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Sometimes a Unum disability denial is correct, even after 5 years of payments

It is vital for claimants to remember that just because disability benefits have been approved and are being paid, this does not mean the insurance company has closed its file and is no longer investigating your claim for disability. You must continue to treat for you illness or injury and your physicians must continue to support your being disabled and not able to work due to your illness or injury. Additionally, medical evidence of the disability must be routinely provided to the insurance company or they will find grounds to deny your claim for continued benefits. It is not uncommon for disability insurance companies to conduct video surveillance, especially when they have been paying benefits for 5 or 10 years, as a means to “check up” on your functional status and to try to catch you “in the act” of performing activities you claim unable to do as a result of your illness and disability.

In this article let’s take a look at a recent case in which Unum denied benefits to a former medical device sales rep after paying her for 5 years. Our law firm did not represent this claimant, and based upon the reported facts it appears obvious that Unum and the Court made the right decision by denying long term disability benefits. It is rare for us to say we agree with a Unum decision, but this claimant did not have proper medical support for disability and her lack of honesty resulted in a clear disability. Any experienced disability insurance lawyer would have known immediately that this case had no chance of being won in court. It is always important to hire an experienced disability attorney that will give you an honest opinion about your chances of obtaining disability insurance benefits.

Heger v. Unum Insurance Company

The plaintiff in this matter, Ms. Hegger, was previously employed by Medela Inc. as a medical device sales representative. She stopped working in December 2004 due to back and neck pain. In April 2005, Unum approved Ms. Hegger’s claim for disability benefits. From 2005 through 2010, Unum conducted periodic reviews of Ms. Hegger’s claim and determined that she remained disabled and continued to pay her disability benefits. However, in November 2010, after five years of payments, Unum determined she was no longer disabled and terminated her long term disability benefits. Ms. Hegger appealed in 2011 and her appeal was denied. Thereafter, she filed a disability insurance lawsuit against UNUM in california under ERISA.

The Medical Records Were Inconsistent and Lacked Support

At the time she stopped working, Ms. Hegger was diagnosed with lumbar degenerative joint disease and lumbar myofascial pain and an MRI revealed a L5-S1 disc bulge.

During the time period from 2004 until 2010, Ms. Hegger treated with numerous physicians. The records indicated that she had significant pain complaints, with intensities reaching 8-9 out of 10. However, the records also indicated that once one of her treating physicians determined that she was capable of returning to work, even with some restrictions. Ms. Hegger sought out treatment from another doctor who would then determine her disabled from work. Ms. Hegger underwent 3 independent medical examinations, relating to her workers’ compensation and social security proceedings, which all determined that Ms. Hegger was able to work, but with certain restrictions. The records also reflected that Ms. Hegger reported that she did go to the gym for stretching and strengthening and a comparison MRI performed in 2008 showed that her disk bulge had diminished.

Unum had 2 of its own physicians perform file reviews. The first determined that Ms. Hegger’s condition had improved and received confirmation from one of her treating physicians that she was able to return to full time work. The second Unum physician found discrepancies in Ms. Hegger’s reported complaints and no medical basis for her physician’s conclusions that she was not able to work. The second reviewing physician also determined that Ms. Hegger was capable of full time work.

In 2007, Ms. Hegger filed a claim for Social Security Disability benefits and was subsequently denied. A year later she filed an application for Social Security benefits, and her application was denied at hearing by an administrative law judge. A medical expert and vocational expert testified at the hearing. The ALJ concluded that Ms. Hegger’s medical conditions could be reasonably expected to produce her reported symptoms, but that her own statements regarding the “intensity, persistence and limiting effects of these symptoms are not entirely credible to the extent they would preclude the residual functional capacity for”¦light work.” This evidence is not good at all for supporting a long term disability claim.

Claimant’s Activities and Actions Give Cause To Question Her Credibility

In addition to the medical evidence, other evidence was considered which gave cause to question Ms. Hegger’s credibility when reporting her symptoms. It was discovered that Ms. Hegger took first place in a Tae Kwon Do martial arts tournament in early 2007. She admitted to earning her black belt rank prior to 2005 and that she “occasionally” practiced Tae Kwon Do since allegedly becoming disabled. She also admitted to participating in a martial arts tournament in 2008. However, Ms. Hegger never reported participating in Tae Kwon Do to her doctors or to Unum, and even falsely reported that she did not engage in any sports activities. During the times she was engaging in martial arts tournaments in 2007 and 2008, she was reporting to her doctors that she was regularly suffering from extreme, debilitating pain.

Unum conducted video surveillance of Ms. Hegger in 2008 and 2010. The most significant video, taken in 2010, demonstrated that on one day, Ms. Hegger spent over 6 hours outside of her house. She spent 90 minutes at the gym and then went to a physical therapy appointment. After her physical therapy, she went shopping. The video shows her removing groceries from her SUV by herself, including a flat of water bottles. She is shown reaching overhead to close the trunk of her SUV while holding a flat of canned goods under her arm and balanced on her hip.

The record also showed that Ms. Hegger traveled substantially after leaving work for her disability. She traveled to Phoenix, Orlando and a 5-day Las Vegas convention while working for Hygeia, a competitor of her former employer. She also went to Hawaii a couple of times per year.

There was also evidence in the record that Ms. Hegger made false representations to Unum and her doctors about her work. After telling Unum she was not employed, she reported to her physical therapist that she was “self-employed”. Unum later learned that she was 50% owner with her husband in a business and had reported self-employment income for the years 2004 – 2007, totaling over $50,000. In 2008, Unum asked Ms. Hegger whether she owned a business and was self-employed, and Ms. Hegger denied both. Thirteen days after making that denial, she amended her 2005 and 2006 tax returns and changed the classification of the income she received for those years as non-taxable stating that “she was not active in the Hegger Insurance Agency.”

Unum also questioned Ms. Hegger in 2008 about whether she returned to work for Hygeia. She reported that she was not working and did not disclose she attended the Las Vegas conference. When asked specifically whether she attended the Las Vegas conference, she said that she had but claimed she was not paid for her work. In 2009, Ms. Hegger’s submitted a form to Unum reporting that she returned to work but was not getting paid, and later reported that she was only working part-time and earning only $30-40 per month. However, the evidence showed that in 2009 she worked for Hygeia for 10 months on a flexible scheduled and earned over $36,000.

Additionally, the court found that the evidence of her work for Hygeia demonstrated that Ms. Hegger remained employable in her occupation after she left work, and that she would be able to find gainful employed as defined by the plan if she returned to work.

The Court Determines the Evidence Proves Claimant is Not Disabled

Ms. Hegger’s California disability insurance attorneys (not Dell & Schaefer!) tried to argue that Unum could not use the evidence it had while it was paying disability benefits as evidence supporting a subsequent denial of benefits. The court held that “an initial grant of payment of disability benefits may be evidence relevant to whether a claimant is disabled, but it is not necessarily dispositive.” Further, Unum is not precluded from changing its evaluation, taking a fresh look at the claim file, or re-interpreting evidence based on new developments in the claim over time.

Ms. Hegger requested for the court to remand her claim back to Unum in order to challenge the reasons they denied her disability benefits for the first time on appeal. However, the court, in this matter, applied a de novo standard of review and found that a remand was inappropriate.

After thoroughly reviewing the record evidence, the court determined that Ms. Hegger was not disabled under the plan when Unum denied her appeal, and Unum’s motion for judgment was granted.

Attorneys Dell & Schaefer did not represent Ms. Hegger in her disability claim, appeal or lawsuit. If you have questions regarding your claim for disability benefits, or if your disability claim has been denied, feel free to call Disability Attorneys Dell & Schaefer for a free consultation.



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