In Fleming v. Unum, Pamela Fleming (“Ms. Fleming”) was a litigation attorney at the firm Kern & Wooley, LLP (“Kern & Wooley”). She was in a serious car accident in 1998, which caused injuries to her thoracic spine and neck. After receiving a cervical spine fusion around 2003, Ms. Fleming kept having back and neck pain, which led to a sharp decrease in work hours by July 2005. She finally experienced a loss of all work hours by October. As a result of her inability to work due to her medical conditions, Ms. Fleming submitted a claim for long term disability (LTD) benefits to Unum Life Insurance Company of America (“Unum”), the administrator of her policy. Ms. Fleming’s claim was initially approved and she continued to receive benefits for more than a decade. However, on September 26, 2016, her benefits were terminated because Unum no longer considered her to be disabled.
The policy defines disability for Ms. Fleming as “limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury,” and when she has “a 20% or more loss in [her] indexed monthly earnings due to the same loss or injury.” The policy further defines regular or usual occupation as seen below:
“The definition of disability contained in the policy references a period during which you are unable to perform the material and substantial duties of your own occupation. You will be determined to be disabled from your usual occupation when you are rendered unable to perform with reasonable continuity the substantial and material acts necessary to pursue your usual occupation in the usual and customary way.
Your usual occupation may be defined in the policy as it is performed in the national economy. However, we will evaluate your usual occupation to be the occupation you are routinely performing for your Employer when your disability begins.”
Termination of benefits is made if during the first 36 months of payment “you are able to work in your regular occupation on a part-time basis but you choose not to,” or, if after 36 months “you are able to work in any gainful occupation on a part-time basis but you choose not to.” Such termination is effective on the “date you are no longer disabled under the terms of the plan” or “the date you fail to submit proof of continuing disability.”
Following the relevant language of the policy, Unum paid out benefits for approximately ten years as Ms. Fleming’s condition was continuously documented by a number of treating physicians. On February 4, 2016, however, a “desk reassignment” of Ms. Fleming’s claim was initiated and her file was sent from Unum’s Maine office to the Tennessee office. Ms. Fleming also updated Unum with the information that her pain management specialist, Dr. Carden, would no longer fill out her Disability Status Update form. She later submitted an updated Attending Physician Statement (APS) form by Dr. Lynn Granlund, an internist, in order to prove her disability status.
Unum was suspicious of Dr. Granlund’s APS because she “confirmed” Dr. Carden’s findings but remember that Dr. Carden had refused to fill out the Disability Status Update form. Because of this suspicion, Unum opted for a “new claim review” for “proof of loss.” This involved a telephone interview with Ms. Fleming. Ms. Fleming explained her condition. Ms. Fleming stated that she was 95% bedridden with two disc issues, an inability to turn her neck, and frequent migraines. Ms. Fleming was then to be evaluated for “[return to work] review.” Subsequently, Unum increased its level of scrutiny of Ms. Fleming.
On June 19, 2016, G4S Compliance and Investigations held an in-person interview with Ms. Fleming at her home, followed by unannounced video surveillance on July 22 and 23. The video surveillance indicated that Ms. Fleming had been able to descend stairs while carrying a trash bag in her right hand, a small cooler in her left hand, and a purse on her right shoulder. She then placed the trash bag into a dumpster and drove around Los Angeles for several hours.
Unum then reviewed Ms. Fleming’s medical records. Dr. Rebecca Kerr’s office, Ms. Fleming’s pain management physician, and Dr. Amit Kohli (an endocrinologist) stated that there were no restrictions or limitations of Ms. Fleming’s work capacity. Unum then presented Ms. Fleming’s medical records to Dr. William B. Fox, board certified in internal medicine. He contacted Dr. Granlund to discuss Ms. Fleming’s restrictions and limitations, along with the fact that “recent surveillance showed her ambulating without overt limitations” and “driving for several hours.”
Unum also presented Ms. Fleming’s file to Dr. Barry Gendron, who is board certified in physical medicine and rehabilitation with a sub-specialty in pain medicine. He stated that Ms. Fleming’s records did not show headaches or osteoporotic compression fractures which would prevent her from working.
Lastly, Unum had Dr. John F. Coughlin review Ms. Fleming’s file. Dr. Coughlin is a specialist in endocrinology, diabetes, and metabolism. He stated that her records did not support her alleged inability to work on a full-time basis. As a result of the above physician opinions, Unum terminated Ms. Fleming’s benefits because she was “no longer precluded from performing the duties of [her] usual occupation.
Ms. Fleming appealed and submitted additional medical records, a letter from Dr. Grandlund, and a personal statement regarding the surveillance. Unum responded to the appeal by having Dr. Scott Norris, board certified in family, occupational, and aerospace medicine, perform a paper-only review of her file. He stated that Ms. Fleming had inconsistencies between her symptoms, activities, and the findings in her records. After his review, Unum chose to uphold its denial of Ms. Fleming’s claim, which then resulted in this lawsuit.
The court reviewed the claims presented and found that Unum gave significant importance to the surveillance footage in contrast to a decade’s worth of medical evidence. In fact, aside from the footage, the court determined that the remainder of Unum’s decision was based on “cherry-picked statements” from Ms. Fleming’s doctors and a paper-only review of her claim. The court held that the fifteen minutes of surveillance footage and paper-only review were not enough to outweigh the many years and thousands of pages of evidence that Ms. Fleming’s file contained. As a result, the court ruled that Ms. Fleming met her burden of showing that she should have received continued benefits under the Unum policy.[Note: this claim was not handled by the Ortiz Law Firm. It is merely summarized here for a better understanding of how Federal Courts are handling long term disability insurance claims.]
Here is a copy of the decision in PDF: Fleming v. Unum