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.