In a recent Federal Court decision in favor of First Unum, the Court validated the right of a long-term disability insurance plans to rely upon functional capacity evaluations (FCE) as a basis for determining whether or not the claimant has the right to continue receiving disability insurance benefits. In VanWright v. First Unum, VanWright’s long-term disability attorney pointed to another case, Alfano v. Unum, as a reason that the Court should not find First Unum Insurance Company’s decision to terminate his client’s disability benefits reasonable. It appears that disability benefits were appropriately terminated in this case as the disability claimant was performing activities that far exceeded the restrictions and limitations indentified by his treating physician. A look into the background of this case will show why the Court took Unum’s side in its decision.
In May of 2002, Kelvin VanWright was injured severely in an automobile accident. He sustained severe injuries to his neck and back and required multilevel back surgery. The surgery was unable to restore his ability to work as a diesel technician at Cummins Metropower Inc., his employer at the time of the accident.
He had participated in his employer’s group disability insurance policy issued by First Unum, so when it became apparent that he would be unable to work he applied for long-term disability benefits. Under this disability policy, he would be considered disabled during the first 36 months as long as he was unable to perform the material duties of his regular occupation as a diesel technician. After 36 months, the definition of disability would change to unable to perform the duties of any gainful occupation for which he was “reasonably fitted by his education, training, or experience.”
The disability plan stipulated that Unum would reduce the amount of benefits paid by any settlement received from another party such as Social Security Disability Insurance benefits. The plan stated that a gainful occupation would be any occupation which provided Van Wright with “at least 60% of his indexed monthly earnings within 12 months of returning to work.” The plan also gave Unum discretionary authority to determine whether he was eligible for benefits and to interpret how the terms of the policy would be applied to his claim.
VanWright was notified by UNUM on July 30, 2002 that he had been approved for long-term disability benefits, retroactively as of July 10 of that same year. He was also notified that in order to continue qualifying for benefits, he would have to demonstrate that he was still disabled according to the policies definition. Proof of disability could be proven by additional medical or vocational information.
Between July 2002 and the end of 2006, Unum paid disability benefits, while conducting inquiries and tests to the status of VanWright’s condition. During this time, VanWright attended college and earned a bachelor’s degree. This led Unum to determine on November 27, 2006 that VanWright was no longer disabled under the stricter definition of the plan that began in July 2005. His benefits were terminated because Unum found that VanWright was capable of a “medium level of work capacity.”
This decision was based upon the assessment of two physicians and two nurses hired by Unum. Unum also identified at least three gainful occupations that the long-term disability insurance company believed VanWright was capable of performing.
VanWright appealed the disability denial decision on January 8, 2007, but the appeal was rejected with the final denial of benefits occurring on May 16, 2007.
Meanwhile, Social Security disability insurance had awarded VanWright a settlement of $40,430.20 in May of 2006. In June 2006, Unum requested reimbursement for this amount. VanWright agreed to repay Unum, but did not repay the full amount before his benefits were denied.
ERISA Disability Insurance Lawsuit Is Filed.
When VanWright hired a long-term disability attorney and took his claim to court, as permitted by the Employee Retirement Insurance Security Act (ERISA), Unum countersued for the remaining balance from the Social Security disbursement.
Disability Attorney Agrees that Policy Gives Unum Discretion.
Because the long-term disability plan granted Unum the authority to determine whether VanWright qualified for benefits, the Court would have to apply a deferential standard, that favored Unum unless a conflict of interest could be demonstrated. The court could not overturn Unum’s denial of benefits unless they could find that the denial was arbitrary and capricious – without reason and unsupported by substantial evidence. Or the decision would have to be erroneous as a matter of law.
The Court could consider several factors in determining whether Unum’s disability denial decision was reasonable. First it would consider the conflict of interest factor to see if it might have colored the decision. The court could also consider the Social Security administration’s findings that VanWright was disabled. The court would limit itself to just reviewing the administrative record, unless evidence of the conflict of interest could be demonstrated.
Unum Argues that the Record Proves the Disability Plan Did Not Act Arbitrarily or Capriciously.
VanWright’s long-term disability attorney argued that the record proves that Unum acted unreasonable and his client is disabled. He pointed to the facts that Unum refused to credit reports from his client’s treating physicians, misinterpreted the results of a functional capacity examination (FCE) which did not support VanWright’s ability to return to work, and failed to agree the with Social Security administration’s findings that VanWright was disabled.
Unfortunately, the January 2006 findings of VanWright’s physician were inconsistent with behavior that Unum had observed, and the opinion that had been expressed earlier by the same physician. For example in January 2006, the same doctor had reported that VanWright could “sit for two hours, stand for one hour, walk for one hour, and occasionally lift up to seven pounds.” Yet, the December 2006 report was more restrictive. Meanwhile, between these two dates VanWright had been attending classes four days a week, and two of those days his classes lasted for more than four hours. For his physician to then report that VanWright could not sit or stand for more than 10 minutes in an eight hour day was clearly inconsistent with VanWright’s observed behaviors.
VanWright’s disability insurance attorney had also challenged Unum’s dependence on an FCE, because he claimed it was not valid under the terms of the policy. It had been conducted by a physical therapist and the policy said that Unum could require VanWright “to be examined by a physician, other medical practitioner or vocational expert” chosen by Unum. Unum interpreted other medical practitioners to include physical therapists. The court found this a rational interpretation. On this basis, the court would not find it arbitrary and capricious to rely upon the FCE.
The long-term disability attorney then sought to invoke rule 702 of the Federal Rules of Evidence. The Court found that under ERISA, “an ERISA plan administrator is not a court and is not bound by the rules of evidence.”
VanWright disability attorney then argued that the Alfano case shows that it was wrong for Unum to rely upon the results of an FCE. The Court was not persuaded by this argument either. Despite the fact that a different standard of review was used in Alfano, the issue was a misinterpretation of the FCE, which ran counter to the evidence of seven physicians who would found that Alfano was disabled.
The final argument that VanWright’s disability attorney could bring before the court was the issue of conflict of interest. The court agreed that Unum had a conflict of interest; however, the court found evidence within the record to demonstrate that Unum had taken active steps “to remove the potential of bias and to promote the accuracy of its review.”
The Court Addresses Unum’s Counterclaim for SSDI Benefit.
The Court reviewed the record, and found that there was no question of material fact as to whether VanWright owed Unum the money for the SSDI overpayment. And because VanWright did not challenge Unum’s legal right to demand relief, the court found that VanWright owed Unum $5,003.20. The Court issued summary judgment in Unum’s favor, and further ordered the clerk of the court to enter judgment for Unum against VanWright in the amount of $5003.20. The clerk of the court was ordered to terminate any pending motions and close the case.