Unum has no right to recover $207,894.88 overpayment of long term disability benefits to attorney

Receiving disability benefits from a disability plan is no guarantee that the plan won’t take you to court to get back benefit payments it feels it overpaid, a lesson that Wooten Epes learned in April 2010. Not only did Unum Life Insurance Company of America (Unum) terminate his disability benefits, the disability insurance company also sought to recover what it claimed was an overpayment of benefits. How did Epes find himself in this situation? Would Unum’s suit against him be successful?

We will look into the background of this case before looking at how the Court reached its decision. Before Epes applied successfully for long-term disability benefits, he had been a partner in the law firm of Kutak Rock, LLP. A back injury qualified him for disability benefits in September 2004. In order to retain these benefits Epes had to provide continuing proof that he was still disabled. He also had to provide on a quarterly basis proof of his earnings. This was because the Unum long-term disability policy stipulated that if his earnings exceeded 80% of his indexed pre-disability earnings, benefits would stop.

In November 2004, Epes revealed that he was a partner in Edgewater Affordable Housing Limited Partnership (EAH). As a partner, his duties were to “communicate via telephone and computer with partner and two employees about multifamily housing rental property acquisitions and sales.” He stated that he had not received any income from EAH at that time.

In a June 26, 2005 interview, Epes informed the Unum representative that while he hoped to eventually see annual profits of $250,000 – $300,000, he had at that point still not seen any profits from the venture. Based on this interview, Unum approved two more benefit payments. In September 2005, Epes submitted the required Supplemental Claimant’s Statement which affirmed that he was working part-time from home in the EAH real estate investment and development business.

When Epes provided Unum with copies of his 2004 and 2005 tax returns, Unum considered his loss of about $150,000 in 2004 and his gain of over $200,000 in 2005 as earnings. Epes considered them income and losses as defined by the IRS. When asked in July, 2007 to provide copies of his 2002 and 2003 tax returns, Epes did so. Based on these returns, Unum determined that it had probably overpaid Epes for both 2006 and 2007. They asked for a copy of his 2006 tax return on September 11, 2007. On September 13, Unum once again asked for a copy of his 2006 tax return. He explained that he had filed an extension, but would provide it as soon as his accountant completed the return.

Meanwhile after these two interviews, the disability insurance company began offsetting his long-term disability payments by $6700/month. They also conducted a financial analysis of Epes’ 2002 through 2005 tax returns. Unum concluded that Epe’s income was not passive and thus met the definition of earnings in the disability insurance contract. When they received his 2006 tax return in October, in which he reported almost $900,000 in income, the disability insurance company determined that this was not passive income because Epes was actively involved in the business.

Unum concluded that Epes was clearly earning more than the 80% allowed by the plan, and had been since January 1, 2006. Unum terminated his benefits and informed him, on December 14, 2007, that he owed the disability insurance plan $253,050.83 for overpayment of long term disability benefits. Epes asked for an explanation. Unum began collections efforts on January 11, 2009.

When he began receiving phone calls and letters, he referred Unum to his disability attorney. When Unum finally took Epes to court, it claimed that Epes’ attorney had agreed that the disability insurance company had overpaid and only wanted to confirm that the amount was correct. The disability attorney claimed that this was not a complete or accurate summation of the conversation. Regardless, when Epes did not pay a revised figure of $207,894.88, Unum took Epes to Court, claiming that Epes had ceased to be eligible for benefits as of January 1, 2006. Thus Unum was entitled to equitable relief – the recovery of the $207,894.88 it had overpaid him in benefits.

Epes disability attorney filed a counterclaim. He argued that Epes was still eligible for benefits and had been terminated improperly and deserved reinstatement of his benefits with back payments and interest. He also argued that Unum could not recover the overpayments.

Court uses ERISA contract interpretation rules

The first order for the Court was to determine how to interpret the contract. Because the disability insurance policy did not give Unum discretion, the Court reviewed Unum’s termination of Epes’ benefits de novo, without deference to either side. This decided, the Court recognized that the Employee Retirement Income Security Act (ERISA) mandates that each term in a contract must be considered as present for a purpose and that it should be understood in the way any reasonable plan participant would understand it.

Epes’ disability attorney argued that Unum had erred when it used his non-passive income for the basis for terminating his disability benefits. The Court found otherwise. The policy considered “money derived from one’s own labor or active participation; earnings from services” as earnings. Any reasonable person would consider Epes income from his active involvement in EAH as earnings under the policy.

Epes disability attorney sought to use the U.S. tax code to prove that his “non-passive” income was in reality passive, but this failed to convince the Court. In the absence of any proof that Epes was not earning more than 80% of his pre-disability earnings, the Court found that Unum had properly terminated Epes disability benefits. The Court also found that Epes was not entitled to reinstatement of benefits or back benefits with interest.

Court considers limited Equitable Relief under ERISA.

Having determined that Epes counterclaim for benefits had no merit, the Court went on to consider whether Unum could seek equitable relief. Under ERISA equitable relief is only available under specific guidelines.

In Great-West Life & Annuity Ins. Co. v. Knudson, the Supreme Court limited equitable restitutionary remedies to those that would have been available traditionally before courts of law and equity were merged at the Federal level in 1938. In Sereboff v. Mid Atlantic Medical Services, Inc., the Court found that if a specific fund could be identified, then the insurance plan could seek equitable relief. In Knudsun, the Court found that equitable relief was not available because the beneficiary’s personal assets would have to be attached, something not allowed under Great-West Life.

Unum could not point to a specific fund or bank account in which Epes had the money it claimed to have overpaid. Without a specific fund to attach the claim to, the Court could not order equitable restitution for the $208,000 that Epes was overpaid.

Whether it was right or wrong for Epes to keep the overpaid benefits is not the issue here. The issue is whether a disability insurance plan can ask the Court to order reimbursement of money’s paid. In this case, while the Court sided Unum in terminating Epes’ disability benefits, it sided with Epes in finding that he did not have to repay Unum. This case is very fact specific and if you have an overpayment situation you should never assume that you will not be responsible to reimburse the disability carrier.

Comments (34)

  • Maria, I am sorry to hear of the trouble that Unum is subjecting you to. Regarding dependent benefits, I believe under most LTD insurance policies, the SSDI dependent benefit is an offset if it is being paid under the LTD claimant’s social security number. But if your child is disabled and receiving benefits under their own Social Security Number then it might not be an offset and such information must be provided to Unum at once. Please gather your LTD insurance Policy and any correspondence received regarding the overpayment and offsets and contact us for a free consultation.

    Alex Palamara Jul 26, 2021  #34

  • I have had a long and exhausting uphill battle with UNUM since I qualified for LTD benefits which they denied and was approved upon appeal. I am aware that I owe them money due to the fact that I also qualified for SS. They just started keeping my entire LTD amount towards balance owed which I was not ok with but made due but then one of my children became disabled and eligible for benefits under my SS before she turned 18.

    For the past three years I have tried to explain to UNUM many times that I am not receiving that money but they continue to disregard what I say and tell me as long as it is derived from my SS it’s countable income and they refuse to acknowledge that the money my independent daughter receives to live is not mine. They have not done a correct calculation of my benefits in years and as of this month randomly decide that the money I was never getting for my daughter was not mine but instead of going back and correcting what is due me they ignore the last three years and act as if though they owe me nothing. None of it makes sense and I am getting really pissed off with their ignorance. It there anything I can do to fix this going back to 2018?

    Maria Jul 26, 2021  #33

  • rnsweetheart,
    If the DSSDI benefit your son received based on your disability then Unum would be allowed to assert an overpayment repayment. From a legal perspective you may have defenses to it. As your fact pattern is very involved please feel free to contac tour office to discuss the matter further.

    Stephen Jessup Apr 30, 2015  #32

  • I lived in California when I became disabled in December 2007 and never was able to return to work. Unum did not attach my SSDI back payment. I had and still do have a wc case that has not settled yet. WC sent back to edd 39000 last December. My son was owed back benefits for his senior year in high school and received $13000 in 2009, but I did not apply for it. Since he was over 18 he had to file it himself. At that time in 2009, Unum tried to attach it and my son sent them a letter at the time that basically said they had no right to attach money they think he got, in an amount they made up.

    We didn’t hear anymore about it until November of this last year when they evaluated my claim again. This was my 3rd eval. Then I got a letter saying I owed 75000 in an overpayment? Which included 18000 for my sons family ssdi, which was not the correct amount. I guess they have no right to his social security info he applied for? They also wanted to attach A WC Partial total disability they paid me 36000 in 2012. I sent a letter telling them they couldn’t attach a wc case that has not settled yet. And went into the family ss and explanation that i did not apply for it, and that my son does not want to release to them any information.

    Then I got a letter that they dropped the wc amount, but are still trying to attach Family SS ib the wrong amount. I have challenged it again and also added that it was before they were paying benefits. I have no idea why they dropped the Wc? So now I have edd to claim again, but does Unum have a right to attach it since it was income I earned a long time ago? And how do I handle the family ss that they have no claim for and just made up an amount? As you can see I have a complicated case. Any insight will be most appreciated.

    rnsweetheart Apr 30, 2015  #31

  • Sheena,

    You would have rights to pursue civil suit against Unum under ERISA. Please feel free to contact our office to discuss same. Having a copy of your policy, denial letters and appeal would be needed to assess are ability to litigate your claim.

    Stephen Jessup Apr 29, 2015  #30

  • Good Afternoon,

    I have been on LTD with UNUM. I was contacted by a new case worker in February and told my benefits were being cut off that day and I would receive my check the next day. Initially I was told I qualified until I’m 65. I’m 31 now, and had been employed with the same company for 11 years prior to this. I was told to send in a simple letter with an appeal and it would be responded to quickly. I instead sent a lengthy letter, had my physician write a letter and even submitted old records from 5-7 years ago when my condition started so they could understand that is progressed. (one reason I was cut off was bc nothing had changed supposedly to warrant me not working) so withing 20-30 days they had it all. I was told they needed an extention – longer then the 45 days. I received my final denial today in which they refer to my condition and Dr notes from 2006! I just don’t understand. Do I have a chance in taking this is for a civil case? What are the basis for doing so?

    Sheena Apr 28, 2015  #29

  • Jody,

    You are quite welcome.

    Stephen Jessup Apr 14, 2015  #28

  • Dear Attorney Stephen Jessup,

    Thank you for replying to my questions so quickly and thoroughly.


    Jody Apr 13, 2015  #27

  • Jody,

    You will need to consult with a tax professional for advise as to the taxable nature. That being said, if your premiums were paid wholly by your employer or were paid with pre-tax dollars from your pay check then chances are it is taxable. With respect to “income” generated from renting your home – Unum should not have any right to reduce your benefit due to passive income generated from rent. Income for purposes of offsetting benefits applies to sources that pay you income for work performed (or designated source of “Other Income”).

    Stephen Jessup Mar 30, 2015  #26

  • Hello,

    In reading some comments I’m questioning whether Unum benefits are taxable. I have always paid federal and state taxes on my Unum benefit.

    Also, if I choose to move and rent out my current home will Unum reduce my benefits in relation to that new income source?

    Thank you in advance for any information you’re able to provide.

    Jody Mar 29, 2015  #25

  • Kerry,

    As frustrating as it is, unfortunately there is no legal precedent to support your position. The net effect of the policy does not consider how taxes will be paid or not paid. For instance if you had SSDI benefits approved before Unum approved your benefit, you would be receiving the benefits from SSDI and paying applicable taxes, and Unum would still only be on the hook to pay the difference between your normal monthly benefit and SSDI. If you do not receive SSDI benefits then Unum will pay you your full benefit in accordance with the plan. Unum is essentially paying you a tax free net benefit under the terms and conditions of the policy.

    Stephen Jessup Feb 17, 2015  #24

  • Unum wants me to apply for SSDI. My disability benefit from Unum is tax free. If one is on SSDI they must pay federal and states taxes. Since my benefit from Unum is tax free and they will offset payment from SSDI per ERISA. It seems to me that Unum should be on the hook to reimburse my taxes I had to pay while SSDI. What is your opinion on this matter?

    Kerry Feb 16, 2015  #23

  • Barry,

    Pensions from prior employers (not the one from which you received the disability coverage) are typically not subject to offset. However, I would have to refer you to the specific language in your policy as to what constitutes “Other Sources of Income.”

    Stephen Jessup Feb 9, 2015  #22

  • I am receiving Unum LTD. I am eligible to collect a pension from a former employer, not the one I’m receiving LTD from, it has a disability clause the will allow me to start collecting at a reduced benefit. I am 60 and I would normally start collecting pension at 65. Is this a deductible source of income for Unum? If I choose not to apply and wait until I am 65, will I owe Umum for 5 years of disability pension I could have received assuming I am disabled that long?

    Barry Feb 8, 2015  #21

  • Barbara,

    Any questions with respect to filing for bankruptcy will have to be addressed with a bankruptcy attorney. That being said, the amount of the overpayment is extremely high, how long a period was the SSDI back benefit check for?

    Stephen Jessup Jan 23, 2015  #20

  • I received SSD and I received a letter from Unum stating I owe them 82,000 and they are taking 777.00 per month to pay off this overpayment. Can I put this 82,000 in a Chapter 7? I fall in the 130% poverty level and qualify for a chapter 7. I am 52 and without these monthly benefits from Unum I cannot make ends meet. I am divorced and my income from SSD is 1295.00 per month. If I can put this 82,000 in Chapter 7 will my benefits from Unum start up since I am suppose to receive them until age 65?

    Barbara Jan 22, 2015  #19

  • Bill,

    Unfortunately, if your policy requires you to apply for SSDI, which almost every Unum policy does, you have the duty to apply for disability benefits. Failure to do so can result in Unum estimating your projected SSDI amount and reducing your benefit by same. With respect to Worker’s Compensation, the policy typically defines what portions of Worker’s Compensation can be allocated to an offset. It is not likely they will estimate the WC award for offset, especially if there is a current active claim pending.

    Stephen Jessup Jan 9, 2015  #18

  • I am a disabled firefighter due to a on the job pulmonary condition. In the contract we have a 2 year salary continuation program whereas the fire district pays my salary per our contract with the district. In September of 2015 Unum is responsible to pay 60% of my gross W-2 wages the year before I became disabled. I have received a letter from Unum indicating that indeed I am disabled and they will pay 60% of my wages including $1000.00 per month for medical insurance payments. They have yet to make any payments to me because of the two year salary continuation. The Unum case worker told me I MUST apply for social security disability right away and they will help me. I indicated to her that until they begin payment to me I am not required to comply with any of their demands. I will be 64 years old at the time Unun begins making my tax free disability payments. The contract also states I must be able to return to my primary occupation( firefighter). I am NOT totally disabled I have a pulmonary problem which will not allow me to wear self contained breathing apparatus. My disability is related to my primary occupation (firefighter) of 36 years. Since I am not totally disabled I do not believe I am entitled to SSDI This is merely an offset income game they are playing. Can Unum compel me to apply for SSDI. Be advised my Unum disability payments are tax free and I would have to pay taxes and receive a monthly monetary reduction of about $50.00 from my normal monthly benefit at age 66. This reduction in benefits with SS would remain with me for the rest of my life. Do I have a legal point regarding taxes I have to pay for SSDI and the fact that I will incur a monthly reduction in payments from my normal retirement age of 66? I am also entitled to Workman’s Compensation. Any award I may receive is an off se as per the contract with Unum. Wouldn’t it be wise to stipulated any awards received stipulate in the settlement that award as for future medical expenses related to my disability. In my opinion as a educated lay person it seems to me that Unum is NOT entitled to any moneys ear marked for future medical expenses related to my pulmonary condition. I would like your thoughts regarding such. Also can Unum assume an estimated dollar figure regarding what they believe I may receive from workman’s compensation.

    Bill Jan 8, 2015  #17

  • GRod,

    We would need to review the policy in order to determine what would be considered any potential source of Other Income that would be subject to offset under your policy.

    Stephen Jessup Dec 3, 2014  #16

  • I have been out of work since 9/2013 due to an auto accident. I purchased Unum short and long term disability through my employer as an individual policy with payroll deductions. I received STD immediately and then LTD thereafter. No longer employed and unable to work I applied and received SSD with retro. Unum is now requesting a release form to be signed and returned for SSA. And I may have to pay back Unum. I informed the Unum rep that my policy does not indicate that this additional income and retro funds will affect my benefit. The rep said that is correct but sign the release for information and send it back to them. That was a month ago and I have yet to send them this release. What should be my next steps? And will I have to pay Unum back?

    GRod Dec 2, 2014  #15

  • Ben,

    Unfortunately, Unum does not typically reduce or waive its right to repayment of an overpayment. With respect to issues with taxation- you will need to consult with a tax professional as to any concerns you may have.

    Stephen Jessup Nov 1, 2014  #14

  • I have been out of work since 2008. I was told by a friend of mine in 2013 about UNUM. They went over my medical records for the previous years and they back payed me 77k and they payed me 2170 a month after that but when it came to file my taxes in 2013 I had to pay 25k of the money they had payed me for the previous years, all of which was put down for 2013. I just received SSD last month for 42k and now UNUM is looking for 36k of this money.

    Is there any way to get this figure reduced? I signed the form to say that I would pay back the overpayment… It is just crazy.

    Ben Oct 31, 2014  #13

  • Timmy,

    Is there any particular reason why you indicate her last LTD benefit will be in June? The majority of policies provide potential benefits to age 65. She will be responsible for refunding Unum any amount that corresponds for a month that she was receiving LTD benefits. So there stands a chance that she could be responsible for refunding the entire amount. With that being said, there may be a possibility of negotiating a lump sum buyout of the remainder of her policy. Please feel free to contact our office to discuss.

    Stephen Jessup May 23, 2014  #12

  • My wife has been receiving LTD in the amount of 2600.00 from UNUM through her job for the past two years because of cancer. She will receive her last LTD payment in June. She was recently approved for Social Security Disability and will receive a lump sum check for 36000.00 and her monthly check will be in the amount of 1800.00. My question is what, if anything, will she have to reimburse UNUM? Keeping in mind that she did use GENEX at the suggestion of UNUM. What can she expect to pay back because her lawyer told her not to cash or deposit the check when it comes but he hasn’t told her anything else. She is 58 y.o. by the way. Thank you in advance for your help.

    Timmy May 22, 2014  #11

  • Sammy,

    Most Unum policies have an enumerated offset for Social Security benefits received by a dependent on account of the insured’s disability. If that is the case with your husband’s policy then Unum would be allow to offset his benefit by same. Unum does not typically explore lump sum settlements when there are large outstanding overpayments due. Please feel free to contact our office to discuss further.

    Stephen Jessup May 15, 2014  #10

  • My husband was approved with UNUM and was receiving 1797.00 a month. As he was approved for disability and here comes the repayment issue. UNUM is stating that he owes approximately 36,000.00. However, it is only 26,000. My son received a 10,000.00 check. Now they take the 534.00 offset from social security disability – which is fine but we do not owe the other 10,000… Also, we want a lump sum buyout. My husband is 47 and policy claims he will get paid till age 65. Can we ask for the buyout and subtract the overpayment owed, then get a check for the remainder? Thank you.

    Sammy May 14, 2014  #9

  • Jordan,

    If the policy allows for them to reduce your benefit by a source of “Other Income,” of which SSDI is almost always an enumerated source of other income, then yes, Unum can reduce your benefit accordingly.

    Stephen Jessup Apr 19, 2014  #8

  • Hello,

    I am with approved LTD and I am receiving 60% of my last annual pay as LTD benefits from UNUM. Recently I was approved for receiving LTD benefits from the SSA, too. Adding the later to the amount from UNUM benefits will make less then 80% of my annual pay as it was before the disability started.

    My question: Is UNUM entitled to collect any paid disability benefits received from state or government sources, which are in addition to their 60%, or the 80% rule can be applied here?

    Thanks much for your web-site contribution. I found your site with the comments posted very helpful.

    Best regards,

    Jordan Apr 18, 2014  #7

  • S. Dixon,

    Please feel free to contact our office to discuss your claim. It would not be possible to address all of your questions in this forum.

    Stephen Jessup Feb 25, 2014  #6

  • My Disability Benefits have been terminated by UNUM – June 2013. UNUM found an old business registration license I had taken out 6 years prior to my claim and never used. I thought it was long gone but found our State keeps the record open but labels it Non-Revenue. I only found this out after my Denial and after I requested and received my UNUM file. I found I had been approved by UNUM’s Doctor and Vocational expert for payment of my Claim for the Duration of the Contract. At that point UNUM transferred my file several times for ‘triage’ – to find any offsets even though they had all my work records. The old registration showed up and UNUMs internal information now stated it as a fact – I owned and operated a business. (This while working full time+ and 40 miles away) Co-incidentally, there was a business in my town with the same name. UNUM never bothered to check out who owned that business. I couldn’t find anything either since it has been gone since 2009. My old registration and all State registration documents clearly state the owner and address. After a year of harassment, 2012/13, and not knowing why all the sudden I was being requested to hand over 9 years of tax documents, to have a Filed Visit – only in my home for 2 hours and re-fill out forms over and over again – did things come to a head. UNUM asked for and was immediately supplied with an APS from my treating Doctor. Same way I’d been supplying for years and OKd. Now it was deemed ‘irrelevant’ and I was denied based on this and my refusal to sign their SSA Form Authorization. UNUM claimed there was no Proof of Claim and in the denial letter went on to state I altered the APS which appeared to them to be a copy of the 2010 APS. Again, it wasn’t until I received my file did I see they had the 2012 APS on file. UNUM took a copy I’d sent them in the last letter I sent pre-denial, obviously blanked out only the dates and rescanned and said based on this scan I was in Non Compliance. The whole file had been edited by the Claims Rep and denied at a QCC meeting. UNUM is now demanding full payment. I just had my Appeal denied. UNUM inserted a date for the 180day under ERISA and said I missed that date by 3 days. Regardless, I was in an Over Payment situation and had plenty of time to pay off the Over payment and can’t now. UNUM is now demanding full payment. Would the ‘equitable remedies’ based on the Serboff Case apply in my situation? The Over Payment monies had been in a separate account and not mingled with any other account.

    S. Dixon Feb 24, 2014  #5

  • Gary,

    Unfortunately, if the Policy enumerates Dependent Social Security Disability Insurance (DSSDI) benefits then they will have a right to repayment and offset. Unum could send you to collections or attempt to sue you for recovery. I would suggest you contact them to discuss a repayment plan, explaining your situation. Unum may decide to swallow your whole benefit each month in working towards satisfying the over-payment.

    Stephen Jessup Jul 25, 2013  #4

  • Unum contacted me yesterday stating that they overpaid me $85,000.00 (though no information was given as to how they reached that number). When I started receiving disability payments from them in 2001, my wife was working and we had no children. Their insurance was through my company and supplemented my SS disability. In 2006 we had triplets, due my disability my wife had to quit work to stay home with the children. We were told that the my children were eligible for SS due my disability and her loss of work to stay home and tend to them as well as myself. In April of 2008 they each started receiving disability checks in the amount of $160 each. The over-payment Unum is claiming stems from the money my wife and children have received and that they should have been notified of their income so my benefit from them would have been decreased in accordance with the SS amount the four of them were getting. We have only $10,000 in savings and could never possibly refund $85,000 in my lifetime. What should we expect as a course of action from Unum and can they sue for our personal assets to reimburse their money?

    Gary Hurd Jul 24, 2013  #3

  • M.l. A. Parker: You are not required to use Unum’s recommended company for SSDI. If you are comfortable handling the SSDI application on your own, then it is fine. If you get denied, then you should absolutely hire a social security disability lawyer.

    Gregory Dell Jul 19, 2011  #2

  • UNUM is paying me Long Term Disability as of May 2011. So far, I have not had a problem with them. But! They do want me to go with Genex Services Inc. on my SSDI. I have already filled with SSDI and everything is going well. So! Should I go with Genex or leave things alone?

    M.l. A. Parker Jul 15, 2011  #1

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