptoms for a 3-month period around April 2015. Although Ms. Gary was totally disabled from the date she stopped, she did not notify her insurance company, UNUM, until September 2016. UNUM ultimately admitted that Ms. Gary was totally disabled from November 27, 2013 through April 2015, but UNUM exploited the paucity of medical records during that limited, April 2015 time frame, concluding that Ms. Gary “was able to perform the duties of her regular occupation and no longer met the definition of disability in the policies” as of April 2015.
The Court ruled that it was Ms. Gary’s burden to demonstrate that she satisfied the definition of disability in the UNUM policy subsequent to April 2015 and that the relevant absence of records around April 2015, despite her extensive proof of disability before and after April 2015, doomed her claim and prevented her from ever receiving benefits. The court hinted that it disagreed with Unum’s determination, but was required under ERISA law to defer to UNUM’s discretionary authority to make claims determinations unless its determination was clearly unreasonable. Ms. Gary is appealing the decision.
What can we learn from this disgusting torture of the justice system, besides recognizing that insurance giants like UNUM, who under ERISA are supposed to be fiduciaries to people like Ms. Gary, continue to operating as self-dealing, profit mongering pigs? A few other lessons are evident to us.
- Anyone with a disability, including a lawyer, needs an experienced lawyer to help them in this process, as early as possible.
- Timely notify your insurance company when you have a claim.
- When you are with your treating health care professionals, tell them about your symptoms and make sure they document those symptoms.
- If possible, maintain a diary of your symptoms and difficulties that you can use with your doctors and to better explain your restrictions and limitation to the insurance company.
Evan S. Schwartz
Founder of Schwartz, Conroy & Hack