Ex-Dickstein Shapiro Lawyer Wins Disability Benefits From Unum

A former attorney with Dickstein Shapiro LLP won disability benefits from Unum Life Insurance Co. of America when an Oregon federal judge applied a “heightened level of skepticism” to the insurer’s decision following instructions from the Ninth Circuit.

Unum’s determination that Alison Gary could recover from surgery and resume working within six months was an abuse of discretion, because it overlooked the “overwhelming post-surgical medical evidence that anticipated a longer recovery,” Judge Marco A. Hernández of the U.S. District Court for the District of Oregon held in a decision docketed Tuesday. Unum also failed to conduct an in-person examination of Gary, cherry-picked medical evidence, and rejected the opinions of her treating physicians in favor of internal doctors who lacked expertise in her rare condition, Hernández said.

Gary sued Unum in 2017, claiming the insurer wrongly denied her claim for benefits based on her Ehlers-Danlos Syndrome and other neurological problems she said made her unable to work as an attorney. After denying Gary’s bid to proceed anonymously for fear of hurting her career prospects, Hernández 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.

Gary appealed, and the U.S. Court of Appeals for the Ninth Circuit revived her lawsuit. According to the appeals court, Hernández should have been more skeptical of Unum’s decision-making, given its reliance on cherry-picked evidence and its failure to consult with a doctor specializing in her unusual condition, which affects the skin, joints, and blood vessel walls.

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

The case is Gary v. Unum Life Ins. Co. of Am., 2021 BL 456562, D. Or., No. 3:17-cv-01414, 11/29/21.