Unum Asks Ninth Circuit to Weigh Long Covid as ERISA Disability

Unum Life Insurance Co. asked the Ninth Circuit to review a decision requiring it to pay disability benefits and attorneys’ fees to a litigator suffering from post-Covid fevers, brain fog, and fatigue.

The appeal sets the stage for what could be the first federal circuit court ruling in a case seeking disability benefits under the Employee Retirement Income Security Act for ailments related to Covid-19.

These cases began to trickle through the federal court system in early 2022 after a slow start stemming from multiple factors that drew out the already lengthy internal appeals process that beneficiaries must go through with an insurer before they can file suit under ERISA. Those factors include deadline extensions from the Labor Department, difficulty in obtaining medical records, and increased telework, according to a 2021 Bloomberg Law report.

Similar cases have been filed by a marathon runner in her early 30s, a software developer who contracted Covid while pregnant, a former Expedia Inc. product manager whose Covid spurred a case of pneumonia, a MFS Investment Management employee with significant post-Covid fatigue, and a McKinsey & Co. consultant who began sleeping more than 14 hours per day after her bout with the virus.

Unum’s appeal, docketed March 24 in the US Court of Appeals for the Ninth Circuit, seeks review of decisions awarding William Abrams disability benefits and nearly $170,000 in attorneys’ fees.

Abrams—also a marathon runner who was scheduled to run multiple races in 2020—joined Schwabe, Williamson & Wyatt PC as a shareholder and litigator in 2019, working nearly 12-hour days and earning $525,000 per year before bonuses.

In April 2020, he began experiencing frequent fevers, severe fatigue, and mental fogginess that caused a sharp decline in his legal abilities.

He stopped working and sought benefits under a Unum policy providing a maximum of 36 months of disability benefits to firm shareholders. He submitted medical records from multiple doctors, including three who diagnosed him with Long Covid and four who diagnosed him with Chronic Fatigue Syndrome.

A federal judge in Washington agreed that Abrams was entitled to disability benefits, noting that being a trial lawyer is “mentally and physically grueling” work that’s “akin to writing, directing, producing, and starring in a play simultaneously.” In a subsequent order, the judge ordered Unum to pay Abrams the majority of his requested attorneys’ fees.

Unum is represented by Lane Powell PC. Abrams was represented in district court by Sirianni Youtz Spoonemore Hamburger PLLC and Megan E. Glor, Attorneys at Law.

The case is Abrams v. Unum Life Ins. Co. of Am., 9th Cir., No. 23-35211, appeal docketed 3/24/23.