Ex-Dickstein Shapiro Lawyer Scores Revival of Benefits Suit

A former attorney with Dickstein Shapiro LLP convinced the Ninth Circuit to revive her lawsuit seeking disability benefits from Unum Life Insurance Co. of America. The district judge who ruled against her applied the “incorrect level of skepticism” to Unum’s decision denying benefits, the appeals court said.

The court’s Monday opinion means Alison Gary will get another chance to argue that Unum improperly refused to pay her long-term disability benefits on account of her medical conditions, which include Ehlers-Danlos Syndrome and neurological problems that she says make her unable to work as an attorney. Unum’s procedural violations in handling Gary’s claim, along with its conflicted position as the party that both decides and pays benefit claims, warranted a higher level of judicial skepticism than the district judge used in siding with Unum, the Ninth Circuit said.

Gary sued Unum in 2017, claiming the insurer mishandled her benefits claim and wrongly concluded that she wasn’t entitled to benefits. After denying Gary’s bid to proceed anonymously for fear of hurting her career prospects, a federal judge in Oregon held that Unum failed to provide a full and fair review of Gary’s benefit claim. He allowed Gary to provide additional medical evidence, but ultimately found her evidence insufficient to support her claim of disability.

The Ninth Circuit said the district judge should have been more skeptical of Unum’s decision-making, given Unum’s reliance on cherry-picked evidence, its failure to conduct an in-person examination of Gary, and its failure to consult with a doctor specializing in her unusual condition, which affects the skin, joints, and blood vessel walls.

The unpublished decision was issued by Judges Marsha S. Berzon, Daniel P. Collins, and Lawrence VanDyke.

Harrang Long Gary Rudnick PC represents Gary. Kilmer, Voorhees, & Laurick PC represents Unum.

The case is Gary v. Unum Life Ins. Co., 2020 BL 412629, 9th Cir., No. 19-35439, unpublished 10/26/20.