A California federal court ruled last month that an office worker is entitled to long term disability benefits because a spinal injury prevents her from working in any full-time job. Unum Life Insurance Company denied benefits based on the findings of its in-house health care professionals. But those professionals unlawfully ignored the claimant’s complaints of pain and disability and arrived at their determination without examining the claimant.
Yolanda Rios worked at white-shoe international law firm Arnold & Porter as a user support specialist, a position that required legal typing, constant sitting, concentration and logical thinking. Rios, who reported experiencing back pain since 2015, applied for long-term disability benefits in 2018 when she was no longer able to work. She is unable to sit for prolonged periods of time due to her primary disabling condition of back and leg pain (sciatica) related to multi-level degenerative lumbar disc disease, stenosis, radiculopathy and “severe disc narrowing at L4/5.” These diagnoses were supported by X-ray, MRI and clinical findings. In addition to her primary disabling condition, Rios’ treating physicians documented that she suffers from impaired recall, attention and concentration due to medication side effects.
Under the terms of Rios’ policy, claimants are considered disabled when they are limited from performing the material and substantial duties of their regular or usual occupation. After 24 months, claimants are considered disabled when they are unable to perform the duties of “any occupation” or “any gainful occupation.” As described in the national economy, the plaintiff’s usual job is sedentary, requiring 5.5-plus hours of sitting in an eight-hour day, according to Unum’s vocational consultant, Mary Cloutier.
In July 2018, Unum initially approved and paid benefits, advising Rios that the approval was based on diagnoses of anxiety and depression rather than physical impairment, and that the company would further evaluate the claimant’s physical complaints. But two months later, it terminated the benefits, determining that Rios had “the opportunity to stand and stretch and…to briefly walk around the office…(and)…change positions intermittently as needed, so as to ease her pain and enable her to work.” But Rios’ treating orthopedist, pain management specialist, physical therapist and physician assistant had provided documentation that not only sitting, but walking and standing also aggravated the plaintiff’s pain, while rest improved it.
Rios appealed the claim termination in February 2019 and Unum denied the appeal, based in large part on the findings of its in-house medical reviewer, Dr. Scott Norris, and several medical consultants. Dr. Norris, a family and occupational medicine doctor who is not an orthopedic surgeon or pain specialist, did not examine the plaintiff or even speak to her by phone. From a paper review, he concluded that “the mild to moderate findings noted on examinations and diagnostic testing/imaging do not support ongoing impairment that would preclude work.” Unum’s in-house nurse reviewer, Ms. Malan-Elzawahry, also only performed a paper review and concluded that “the insured’s reported level of pain is above that expected with the radiographic changes described.”
None of Rios’ health care providers indicated that she complained of excess pain or that her MRI, X-ray and examination findings failed to support her pain complaints. Dr. Norris’ report also said the patient’s records did not describe sedation or other functional deficits related to medication side effects, when Rios’ treating doctors clearly documented otherwise.
In appealing the termination of benefits, Rios argued that she was disabled from her “prior occupation” and/or “any occupation,” and that her “functional capacity is less than sedentary.”
Unum disagreed, stating the plaintiff’s functional capacity was not “less than sedentary,” but Unum never indicated that it wanted to perform any additional evaluations. None of Rios’ health care providers ever indicated that she could sit for more than four hours, let alone more than 5.5 hours, in an eight-hour workday. The plaintiff testified through her declaration that she had to lie down one to two hours per day to rest her back because of pain. Dr. Steiger, Rios’ treating orthopedist, indicated that she was unable to perform any “full-time competitive work” and that her “disability is expected to continue indefinitely.”
After Unum denied her appeal, Rios filed a lawsuit in May 2019.
The court’s decision
The Federal judge ruled that Rios proved her entitlement to policy benefits under both the “own occupation” and “any occupation” standards.
The Court acknowledged Unum was correct not to accept Rios’ declaration that her symptoms rose to the level of disability at face value. But credible pain testimony should be considered in determining whether there is a disability when the complaints are associated with a medically demonstrable impairment, the Court said.
“An adjudicator who rejects a claimant’s allegations of the severity of pain may do so only when properly supported by the record and may not arbitrarily discredit a claimant’s testimony regarding pain,” the Court said.
Further, the Court ruled that an inability to sit for more than four hours in an eight-hour day precludes someone from performing sedentary work, which requires sitting “most of the time.”
While acknowledging that paper reviews are not inherently objectionable, the Court said the failure to perform a medical exam when it’s permitted by the plan or policy “raises questions about the thoroughness and accuracy” of the insurer’s decision to deny benefits.
Finally, the Court recognized the biased nature of insurance company goal-oriented medical reviews, noting that the opinions of non-examining physicians on the insurance company’s payroll are “entitled to skepticism” when the testimony of physicians who examined the plaintiff are “entirely one-sided” in support of the plaintiff’s claim.
If your long-term disability insurance claim is being challenged or has been denied or terminated, give us a call. We have the experience, knowledge and tenacity to make sure insurance companies keep the promises they made to you.
Evan S. Schwartz
Founder of Schwartz, Conroy & Hack