Many claimants wonder can an insurance company rely on a nurse to overrule a physician opinion? Some wonder about the regulations which are supposed to make the process fair. They ask a related question is “do the claim procedure regulations really matter? In Black v. Unum Life Ins. Co. of Am., Civil Action 3:22-CV-2116-X (N.D. Tex. Feb. 29, 2024), Unum, as it has on many claims for other people, found Catherine Black disabled under her long-term disability policy, only to terminate benefits a while later. The contention was that she recovered and could work a sedentary job. That is an oft repeated refrain for Unum claims. 

In this case Unum relied on its nurse to review the records and then opined that the treating physicians were not noting restrictions or limitations on Ms. Black's functionality. Ms. Black had thoracic outlet syndrome.  This syndrome, which may be familiar to many personal injury attorneys, refers to a group of conditions involving pressure on the blood vessels or nerves in the area between the neck and shoulder. There are three types.  This injury can cause symptoms including tingling or numbness in the arms or fingers as well as pain in the neck, shoulder, arms or hands. It can resolve with therapy but not always.

Ms. Black appealed that decision, and Unum, as it often does, stuck to its decision and did not request a physician to review the claim.  Ms. Black filed suit contending that under the regulation Unum was required to use a physician with expertise in the field of medicine involving the medical judgment at hand. Using a general nurse here fell short. Of course, implicit in that is that one or more doctors were now providing evidence of restrictions. Further she contended that Unum deferred in its appeal decision to the original decision.  It was still relying on the original nurse opinion.  That also was unfair.

The district court judge agreed with Ms. Black. It found that under the claim procedure regulation, several procedural requirements must be met for the review to be full and fair.  The first procedure is that when there is an adverse benefit determination which involves a medical judgment, Unum was required to consult “with a health care professional who has the appropriate training and experience in the field of medicine involved in the medical judgment."  Unum did not do that. It argued it did not have to do that because the medical records did not point to any restrictions and limitations preventing sedentary work. The court saw the argument as disingenuous and "splitting hairs".

Additionally, the district court noted that because there was no opinion on appeal from a different medical professional, reliance on Unum's nurse opinion during the appeal process also violated the claim procedure regulation. Essentially deference was given to the initial termination of benefits. That also violated the minimum standards for a full and fair review. Accordingly, under both grounds the court granted Ms. Black's motion for summary judgment and ruled against Unum's motion for summary judgment.

The unfortunate part, however, is that Ms. Black had been without her benefits now since September 2021.  The decision was made at the end of February 2024.  Rather than rule that Unum must pay back benefits instead the court noted that based on Fifth Circuit authority in Lafleur v. Louisiana Health Serv. & Indem. Co., 563 F.3d 148, 154 (5th Cir. 2009), it was compelled to remand the matter back to Unum rather than award benefits. Thus, Unum now would get "another bite at the apple".  It could still deny the claim and require the filing of another lawsuit. 

In my opinion that does not provide adequate incentive for Unum to follow the rules. There are no extracontractual damages typically allowed under ERISA such as punitive damages and mental anguish damages. Thus, the court is only telling Unum it must reconsider the claim. 

This is a matter that needs to be changed. What should occur given that there are deadlines with claim decisions is that past benefits should be paid and Unum should be permitted to evaluate the claim going forward. Otherwise, the minimum standards of a full and fair review under the claim procedure and the plan in question, is still not satisfied as the decision is being made out of time.