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HomeNewsLong-Term Disability Insurers Must Consider Cognitive Demands of the Occupation

Long-Term Disability Insurers Must Consider Cognitive Demands of the Occupation

Long-Term Disability Insurers Must Consider Cognitive Demands of the Occupation

Employees in Chicago and the rest of Illinois with claims for long-term disability insurance benefits often have conditions that impact their physical abilities, but also impact their mental or cognitive abilities. Certain conditions like Long Haul Covid are well known to cause cognitive impairment from brain fog. Other conditions that involve chronic pain or chronic fatigue can likewise cause cognitive impairment. In other circumstances, medications or treatment of a condition can trigger cognitive impairment that prevents you from performing a demanding occupation. A recent case highlights this issue and how the insurer failed to evaluate the cognitive demands of an occupation.

In Wessberg v. Unum Life Insurance Co. of America, No. 22-94, 2024 WL 3444044 (D. Minn. July 15, 2024), Wessberg was a patent and trademark attorney who claimed long-term disability benefits due to bilateral invasive breast cancer. She underwent intensive radiation and chemotherapy treatment, as well as had a double mastectomy and breast reconstructive surgery. After completing her chemotherapy, her treating oncologist and mental health therapist continued to document that Wessberg experienced dizziness and cognitive impairment as a residual effect of the chemotherapy. The insurer categorized Wessberg’s occupation as “Attorney,” and considered it a sedentary occupation. Unum terminated benefits after concluding Wessberg could perform the physical aspects of the occupation, but did not consider Wessberg’s ability to perform the cognitive aspects of the occupation. After unsuccessfully appealing the benefit termination, Wessberg sued Unum under ERISA § 502(a).

Under de novo review, the United States District Court for the District of Minnesota entered judgment in Wessberg’s favor, holding Unum improperly terminated Wessberg’s long-term disability insurance benefits. The Court held it was improper for Unum to consider only the physical aspects of Wessberg’s “Attorney” occupation, which included significant cognitive demands. The record contained evidence Wessberg suffered from dizziness and cognitive impairment, and no evidence to the contrary. For a more local case where the insurer ignored cognitive impairment, see Scanlon v. Life Insurance Co. of North America, 81 F.4th 672 (7th Cir. 2023). The court rejected Unum’s argument these purported impairments were unreliable because they were based on Wessberg’s self-reported symptoms. The court noted the insurance policy does not require any impairment be supported by objective evidence. Finally, the court noted all of Wessberg’s doctors agreed she suffered from cognitive impairment, and doctors on behalf of Unum only provided file reviews, and were not in as good of a position to assess Wessberg’s credibility of her complaints. While the policy permitted Unum to obtain an Independent Medical Examination, or perform cognitive testing on Wessberg, Unum chose not to do so. The court thus held the preponderance of the evidence favored Wessberg, and it ruled in her favor.

If you have a claim for long-term disability benefits and experience any type of cognitive impairment that impacts your ability to work, contact a skilled ERISA long-term disability lawyer today.

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