ERISA Disability and Life Insurance Litigation
Oral arguments from various courts of appeal across the federal circuits involving long term disability or life insurance claims governed by ERISA.
The podcast is a production of Ben Glass Law, a national long term disability and life insurance law firm headquartered in Fairfax, VA.
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ERISA Disability and Life Insurance Litigation
How Did the Claimant's Attorney Argue Against UNUM's Decision in the Appeal Process?
In this episode, the claimant was employed as a Security Director at Manhattanville College, where he experienced several health conditions, including:
- Aortic valve replacement in August 2010
- Paroxysmal atrial fibrillation
- Fatigue and dizziness
- Chest pain and shortness of breath
- Anxiety and sleepless nights
These conditions collectively contributed to his disability and inability to perform his duties as a Security Director.
However, UNUM Life Insurance denied his long-term disability benefits, citing multiple medical reviews indicating improvement, an occupational analysis showing that his national economy role did not require the specific tasks he performed, and independent reviews that disagreed with his physicians.
Appeal Process
The claimant filed an appeal to the 2nd Circuit Court of Appeals, arguing that substantial evidence showed he was completely disabled and accusing UNUM of ignoring critical medical evidence. His attorney emphasized the claimant's inability to perform essential job tasks and submitted comprehensive medical records from Dr. Joseph Tartaglia and Dr. Fusco, which included detailed descriptions of the claimant's conditions and limitations. They also criticized UNUM for not conducting an independent medical examination. The appeal aimed to overturn UNUM's decision and prove his continued disability.
This is the oral argument in the 2nd circuit court of appeals.
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if the test results themselves have been submitted. I can say that Dr McAllister, dr Dedana and Dr Shepard had based their evaluations on far more than simply a stress test.
Speaker 2:So May I ask a question about that, With or without the stress test?
Speaker 3:you're relying on the DOT definition of the job right to both learn and stay abreast of the substantive and procedural aspects of practicing law. By putting these public domain recordings into the form of a podcast, ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show's sponsor.
Speaker 2:I will proceed to hear the first case on our day calendar it's number 20-1342, hininchy versus First Unum Life Insurance Company. It is Susan. We have Mr Hersensen Mimi. I don't know, I think so. Good morning, mr Hersensen Good morning.
Speaker 4:May it please the court? It's my first time before this circuit argument after 50 years.
Speaker 2:Welcome, Mr Hershenson. We're glad to have you.
Speaker 4:Thanks very much. May it please the court, the sole issue on this motion, this motion and this appeal is the utter fatigue of Mr Hinchey on the stress test. That caused him to not be able to reach the target rate which caused the stress test to be aborted. And first, in its appeal decision, failure to take that into consideration raised issues of fact requires the motion for summary judgment to be denied and this court should reverse the lower court and that is the issue presented on this appeal. And, by the way, I have a slight issue with my vocal cord. I asked the court to bear with me. It affects my voice in the morning Of course.
Speaker 4:Thanks very much. The Apparisa Regulation requires, in cases of disability, that the insurance company must quote, take into account all the information submitted by the claimant on the appeal. Claimant on the appeal, in this case, the claimant, mr Hinchy, submitted a letter from his cardiologist, dr Tartaglia, including the results of his stress test.
Speaker 2:Mr Hershenson, I'm going to interrupt you for a minute Before you get to the stress test and the merits. Could you address the standard of review that's applicable here? Did you first retain discretion under the terms of the plan to determine eligibility? I think you've argued for de novo review, but I'm not sure about the violation of ERISA claim procedure abuse and discretion to de novo.
Speaker 4:So in this case they failed to take into account all the information submitted submitted, though they did mention Dr Tartaglia's letter of the stress test that was aborted. Unfortunately, in the very next page it referred to quote the most recent cardiac stress test, completed in October 2014. That was two years ago. So they made a complete mistake. Dr Tadley's stress test on Mr Hinchey was in July 2016. That was the crucial mistake made by First Student in the appeal decision. That's why I in my brief, madeellee's brief, they focus, as do first student in their appeal decision, on the stress tests in October 2014. Because it's almost two years before the July 2014-2016 stress test where Mr Hinchey was so fatigued they had to stop the stress test because he couldn't even reach the target weight. They stopped the treadmill. So that's why the halo decision comes into play. So the decision by First Dunham is all wrong. That's the whole key to the whole case. Do you follow?
Speaker 2:Yes, so Dr McAllister's summary in August 19 that took into account Dr Tattaglia's July letter was insufficient from your view. He still did not take into account the most recent results.
Speaker 4:In their grief, in their family's grief. They say to me you ignore all the nurses' analysis of all these previous office visits where they say he was going to the stress test in July 2016,. He couldn't even achieve the target rate. So he's changed, his condition completely deteriorated. He's not going to the gym anymore. Things changed. That was a year ago, in July 2016,. He completely deteriorated, this man no longer he can't do a job anymore where he's got to go to the office and walk around. As director of security, he can't do a job where he's got to walk around for several hours a day If he can't even walk on a treadmill. So that's the whole point. And under the Halo test he can't do the job. Their decision is all wrong. So there are issues of that. He is disabled. They ignored, they went back to the stress test from October of 2014. And they ignored the stress test from July 2016. From July 2016. I'm so glad we got to this oral argument so I could clarify this for you. Thank you, sure, I appreciate it.
Speaker 2:That's it All right, you've reserved two minutes of rebuttal. Your time is just about to expire. We'll hear what your opposition has to say. Thank you, sure, mr Begos.
Speaker 1:Thank you, your Honor, may it please the court, patrick Begos, for the appellees in this matter. This is a classic case of a discretionary review under the arbitrary and capricious standard of an administrative claim determination. First Union paid the benefits at issue.
Speaker 2:I'm going to interrupt you right now, at the beginning, since we're just coming off a clarification from Mr Hinchey's counsel. Could you point directly to anything that he said that was incorrect about the stress test timing and First Union's taking account of that? I think he's arguing that the failure to take account of that means that we have a procedural violation that warrants de novo review and not the discretionary review that you're just talking about.
Speaker 1:Sure, yes, your Honor, the short answer is Mr Hinchey and his lawyer did not submit the 2016 stress test. What they submitted was a one-page letter from a cardiologist that referred to the alleged results of the 2016 stress test.
Speaker 5:Mr Hinchey's lawyer on administrative appeal.
Speaker 1:Remind me what the letter said the letter said let me just pull it up, your Honor. With regard to the stress test, dr Tartaglia said Mr Hinch's fatigue was demonstrated on a recent nuclear stress test which showed chronotropic incompetence, forcing the plaintiff to abort the test early in stage two of the Bruce protocol due to failure to achieve the target heart rate. The test was switched to a pharmacological study because of his failure to continue exercise.
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Speaker 5:Case. Why didn't that amount to submitting the results of a stress test?
Speaker 1:Because your Honor Mr Hinchey's attorney, in May of 2016 had told First Unum that he had submitted Dr Tartaglia's full and complete medical record. Then Dr Tartaglia writes a letter in July which says there was this stress test that occurred in May of 2016 that appeared nowhere in Dr Tartaglia's actual record what do you think?
Speaker 5:You think he falsified it. What are you trying to say?
Speaker 1:No, I'm not suggesting he falsified it. I think what's entirely possible is that it may have been some test ordered by some other doctor and Mr Hinchey was reporting to Dr Tartaglia what happened. In either event, why would you think that? From what you just read us.
Speaker 2:In either event, why would you think that from what you just read us? Because I think the doctor is saying that this test happened, that he demonstrated fatigue, that he had to abort the test early. What would make you think the doctor doesn't have knowledge of those facts?
Speaker 1:Because I think that, had he had the test results, the report would have been provided with his letter, just as the actual report of the 2014 test was provided to first.
Speaker 2:The suggestion is that the failure to consider this, which would be at odds with the earlier evidence of ability to perform at a certain level, was something that at least needed to be considered, and addressed.
Speaker 1:Yes, and there's really two levels to this, your Honor. There's the halo question what do the regulations require and did first comply with the regulation?
Speaker 5:And the regulation very specifically says that it's necessary to consider the information and documents that are submitted by the claimant Well you're implying to us that you didn't consider them because you had suspicions about whether this doctor's representations to you were bona fide. You told us what entered your mind was gee, why didn't he send this in earlier? But the letter you read contains specific findings of kind of a subpar performance on this test.
Speaker 1:Your Honor, I was responding specifically to a question about the stress test.
Speaker 5:I understood what you were saying. I appreciate your candor.
Speaker 1:I'm not suggesting that First Unum concluded that there was a suspicion about what Dr Tartaglia said in his letter.
Speaker 5:That's what you just told us. That's what you just told us.
Speaker 1:Your Honor. If I gave that impression, then I think I misspoke. What I'm suggesting is that First Unum certainly considered Dr Tartaglia's letter. Dr McAllister specifically referenced the letter and discussed the letter and reached his conclusions and first specifically addressed the letter in its appeal decision. The decision that First Unit reached on appeal was based on far more than the question of either the 2014 stress test or the 2016 stress test.
Speaker 2:Are you saying, though, if I can, are you saying that the consideration would have been different, and maybe even a result would have been different, had the actual stress test results been submitted, rather than the summary provided in the brief letter at the end of July?
Speaker 1:Your Honor, I can't say what weight Dr McAllister would have given to the results of a 2016 stress test. Yes, your.
Speaker 2:Honor. Okay, and in addition to talking about 20 pounds of force and all of that which seemed to be everybody's focus, one of the things the definition says is you have to be able to remove or detain unruly persons. Now, I know we do deferential review, but does anybody really think that someone who's had a heart valve replacement is going to be able to remove or detain unruly persons?
Speaker 1:Your Honor. I believe that in the DOT definition it stated that may be a requirement of the occupation.
Speaker 2:Well, it may be. So that's now one of the things we have to consider. You don't want to consider the job, you want to consider this definition, and my concern is that nobody really addressed this. They were all talking about 20 pounds. That's 20 pounds. That's not resisting you. I'm concerned about whether we could reasonably think that any employer would hire someone who had to remove or detain unruly persons if they knew the applicant had a hard-fouled replacement.
Speaker 1:Sure, your Honor. I think there's a couple of levels of the response to that. First, as I mentioned, the definition I believe I'm correct says that might be a requirement of the occupation, but not necessarily a requirement.
Speaker 2:How does that play in? You're suggesting that, therefore, we wipe it out.
Speaker 1:No, I'm not your Honor. I'm saying that the vocational reviewer who did the evaluation concluded that kind of physical requirement is not a material and substantial duty of the occupation. Having reviewed the DOT definition as well as reviewing Mr Hinchey's description of his job, that was not challenged. What?
Speaker 2:was that based on?
Speaker 1:That was based on his vocational experience and education, the expertise of the vocational reviewer. It was based on the information that Mr Hinchey had provided. It was based on the DOT information about the occupation. And I will point out, your Honor, that Mr Hinchey never raised the argument that you're raising now, either during the administrative review or during the case in the district court. So the argument that Mr Hinchey had made in the district court was that First Union had to base its determination on his job at Manhattanville. It included things like EMT work, crowd control.
Speaker 1:The argument that we'll accept the DOT definition but we still think that Mr Hinchey couldn't perform those obligations is something new. That was raised on administrative appeal. So I have to say that it wasn't directly addressed in the administrative review because Mr Hinchey didn't raise it as an argument. But I do go back to, if you look at the vocational assessment that was done early on in the, you look at the vocational assessment that was done early on in the administration, that the vocational reviewer did consider that information and I think did address the point that your Honor raised here.
Speaker 5:Would you agree with me that this panel, this court, should just put out of our minds and give no consideration to the fact that First Unum has been what's described as a serial denier of these claims? If you do a LexisNexis search, I think your client appears as a denier more than anybody else that I've seen. I take it we should just put that out of our minds and it doesn't have any bearing on our decision. Is that right?
Speaker 1:I think so for a couple of reasons, your Honor, it was rejected by the district court as the district court considered it and didn't give weight to that argument.
Speaker 1:Plaintiffs have abandoned it on appeal. They have not argued that, excuse me, a conflict of interest or bias should affect the determination. They have not argued that, excuse me, a conflict of interest should or bias should affect the determination. And I would note that in the cases, the more recent cases in the last 10 or 15 years, certainly after First Unum was criticized by this court in the McCauley decision about 15 years ago and there was a regulatory settlement agreement where First Unum revamped its claim procedures and there are decisions since then. I believe the Daniel decision is one of them from the Eastern District of New York. It noted that since McCauley, courts in this circuit have routinely affirmed First Unum's claim determination. So I think to the extent there was criticism of First Union in the past, I think the more recent case law supports the reasonableness and the correctness of First Union's decision. I would say I think First Union is also affected by the fact that it's a very large disability insurer. It has a lot of policies, it has a lot of claimants, it has a lot of cases.
Speaker 2:Before you. Your time, I know, is up, but I just want to clarify one thing. Before Judge Parker asked you the question, you were pointing out to us that someone in the review process had considered the argument that I put to you, that there was a problem with whether someone with a heart valve replacement could control unruly persons or remove them, and I'm not sure I knew who you said did that and where we would find it in the record.
Speaker 1:Can you help?
Speaker 2:me out.
Speaker 1:Certainly, your Honor, what I referred to was the vocational assessment that was done by Fionn in the case, and if you give me one second I can find you the page to that. That's on page 465 through 467 of the record, and Thank you.
Speaker 2:I just want your help in finding that. Thank you.
Speaker 1:And, if I may, I understand I'm over time, but if I may just Go ahead.
Speaker 2:We've peppered you with questions. Take a minute to wrap up.
Speaker 1:Thank you very much. I do just want to say that I think that the focus on the 2016 stress test, or Dr Tartaglia's description of that in his letter, eliminates discussion of all the other evidence that First Union considered in this case. The doctors reviewed the medical records from Dr Tartaglia, which consistently showed improvement in Mr Hinchey's functional capacity.
Speaker 5:Those records showed that oh, the stress test was important, wouldn't you agree?
Speaker 1:Your Honor. I would agree that the stress test is certainly first considered the 2014 stress test.
Speaker 5:Right, so the more up-to-date one was important as well, wasn't it?
Speaker 1:Your Honor. I do believe that if Mr Hinchey wanted first to give serious weight to a 2016 stress test, that he should have provided the report of the stress test.
Speaker 5:And so you've been falling back on your position that the doctor's letter was inadequate and somehow what evasive.
Speaker 1:No, your Honor, what I'm saying and I probably have not said it well here- Correct, correct.
Speaker 1:That is correct. There is the regulatory issue, which is First Unit absolutely considered the letter which was submitted on administrative appeal, which I think addresses the standard of review. Then you have the question was it reasonable for First Unum to reach the decision that it reached and did it have substantial evidence for that decision, notwithstanding Dr Tartaglia's letter? And Dr Tartaglia said what he said and First Unum gave it the weight that it gave it and under clear law from the Supreme Court and from this court, a claim administrator is not required to give dispositive weight to the opinion or evidence from a treating physician. First Unum weighed the evidence, including Dr Tartaglia's letter, and reached its determination.
Speaker 2:And I think that its determination I'm puzzled still by the notion that part of your response is that because First Unum looked back at the January and March statements by Dr Shepard and Nurse Ainscough and conditions that applied previously, that somehow negates that there had been potentially a severe deterioration in Mr Hinchey's health in July at the time of the stress test. Isn't that a plausible narrative that isn't really taken into account by Dr McAllister's assessment.
Speaker 1:It could be a plausible narrative. I think that Dr McAllister did take the totality of the evidence into account and reached a conclusion that apparently is different than perhaps the panel would have reached. I would note that the last office visit note that was provided for Dr Tartaglia was from January 2016, which reported on a normal halter monitor study. There's no evidence that Mr Hinchey saw Dr Tartaglia after January 2016.
Speaker 1:So to the extent there was a deterioration in his condition after that the only evidence that there is in the record is Dr Tartaglia's letter from July that talks about the stress test. There's no office visit notes from January to July 2016. There's nothing in the record other than Dr Tartaglia's letter.
Speaker 2:I think in context Thank you, thank you. Thank you very much. We'll hear rebuttal, mr Hersensen. Actually, mr Hersensen, I'd like to ask you why isn't it enough for Dr McAllister to have reviewed and commented on your letter of July 27th, when there was no actual stress test report attached to your letter and you hadn't seen, and Dr Tartaglia had not seen, and you hadn't seen and Dr Tartaglia had not seen Mr Hinchey in the interim in the preceding months? Why isn't that sufficient to put First Union in compliance with the regulations such that use of discretionary view is appropriate?
Speaker 4:This letter was before the appeal decision. The regulation requires that the appeal decision take into account any other information submitted by the claimant. Information does not require test results. It was a letter and, as your honors pointed out, that doesn't require test results. A letter from Dr Tartaglia is not a fabrication. He's not going to write a letter making up a test result, all right.
Speaker 2:All right. Thank you very much, sir Sure. Thank you, thank you. Thank you both. We'll take the matter under advisement.
Speaker 3:The proceeding has been a production of Ben Glass Law, a Fairfax, Virginia-based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at benglasslawcom or call us at 703-591-9829.