DeBofsky, Sherman & Casciari recently won the case of Warner v. Unum Life Ins. Co., No. 12 C 02782, 2014 U.S. Dist. LEXIS 178765 (N.D. Ill. Dec. 31, 2014), where the district court granted summary judgment for the plaintiff, ruling that Unum Life Insurance Company (“Unum”) acted arbitrarily and capriciously by disregarding the results of a functional capacity evaluation the plaintiff underwent that found her incapable of performing her former occupation as a nurse due to fibromyalgia, chronic back pain, and other impairments.

Debra Warner was employed as a Nurse Manager for Tyson Foods, Inc. until January 2011, when she had to cease working due to a sudden onset of flu-like symptoms, including fever, body ache, and malaise. When her symptoms failed to subside after two weeks, Ms. Warner sought input from several doctors, who initially suspected her to be suffering from lupus or an auto-immune disorder but who ultimately attributed her symptoms to a flare of her long-standing fibromyalgia, compounded by her co-morbid low back pain, for which she underwent surgery in 2010.

Ms. Warner applied for and received short-term disability benefits from her employer, but Unum denied her application for long-term disability benefits, citing a lack of objective evidence of impairment. That determination was based solely on the reports of two non-examining, in-house physicians.

Ms. Warner, represented by Mark DeBofsky and Martina Sherman, appealed that determination, submitting, among other things, a functional capacity evaluation (“FCE”) report limiting her to sedentary work capacity, thus precluding her from performing her former occupation, which was more exertion ally demanding. . Nevertheless, Unum affirmed its determination, relying once again on the report of a non-examining physician who only briefly mentioned the FCE and who failed to explain her reasons for discounting its findings.

The district court ruled that Unum’s disregard of Ms. Warner’s FCE was an abuse of discretion. Specifically, the court noted that “Unum’s rationale for dismissing the FCE . . . was that the FCE recorded functional limitations caused by impairments that could not be seen or measured with objective medical tests[,] . . . even though the resulting limitations were documented.” The court noted that Seventh Circuit precedent “forbid the denial of benefits based on this sole ground if indeed there are no applicable objective medical tests to perform.”

The court entered judgment for the plaintiff, finding her disabled under the policy’s “own occupation” definition of disability. However, it remanded the case to Unum for a determination as to whether Ms. Warner satisfied the “any occupation” definition of disability which took effect after 24 months, observing that the record was silent on that point.

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