Riemer Hess Obtains Major Victory Against Unum in New York Long Term Disability Lawsuit

Introduction

Riemer Hess is proud to announce a major litigation victory and post-remand win in Chicco v. First UNUM Life Ins. Co. (2022 WL 621985 (S.D.N.Y. Mar. 3, 2022), filed in the Southern District Court of New York.  The outcome represents a total win for Ms. Chicco.

Ms. Chicco was a New York accountant and tax manager who last worked at an international investment firm before becoming disabled due to progressive and debilitating spinal conditions.  Riemer Hess filed the lawsuit on Ms. Chicco’s behalf under the Employee Retirement Income Security Act (ERISA) to recover benefits that Unum had wrongly denied under her long term disability insurance plan.

In Chicco, the Court ordered Unum to pay Ms. Chicco 20 months of wrongly denied retroactive disability insurance benefits.  The Court also remanded the case back to Unum to reconsider whether additional benefits were payable.  During the remand, Riemer Hess seized the opportunity to bombard Unum with additional evidence in further support of Ms. Chicco’s claim.  These efforts paid off for Ms. Chicco.  Ultimately, Unum released an additional 25 months of benefits to Ms. Chicco and reinstated her future benefits, for as long as she continues to satisfy the terms of her long term disability insurance plan.

The Court’s decision in Chicco and post-remand outcome demonstrate that a claimant can never submit too much evidence in support of their long term disability claim.  As detailed below, Riemer Hess' extraordinary development of the evidentiary record is what convinced both the Court and Unum to finally pay Ms. Chicco what she deserved.

Ms. Chicco’s Disability Claim Background

Ms. Chicco had been working since 2007 as an accountant and tax manager at D. E. Shaw & Co., L.P., a world-renowned and highly respected global investment firm.  As an employee benefit, Ms. Chicco enrolled in a high-end group long term disability plan insured by Unum.  The plan defined disability under an “own occupation” standard.  To be eligible for disability benefits under this standard, Ms. Chicco needed to prove that she could not perform the material duties of her own occupation.  These duties were both physically and cognitively demanding.  They included complex tax calculations, researching, attending meetings, and committing to forty-plus hours of work a week, especially during tax season.

Starting in 2013, Ms. Chicco began experiencing fatigue, weakness, and back pain.  Her symptoms only progressed from there.  By 2018, her pain became far more intense and her ability to sit and stand became severely impaired.  In May of 2018, Ms. Chicco left work and filed a long term disability claim with Unum.  Unum initially granted the claim and paid Ms. Chicco long term disability benefits.  However, Unum’s approval was short-lived.

While receiving disability benefits, Ms. Chicco expressed interest in attempting to return to work during her conversations with her doctor.  In October, she returned to work on a part-time basis, with the hope that she would gradually increase her hours and resume a full-time schedule by mid-December.  Her doctor monitored the work attempt firsthand.  Unfortunately, the plan did not work as well as Ms. Chicco and her doctor had hoped.  As Ms. Chicco attempted to increase her hours, she experienced a correlating increase in her pain and other symptoms.  This required her to receive several rounds of invasive spinal injections, and ultimately prevented her from resuming the full-time schedule as she had hoped to do.

Unum cut benefits off, effective mid-December.  Despite evidence of an ongoing disability, Unum insisted that Ms. Chicco was no longer disabled because she had attempted to return to work for several months.  Essentially, Unum took the position that Ms. Chicco could have assumed a full-time schedule if she just pushed herself harder.  At this point, Ms. Chicco hired Riemer Hess for assistance in her fight against Unum.

Ms. Chicco’s Appeal and Exhaustion of Administrative Remedies

Riemer Hess filed an administrative appeal with Unum on Ms. Chicco’s behalf.  With the proactive planning of Riemer Hess, Ms. Chicco’s appeal was well-supported by an overwhelming wall of evidence.  At our recommendation:

• • Ms. Chicco underwent additional diagnostic testing, which revealed clinical abnormalities in her cervical and lumbar spine;
  • Ms. Chicco participated in an objective functional capacity evaluation (FCE). The FCE revealed weakness in limbs, fatigue, the requirement to change positions every twenty to thirty minutes, and poor motor control making any computer use difficult;
  • Ms. Chicco underwent an independent medical examination with a board-certified neurologist, who confirmed objective abnormalities and commented on her degree of impairment;
  • Ms. Chicco obtained a detailed opinion letter from her treating doctor; and
  • Ms. Chicco prepared a comprehensive affidavit about her symptom exacerbation and activities during her failed work attempt.

Despite Ms. Chicco’s strong evidence, Unum still denied Ms. Chicco’s benefits on appeal.  Unum relied exclusively on its reviewing doctor’s opinions without ever physically examining Ms. Chicco.  Unum’s paper reviewers alleged that:

• • Ms. Chicco’s reported pain was “out of proportion” to the evidence and that if Ms. Chicco was in as much pain as she reported, her treatment would have been more extensive;
  • Ms. Chicco’s work attempt demonstrates that she was capable of working more than she did;
  • The opinion of Ms. Chicco’s treating physician was entitled to no more weight than the opinions of Unum’s paper reviewers;
  • The results of the physical examinations were not consistent with a primary diagnosis of radiculopathy – suggesting instead that Ms. Chicco’s pain was due to fibromyalgia; and
  • Any increased pain Ms. Chicco experienced during her work attempt was due to pregnancy, rather than her work activity.

The Court’s Decision

After Unum terminated Ms. Chicco's disability benefits, Riemer Hess filed a federal lawsuit on Ms. Chicco's behalf in the United States District Court for the Southern District of New York.  The Court ruled in Ms. Chicco's favor.  Applying a de novo standard of review, the Court concluded that a preponderance of the evidence demonstrates Ms. Chicco is “unable to perform the material and substantial duties of her regular occupation” and is therefore disabled.  In doing so, the Court rejected each of Unum’s excuses not to pay.

First, The Court rejected Unum’s argument that Ms. Chicco’s reported pain and disability were “out of proportion” to the evidence.  The Court found that Ms. Chicco’s disability was evidenced by an escalating treatment regimen of medications, physical therapy, and injections.  Her disability was further evidenced by her own statements and the consistent opinions of her treating providers.

Second, although Unum tried to use Ms. Chicco’s work attempt to deny disability benefits, the Court found Ms. Chicco’s work attempt to be persuasive evidence of an ongoing disability.  The Court noted that Ms. Chicco’s symptoms drastically worsened as she attempted to resume work, and her treatment was escalated in response.

Third, the Court rejected Unum’s argument that the opinion of Ms. Chicco’s treating physicians should not be given more persuasive weight than any other medical evaluation.  The Court found Ms. Chicco’s treating physician’s opinion more persuasive because Unum’s reviewing doctor never physically examined Ms. Chicco.  Additionally, the opinion of Ms. Chicco’s treating doctor was more consistent with the objective medical testing.

Fourth, the Court rejected Unum’s argument that Ms. Chicco’s disability was due to fibromyalgia, rather than her primary diagnosis of radiculopathy.  The Court noted that Unum ignored diagnostic testing that confirmed spinal abnormalities, but it ultimately did not matter because Ms. Chicco's claim did not hinge on an exact primary diagnosis.  Under Ms. Chicco’s long term disability plan, she need only demonstrate that she has a medical condition that prevents her from performing the material duties of her own occupation.  The Court found that whether her disability stems from a primary diagnosis of radiculopathy or fibromyalgia is irrelevant because the evidence demonstrates that she is disabled.

Fifth, the Court rejected Unum’s argument that Ms. Chicco’s symptoms were worsened due to pregnancy, rather than her disability.  From the evidence presented, the Court concluded that Ms. Chicco’s spinal condition and pain would have progressed with or without her pregnancy.

Although the Court found that Ms. Chicco was disabled from December 18, 2018 through August 31, 2020, the Court believed that more evidence was necessary to determine whether Ms. Chicco was disabled from September 1, 2020 through present, after the administrative record had been closed.  Thus, the issue of whether Ms. Chicco was entitled to additional benefits after September 1, 2020 was remanded back to Unum for further consideration.

The Outcome of the Court-Ordered Remand

During the Court-ordered remand, Riemer Hess seized the opportunity to further bolster Ms. Chicco’s claim with updated evidence.  With the strategic guidance of Riemer Hess, this new evidence included:

• • A battery of updated objective testing;
  • Another independent medical examination with a well-qualified neurologist;
  • A repeat FCE;
  • Updated records from Ms. Chicco’s treating physicians;
  • Detailed letters from Ms. Chicco’s treating physician;
  • Statements from Ms. Chicco;
  • Firsthand witness statements from Ms. Chicco’s friends/family; and
  • Updated pharmaceutical records.

Riemer Hess had to spring into action fast to ensure that all evidence was submitted in a timely and orderly manner.  Fortunately, this dedication to the claim paid off.  Unum ultimately released all remaining benefits owed to Ms. Chicco and will continue to pay Ms. Chicco future benefits, subject to the terms of the long term disability plan.

Conclusion

In conclusion, it is imperative to have adequate evidence in proving disability.  Although Unum initially ignored the substantial evidence presented by Ms. Chicco, the Court did not.  Going forward, Riemer Hess will assist in monitoring Ms. Chicco’s claim. Riemer Hess will remain in her corner to help ensure that Unum does not engage in tactics to wrongfully ignore her evidence and terminate her benefits again.

Disability insurance claims can be confusing and complicated.  With so much at stake for you, your family, and your future, we understand how important your case is.  The experienced attorneys at Riemer Hess will fight the insurance companies for you.

Riemer Hess can assess your situation, explain your legal rights and options, and answer any questions you have about long term disability insurance.  To schedule your free consultation, call Riemer Hess today at 212-297-0700 or select the button below.