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Dewsnup v. Unum Life Insurance Company of America

United States District Court, D. Utah, Central Division

December 10, 2018

RALPH DEWSNUP, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

          ORDER AND MEMORANDUM DECISION

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE

         Ralph Dewsnup, a trial attorney with the law firm Dewsnup King & Olsen, underwent quadruple bypass heart surgery after suffering a heart attack. As he recovered, he received long-term disability benefits under a plan offered by his firm and insured by Defendant Unum Life Insurance Company of America (Unum).

         The surgery repaired Mr. Dewsnup's heart, but left him with constant pain across his chest that would worsen with stress. Nonetheless, after providing disability benefits for ten months, Unum determined that Mr. Dewsnup was healthy enough to return to work and that his pain-the remaining consequence of his surgery-was not disabling. Unum terminated his disability benefits, a decision Mr. Dewsnup now challenges under the Employment Retirement Income Security Act of 1974 (ERISA). For the reasons set forth below, the court reverses Unum's decision.

         BACKGROUND FACTS

         Unum's Long Term Disability Income Plan

         Mr. Dewsnup's law firm allows its eligible employees to participate in a Long Term Disability Income Plan (“the Plan”) insured by Defendant Unum. Should a participant become disabled, the Plan provides that Unum will pay the participant 60% “of basic monthly earnings not to exceed the maximum monthly benefit [of $15, 000], less other income benefits.” (R. at UA-POL-000003, ECF No. 36.)[1] The duration of the benefits depends on the claimant's age at disability. Mr. Dewsnup was 67 years old when he suffered his heart attack, and so qualified for a maximum of eighteen months of benefits.

         For attorney participants, the Plan defines “disability” as follows: “Disability” and “disabled” mean that because of injury or sickness:

1. the insured cannot perform each of the material duties of his regular occupation; or
2. the insured, while unable to perform all of the material duties of his regular occupation on a full-time basis, is:
a. performing at least one of the material duties of his regular occupation or another occupation on a part-time or full-time basis; and
b. earning currently at least 20% less per month than his indexed pre-disability earnings due to that same injury or sickness.

(R. at UA-POL-000010.) The definition includes a note that “[f]or attorneys, ‘regular occupation' means the specialty in the practice of law which the insured was practicing just prior to the date disability started.” (Id.)

         Mr. Dewsnup's Claim for Benefits

         Mr. Dewsnup suffered a heart attack on March 18, 2015, and underwent quadruple bypass heart surgery the next day. The procedure was successful, but not without complication. Soon after surgery, Mr. Dewsnup began experiencing pain around the site of his incision.

         Mr. Dewsnup reported his pain to his treating physicians. In notes from an April 9, 2015 follow-up appointment, his heart surgeon, Dr. J. Kent Thorne, stated that Mr. Dewsnup was “doing well but notes that he has had some general skin discomfort, ‘feels like his skin has been burned with a torch.' This sensation is in his left chest and [lower left extremity].” (R. at UA-CL-000316.) At an April 20, 2015 appointment with his cardiologist, Dr. Scott Hacking, Mr. Dewsnup again complained of a burning sensation on his chest wall. Dr. Hacking diagnosed Mr. Dewsnup as suffering from neuropathic pain-pain caused by nerve damage that occurred during surgery but otherwise unrelated to his heart. His doctors prescribed a pain-relieving patch, then a topical pain-relieving gel to apply to the site of his incision.

         Mr. Dewsnup's heart continued to heal, but his pain persisted through the summer and fall of 2015. Dr. Hacking prescribed Gabapentin, a medication for nerve pain. He also referred Mr. Dewsnup to Dr. Kendall Grose, a pain specialist.

         Mr. Dewsnup met with Dr. Grose on October 22, 2015. Dr. Grose diagnosed his pain as intercostal neuralgia likely caused by “nerve entrapment or injury of the intercostal nerve.” (R. at UA-CL-000357.) He noted that Mr. Dewsnup “has had extensive chest wall intervention that potentially could have irritated, compressed, or severed these nerves, contributing to the severity of his symptoms.” (Id.)

         Dr. Grose recommended that Mr. Dewsnup undergo an intercostal nerve block-an injection of medication into the nerve itself. He also recommended that if the procedure was successful, “we can consider pulsed radiofrequency ablation of the same nerves at the same level.” (Id.)

         Mr. Dewsnup underwent a nerve block, but the procedure did not significantly reduce his pain. He elected not to undergo a nerve ablation.

         On September 24, 2015, Mr. Dewsnup applied to Unum for long term disability benefits. By this time, he had begun to work part time at the law firm, but reported that the stress of work would exacerbate his chest pain, and the pain hindered his concentration and caused fatigue. Mr. Dewsnup worked intermittently-ten to ten to fifteen hours on some weeks, and not at all on others. While he would interact with clients, his colleagues at the firm would handle other aspects of his cases.

         On November 9, 2015, Unum approved benefits, finding that Mr. Dewsnup was “unable to perform the material and substantial duties of [his] regular occupation due to [his] medical conditions of recovery from quadruple coronary artery bypass graft, ongoing post-operative pleural effusion, and neuropathic chest wall pain.” (R. at UA-CL-000294.)

         Unum's Termination of Benefits

         After approving Mr. Dewsnup's benefits, Unum continued to monitor his recovery. On January 13, 2016, a Unum representative spoke with Mr. Dewsnup by telephone to discuss his progress. According to Unum's notes from the call, Mr. Dewsnup “said that he is having superficial chest pain at the skin surface of his whole chest and it ends up creating fatigue. This chest pain is exacerbated by vigorous movements/exercise and stress and is worse at night than it is in the morning.” (R. at UA-CL-000462.) Mr. Dewsnup also reported that his chest pain prevented him from doing much of his past work as an attorney, such as “preparing] for trial, taking depositions, being up to midnight, and dealing [with] adversaries . . . ” (Id.)

         Despite his continued pain, Mr. Dewsnup reported that he had stopped taking Gabapentin because it was making him feel strange. And he had refused other pain medications, fearing similar side effects. Rather than seek additional treatment, he had decided to wait out the pain, which he understood could take between five months and two-and-a-half years to resolve.

         On February 5, 2016, Unum sent a letter to Dr. Hacking inquiring onto Mr. Dewsnup's condition. The letter asked whether Mr. Dewsnup could perform the following occupational demands for a trial attorney:

Physical Demands:
• Constant: talking, hearing
• Frequent: reaching, handling, fingering
• Sitting most of the time but may involve brief periods of standing or walking.
• Strength: Exerting up to 10 pounds of force occasionally, and/or a negligible amount of force frequently to lift, carry push, pull, or otherwise move objects.
Cognitive Demands:
• Memory
• Concentration and attention
• Influencing people in their opinions, attitudes, and judgments.
•Performing a variety of duties.
• Dealing with People.
• Making judgments and decisions.

(R. at UA-CL-000486.)

         In the letter, Unum posed the question, “Is Ralph Dewsnup able to perform the above occupational demands on a full-time basis at this time?” (R. at UA-CL-000487.) Dr. Hacking replied, “no.” (Id.) As an explanation, Dr. Hacking wrote that “Ralph has had persistent chest pain since his [coronary artery bypass grafting] procedure. This has limited his ability to [illegible] his job.” (Id.) The letter also asked when Dr. Hacking expected Mr. Dewsnup could perform the occupational demands on a full-time basis. Dr. Hacking replied, “never.” (Id.)

         On April 12, 2016, a Unum representative called Mr. Dewsnup for another update. According to Unum's notes from the call, Mr. Dewsnup remained in pain. Mr. Dewsnup reported

that his chest pain is like a bib in size. He has pain across his entire chest wall which goes into his skin and below the surface but not down into his chest cavity. The pain goes across his chest from armpit to armpit and down his sternum. He doesn't feel like it is his heart. By the end of the day, it is a burning sensation. [He] said that it hurts when clothing rubs on it and it hurts more with stress. By the end of the day the pain is fatiguing. [He] started taking Ambien at night to sleep and if he doesn't take that then pain will keep him awake most of the night. [He] doesn't like ...

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