In Barbara J. Nylander, M.D. v. Unum Life Insurance Company and Paul Revere Life Insurance Company, Dr. Nylander, a board-certified physician whose practice included gynecological surgery, was injured on April 21, 2015, when another doctor with whom she was performing an operation accidentally cut her index finger, severing a tendon. The injury was so serious, surgery was required to try and repair the damage.
Nylander was insured under three disability policies, all administered by Unum. Initially, Unum paid short term disability benefits to Nylander with a report from her treating orthopedic surgeon that she should be able to return to work by October 15, 2015.
As October 15 neared, Nylander informed Unum that she was unable to suture and therefore, could not return to the surgical part of her practice. She informed them that surgery amounted to about 25 percent of her time, but generated nearly 50 percent of her revenue.
After several reports to Unum that she should be able to return to work without limitation, her surgeon ordered a Functional Capacity Evaluation (FCE) test. Relying on the results of that test, her surgeon informed Unum that Nylander could no longer perform surgery since she could not grip certain instruments and could not suture. Nylander submitted a claim for total disability under the definition of the policies.
Unum ordered an independent medical exam (IME) and review of her medical records. Then, it denied her claim for any further disability benefits.
Definition of Total Disability Under the Policies
All three policies defined total disability as an injury that “restricts the Insured’s ability to perform the material and substantial duties of [her] regular occupation…” Nylander claimed that doing surgery was a material and substantial duty of her regular occupation. Since she was unable to perform that duty, she claimed she was entitled to total disability benefits.
Unum argued there was no objective evidence that Nylander could not perform her job duties. The Court disagreed and found the FCE to clearly be objective evidence of her limitations. The FCE was performed over a four-hour period of time by a board-certified hand therapist. The therapist reported that Nylander had difficulty handling surgical tools and performing “various suture techniques.”
The Court cited a number of Sixth Circuit cases and other District Court cases that held “An FCE is generally a ‘reliable and objective method of gauging the extent one can complete work-related tasks.” The Court also pointed out to Unum that it had used FCE results to deny benefits to past claimants.
The Unum doctor who performed the IME spent only 30 minutes with Nylander. He suggested she could make accommodations in surgery, such as “wear oversized gloves” or “use different digits.” Nylander laughed at these suggestions and it seemed as though the Court may also have found them amusing. Ultimately, the Court found that whether the IME report contradicted the FCE was “irrelevant to the question of whether Dr. Nylander has adduced objective evidence of ‘proof of loss.’”
Since there were disputes of material fact, the Court denied Unum’s Motion for Summary Judgment on the issue that Nylander had not presented objective evidence of total disability according to the definitions of the three policies.
This case was not handled by our office, but we thought it could be helpful to those who may have a similar issue and are struggling to obtain benefits, but the insurer is denying the claim even when there is an FCE in support of eligibility for disability benefits. For more information about this issue, or any issue relating to your Unum disability claim, contact us at Dell & Schaefer for a free consultation.
READ THE FULL COURT DECISION