UNUM held “arbitrary and capricious” for ignoring claimant’s subjective evidence of her pain and the opinions of her treating doctors

In 2003, Pamela Key was employed full time as an office assistant at Gundersen Lutheran Administrative Services Inc. She was 50 years old at the time.  Ms. Key’s responsibilities included supporting the secretarial activities of her department.  Her job required her to sit for long periods of time working on a personal computer. In addition, she was required to work 40 hours a week.

In December 2003, Ms. Key was injured in a car accident. On or about December 8, 2004 she filed a claim for long-term disability benefits under a disability insurance policy issued by UNUM Life Insurance Company of America to Gundersen Lutheran and its employees. Ms. Key claimed that she was unable to work after December 9, 2004 because of the effects of the December 2003 car accident. Ms. Key did not return to work at Gundersen after December 8, 2004.

In her claim, Ms. Key said that a neck injury prevented her from sitting and working at a computer. In the Attending Physician Statement Ms. Key submitted with her claim, her doctor, Dr. Timothy Harbst, diagnosed Ms. Key with neck and upper back pain and indicated that Ms. Key was unable to work as of December 8, 2004. He also indicated that Ms. Key was restricted from lifting, pushing, pulling and keyboarding on a computer and was limited from lifting, pushing or pulling over 10 pounds. Ms. Key supported her claim for disability with the results of her MRI, the results of an occupational assessment test, the opinions of her treating physicians and her own reports.

The Court found “problematic” UNUM’s argument that the opinions of Ms. Key’s doctors were “conclusory,” and the opinions of the doctors it consulted were reasonable. To the contrary, Ms. Key’s medical records “painstakingly documented” the many efforts she made over the course of a year to treat her pain: medication, physical therapy, chiropractic care, steroids and ergonomic modifications. None were successful and all the reviewing doctors agreed that surgery was not an option for her. Her pain was aggravated while using a keyboard because of the position in which she was required to hold her head. By the end of the workday, she had “severe posterior headaches.”

In concluding that Ms. Key could perform her job, neither UNUM nor its doctors identified any problems with the reports of Ms. Key or her treating physicians or identified any other evidence that Ms. Key should provide to support her claim. Instead, they simply said that the symptoms Ms. Key reported were greater than what the objective evidence would suggest.

Ms. Key and her doctors explained that sitting in a chair and using a keyboard caused her “severe” pain by the end of the day. Although Dr. Davey wrote that Ms. Key could deal with her pain by “switch[ing]positions” and “stretch[ing] periodically,” neither he nor UNUM explained why that would be an adequate accommodation. Even more problematic, this view ignored Ms. Key’s year-long attempt to find ways to treat and accommodate her pain, including physical therapy, “an ergonomic evaluation” and “strategies to provide maximal support to Ms. Key in the workplace.”

In rejecting Ms. Key’s claim, UNUM simply disregarded all the unsuccessful efforts Ms. Key made to treat her pain and keep working. It is not reasonable to assume without explanation that simple stretching would be sufficient to permit Ms. Key to work when much more aggressive measures failed to provide her with relief.

The Court found other problems with UNUM’s decision as well. First, UNUM ignored the vocational evaluation, in which Dr. Porter concluded that Ms. Key was unable to perform even sedentary work, despite a “good effort” she put forward during the evaluation.

Finally, the determination by UNUM that Ms. Key was not disabled after December 8, 2004 “cannot be squared” said the Court, with its consultant’s decision that she was disabled from November 8, 2004, to December 8, 2004. The consultant provided no explanation for the conclusion that Ms. Key could work full time after December 8 but could not work full time from November 8 to December 8, even though the evidence to support both claims was exactly the same. “This puzzling disparity is enough by itself to conclude that UNUM’s decision was arbitrary and capricious” the Court held.

The Court agreed with Ms. Key that UNUM’s decision terminating benefits was arbitrary and capricious because the administrator had relied on the opinion of a doctor who did not explain the basis for his opinion or why it differed from the opinions of the Ms. Key’s treating physicians. UNUM’s decision was arbitrary and capricious because it failed to provide a “reasoned explanation” that considered “the relevant factors that encompass the important aspects of the problem.”

Alan Olson writes this web-log to provide helpful information regarding long-term disability cases. He practices long-term disability law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at [email protected] with questions about the information posted here or for advice on specific disability benefit claims.


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