Hardy v. Unum Life Insurance Company of America

Background

Mark W. Hardy brought an action under the Employee Retirement Income Security Act of 1974, a federal law governing employee benefit plans. Hardy was covered by an employer-provided long-term disability policy issued by Unum Life Insurance Company of America. He had been diagnosed with multiple myeloma, described in the opinion as an incurable cancer, and experienced treatment-related fatigue, lack of stamina, pain, nausea, diarrhea, vomiting, and peripheral neuropathy.

Hardy reduced his hours to part-time work in February 2019 and applied for partial disability benefits. Unum approved his claim and later recertified his benefits. After reviewing his medical and vocational information, Unum terminated the benefits on December 10, 2020, concluding that Hardy could perform the material duties of his occupation full-time. Hardy appealed, but Unum upheld the termination on May 4, 2022.

The parties filed cross-motions for judgment on the administrative record. Hardy sought reinstatement of his benefits, and Unum sought affirmance of its termination decision.

Standard of Review

The court reviewed Unum’s decision de novo, meaning it independently evaluated the plan’s terms and the evidence without deferring to Unum. The parties agreed that the policy did not give Unum discretionary authority. Because the parties asked the court to decide the case on the administrative record, the court acted as the factfinder and could resolve factual disputes, assess credibility, and weigh the evidence. Hardy had to prove by a preponderance of the evidence that he was entitled to continued benefits.

Disability Determination

The policy defined disability for an attorney by reference to the specialty in law the insured practiced before becoming disabled. The court therefore found that Hardy’s regular occupation was medical malpractice trial attorney, rather than the more general category of “Attorney Litigation” used by Unum.

The court held that Unum’s generic descriptions of a litigation attorney did not adequately capture the mental and cognitive demands of Hardy’s specialized occupation. Those duties included preparing for and conducting trials, interviewing clients and witnesses, taking and defending depositions, attending hearings, and sustaining attention during lengthy work. The court found that Unum had not adequately evaluated Hardy’s ability to perform those specialized duties.

The court credited Hardy’s consistently reported symptoms and found that they were supported by his medical history, medical records, medical literature, and statements from his spouse and law partners. The court noted that Dr. Gregory M. Vercellotti, the only provider who personally examined Hardy, did not question the credibility of Hardy’s symptoms. The court also gave significant weight to Dr. Vercellotti’s opinion because of his experience treating multiple myeloma and his specialty in oncology and hematology.

The court found that Unum’s reviewing physicians did not adequately consider the long hours, sustained concentration, cognitive stamina, and prolonged sitting required of a medical malpractice trial attorney. The court also considered an independent vocational assessment by Ken Askew, who concluded that Hardy’s part-time schedule was his maximum vocational capacity.

Considering the evidence together, the court found that Hardy could not perform all the material duties of his regular occupation as of December 10, 2020. The court concluded that Hardy remained disabled under the policy and that Unum wrongfully terminated his benefits.

Benefits and Earnings Calculation

The court ordered Unum to pay Hardy all unpaid long-term disability benefits from the termination date through the present, in an amount to be determined, and to reinstate his benefits until Unum determines that Hardy is no longer disabled under the policy.

The policy did not define “monthly earnings” for purposes of calculating benefits. The court held that Hardy’s annual partner distributions qualified as earnings and ordered Unum to calculate owed and future benefits by prorating those distributions over the year in which they were received.

Attorney’s Fees, Costs, and Prejudgment Interest

The court granted Hardy’s request for reasonable attorney’s fees and costs. It found no indication that Unum acted in bad faith, but concluded that Unum failed to exercise the required care in the administrative process, including by failing to adequately explain how Hardy’s physical activities showed that he could perform all the duties of his occupation full-time.

The court also granted Hardy’s request for prejudgment interest on past-due benefits. It found no exceptional or unusual circumstances that would make such an award inequitable. The court did not set the final amounts immediately. It ordered the parties to meet and confer and required Hardy to submit supporting affidavits and briefing if the parties could not agree on the amounts.

Order

The court denied Unum’s motion for judgment on the administrative record and granted Hardy’s motion. It ordered Unum to pay the unpaid benefits, reinstate the disability benefits, prorate annual partner distributions as described above, and pay reasonable attorney’s fees, costs, and prejudgment interest. The parties were directed to meet and confer and submit either a joint proposed judgment or separate filings addressing disputed amounts.