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Radio personality files lawsuit against UNUM to recover disability benefits

A Radio Station employee and her Montana disability lawyer filed a lawsuit against UNUM Group in Montana Federal Court alleging that the insurer violated the Employee Retirement Insurance Security Act of 1974 (ERISA) when it wrongfully denied her entitled disability benefits per a policy she had with her employer, KMSO Radio.

As a shareholder in Sheila Callahan and Friends, Inc. d/b/a KMSO Radio, Sheila M. is entitled to disability benefits under a group policy. The Claimant fractured her ankle on May 14, 2009, underwent surgery to repair the break on May 22, 2009, and applied for disability benefits in July 2009. Not acknowledging receipt of the claimant’s claim until September 2009, UNUM still paid the claimant long term disability benefits from August 13, 2009 to February 12, 2010, but paid an incorrect amount of benefits because the insurer calculated her disability benefits payments by averaging her post-deduction income when they were supposed to calculate the amount of her disability benefits by using her gross income in the determination of her disability rate.

Background of the Disability and the Need for Disability Benefits

The claimant’s problems arose when the anesthesiologist present during her ankle surgery had “difficulty entubating (the claimant) for the administration of anesthesia. Spending a prolonged time in the operating room for her ankle surgery, (the claimant) emerged from surgery with speaking difficulties and problems projecting her voice.” As a radio personality, the claimant’s profession is dependent on voice projection. After the incident, prolonged speaking of more than five minutes caused the claimant to lose her voice entirely. Referred to a speech pathologist, the claimant found herself unable to perform the material and substantial duties of her occupation as a radio personality and thus was eligible for long term disability benefits.

In addition to underpaying the claimant’s long term disability benefits, UNUM also denied the claimant benefits after May 13, 2010, “asserting that she no longer satisfied the definition of disability” per her plan. In November 2010, the claimant appealed the insurer’s denial and provided the insurance company with affidavits “attesting to the continuation of her vocal problems as well as tax and income information in support of her claim.” In March 2011, UNUM denied the claimant’s appeal claiming that the “information it possessed” in reference to her disability was “insufficient to reverse the prior closure decision” and stated that the claimant “no longer satisfied the Plan definition of disability.”

The Claimant and Her Disability Attorney File a Complaint against UNUM

In her complaint, the claimant and her disability lawyer state that “despite numerous attempts by (the claimant) and her husband to rectify the error” in which the insurer ‘used a calculation other than the one provided in the terms of the Plan,” UNUM failed to properly address the problem. The Claimant had previously informed the insurer that the income amounts that she did receive were incorrect, but UNUM failed to re-calculate the amount or correct the situation. And on top of underpaying the claimant for the disability benefits they did provide, the insurer later terminated those same benefits even though her medical condition had not improved. Alleging that UNUM did not properly conduct a “reasonable investigation in its determination” of her disability benefit payment, the claimant and her disability lawyer request that the insurer restore losses to the claimant for its breach of fiduciary duties, re-instate her disability benefits, current, retroactive and future benefits per ERISA § 502(a)(2) and § 409(a), attorney’s fees and costs and any other relief the District Court “deems just and proper.”



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