Our client, "Jim" received good news yesterday when the Court ordered Unum to fix its decision that had denied his long-term disability benefits. Our firm sued Unum when it refused to pay Jim's long term disability benefits under the policy it issued to Jim's employer, Trek Bicycle Corporation.
Jim's job at Trek Bicycle was a bike frame finisher. The job required him to stand all day, sanding down bicycle frames. He did minimal lifting but "a lot of repetitive motion." Jim was in a rollover car accident and sustained a cervical disc protrusion in his neck at C5-6 and suffered chronic pain in his neck and back.
Jim's application for long term benefits was supported by a report from his physician, Dr. Shannon, saying that Jim described "severe pain across the lower back that is made worse with activity including any bending, twisting or prolonged standing." He noted that "a recent MRI scan did show evidence of a disc protrusion in the cervical spine, and broad disc bulging in the lumbar spine," and restricted Jim to "sedentary type-work with no bending, twisting or pushing or pulling."
Dr. Pedro Pons reviewed Jim's records on Unum's behalf and issued a report in which he found that "[t]he [restrictions and limitations] involving the claimant's back and neck conditions appear overly restrictive" but Pons did not say anything about Jim's ability to stand, use his hands repetitively or perform other occupational duties.
Unum also engaged Mary Hughes of ErgoScience to conduct a functional capacity evaluation of Jim. On the standing tolerance test, Hughes reported that Jim had a maximum capacity for standing "occasionally" in the course of a regular 8-hour workday, that is, up to 1/3 of the day.
Unum nevertheless affirmed its earlier decision to discontinue long-term benefits to Jim on the ground that the functional capacity evaluation and the reviews by its consulting physicians showed that Jim was capable of full-time work in his own occupation.
Quoting from the case of Love v. National City Corporation Welfare Benefits Plan, (7th Cir. July 23, 2009), our Court held that, "ERISA requires employee benefit plans that deny disability benefits to 'set[]forth the specific reasons for such denial, written in a manner calculated to be understood by the participant.'"
Consistent with the Love decision, our Court reasoned, "the fact that Unum and not [Jim] was responsible for producing the functional capacity evaluation does not relieve Unum of the need to consider the results of that evaluation and to explain to [Jim] why it chose not to give any weight to the results. . . . Unum must reconsider. . . [the] discrepancy between the evaluation results and the opinions of its consulting physicians."
This decision demonstrates that a carrier that fails to explain why it discounted evidence of our client's disability will lose in court and we Love it!
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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