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Disabled interventional radiologist with sleep apnea and cardiac limitations sues Unum Provident and Hartford Life for denial of long-term disability benefits payments

For a disability insurance contract, one of the most important clauses in the contract will be the “own occupation” definition of what constitutes disability. The implication of this clause is that if you become “disabled” due to sickness or injury and are unable to work in your specific line of work, the insurance policy will pay you disability benefits even if you decide to work in another line of employment.

However, for group disability or lesser expensive insurance plans, the definition of what is “disability” usually includes not only being disabled from “own occupation” but also being unable to work in any “gainful employment”. For example, you might be disabled from working as a radiologist, but you are able to flip burgers, the disability insurance companies will exclude you from any eligibility of disability payments. Changing the definition of disability from a specific occupation to a general class of occupation can also result in the disability insurance companies avoiding paying you any disability benefits. The case of Kevin M. McCann Vs Unum Provident And Hartford Life And Accident Insurance Company filed by a disability attorney at the District Court for the District Of New Jersey is a good illustration of how this can happen.

The Alleged Facts of the Case

The plaintiff Kevin M McCann was trained and certified as an Interventional Radiologist. This is a specialist occupation which is recognized by the American Board of Medical Specialties. The duties of an Interventional Radiologist (IR) differ from a diagnostic radiologist (DR) as an Interventional Radiologist is physically involved in invasive treatment of patients. The analogy can be likened to a surgeon being compared to a General Practitioner doctor.

The Disability Insurance Policies owned by the Plaintiff

From 1991 to 2001, the plaintiff was working as an IR at Radiology Consultants, P.C., in Michigan.

It was in 1991 also that the plaintiff purchased an individual disability insurance policy from Unum Provident (Unum). Later from 2005 to 2008, the plaintiff went to work as an IR at the Holzer Clinic in Gallipolis, Ohio. At the Holzer Clinic, the plaintiff participated in a long term disability insurance policy issued by the Hartford Life And Accident Insurance Company (Hartford) under the Group Long Term Disability Plan for Employees of Holzer Clinic.

Definition of Disability in the Unum Policy

In the Unum policy, disability benefits are due when the plaintiff cannot perform “the substantial and material duties of your occupation.” The Unum policy defined “Your occupation” as:

The occupation… in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree or license, we will deem your specialty to be your occupation.

And “Total disability” or “totally disabled” is defined as:

Due to Injuries or Sickness: (1) you are not able to perform the substantial and material duties of your occupation; and (2) you are receiving care by a Physician which is appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to you.

Definition of Disability in the Harford Disability Policy

For the Hartford policy, the plaintiff is eligible for disability benefits when he is unable to perform one or more of the essential duties of his occupation. “Essential Duty” is defined in the policy as a duty that:

  1. Is substantial, not incidental;
  2. Is fundamental or inherent to the occupation; and
  3. Cannot be reasonably omitted or changed.

The Hartford policy also included the following as an essential duty:

Your ability to work under the number of hours in your regularly scheduled work week is an Essential Duty.

As the plaintiff is a physician, the definition of “Your Occupation” that is applicable in his case is:

The general or sub-specialty in which you are practicing for which there is a specialty or sub-specialty recognized by the American Board of Medical Specialties. If the sub-specialty in which you are practicing is not recognized by the American Board of Medical Specialties, You will be considered practicing in the general specialty category.

Diagnosis Of Disabling Medical Conditions

Around 2005, the plaintiff was diagnosed with essential hypertension. He was also diagnosed with obstructive sleep apnea in December 2006. Despite treatment, the plaintiff did not show any significant improvement with his sleep disorder that was aggravating the plaintiff s hypertension.

On April 2007, the plaintiff was found to be suffering from aortic aneurysm when he went for a chest CT scan after experiencing tightness in his chest. The plaintiff was advised by his attending physician that his job as an IR would pose a danger to his health due to the inherently stressful nature of the job.

The plaintiff s attending physician, Dr. Coselli concluded and rendered his medical opinion to the President of the Holzer Clinic that the plaintiff should be deemed fully disabled permanently effective from March 10th 2008 as the combination of the plaintiff s medical conditions could cause further dilation of his aorta. Dr. Coselli also confirmed that the plaintiff s aortic aneurysm is a progressive medical condition and because of the stressful nature of an IR s work, no adjustments could be made that would allow the plaintiff to return to work.

Disclaimer of Coverage by Unum

Upon being determined disabled by his attending physician, Dr. Coselli,, the plaintiff filed a disability application for disability benefits with Unum. On March 10th 2008, Unum made a preliminary determination to award total disability benefits to the plaintiff. This award was subjected to a Reservation of Rights and further investigation of the plaintiff s claim. On January 10th 2009, Unum informed the plaintiff that his disability status had been confirmed.

Nevertheless, it was alleged by the plaintiff that a surveillance program was conducted on the plaintiff in 2009. No evidence indicating the plaintiff was not disabled was found. In 2009, Unum also conducted 24-hour monitoring of plaintiff s blood pressure levels. The test was however conducted in stress free conditions and not those conditions that the plaintiff would face working as an IR. This was also contrary to Unum s own board certified cardiologist advice.

On December 23rd, 2009, the plaintiff s disability benefits were terminated by Unum on the grounds that a vocational rehabilitation consultant that had been engaged concluded that the plaintiff s occupation as an IR was mainly diagnostic in nature with only a small percentage being interventional.

In response, the plaintiff submitted an appeal to Unum s decision to terminate his benefits on June 21st 2010. Substantial evidence was also submitted to support the plaintiff s claim of total disability. Despite failure to produce any substantial evidence to support its disclaimer of coverage and termination of the plaintiff s benefits, Unum denied the plaintiffs appeal on September 10th 2010.

The plaintiff argued that the only change in his medical condition from March 10th 2008 (when the plaintiff was first deemed fully disabled) until December 23rd 2009 (When Unum terminated the plaintiff s benefit) was the fact that his ascending aortic aneurysm had increased in size. This had happened despite the plaintiff s effort to avoid highly stressful situations and also not working as an IR.

Breach of Contract by Unum

The plaintiff argued in the lawsuit that Unum s action in terminating payment of his disability benefits is a breach of its contractual obligations to the plaintiff. The plaintiff argued that Unum had based its disclaimer of coverage on “an erroneous and unsupported re-classification of plaintiff s occupation, from “Interventional Radiologist” to “Diagnostic Radiologist”.” The plaintiff contended that the decision to terminate his disability benefits was an arbitrary decision.

Denial of Long Term Disability Benefits by Hartford

The plaintiff also submitted a claim for disability benefits with Hartford once he was determined to be disabled. Hartford, on June 27th 2008, approved the plaintiff s claim for long term disability benefits subjected to its review whether the plaintiff s condition was a pre-existing one. Since no existing pre-existing condition was found, Hartford approved the plaintiff s claim on August 5th 2008. From June 8th 2008 to February 4th 2010, the plaintiff stated that he had received payment of benefits from Hartford.

However February 9th 2010, after a subsequent review of the plaintiff s claim, Harford decided to terminate the plaintiff s disability benefits on the grounds that the plaintiff was able to perform the essential duties of his occupation as a “Radiologist.”. The plaintiff argued that Hartford disclaimed coverage by unilaterally redefining plaintiff s occupation as an IR to that of a Radiologist.

An appeal was made to Hartford on July 26th 2010 regarding Hartford s wrongful termination of benefits. The plaintiff also submitted substantial evidence to support his appeal. Nevertheless, Harford denied the plaintiff s appeal on October 22nd 2010.

Breach of Contract by Hartford

The plaintiff argued that Hartford s decision to terminate payment of further disability payments was in breach of its contractual obligations to the plaintiff. It had based its disclaimer of coverage “on an erroneous re-classification of plaintiff s occupation from Interventional Radiologist to Radiologist.”

The plaintiff argued that there is no justification for Hartford to terminate payment disability benefits and its decision to do so was clearly an arbitrary determination.

Relief Sought By The Plaintiff In The Lawsuit

The plaintiff argued that the arbitrary decision by both Unum and Hartford had resulted in him suffering damages. As such the plaintiff is seeking from the Court the following relief from both Unum and Harford:

  • The payment of all past due benefits, inclusive of interest.
  • The reinstatement of monthly payments of benefits under the terms of the plans.
  • An award of reasonable attorney s fees and costs of suit.
  • Any other relief as the Court may deem just.


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