Unum's denial of disability benefits to a registered nurse ("RN") and trial court victory is reversed by the appellate court

Many long-term disability cases revolve around the issue of what constitutes the ability or inability to work in any gainful employment for which you “are reasonably fitted by education, training or experience.” The following case is another example.

In July of 2001, Linda Gardner stopped working as an operating room nurse. She had been diagnosed with avascular necrosis (AVN) in both of her knees, explaining the severe pain she had been suffering from. One of the symptoms of AV is its progressive nature. Temporary or permanent loss of blood supply to affected bones destroys the bone tissue and causes collapse. The resulting pain in an affected joint can limit movement severely.

Within a month of leaving work, Gardner underwent a bilateral knee replacement and begin collecting short-term disability insurance payments through her policy with Unum Life Insurance Company of America (Unum). Unfortunately, this surgery was unsuccessful, so in February of 2002 she had both knees replaced.

Unum approved Gardner’s claim for long-term disability benefits on February 18, 2002. The policy stipulated that after 24 months, Gardner would only be considered disabled if Unum determined that due to the same condition that had entitled her to long-term disability she was unable to perform the duties of any gainful occupation for which she was reasonably fitted by education, training or experience.

The court would find the medical history recorded during those 24 months relevant to their decision, so we will look at that history.

After her second surgery, Gardner found pain management difficult. In June 2002, when the pain spread to her ankles, the orthopedic surgeon who had performed the knee replacements recommended another MRI and x-ray. He found evidence that the AVN was causing damage to the bones in her ankles.

In November of 2002, Gardner begin working part time at a facility near her home that was willing to accommodate her limitations. The position was per diem based, which meant that she occasionally provided lunch relief as an RN. As she reported in a letter to Unum in April 2003, she might not work for three or four weeks in a row, was never able to work two days in a row, and after the times when she did work, she spent the next several days with her legs propped up, recovering from the pain. She stated that she worked anyway because it helped with her state of mind. She was able to take care of herself, but spent most of the day sitting or lying on the sofa watching TV. She went out occasionally to do her shopping but had to spend a while after that with her legs propped up.

Her orthopedic surgeon filled out Unum’s attending physician statement. He stated that her symptoms were unchanged, except that now she had AVN of the ankles. He explained that he had released her to work in her own field, but that she was unable to work for more than 10 hours a week. He also indicated that her current functional abilities were limited to 3 to 4 hours of sedentary activity every other day. He noted that he did not expect these abilities to change. Gardner attached this attending physician statement to her letter.

Unum requested clarification from Gardner’s orthopedic surgeon. What would be her status for full-time? In a letter dated July 16, 2003, her doctor stated that he did “not anticipate any significant change in her critical status, and, therefore, do not anticipate a significant change in her ability to be gainfully employed.” He went on to say that the condition in her ankles could worsen with time, and the status of her knees might also worsen.

In November 2003, Gardner told Unum that her status had not changed. It had been sometime since she had seen her orthopedic surgeon because she felt there was nothing more that he could do to help her. In response, Unum had an RN review Gardner’s file to evaluate her “expected long-term prognosis.” This nurse concluded that it was unclear as to what would prevent Gardner’s improvement over time, especially if her current level of functioning was tolerable.

Based on this finding, Unum requested that a vocational consultant review Gardner’s file and identify fulltime sedentary positions that Gardner would be qualified to fill. First, a transferable skills analysis suggested occupations outside of nursing. A second review identified several nursing occupations that could provide gainful wages.

Unum called Gardner on January 29, 2004. During the call, she described the level of her pain as consistent and aggravated by activity. She reported that almost everything that she did caused pain that only responded to narcotics, which doctors were unwilling to prescribe for her.

On February 12, 2004, a nurse consultant hired by Unum reported that based on Gardner’s medical history and surgical history, that working 10 hours a week expressed a maximum capability for work. The consultant suggested that Gardner was actually pushing herself to even accomplish this.

Unum then asked a physiatrist consultant to respond to the nurse consultant’s analysis and conclusion. The physiatrist noted that Gardner’s orthopedic surgeon had not responded to a previous inquiry as to why Gardner didn’t have greater sedentary capacity. On February 17, Unum notified Gardner in writing that they were going to contact her orthopedic surgeon so they could better understand her current level of functionality.

They faxed a letter to her doctor the next day. After explaining that as a physiatrist consultant, he couldn’t see any reason why Gardner couldn’t work in a sedentary job, he asked her doctor to either agree that she could perform sedentary work for 8 hours a day or disagree by providing a list of objective reasons.

After examining Gardner on March 1st, her orthopedic surgeon signed below the paragraph in Unum’s letter stating that she could perform full time sedentary work if certain accommodations were made. She would have to be allowed to change her position frequently and need a special footrest.

Based on this information, on March 12, 2004, Unum notified Gardner that it would discontinue her benefits. They explained that its medical consultant had contacted her orthopedic surgeon, who had concluded that with certain restrictions she should be able to work full time in a sedentary position. They gave her a list of potential job positions that Unum believed she could perform.

Gardner appealed her denial of long term disability benefits. She pointed out that the letter sent to her orthopedic surgeon described the duties performed in her part time job inaccurately. She was not an operating room nurse. She only assisted in a colonoscopy facility. She submitted a vocational expert’s report that verified her inability to earn a gainful wage.

Before responding, Unum had another nurse consultant review her file. This consultant voiced concerns that her pain level could make even sedentary work intolerable. He didn’t feel that there was proof that she would be able to tolerate more than the amount of work she had already been doing. This report was forward to another doctor for review. This doctor disagreed with the nurse consultant, and concluded that it was reasonable for Gardner to work full-time following her orthopedic surgeon’s guidelines.

On September 27, 2004, Unum notified Gardner that her appeal had been denied and that the updated vocational assessment had identified the following occupations that would be appropriate for her within the medical field: bill reviewer, insurance case manager, managed health care manager, and telephonic triage nurse.

Gardner filed action through counsel in U.S. District Court for the District of New Jersey, requesting review of Unum’s denial of her long-term disability benefits. Unum moved for summary judgment. The District Court granted summary judgment to Unum and denied Gardner’s cross motion.

But the story wasn’t over. Gardner appealed the dismissal of her case to the the District Court of Appeals. Her contention: that the denial of her benefits was based on inaccuracies in the records that Unum used to determine her case.

The Court of Appeals limited itself to discussing only material which had been submitted to the District Court. Here is what they found:

Unum relied heavily on the March 2004 evaluation of Gardner’s condition which Gardner asserts does not reflect her doctor’s medical opinion accurately because the information provided to him did not reflect her actual job duties or the work hours that she was committed to. The Court had to resolve the inconsistency by weighing the evidence.

The Court found that Gardner’s assertion that her doctor’s March 2004 evaluation was unreliable was supported by the facts. Prior to this time, his reports had been very detailed. This report was unlike any others that he presented.

Gardner’s qualifications for the jobs that Unum claimed she was qualified for were also disputable. The court found that the record shed little light on how they came to conclusion that Gardner had the requisite skills for the jobs they recommended.

The Court also took under consideration whether Unum had been arbitrary and capricious in their decision. The Court was able to consider this because Unum operated under a conflict of interest as the plan administrator and the payer of benefits. Because Unum has a history of deception and abusive tactics, the Court questioned whether conflict of interest had played a role in the decision.

The court also considered whether Unum had emphasized medical reports that favored denying benefits at the expense of reports that favored paying benefits. They found the ignoring of all reports from the orthopedic surgeon except the one that favored them was compelling evidence that Unum was biased in their decision making process. This was supported by the fact that they disregarded the reasonable arguments of two of their own consultants.

The Court of Appeals ruled that the summary judgment rendered by the District Court was inappropriate and set it aside. Gardner’s case has been sent back to District Court where several courses may be pursued. The case may be sent back to Unum for reconsideration, or further discovery or a trial on the merits of the case might also result.

Learn more about Unum disability claims.

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Unum Reviews

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Reviewed by Dorothy on November 30th 2023   Verified Policyholder | November 2023 date of disability
I was injured at work. I did house keeping in a hospital. I tore just about everything imaginable in my knee. I was let go from my job, because I was no longer able to do ... read more >

They closed my claim and I have been without income since they closed it

Reviewed by Mary C. on November 8th 2023   Verified Policyholder
Went off work on 9/26/22 due to back issues. Applied for Short Term Disability. On Jan 2023 switched over to Long Term Disability and Unum had me to apply for Social Secur... read more >

I feel like Unum is giving me the runaround!

Reviewed by Rachelle H. on May 11th 2022   Verified Policyholder
I have contacted UNUM multiple times since I’ve needed them. I feel like they are giving me the runaround! Please help!
Sent on May 11th 2022 by Attorney Stephen Jessup

Rachelle, the law provides certain timelines and deadlines with which to provide information or decisions. Please feel free to contact our office to discuss your situat... read more >


Unum terminated my benefits with no warning

Reviewed by K. Potter on September 9th 2020   Verified Policyholder
I was told I was covered with Unum through my employer (continuum). I got an email today for my termination, no prior talks of infractions with attendance, no warnings, no... read more >
Sent on September 9th 2020 by Attorney Stephen Jessup

K. Potter, termination as in your employment was terminated or a disability claim was terminated? If your employment was terminated and you had not filed a claim for di... read more >


I've been trying to care care of my Unum benefits for over a year. They’ve been so rude

Reviewed by Tracey W. on August 30th 2020   Verified Policyholder
I have been trying to take care of my Unum benefits for over a year. I’ve called and back in November I did appeal letter, they say they never received. I did everything... read more >
Sent on August 30th 2020 by Attorney Gregory Dell

Tracey, I am sorry to hear of your issues with Unum. We would love to learn more about your claim to see if we can get Unum to pay or if we can sue them with you. Pleas... read more >


I've paid for STD for 20+ years. Now, I'm actually sick and can't get paid

Reviewed by Natalie on June 29th 2020   Verified Policyholder
My employer uses unum for short-term disability. I was hospitalized back on june 13 and discharged on june 25. I was admitted for double pneumonia and hypoxia, which I end... read more >
Sent on June 29th 2020 by Attorney Rachel Alters

Natalie, hopefully your claim will be approved. If they deny the STD claim then you will need to appeal the determination.


Unum thought I was fine to work. I wasn't

Reviewed by Elizabeth L. on May 21st 2020   Verified Policyholder
48 yoa dentist POTs Dx aug 22. Attempted to return to work initially but got sick. Was going to go back 2 days/wk in September but could not. Then did go back part time as... read more >
Sent on May 21st 2020 by Attorney Stephen Jessup

Elizabeth, please contact our office to discuss the denial of your claim and your rights to pursue legal action against Unum.


Unum has made me feel like a criminal

Reviewed by Kevin on February 6th 2020   Verified Policyholder
Hi, I am currently receiving LTD from UNUM. I used to work as a Radiologist Tech at Vanderbilt Medical Center in Nashville, TN. for about 10 years. Than I started having g... read more >
Sent on February 6th 2020 by Attorney Gregory Dell

Kevin, I am sorry to hear all that you are going through and the stress this is causing you. The policy governing your claim likely does allow Unum to conduct an in-per... read more >

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