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Insured Who Is Already Totally Disabled by Sickness Cannot Recover Lifetime Benefits Based on Injury

Insured Who Is Already Totally Disabled by Sickness Cannot Recover Lifetime Benefits Based on Injury

Silverman v. Unum Life Ins. Co. of Am., Case No. 1:13-cv-04296 (N.D. Ga. July 12, 2016)

ERISA and Life Insurance News
(November, 2016)

Dr. Silverman, an endocrinologist, was insured under two individual disability policies issued by Unum. The policies provided a maximum benefit period to age 65 for total disability due to sickness. Accident benefit riders provided lifetime benefits if Silverman became totally disabled as the result of an accidental bodily injury that “prevents [the insured] from engaging in his regular occupation.”

Silverman stopped working in May 2009 due to illness. He submitted a claim for total disability benefits based on myasthenia gravis, peripheral neuropathy, degenerative disc disease, and other medical conditions. Unum began paying total disability benefits under the sickness provisions of the policies in July 2009, after Silverman had satisfied the elimination period.

Two and a half months later, in September 2009, Silverman suffered a traumatic brain injury when he fell down a flight of stairs. According to his doctor, Silverman sustained a post concussive syndrome with cognitive impairment, which “would significantly impact his continuing practice as a physician.”

In 2011, Silverman submitted a claim to Unum, seeking lifetime benefits under the accident benefit riders. Unum denied the claim, stating, “[y]our injury, or fall in September 2009, was not the cause of your Total Disability.”

Unum continued to pay total disability benefits until the maximum benefit period for disability due to sickness was reached in 2013. Silverman then sued, seeking a declaratory judgment that he was entitled to lifetime benefits for total disability due to injury under the accident benefit riders.

Unum filed a motion for summary judgment, which was granted. The court noted that at the time of his traumatic brain injury, Silverman “had already been forced to leave his endocrinology practice as a result of sickness.”  Thus, the court said, the question was this:  “[A]ssuming that Silverman’s injury would ordinarily have prevented him from engaging in his regular occupation, is his injury nonetheless outside the policy because he was already completely prevented from engaging in his regular occupation?”

The court held that lifetime benefits were not payable. “There is no evidence that Silverman would have been able to practice in 2011, when he submitted his claim, or even in 2013, when Unum ceased making benefit payments, since these same unabated conditions rendered him completely unable to practice beginning in 2009,” the court said. “Thus, the effect of his injury could not have prevented him from doing something he was already unable to do. Accordingly, a material condition of the ‘total disability’ definition is not met, meaning Silverman is not entitled to the [lifetime] benefit.”

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