{"id":7539,"date":"2020-04-23T18:13:50","date_gmt":"2020-04-23T23:13:50","guid":{"rendered":"https:\/\/www.nickortizlaw.com\/?p=7539"},"modified":"2024-01-04T17:29:26","modified_gmt":"2024-01-04T22:29:26","slug":"fleming-v-unum-court-rules-that-unum-cherry-picked-the-record","status":"publish","type":"post","link":"https:\/\/www.nickortizlaw.com\/fleming-v-unum-court-rules-that-unum-cherry-picked-the-record\/","title":{"rendered":"Fleming v. Unum – Court Rules That Unum \u201cCherry-Picked\u201d The Record"},"content":{"rendered":"

In\u00a0Fleming v. Unum<\/u>, Pamela Fleming (\u201cMs. Fleming\u201d) was a litigation attorney at the firm Kern & Wooley, LLP (\u201cKern & Wooley\u201d). She was in a serious car accident in 1998, which caused injuries to her thoracic spine and neck. After receiving a cervical\u00a0spine fusion\u00a0around 2003, Ms. Fleming kept having back<\/a> and neck pain<\/a>, which led to a sharp decrease in work hours by July 2005. She finally experienced a loss of all work hours by October.<\/p>\n

As a result of her inability to work due to her medical conditions, Ms. Fleming submitted a claim for\u00a0long term disability\u00a0(LTD)<\/a> benefits to\u00a0Unum Life Insurance Company of America<\/a>\u00a0(\u201cUnum\u201d), the administrator of her policy. Ms. Fleming\u2019s 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.<\/p>\n

The policy defines disability for Ms. Fleming as \u201climited<\/strong>\u00a0from performing\u00a0the material and substantial duties<\/strong>\u00a0of [her]\u00a0regular occupation<\/strong>\u00a0due to [her]\u00a0sickness<\/strong>\u00a0or\u00a0injury<\/strong>,\u201d and when she has \u201ca 20% or more loss in [her]\u00a0indexed monthly earnings<\/strong>\u00a0due to the same loss or injury.\u201d The policy further defines regular or usual occupation as seen below:<\/p>\n

\u201cThe 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.<\/p>\n

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.\u201d<\/p>\n

Termination of benefits is made if during the first 36 months of payment \u201cyou are able to work in your regular occupation on a part-time basis but you choose not to,\u201d or, if after 36 months \u201cyou are able to work in any gainful occupation on a part-time basis but you choose not to.\u201d Such termination is effective on the \u201cdate you are no longer disabled under the terms of the plan\u201d or \u201cthe date you fail to submit proof of continuing disability.\u201d<\/p>\n

Following the relevant language of the policy, Unum paid out benefits for approximately ten years as Ms. Fleming\u2019s condition was continuously documented by a number of treating physicians. On February 4, 2016, however, a \u201cdesk reassignment\u201d of Ms. Fleming\u2019s claim was initiated and her file was sent from Unum\u2019s 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.<\/p>\n

Unum was suspicious of Dr. Granlund\u2019s APS because she \u201cconfirmed\u201d Dr. Carden\u2019s findings but remember that Dr. Carden had refused to fill out the Disability Status Update form. Because of this suspicion, Unum opted for a \u201cnew claim review\u201d for \u201cproof of loss.\u201d This involved a telephone interview with Ms. Fleming<\/a>. 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 \u201c[return to work] review.\u201d Subsequently, Unum increased its level of scrutiny of Ms. Fleming.<\/p>\n

On June 19, 2016, G4S Compliance and Investigations held an\u00a0in-person interview<\/a>\u00a0with Ms. Fleming at her home, followed by unannounced video surveillance<\/a> 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.<\/p>\n

Unum then reviewed Ms. Fleming\u2019s medical records. Dr. Rebecca Kerr\u2019s office, Ms. Fleming\u2019s pain management physician, and Dr. Amit Kohli (an endocrinologist) stated that there were no restrictions or limitations of Ms. Fleming\u2019s work capacity. Unum then presented Ms. Fleming\u2019s medical records to Dr. William B. Fox, board certified in internal medicine. He contacted Dr. Granlund to discuss Ms. Fleming\u2019s restrictions and limitations, along with the fact that \u201crecent surveillance showed her ambulating without overt limitations\u201d and \u201cdriving for several hours.\u201d<\/p>\n

Unum also presented Ms. Fleming\u2019s 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\u2019s records did not show headaches or osteoporotic compression fractures which would prevent her from working.<\/p>\n

Lastly, Unum had Dr. John F. Coughlin review Ms. Fleming\u2019s file. Dr. Coughlin is a specialist in endocrinology, diabetes<\/a>, 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\u2019s benefits because she was \u201cno longer precluded from performing the duties of [her] usual occupation.<\/p>\n

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<\/a>. 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\u2019s claim, which then resulted in this lawsuit.<\/p>\n

The court reviewed the claims presented and found that Unum gave significant importance to the surveillance footage in contrast to a decade\u2019s worth of medical evidence. In fact, aside from the footage, the court determined that the remainder of Unum\u2019s decision was based on \u201ccherry-picked statements\u201d from Ms. Fleming\u2019s 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\u2019s 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.<\/p>\n[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.]\n

Here is a copy of the decision in PDF: Fleming v. Unum<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In\u00a0Fleming v. Unum, Pamela Fleming (\u201cMs. Fleming\u201d) was a litigation attorney at the firm Kern & Wooley, LLP (\u201cKern & Wooley\u201d). She was in a serious car accident in 1998, which caused injuries to her thoracic spine and neck. After receiving a cervical\u00a0spine fusion\u00a0around 2003, Ms. Fleming kept having back and neck pain, which led …<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[1],"tags":[242],"_links":{"self":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts\/7539"}],"collection":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/comments?post=7539"}],"version-history":[{"count":0,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts\/7539\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/media?parent=7539"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/categories?post=7539"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/tags?post=7539"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}