Unum Calculation Of Monthly Earnings Results In Loss Of $10,000 Monthly For Quadripeligic Disability Claimant

This is a very sad disability benefit case against Unum Insurance company. Unum does not dispute that the claimant was disabled, rather they dispute how pre-disability monthly earnings should be calculated. The dispute between Unum and the disability claimant amounts to $10,000 on a monthly basis. In this case, the claimant is an attorney that was involved in a California bicycle accident 4 months into his new job as a partner at a very large law firm. He sustained a spinal cord injury and became a quadriplegic as result of the accident.

His base salary was $200,000, but his contract said he was guaranteed a $300,000 bonus if her performed satisfactory after 12 months. The accident was 4 months into his contract, and Unum calculated his pre-disability earnings without taking into consideration the $300,000 bonus. The firm paid him the $300,000k bonus a few months after the accident and told Unum that they were accruing the bonus each month, therefore Unum must consider the bonus and his base salary.

The policy defined “monthly earnings” as follows:

“Monthly Earnings” means your average gross monthly income as figured:

  1. from the income box on your W-2 form which reflects wages, tips and other compensation received from your Employer for the two (2) calendar-years just prior to your date of disability; or
  2. for the period of your employment with your Employer if you have been employed less than two (2) full calendar years prior to your date of disability.

The maximum benefit each month payable by Unum was $20,000. Unum agreed to pay $10,000 monthly which is 60% of the $200,000. If the bonus was included in the pre-disability earnings number, then the claimant would receive $20,000 each month. Unum argues that since the bonus was not paid before his date of disability, then it cannot be included in the calculation of his Monthly Earnings. The California district court agreed and found in favor of Unum. The claimant’s only remaining option was to appeal to the Ninth Circuit Court of Appeals.

The Ninth Circuit Court Of Appeals Disagrees With Unum And Remands The Case Back To Lower Court

The case was appealed to the Ninth Circuit Court of Appeals and the Ninth remanded the case back to the district court with several instructions:

  1. The district court failed to consider the extent of Unum’s Conflict of Interest. The court specifically described Unum’s history of bad faith claim handling by stating:Numerous courts, including ours, have commented on Unum’s history ” ‘of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics,’ ” McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 137 (2d Cir.2008) (quoting Radford Trust v. First Unum Life Ins. Co., 321 F.Supp.2d 226, 247 (D.Mass.2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir.2007)). Indeed, in Saffon, we attributed the trend of state prohibitions on discretionary provisions in insurance contracts to “the cupidity of one particular insurer, Unum – Provident Corp., which boosted its profits by repeatedly denying benefits claims it knew to be valid. Unum – Provident’s internal memos revealed that the company’s senior officers relied on ERISA’s deferential standard of review to avoid detection and liability.” 522 F.3d at 867; see also Radford Trust, 321 F.Supp.2d at 247 n. 20 (collecting cases). Moreover, the CSA notes that Unum was subject to “a multistate targeted examination” of its “claims handling practices,” which resulted in a settlement agreement similar to the CSA. And the CSA was the product of investigations by the State of California into Unum’s claims handling practices.
  2. The district court erred by failing to make Unum turn over internal documents which were communications between Unum’s in-house attorneys and the Unum claims handlers. The court stated that while these documents are usually protected by the attorney-client privilege, they are not protected due to the fiduciary exception. The court stated, “As applied in the ERISA context, the fiduciary exception provides that an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration.” United States v. Mett, 178 F.3d 1058, 1063 (9th Cir.1999) The court further explained that refusal to release documents is another aspect which could further expose Unum’s conflict of interest.
  3. The district court must determine if Unum abused its discretion by failing to include the “bonus” in the calculation of the claimant’s pre disability earnings.

A Divided Court Of Appeals Wants To Find In Favor Of Claimant But They Can Only Remand Back To The District Court Judge

This case is a great example of the uphill battle that an ERISA disability claimant can face and the difference of opinions that multiple Judges reviewing the same case can have. In this case, after the district court found in favor of Unum, it was then appealed to the Ninth Circuit Court of Appeals, which is one court below the United States Supreme Court. The Ninth Circuit Court of Appeals assigned a three judge panel to hear and decide the case on appeal. After hearing the case and reviewing extensive Appellate briefs, the three judge panel voted 2 -1 to send the case back to the district court judge. The two judge that voted in favor of the claimant are known as the majority. The one Judge that disagreed is known as the dissent. The majority not only stated several reasons why the case needs to be reconsidered by the lower court, but they also provided their reasons for why Unum should include the bonus in calculation of the pre-disability earnings. Despite the Appellate court’s opinion, the lower court judge still has the discretion to do what he wants. This case is a temporary victory for the claimant and it is hopeful that the lower court will agree with the Appellate courts reasons that the Bonus should be included in the pre-disability earnings. It is rare to see a case where the Appellate court will actually provide their interpretation of a disability contract when there is an abuse of discretion standard that must be applied. The dissenting judge commented on the actions of the majority and his reasons for disagreeing by stating:

“Nevertheless, the majority decides to remand. Having so decided, the majority’s opinion should be at an end. But it is not. While purporting to “express no opinion” on whether Unum’s interpretation of the plan should be found unreasonable, Op. at 11106, the majority expansively opines on the correct outcome of the district court’s inquiry, see op. at 11106-15. In doing so, the majority mischaracterizes the record and traverses well outside the bounds of our deferential review. What is more, the majority’s extensive dicta, see op. at 11106-15 – which, in any event, does not bind the district court – relies on inconclusive evidence and concludes that, because it would have interpreted that evidence differently, Unum’s interpretation is unreasonable. See op. at 11111-14. This is not abuse of discretion review.

To take one example: the majority unfairly criticizes Unum’s reliance on TWP’s statement that it would “morally honor” its employment contract and posits that TWP “most probably meant” that TWP viewed the bonus as a necessary component of Stephan’s salary. Op. at 11112. Based on the record, which consists only of Unum’s own notes of the conversation, the meaning of TWP’s statement is – as the majority itself acknowledges – inconclusive. Likewise, the majority’s reliance on Stephan’s offer letter is misplaced. Though the letter indicated that his bonus was “guaranteed,” it also said that this bonus would be paid to Stephan “provided you perform at the level” TWP anticipated for a twelve-month period. Yet the majority is confident that Unum “misreads” TWP’s offer letter. Op. at 11113. This dictum should have been left on the cutting room floor.

The evidence demonstrates that Unum’s conclusion that Stephan’s bonus was not included in the calculation of monthly benefits under the plan is a reasonable one. Unum consistently explained that it was not including the annual bonus because that bonus was contingent on Stephan completing a year of satisfactory performance, which he did not do; because the bonus was not paid on a monthly basis; because TWP had not paid premiums on the higher amount; and because it did not find TWP’s expert persuasive. Its interpretation of the plan should not be disturbed. See Conkright v. Frommert, 130 S.Ct. 1640, 1647, 1651 (2010); Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir.2011).

We may not substitute our views on how the plan should be interpreted for those of the plan administrator. The district court, after considering the evidence Stephan presented, correctly concluded that Unum’s conflict of interest carried little weight in light of other considerations and that Unum had reasonably interpreted the plan. It should not have to revisit that determination.”

We Hope The Claimant Wins The Additional $10,000 A Month

This case will go on for another several months and we can only hope that the lower court judge will decide that the Bonus should be included in the calculation of pre-disability attorneys. Our law firm did not handle this case, but we applaud the disability attorneys that have been battling for this severely injured claimant.

Comments (10)

  • You see so much injustice in the disability industry-especially with regards to legitimately disabled clients having to litigate for benefits at no penalty to insurers (eg, not having to pay fines, legal fees etc). Why not present this to congress and advocate for a change to ERISA for clients who have no voice or access to these statistics?

    Noname Mar 17, 2020  #10

  • RL,

    A carrier is supposed to respond within 30 days to any correspondence received from a claimant.

    Gregory Dell Oct 26, 2012  #9

  • Greg,

    Do you know how long it usually takes the carrier to respond after alerting them SSDI was approved?

    I notified the carrier of my wife’s SSDI approval mid September and a long with the notice communicated also that I realized they would make a request for back payment, but that the issues regarding the partial disability have never been responded to by them, not addressed, as well as the prior appeal issue on the wrong benefit amount being received for years (in part due to wages being wrongly calculated while my wife should have been receiving partial disability during those times and was not) yet benefit amount reduced by using wages that were earned while medically disabled.

    There has been no written or oral response what so ever after having notified carrier of the SSDI approval (not even to acknowledge receipt of notice of SSDI approval).

    It has been well over 40 days since they were given notice of all issues. Is this standard?

    I ask because of the carriers lack of communication in any regard to the entire matter, at a minimum I would expect they would at least verify receipt of SSDI approval, if for nothing more to assert a claim for back pay as a result of that, even if they wish to continue to ignore the other issues.

    RL Oct 25, 2012  #8

  • Greg,

    Thank you for the continued opinions. They have ignored my letters for months on end now, addressing each and every issue. Not one response, its as if they’re telling us to take it to court resolves them of having to deal with this on any further.

    A request for entire claim file has been sent in an effort to see what has been said by them pertaining to the partial disability issue they have never addressed or mentioned on prior appeals.

    They simply copy and paste quotes from the policy concerning how they determine monthly benefit amount over and over, and ignore, nor address the facts they have in hand that prove they are wrong.

    And again, mention nothing at all about the partial disability.

    There should be laws under ERISA that punish them for treating people in this manner, sadly there are not and this is why they continue to act immune to any of this, its because they are and it will still benefit them in the end from interest, unless they are forced to pay Attorney fee’s.

    I will update if I learn anything new. I really appreciate all your insight and opinions to date.

    RL Sep 21, 2012  #7

  • RL,

    If you have a pending appeal on the amount of the SSDI overpayment, then it is unlikely they will stop paying. Worse case scenario they will start offsetting the SSDI amount, which would be wash for you, because you are already in possession of the SSDI funds.

    Gregory Dell Sep 19, 2012  #6

  • Greg,

    Thanks again. I hope you don’t mind my asking. Do you know how one could configure the partial disability rate. The partial disability was never considered and there was no claim filed for partial disability when it was ongoing because my wife didn’t know she even had it, since she was not provided the insurance plan documents, she thought she only had STD / LTD.

    The plan documents were not afforded until 4-2010, and even then, we didn’t think of the partial disability aspect because we were focused on the monthly benefit deficit, which at the time was close to 300 or more a month.

    That battle went on and on as did other battles as they constantly threatened to stop benefits, there has been so much battle, the battle has only come to s tand still since my wife was ordered to present to a IME by the carrier and the IME agreed with her treating medical provider on the medical conditions and that she was less then sedentary for employment purpose.

    Just prior to that IME, which was also at the ANY occupation level time period, they further reduced her benefits, close to 500 a month (per details in 1st message here).

    We felt they did that while in wait of the IME findings so that if the IME findings were favorable to my wife, they could then try and claim my wife could perform another job in the economy making 60% of her pre-disability wages, as per the contract, so lowering her monthly benefit further would make it easier to claim there were jobs in the national economy she could perform making 60% of her pre-disability wages.

    The IME was favorable to her, and since then, my wife was approved for SSDI as well, which was ongoing throughout.

    The shortage in monthly benefits per the LTD portion to date are around 10K, I don;t know how to configure the partial disability that went on 9 months, which again has never been addressed, though it has been presented to the LTD carrier.

    My calculations based on LTD that are known, are at 10K and my estimate of of the partial, is close to same, the estimate of the SSDI back pay is around 20K, however the SSDI Attorney will get 6K and costs, so as you can see it could potentially still leave the LTD carrier in arrears and owing, as well the remainder of the LTD which is in force till my wife it 65. While my wifes current diagnosed conditions are not life ending, they are permanent and there is no cure.

    If we appeal once the carrier requests the back pay, must we forfeit the back pay to carrier in advance and if not, will they stop monthly payments all together. I am sorry this is so complicated, it really shouldn’t be, the carrier is making it this way to try any thing they can, it is so very stressful for all family who have tried to support her through this.

    RL Sep 18, 2012  #5

  • RL,

    I still think you need to wait for the SSDI overpayment calculation. You will then have the chance to submit another appeal stating why you think the benefit amount is wrong and how much the overpayment should be. If this fails again, then you would be ready to file a lawsuit.

    Gregory Dell Sep 18, 2012  #4

  • Greg, thank you for following the long and many details.

    My concern is this. We want to remain fully compliant, we don’t want to use or hold the SSDI back pay as a sort of ransom for several reasons.

    They have not been listening the entire time, and they will continue to enforce what they wrongly feel is right pertaining to my wifes monthly benefit, and have never addressed the partial disability portion at all.

    If the SSDI back pay is a sort of ransom or leveraging tool, they will just stop sending my wife’s monthly benefit checks until all the back pay they are entitled is paid back ( they will use that as an excuse ) right or wrong, on either side.

    We want to do the right thing, we understand she is not entitled to the SSDI back pay, but on the other hand this long battle over the correct monthly benefit amount being paid to my wife needs corrected, the problem is they hold the upper hand under the current ERISA laws and have tried to force that hand by stating the only option now for the dispute is to file a lawsuit, so essentially they will stop all monthly benefit checks in the event she does not pay back the SSDI back pay per the insurance contract ( its not yet received as of yet ) despite their refusal to adhere to the policy terms as in the LTD contract.

    They know that they can do this, they know this will benefit them in all the way around and here is why.

    They know a lawsuit will take years and also MONEY and thats what this is all about money.

    They know in the end they will never have to pay a red cent more them some small interest on the accumulated amount my wifes LTD have been cut short, they are wagering on the fact they have made interest off all the money they have shorted my wife over the last years, and that a lawsuit will take years, and they will continue to make interest, the money they have with held all these years in addition to the interest of same, to include all money they have shorted others in similar processes will still leave them ahead in the end, even if a lawsuit is filed and they had to pay pack the money with some small interest.

    They know in the meantime, all these years, all benefits they will so rightly claim they are witholding ( if they stop all monthly benefit checks if a lawsuit is filed will just add to the pot that they make interest off of and hold in reserves ( this works well for them )

    We only want to enforce the contract as it should be, nothing more, yet they have a monetary reason for and reward for any breach of contractual obligation and that does not benefit the claimant, my wife.

    We would be willing to file a lawsuit to resolve this matter, we are willing to forfeit the SSDI back pay to remain in compliance and to ensure the deficient monthly benefits are received.

    We are essentially forced into this, I don’t see them offering to forfeit the SSDI back pay in lue of the deficit that was created by them breaching the contract, doing as they have done and continue benefits them, right or wrong, the problem is there is no penalty to them under the current ERISA LAW.

    They have not listened to reason yet.

    There is one thing that would not benefit them however and that is if a lawsuit was filed, they are risking paying Attorney fee’s should those be granted and in the face of all that has ensued and documented I feel a Judge would most likely rule the LTD company have to pay the Attorney fees in this matter.

    We would like to find an Attorney to handle this.

    RL Sep 17, 2012  #3

  • RL,

    Sounds like a lot of aggravation, but it looks like you have done a good job for your wife. Since there is now going to be an SSDI overpayment, you should wait and see what the carrier seeks for the overpayment and then you will be able to present your position once again that she was underpaid. You may have better luck dealing with the overpayment division, than you did with claims handling decision.

    Gregory Dell Sep 17, 2012  #2

  • Mid 2008, my wife was hired as regular full time employee, scheduled, and working 40 hours a week. As part of the benefit package, she obtained STD and LTD through her employer.

    My wife paid full cost of insurance premiums for STD, and her employer paid full cost of LTD premiums, and monthly premiums paid both by her and her employer to protect her hourly wage and salary of roughly 60K a year (per her normal hourly wages) .

    December 2008, roughly 4 months into employment my wife’s health deteriorated due to numerous medical conditions, she started missing hours and days of work as a result. (her insurance premiums never changed as a result of and full premiums were continually received by the insurance company based on her regular salary.

    Early December 2008, My wife consulted with HR manager due to these health issues because she needed surgery, and HR manager stated she had not accumulated enough hours per the law to afford FMLA, but that she could with her dept managers approval take a medical leave of absence for 3 weeks and she did.

    Mid December 2008, my wife also “wrote” to the HR manager also asking for the STD/LTD insurance “plan documents”, prior to taking the 3 week medical leave and never received same or was responded to.

    No STD claim was filed for the 3 week medical leave, my wife was in wait on the plan documents she never received after requesting same in writing. However, my wifes focus was on not losing her job, which would also cost her medical benefits, benefits she greatly needed more now then ever due to health conditions.

    Early 2009 my wife returned to work from the 3 week medical leave with no definitive answers to many of her disabling medical conditions (cardiac infarct, being one of them) other conditions, one being necessary surgery to remove a tumor.

    My wife consulted with her dept manager and the dept manager in turn consulted with the HR manager and my wife was told that she was short hours to have her employment protected should she have surgery given there was also a recovery period, so a FMLA was not granted, however her dept manager advised he would be in touch with HR manager and monitor her hours and as soon as she had accumulated enough hours she would be granted a FMLA so she could have surgery.

    My wife, pushed her self beyond all limits in trying to gain the hours needed that would afford her job protection to have necessary surgery, despite she continued to miss days and hours of work, (all the while insurance premiums were paid in full and based on her salary (hourly wages and working 40 hours per work, even though she was averaging 28-33 hours a week due to her serious medical conditions)

    By 5-2009 she had accumulated enough hours to be granted a 6 week FMLA and in fact had surgery, as well provided forms to file a STD claim.

    The surgery removed the tumor, but my wifes many other health conditions did not improve, upon returning to work as she had hoped.

    My wife returned from FML late 6-2009 and continued to struggle in remaining employed and due to medical conditions, continued to miss days and hours of work, however, again full premiums were paid and received by the insurance company that should protect my wifes salary of 60K.

    By mid July 2008 my wifes dept manager sought input from HR concerning particular medical conditions that may have been caused or aggravated by the duties of her job. ultimately shortly after my wife was involved in a workers compensation dispute, despite my wife having voiced wanting no part of, at it is a known negative.

    Despite the protest of my wife, she was forced into this and sent to the employee health nurse, eventually my wife was put on light duty under the employer workers compensation program, her hours further reduced because my wife was not able to even work the hours she normally did because this new job title did not mesh with the hours of operation in her new light duty job under WC.

    By 9-2009 she was forced into a FMLA leave due to the WC issue and paid 60% of her normal wages for this time period under the WC claim.

    The employer self sponsored WC plan disputed the conditions and claim, despite them forcing this upon her.

    The full insurance premiums were paid at full rate to protect her salary of 60K.

    After the WC denied the claim, she was forced to file a STD claim and did so, and after a battle, the claim was paid, but not at the monthly rate she was entitled per the policy she was to be paid 66.7% of her regular wages and salary, however due to the HR managers error the LTD company listed her as a variable full time employee working 36 hours per week, which was false, my wife was listed as a RFT (regular full time employee working 40 hours per week and was insured for same and paid insurance premiums for same always).

    This was corrected in writing to the LTD company and they corrected the error and my wife was paid the correct benefit amount there after and was on STD for 24 weeks, and under the care of numerous Doctors and had many diagnostic tests performed in this time frame.

    The STD claim evolved into a LTD claim by 3-3010, however when the claim transitioned into a LTD her benefits were reduced and the said reason by the claims adjusted was that the STD and LTD paid differently, so the plan documents were requested directly from the LTD carrier and received 4-2010.

    After reviewing the plan documents I discovered the STD and LTD benefits were paid at 66.7% and so the adjuster had erred.

    A review was undertaken and a long battle, and tension mounted, the determination was I was correct on the 66.7 %, however, my wife had not worked sufficient hours to rate the benefit amount they were paying her.

    They continually quoted the policy language stating that the benefit amount is determined on the rate of pay the day prior to date of disability.

    I argued that this was skewed in that the date just prior to disability and long before my wife was medically disabled having been on 1 -3 week medical leave, 2 FMLA leaves and also in a worker comp dispute. Basing a monthly benefit amount on hours worked while medically disabled and during times when great work loss ensued, all the while full insurance premiums being paid and received based on my wifes salary of 60K seemed wrong.

    The harder I tried to explain the more they dug their heals in and took it personal, so they were battling me, not the beneficiary.

    In addition, I discovered my wife not only had a STD / LTD policy, but a partial disability policy as well, and had my wife been afforded the plan documents when requested early 12-2008, she would have been entitled under the policy for partial disability payments the entire time she struggled to remain an active employee and not totally disabled.

    Never once did they answer to the partial disability questions.

    They stood firm in their decision, so I continued my efforts to make them understand.

    A claims manager risk manager was now involved and stated they would welcome in evidence further submitted by me and review same, so I did just that and sent a lot of information, however, after submitting the new information, which also included pay stubs, prior to the partial disability I stated my wife was also entitled to, and ironically this same time period my wife was missing work due to medical conditions, and that they were in fact using these time periods where she should also have been receiving partial disability payments under the plan contract, but in fact using that to reduce the LTD benefit as a whole.

    How skewed could it get?

    Skewed or retalitory one, given after submitting the evidence they asked for, they wrote me a letter stating that since I had since so much information they were no longer willing to review the material and I would have to file a lawsuit, in addition they were also going to further reduce my wifes monthly benefit “even further”, but going to be nice and actually pay a benefit based on the best months hours worked in the time my wife was partially disabled and still struggling to work and that was 33 hours a week, so my wifes benefits went from being short 230 a month to 478 dollars short, if this was not insult to injury.

    They also said I could file a lawsuit now, and the matter was closed.

    They said nothing about the partial disability and lack of benefit paid while partially disabled and working and again using that same time period in an effort to reduce the monthly benefit further.

    My wife has now been approved for SSDI , and the disability company is going to want that back pay, which is not objected to, however, my wife has not been paid a correct benefit amount since 3-2010, and never received a dime for partial disability as she was entitled.

    I am well versed in the policy terms after reading them over and over again after finally receiving them in 4-2010.

    What can be done please?

    RL Sep 16, 2012  #1

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We represent Unum clients nationwide and we encourage you to contact us for a FREE immediate phone consultation with one of our experienced disability insurance attorneys.

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Our disability insurance lawyers help policy holders seeking short or long term disability insurance benefits from Unum. We have helped thousands of disability insurance claimants nationwide with monthly disability benefits. With more than 40 years of disability insurance experience we have helped individuals in almost every occupation and we are familiar with the disability income policies offered by Unum.

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