Court OKs disability claim by attorney with chronic pain

This article was initially published in the Chicago Daily Law Bulletin on January 23, 2019.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at [email protected].

A recent Utah federal court ruling involving an attorney claiming disability due to chronic pain raised a number of interesting issues.

In Dewsnup v. Unum Life Insurance Company of America, 2018 WL 6478886 (D. Utah, Dec. 10, 2018), a trial attorney, Ralph Dewsnup, sought disability benefits after he underwent quadruple bypass heart surgery following a heart attack. Although the surgery was successful, following his surgery, Dewsnup suffered from severe pain across his chest that worsened with stress. The disability insurer, Unum, deemed him capable of returning to work, however, and denied his claim.

But Dewsnup succeeded in court.

The court found the plaintiff’s claim was supported by a preponderance of the evidence. After recognizing the difficulty of assessing disability due to neuropathic pain, the court found Dewsnup credible for three reasons.

First, the pain was correlated with Dewsnup’s heart surgery, which resulted in damaged nerves on his chest wall.

Second, the plaintiff "consistently reported the same type and severity of pain throughout the record — a burning sensation across his chest that would worsen with stress." The court also found Dewsnup was forthright in telling Unum what he could and could not do, and there was no evidence of symptom exaggeration.

Finally, the plaintiff’s symptom complaints were corroborated by the treating doctors.

Although Unum maintained that diagnostic testing favored its position, the court disagreed since the testing was not relevant as to neuropathic pain. Unum focused on cardiac and pulmonary testing, but as the court noted, "Mr. Dewsnup was undisputedly suffering from chest pain as a consequence of nerve damage, not heart or lung problems. Such tests had no bearing on his disabling condition."

The court also found the absence of diagnostic testing "does not cut against Mr. Dewsnup’s claim, because such an absence is a natural consequence of his condition."

The court cited cases involving fibromyalgia and chronic fatigue testing, and pointed out, "Medicine is, at best, an inexact science, and we should not disregard the great weight of the evidence merely because objective laboratory diagnostic findings either are not yet within the state of the art, or are inconclusive." Gaylor v. John Hancock Mutual Life Insurance Co., 112 F.3d 460, 467 (10th Cir. 1997).

The court likewise found that Dewsnup’s ability to increase his daily activities and perform part-time work in a limited role did not correlate with his duties of a trial lawyer. The court explained that such activities "might match the relatively sedentary physical demands of legal work, but none carry the same cognitive demands."

"None require sustained concentration and focus, advocacy or long hours and none can fairly be said to cause the stress of even routine litigation."

Although Unum relied heavily on Dewsnup’s decision to forgo treatment, the court found his refusal to pursue other treatment was excuasable.

"Medication caused side effects such as memory loss, hallucinations and confusion. Ibuprofen, a common over-the-counter pain medication, could increase his risk of heart disease," the court observed. "And Mr. Dewsnup declined to undergo a nerve ablation because its efficacy depended on the success of the nerve block that hadn’t worked. Thus, declining further treatment was not due to a resolution of his pain but was ‘in spite of his pain.’"

Finally, the court was unimpressed with Unum’s reviewing doctors.

"In this case," the court explained, "in which Mr. Dewsnup’s claim depended largely on his credibility, the court gives greater weight to the opinions of his treating physicians, who were better able to assess the veracity of Mr. Dewsnup’s reports of pain. None of Unum’s reviewers examined Mr. Dewsnup in person. Apart from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence."

Although the court found Unum’s evaluation process "troubling" and suggestive of adversarial behavior and a selective review of the evidence, the court declined to award fees due to a lack of "bad faith."

The court did a commendable job of evaluating the disability claim. The court acknowledged how difficult it is to assess a claim based on pain symptoms but then provided a road map as to what evidence supported the plaintiff.

The court pointed to various indicia of reliability of those complaints and the absence of any suggestion of symptom magnification or exaggeration. And the court put Dewsnup’s complaints within the context of his occupation as a trial lawyer and the impact of his symptoms on his inability to perform his job duties.

However, in denying fees, the court may have misapplied the law. As the 7th U.S. Circuit Court of Appeals explained in Production & Maintenance Employees’ Local 504, Laborers’ International Union v. Roadmaster Corp., 954 F.2d 1397, 1405 (7th Cir. 1992), there is a modest presumption in favor of fee awards; and although the evaluation of fees requires an assessment of "bad faith," the court held that term does not "mean that a party must actually show subjective bad faith to justify a fee award.

"Requiring a showing of subjective bad faith would defeat the purpose of this presumption (modest though it may be) because of the difficulty of proving subjective bad faith. Attorney’s fee litigation is time-consuming and tedious enough without adding subjective inquiries into litigants’ and attorneys’ good or bad faith."

Although the 7th Circuit’s ruling is more than 25 years old, it presaged the Supreme Court’s decision in Hard v. Reliance Standard Life Insurance Co., 560 U.S. 242, 130 S. Ct. 2149 (2010), which held that ERISA fee awards are appropriate whenever a litigant achieves "some degree of success on the merits."

Accordingly, in view of the court’s findings about problems with Unum’s evaluation of the claim, the denial of fees based on a subjective bad faith standard appears inexplicable.

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