Is Remand Required If Plaintiff Proves Disability by a Preponderance of the Evidence?

In Ralph Dewsnup v. Unum Life Insurance Company of America (Unum), Plaintiff was a trial attorney with the law firm of Dewsnup King & Olsen when he underwent quadruple bypass heart surgery after suffering a heart attack on March 18, 2015. As far as his heart was concerned, the surgery was a success. But he was left with constant pain across his chest near the area of his incision that got worse with stress.

On October 15, 2015, plaintiff was diagnosed with intercostal neuralgia, likely caused by nerve entrapment during the heart surgery. He was treated with gabapentin, a medication prescribed for nerve pain, but since he didn’t like the side effects, he quit taking it.

Plaintiff also underwent one intercostal nerve block which he felt was not successful at alleviating his pain. Since that didn’t work, he refused the next suggested treatment of ablation. He decided just to “wait it out” and hope the pain would eventually go away.

Plaintiff applied for disability benefits under an employment Long Term Disability Income Plan insured by Unum. His application was approved, and he began receiving benefits on November 9, 2015. Under the terms of the plan, and based on his age, if he proved he was disabled he was entitled to a maximum of 18 months of benefits.

To prove he was disabled, he had to prove that he could not perform each of the material duties of his regular occupation. For attorneys, regular occupation was defined as the area of law they were practicing just prior to the date of disability. There was no question that Plaintiff was a practicing trial attorney at the time he became disabled.

After approving benefits, Unum continued to monitor Plaintiff’s recovery. After speaking to Plaintiff on the phone, receiving information from his treating physicians, and having four different medical professionals review his file, Unum terminated his disability benefits effective April 28, 2016.

Plaintiff appealed the denial of further benefits and attached three letters to his appeal. Two from his treating physicians and one from the president of his law firm, all attesting to his disability and inability to perform the duties of his regular occupation: trial attorney. Unum didn’t budge in its opinion and again denied Plaintiff further disability benefits.

Since Plaintiff exhausted his administrative remedies, he filed this ERISA lawsuit in the United States District Court for the District of Utah, Central Division. The Court found in favor of Plaintiff, stating that “Reviewing the record de novo, the court finds that Mr. Dewsnup’s claim of disability is supported by a preponderance of the evidence in the record.”

Plaintiff’s Claim is Supported by a Preponderance of the Evidence

The Court evaluated each issue raised by Unum in its effort to justify its denial of disability benefits to Plaintiff according to whether he would be able to perform the “material and substantial duties of a trial attorney in the national economy as described in the Unum’s occupational ID which can require long hours and entail high cognitive demands [citations omitted]…”. On each one, the Court found in favor of Plaintiff.

Reports of Pain Were Credible. Neuropathic pain, which is subjective “presents a conundrum for insures and courts evaluating disability claims.” Here, the Court found Plaintiff’s reports of pain credible in that:

·  His pain had a “straight-forward etiology.” He underwent open-heart surgery and the surgery damaged nerves in his chest wall.

·  He consistently reported the same type and severity of pain throughout his entire medical record.

·  His claims of pain were corroborated by his three treating physicians.

Although Unum’s reviewing professionals opined that this pain was not disabling, the Court gave more weight to the treating physicians who actually examined him than to the reviewing physicians, none of whom had examined the plaintiff.

Diagnostic Testing. Unum argued that diagnostic testing did not support Plaintiff’s reports of disabling pain because they showed no cardiac or lung problems. The Court did not find the diagnostic testing reports probative of disability, since his pain was neuropathic, and not a result of any cardiac or lung issue.

Additionally, the Court concluded, “the absence of diagnostic verification of pain does not cut against Mr. Dewsnup’s claim because such an absence is a natural consequence of his condition… neuropathic pain lacks testable, objective indicia.”

Increased Daily Activities. Plaintiff reported to Unum that he had increased his daily activities by helping his wife with housework and carving a mantel. Unum argued this showed he was not disabled. The Court noted how these activities did not “carry the same cognitive demands [of legal work]. None required sustained concentration and focus, advocacy, or long hours, and none can fairly be said to cause the stress of even routine litigation.”

Decision to Forego Treatment. Unum argued that since Plaintiff decided to forego further medication and treatment, that must mean he was no longer suffering from debilitating pain and therefore was not disabled. The Court disagreed. There were reasons he declined the treatment. He did not like the side effects of the medication, and he declined ablation, which depended on a successful nerve block and his nerve block was unsuccessful.

Just because Plaintiff had decided to tolerate his pain, did not mean that it did not interfere with his ability to perform the stressful work of a litigation attorney.

Opinions of Unum Reviewers. The Court was mindful that opinions of treating physicians “are not entitled to special weight.” But here, when the determining factor hinges on the credibility of the Plaintiff’s reporting of his pain, the Court found the opinions of the treating physicians more convincing that the opinions of reviewing professionals (one registered nurse and three medical doctors) who had never met or examined Plaintiff. (One reviewer spoke with Plaintiff on the phone.)

Finally, the Court concluded, “The court finds that Mr. Dewsnup has met his burden of showing disability by a preponderance of the evidence and reverse’s Unum’s decision to terminate his benefits.”

The Court Did Not Remand, But Awarded Past Benefits and Prejudgment Interest

Having determined that the record clearly showed that Plaintiff was entitled to disability benefits, the Court found no need to remand to Unum and ordered it to pay benefits from the date of the termination for the eight additional months to which he was entitled. Unum was also ordered to pay prejudgment interest accruing from the date of the denial of benefits through the date of the court order.

This case was not handled by our office, but we think it can be instructive to those who may be struggling with a similar issue with their disability insurer. If you have any questions about your disability claim, whether for short term disability (STD) or long term disability (LTD) benefits, contact one of our disability attorneys at Dell & Schaefer for a free consultation.

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