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Your Improvement is Too Slow So You Are Not Disabled?

Posted by David P. Martin | Jan 18, 2023 | 0 Comments

If you are sick or have been injured is there a timeline for your improvement? Can you be terminated from your employment for not improving based on the companies expectations? Unum Insurance Company thinks so.

Ms. Proctor was a telephone call center supervisor when the vehicle she was driving was struck from the rear by another vehicle driving about 50 miles an hour. She thought she was fine at the accident scene, but later she developed a headache and began to experience dizziness. This led to difficulty with concentrating and completing paperwork and eventually her vision was blurry.

She sought medical care and was diagnosed with a concussion without loss of consciousness and a trapezius strain. Her doctor told her to rest and avoid computer screens, but that she could probably return to work soon. Her symptoms, however, continued for several weeks and she began to experience nausea and vomiting as well. Her treating doctor told her to continue a time off and referred her to a concussion clinic and diagnosed her with post-concussion syndrome.

About a month later she was seen by an optometrist specialist who diagnosed her as having “deficits of pursuits, binoculars or instability with convergence insufficiency, and photosensitivity.” This led to a visit at a neurology clinic as she continued daily headaches, right eye pain, nausea, dizziness, balance and fatigue issues, and worsening headaches with increased activity involving physical, mental or emotional exertion. Her conditions continued and she was later terminated by her employer due to her inability to return to work.

Before her termination she applied for short-term disability and Unum paid that claim. Then in November 2018 Unum approved Ms. Proctor's long-term disability claim. The long-term disability claim continued through the next year, but then in January 2020, Unum terminated the claim contending that she should have recovered by now. Even though Unum did not find she was better.

Ms. Proctor exhausted the claim process and then filed the lawsuit. In Proctor v. Unum Life Ins. Co. of Am., No. CIVIL 20-2472 (JRT/DTS), 2022 WL 4585278 (D. Minn. Sep. 29, 2022), it further noted “Unum's main rationale supporting termination of benefits seems to be that although Proctor was disabled when it first approved benefits, she is no longer disabled because she is not improving as one would expect. The plain language of the Policy, however, makes clear that disability is evaluated solely by the claimant's limitations, not what might be typical or a normal trajectory.” This was an accurate assessment and ultimately the court found that Unum was acting inconsistently. The court found credible both Ms. Proctor's self-reported symptoms, as well as the opinions of her treating providers. Ms. Proctor's ongoing inability to concentrate, and read and analyze data on a computer monitor, and her ongoing difficulty finding words and clearly communicating demonstrated that she is not able to perform her occupation.

The court found that de novo review was the correct standard to use. Under that standard, the court ruled for Ms. Proctor and ordered past due benefits paid with interest, and awarded attorney's fees and costs, and ongoing consideration of the claim. One has to wonder if the outcome would be the same under the arbitrary and capricious standard of review.

About the Author

David P. Martin

Senior & Managing Attorney


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