Wessberg v. Unum Life Insurance Company of America

Background

Ann D. Wessberg was diagnosed with bilateral invasive breast cancer in October 2018. She underwent chemotherapy, radiation, mastectomy, reconstructive surgery, and treatment for anxiety and depression. Wessberg worked as an attorney and shareholder at Fredrikson & Byron, P.A.; before her disability, she worked about 60 hours per week.

Wessberg applied for long-term disability benefits under an employer-sponsored plan governed by the Employee Retirement Income Security Act of 1974. Unum approved her claim and began paying benefits. Wessberg later returned to work part-time, but continued to report fatigue, dizziness, vertigo, concentration and memory problems, and reduced stamina. Unum terminated her benefits on July 20, 2020, stating that she could perform the duties of her regular occupation full-time and that it had not received requested documentation from one of her treating providers.

Wessberg appealed. She submitted additional medical records, including records concerning dizziness, cognitive problems, and a later diagnosis of neurogenic orthostatic hypotension. Unum denied the appeal. The parties then filed cross-motions for judgment on the administrative record.

Standard of Review

Because the plan did not give Unum discretionary authority, the court reviewed Unum’s determination de novo, meaning it independently evaluated the plan’s terms and the evidence without deferring to Unum. The court acted as the factfinder and determined whether Wessberg proved by a preponderance of the evidence that she was entitled to benefits after September 8, 2020.

The plan defined disability as an inability, because of sickness or injury, to perform with reasonable continuity at least one material and substantial duty of the claimant’s regular occupation. The court interpreted the plan to require consideration of the combined effects of multiple impairments.

Merits Analysis

The court found that Wessberg was disabled as of September 8, 2020, based on cognitive impairment. Her symptoms included extreme fatigue, dizziness and vertigo, fainting, and difficulty with concentration and memory. The court concluded that these symptoms prevented her from performing the important cognitive duties of an attorney, including advising, consulting, litigating, and performing legal work.

The court identified several problems with Unum’s decision. Unum repeatedly focused on physical, sedentary-work requirements without adequately addressing the cognitive requirements of attorney work. One occupational description omitted cognitive requirements, while another used generic requirements that did not adequately describe an attorney’s work. The court found that these descriptions were insufficient to produce reliable opinions about Wessberg’s ability to work full-time as an attorney.

The court also found that Unum relied on inaccurate descriptions of Wessberg’s activities and work schedule, including an assertion that she worked 20 hours per week when the evidence showed she worked closer to 10 to 15 hours per week. The court found that her activities, such as driving, exercising, traveling, and helping her child with virtual learning, did not show that she could perform all the important duties of an attorney full-time.

The court credited Wessberg’s consistently reported symptoms and the records from providers who personally examined her. It noted that Unum’s reviewers did not examine Wessberg, did not refer her for cognitive testing, and generally lacked the specialized expertise of the physicians who evaluated her condition. The court also found that later testing and diagnoses were relevant because they connected her symptoms before the termination to the eventual diagnosis and chemotherapy-related cause.

The court concluded that Unum failed to adequately consider Wessberg’s evidence of cognitive impairment and failed to request additional information if it believed more information was needed. It therefore held that Unum improperly terminated Wessberg’s long-term disability benefits.

Relief and Attorney Fees

The court ordered Unum to reinstate Wessberg’s long-term disability benefits and pay retroactive benefits from September 8, 2020, until Unum determines that she is no longer disabled under the plan. The order also required Unum to pay damages for unpaid benefits from the termination date to the present, in an amount to be determined.

The court granted Wessberg’s request for reasonable attorney fees and costs. It found that Unum had failed to exercise the required care during the administrative process, although the court did not find that Unum acted in bad faith. Wessberg was required to submit an affidavit supporting the amount of fees and costs, after the parties met and conferred about their reasonableness.

The court also granted Wessberg’s request for prejudgment interest. The parties were required to meet and confer about the proper interest rate and calculation. If they could not agree, Wessberg was required to submit an affidavit and brief, and Unum could respond.

Disposition

Unum’s motion for judgment on the administrative record was DENIED. Wessberg’s motion for judgment on the administrative record was GRANTED. Her requests for reasonable attorney fees, costs, and prejudgment interest were GRANTED, with the amounts to be established through further submissions or a joint proposed judgment.