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Riemer Hess Obtains Litigation Win Against Unum for Underwriter with Lumbar Impairment

Riemer Hess is proud to announce a new litigation victory in Graziano v. First UNUM Life Insurance Company, 21-cv-2708 (PAC) (S.D.N.Y. July 13, 2023), filed in the Southern District Court of New York.  The outcome represents a major win for Mr. Graziano and confers a common benefit on future claimants.

Plaintiff Michael Graziano was a Senior Property Underwriter experiencing limitations in his ability to perform his work due to lumbar impairments. Riemer Hess commenced an action on behalf of Mr. Graziano against First UNUM Life Insurance Company (鈥淯NUM鈥�) alleging wrongful termination of his long term disability benefits and life insurance waiver of premium benefits.  The action was subject to the Employment Retirement Income Security Act of 1974 (鈥淓RISA鈥�), 29 U.S.C. 搂搂 1001鈥�1461.

Judge Paul A. Crotty conducted a bench trial applying a de novo standard of review, finding the weight of the evidence demonstrated Mr. Graziano was unable to perform the duties of his occupation.  The Court awarded benefits to Mr. Graziano through the close of the record.  The Court remanded the claim to UNUM for further evaluation of ongoing benefit eligibility thereafter.

The Court Provided Helpful Guidance for Future Evaluation of Similar Claims

The Court made two important findings that may benefit future claimants by clarifying how courts should evaluate similar disability claims.

First, in awarding benefits, the Court found that an inability to perform just one material and substantial duty of an occupation (in this case, prolonged sitting) was sufficient to find total disability.  The plan language here defined total disability as follows: 鈥淸Y]ou are limited [defined as 鈥渃annot or unable鈥漖 from performing the material and substantial duties of your regular occupation due to your sickness or injury鈥︹��  A claimant need not demonstrate an inability to perform all or most duties under such standard 鈥� just one will suffice. 

Second, the Court addressed how to decide between competing medical opinions in de novo ERISA disability cases brought within the Second Circuit.  The Court stated:

In reviewing a disability claim de novo, the Court considers opinions of an insured鈥檚 treating physicians, the administrator鈥檚 reviewing physicians, and insured鈥檚 own self-reports of his symptoms. 鈥淸A]n insured鈥檚 own reports of symptoms are not merely evidence of a disability but are an important factor to be considered in determining whether the insured has established disability.鈥�

[. . .]

Thus, in the face of two competing opinions, the Court will evaluate Graziano鈥檚 complaints of pain and weakness as supported by objective evidence included in the administrative record.

[. . .]

While there is no 鈥渢reating physician rule鈥� under an ERISA de novo review, the Second Circuit has suggested that factors such as 鈥渢he length and nature of [the patient-physician] relationship, the level of the doctor鈥檚 expertise, and the compatibility of the opinion with the other evidence鈥� may provide guidance to a Court evaluating competing medical opinions.

Using this framework, the Court determined that Mr. Graziano鈥檚 rehabilitative and pain management specialist, Dr. Beer, 鈥渨as more credible than Unum鈥檚 reviewers.鈥�  The Court found it significant that 鈥渘one of Unum鈥檚 reviewers specialize in rehabilitation or pain management nor ever personally examined Graziano.鈥�

The Court Heavily Criticized Unum鈥檚 Handling and Characterization of Graziano鈥檚 Claim

The Court criticized UNUM鈥檚 handling and characterization of Mr. Graziano鈥檚 claim in six ways:

• • First, the Court criticized Unum鈥檚 accusation that Mr. Graziano stopped working because he no longer wanted to work, rather than due to a disability.  The Court found: 鈥淐ontrary to Unum鈥檚 assertions, Graziano鈥檚 decision to stop working was not made on his own.  Dr. Beer鈥檚 treatment notes from October 15, 2018 (three days before Graziano applied for benefits) describe that Dr. Beer 鈥榌r]ecommended [Graziano] remain out of work until further notice.鈥欌�� 
  • Second, the Court found Unum 鈥渋nappropriately discredited the severity of Graziano鈥檚 lumbar condition because, according to their reviewers, Graziano鈥檚 鈥榗onservative鈥� treatment was disproportionate to the alleged severity of his pain.鈥�  The Court found, 鈥淕raziano鈥檚 treatment plan was far from conservative.鈥�  The Court acknowledged that 鈥淸o]ver a multi-year period, Graziano received numerous rounds of medical branch injections, steroid injections, and lumbar radiofrequency ablation treatments and attended physical therapy.鈥�
  • Third, the Court found Unum 鈥渕ischaracterize[d] Graziano鈥檚 approach to opioid pain medication.鈥�  Specifically, Unum argued that Mr. Graziano鈥檚 pain must be less severe than alleged because he was not taking opioid pain medications.  The Court rejected this 鈥� noting that Mr. Graziano鈥檚 decision to abstain from opioid pain medication (stemming from concerns about addiction and dependency) was rationally supported by Dr. Beer.
  • Fourth, the Court rejected Unum鈥檚 argument that a temporary lapse in physical therapy during the COVID-19 pandemic precludes recovery of benefits.  The Court held that Mr. Graziano鈥檚 decision to pause additional treatments was 鈥渏ustifiable鈥� because he suffered from comorbidities, including obesity and Type 2 diabetes, that put him at an increased risk of serious health consequences from COVID-19. 
  • Fifth, the Court criticized Unum鈥檚 termination of previously approved benefits where there was no significant medical change in Mr. Graziano鈥檚 medical condition.  The Court held, 鈥淕raziano鈥檚 records reflect that his lumbar condition actually
  • Lastly, the Court criticized Unum for trying to make it seem like Graziano only left work because he no longer wanted to commute. The Court found, 鈥淸C]ontrary to Unum鈥檚 assertions, Graziano鈥檚 commute was not the sole or even significant motivating factor behind his disability claim.鈥�

If you are looking for an attorney to represent you in an ERISA matter, Riemer Hess can help.  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.