Unum Insurance claims no object evidence exist and denies disability benefits to St. Anthony Central Hospital nurse suffering from fibromyalgia

Colorado disability lawyer files lawsuit against Unum Life Insurance Company Of America for denying long term disability benefits and wrongfully asserting no objective test exist to diagnose fibromyalgia

In Kelly Ann Curtis vs Unum Life Insurance Company of America, a Colorado disability attorney filed a lawsuit on behalf of a disability claimant against the Unum Life Insurance Company of America (Unum) at Denver County District Court. The case is quite interesting as it illustrates how disability insurance companies can, by applying certain limiting clauses in disability insurance contracts, avoid paying out disability benefits to the insured.

The Alleged Facts Of The Disability Benefit Claim

The plaintiff Kelly Ann Curtis was employed as an Intensive Care Unit (“ICU”) Registered Nurse (“RN”) at St. Anthony Central Hospital. The St. Anthony Central Hospital is managed by Centura Health under a joint operating agreement with the Catholic Health Initiatives. While still employed at St. Anthony Central Hospital, she participated in a Unum long term disability group policy (The Policy) issued to Catholic Health Initiatives.

In January 2007, the plaintiff was diagnosed by a board-certified rheumatologist as suffering from Fibromyalgia. Despite her symptoms of ongoing severe pain and fatigue, between 2006 and 2009, the plaintiff continued working fulltime at St. Anthony Central Hospital.

According to the lawsuit, by March 2009, it had become apparent that the plaintiff was having difficulty working due to her symptoms of ongoing severe pain and fatigue. As such, the plaintiff stated that she was forced to stop working on March 5th 2009.

Disability Application And Approval For Disability Benefits

Subsequently, the plaintiff filed a disability application for short term disability (STD) benefits under the above mentioned policy with Unum. She was approved for the maximum benefit period of STD benefits which was until August 31st 2009. Upon the expiry of her STD benefits, the plaintiff filed a disability application with Unum for transition to long term disability (LTD) benefits under the above mentioned policy. The plaintiff also, to support her disability benefit application, submitted medical records from her attending physicians who had performed trigger point examinations on her to establish the diagnosis of fibromyalgia.

Self-Reported Symptoms Provision

On September 11th 2009, Unum approved the plaintiff’s claim for LTD benefits effective from September 1st 2009. However, the plaintiff was advised by Unum that the approval of LTD benefits was limited by the self-reported symptoms provision of the Policy. Under the policy, the self-reported symptoms provision states that:

Disabilities due to sickness or injury that are based on primarily self-reported symptoms and disabilities due to mental illness have a limited pay period of up to 12 months. Unum will continue to send you payments beyond the 12 month period if you meet one or both of these conditions:

  1. If you are confined to a hospital or institution at the end of the 12 month period, Unum will continue to send you payments during your confinement.If you are still disabled when you are discharged, Unum will send you payments for a recovery period of up to 90 days.If you become reconfined at any time during the recovery period and remain confined for at least 14 days in a row, Unum will send payments during that additional confinement and for one additional recovery period of up to 90 more days.
  2. In addition to Item 1, if, after the 12 month period for which you have received payments, you continue to be disabled and subsequently become confined to a hospital or institution for at least 14 days in a row, Unum will send payments during the length of the reconfinement.

Unum will not pay beyond the limited pay period as indicated above, or the maximum period of payment, which occurs first.

“Self-reported symptoms” is defined under the policy as:

Self-reported symptoms means the manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

Denial Of LTD Benefits Under Self-Reported Symptoms Limitation Provision

The plaintiff stated that she was paid Long term disability benefits by Unum from September 1st 2009 to August 30th 2010. On august 30th, 2010, the plaintiff was informed by Unum that it was terminating the plaintiff’s LTD benefits by applying the 12-month limitation period of the self-reported symptoms provision in the policy.

The plaintiff alleged that Unum had erroneously concluded that by asserting that there were no objective tests or exams to confirm the diagnosis of fibromyalgia. The plaintiff’s disability was related to self-reported pain and hence falls under the self-reported symptoms limitation provision.

Consequently, on February 22nd 2011, the plaintiff appealed to Unum’s decision to deny her LTD benefits. In her appeal, she submitted medical documentation from her attending physicians identifying the trigger point examinations as the objective, diagnostic evidence supporting the diagnosis of her fibromyalgia. Additional medical records were submitted also to show that other tests were performed to rule out alternative diagnoses. The plaintiff’s attending physicians also confirmed to Unum that the plaintiff had disabling fibromyalgia based on the positive trigger point examinations.

Nevertheless on April 7th 2011, Unum persisted in its determination to deny the plaintiff’s claim for LTD benefits and rejected her appeal by insisting “that there are no specific diagnostic tests to confirm the presence and/or severity of fibromyalgia.”

The plaintiff argued that Unum’s denial of LTD benefits was unreasonable, arbitrary, and capricious because Unum had:

The plaintiff contended that Unum is aware that positive trigger point examinations are considered standard objective tests in the medical field as diagnostic of fibromyalgia. The plaintiff also alleged that Unum, by being a defendant in cases heard in numerous courts around the country, knew that the self-reported symptoms limitation is not applicable when positive trigger point examinations diagnosis the presence of fibromyalgia and other tests ruled out alternative diagnoses.

The plaintiff further argued that she has met all the conditions precedent to coverage under the Policy. The plaintiff alleged in the lawsuit that:

Relief sought by Plaintiff

The plaintiff is seeking from the Court the following relief:

In the lawsuit, the plaintiff also demands a trial by jury on all issues that is triable.

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There are 2 comments

  • Collen,

    Thank you for comment and your analysis of the “set off provisions” commonly found in most group disability policies. This claimant is not double dipping. If a disability policy contains a provision stating that long term disability benefits will be reduced by SSDI benefits, then you are correct that the disability carrier would be entitled to reimbursement for the amount that SSDI has paid during the same period as the disability carrier. You should understand that disability claimants can receive benefits from both SSDI and the disability insurance company. More than 85% of the people on private disability insurance are also receiving SSDI. The disability carriers make the claimants apply for SSDI. Every group disability policy has a minimum payout regardless of how much other money the claimant has coming in. I think you miss the point of this specific article, which was that UNUM is considering fibromyalgia to be a self reported pain condition and they are trying to limit benefits to only 12 months. Fibromyalgia is a physical condition which can be objectively verified by a treating physician. We appreciate your comment and hope that this clears up your feelings on double dipping.

    Gregory DellAug 25, 2012  #2

  • It’s contract law. It’s complicated, but you START by reading the policy. The ENTIRE policy. Sounds to me like she was double dipping. Collecting benefits from two different insurance companies (private insurance, plus SSDI) for the SAME time period that she was disabled. When you read that policy, you’ll see that they’re entitled to reimbursement up to 100% of what they pay out to her, from any government insurance she is collecting. Double dipping is illegal. She owes the money.

    CollenAug 24, 2012  #1

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