by Steve Fields | July 15th, 2022
June 1, 2022, U.S. Court of Appeal – 11th Circuit – Unpublished Opinion
Sisung worked as a pharmacist from 1996 until a work injury occurred in January of 2016. Unum denied her ongoing Long Term Disability benefits. She filed suit, and the district court found that Unum’s denial was reasonable. The Court of Appeals reversed that decision, finding that Unum’s denial was not reasonable.
Sisung suffered a back injury in 2016 when she fell off a rolling metal stool. Her injury was confirmed on MRI at that time, and her treatment included conservative care as well as medial branch blocks and steroid injections. Unum paid benefits to Sisung throughout the “regular” or “own” occupation definition of disability. Sisung’s condition continued throughout that period. Her treating physicians reported varying degrees of disability – from no lifting more than 15 pounds, no sitting more than 30 minutes at a time, severe pain and muscle wasting, to 5/5 muscle strength and good flexion/motion and saying she could work in a medium level job (pushing/pulling/lifting up to 40 pounds).
In 2017, the radiofrequency ablation that had allegedly provided significant relief had stopped working. Her orthopedist said she was not at pre-injury status but opined she could return to work full duty. Her low back pain continued and radiated upward when she walked and downward when she sat. She began seeing a new neurologist that opined she could not perform work that required lifting of 20 pounds or more or prolonged standing. She began taking medication which interfered with her ability to think clearly. The neurologist opined she could not perform sedentary work.
Unum reviewed the claim for “any occupation” benefits. They spoke with Sisung, and they had a vocational specialist review her claim. An in-house physician called the neurologist who ultimately agreed that there was nothing to prevent Sisung from performing sedentary work. Unum concluded that as of July 2018, Sisung could perform another gainful occupation based on her training, education and experience.
Sisong appealed the denial. In the appeal, she included a Functional Capacity Evaluation (FCE) and Neuropsychological Evaluation. The FCE concluded that she physically could not perform a sedentary occupation due to low lifting and carrying limits and a need to take breaks and lie down. The neuropsychological evaluation determined she could not perform her job as a pharmacist or jobs as a manager/supervisor. Unum had an in-house neurologist review the evaluations and determined that her medical records and daily activity descriptions were inconsistent with the impairments in the evaluations, and they upheld the denial.
The Court of Appeals disagreed with Unum’s denial. They determined that there was no support in the record for Unum’s determination that Sisung had no relevant cognitive limitations, which was essential for Unum to determine she could perform other gainful work. It is important that the Court upheld Unum’s determination on her physical capabilities, explaining that Unum’s review met a “reasonableness” review because they at least had their own doctors review that issue. The Court reversed on the basis that there was no reasonable basis to discard all of the findings in the neuropsychological evaluation that supported Sisung’s cognitive deficits.
This case highlights the importance of workup of a disability claim during the administrative stage. In some cases, relying exclusively on treating doctor opinions, which can be confusing and inconsistent, can lead to a claim denial. The separate evaluations here helped identify specific deficits to clarify prior inconsistent opinions. Cognitive deficits can also be difficult to objectively document without an evaluation. You can also see the lengths the insurance company will go to in order to try and deny a claim. Getting professional representation as early as possible gives you the best chance of success in your claim.
