We plaintiff lawyers see it all the time. Disability insurers commonly send injured people to their stable of doctors who say the person is able to work, often in contrast to the opinion of treating physicians, and then the insurance company denies the claim on that basis.
In a way, it’s kind of like the equivalent of the law enforcement methods of Captain Louis Renault in Casablanca when he says, “Round up the usual suspects.” Meaning, the results are pre-determined and truth and justice are not even a part of the equation.
Recently, however, the Second Circuit penalized First Unum for this practice in the case of Zbigniew Slupinski, a former associate at Weil Gotshal, who was seriously injured on a business trip to Poland in August 1991 when the taxi he was riding in collided with another vehicle. Mr. Slupinski underwent a number of operations, and afterwards suffered severe pain and memory loss that left him unable to work.
He received long-term disability benefits from First Unum until 1995, when they were terminated because two physicians found that he could work full-time since he was able to “sit/stand/walk” for eight hours at a stretch.
Judge Griesa of the SDNY found that the record “overwhelmingly supports plaintiff’s claims that his severe and chronic pain prevents him from engaging in ‘any gainful occupation for which he is reasonably fitted.’” He also said that the doctors used by First Unum were not credible and that their opinions “could not possibly outweigh the numerous other medical opinions confirming Mr. Slupinski’s pain and inability to work.” But the judge denied an award of attorney’s fees and prejudgment interest.
On appeal, the Second Circuit upheld the award of disability benefits while also awarding attorney’s fees and prejudgment interest to Mr. Slupinski. The Court said that the “ability to sit/stand/walk for a given period says nothing about his ability to concentrate” and that First Unum should not have ignored the “uniform and consistent view of Slupinski’s doctors that his pain was disabling because it prevented him from concentrating.” In short, First Unum had acted in bad faith.
Again, this is just another example of how insurance companies will go to lengths to deny legitimate claims, often relying upon questionable medical opinions. Unfortunately, as demonstrated by this case, many lower courts are reluctant to impose a fee award against insurance companies. If, however, they were willing to do so, as the Second Circuit did here, and if there were stronger consumer protection laws in New York, insurance companies might change their practices.