Attorney with 'cognitive impairment' must receive disability pay, court says
Updated: An insurance company must provide a Minnesota trademark attorney who was diagnosed with bilateral invasive breast cancer with long-term disability benefits and pay her past-due amounts and attorneys’ fees, a federal court said on Monday.
Judge John Tunheim of the U.S. District Court for the District of Minnesota found that Unum improperly terminated Ann Wessberg’s long-term disability benefits after deciding in July 2020 that she was not disabled. Wessberg had discovered she had cancer in October 2018, and began receiving benefits under employer Fredrikson & Byron’s policy in February 2019.
Bloomberg Law reported on the decision.
After her diagnosis, Wessberg began undergoing chemotherapy, and experienced dizziness and fatigue, according to the court’s decision. Nearly a year later, in February 2020, she continued to report these symptoms, which her medical providers described as cognitive impairment. She also began psychiatric treatment for anxiety and depression related to her cancer treatment.
Despite extensive documentation detailing Wessberg’s symptoms, Unum failed to consider whether she was disabled based on cognitive impairment, the court’s decision says.
“Wessberg had more than a dozen physicians examine her over a two-year period, all of whom came to the same conclusion: She was experiencing symptoms that impaired her cognitive abilities,” Tunheim wrote. “These physicians were experts in the kinds of medical specialties relevant to Wessberg’s condition, including oncology, otolaryngology, neurology, cardiology, and autonomic neurology, and they ran numerous tests on Wessberg.
“Unum, on the other hand, had nurses, psychiatrists, and general medicine physicians review Wessberg’s file. Notably, none of Unum’s medical reviewers referred Wessberg for testing of any kind.”
Instead, the court’s opinion says, Unum’s medical reviewers relied on an insufficient occupational description, which initially omitted the cognitive demands of being an attorney. The insurance company later used a generic description of cognitive demands that could apply to many occupations. This included “directing, controlling, planning activities of others, influencing people, making judgments, dealing with people, and performing a variety of duties.”
Unum also denied reinstatement of Wessberg’s long-term disability benefits because she had returned to working up to 20 hours a week, along with driving, exercising and taking care of her children, the court’s opinion says. The insurance company argued these activities were inconsistent with her reports of cognitive impairment.
“Unum’s medical reviewers consistently found that because Wessberg was able to work part-time as an attorney, she could attempt to work full-time as an attorney,” Tunheim wrote. “However, there is no reason to believe that an individual can or could attempt to work full-time merely because they can work part-time.
“There is a significant difference in an individual’s ability to work 10 to 15 hours a week versus 40 hours a week—or 60 hours a week in Wessberg’s case.”
Wessberg told the ABA Journal on Wednesday that she was grateful for the judge’s decision and the support of her family, doctors and legal team. Wessberg was represented by Elizabeth S. Wright and Christopher M. Daniel from Parker Daniels Kibort LLC and Michael J. Rothman from Rothman LLC.
“I hope others who suffer from cognitive impairment after chemotherapy or even long COVID, but who (like me) can still work part-time, can find precedent in this decision,” Wessberg said. “I also hope it’s a message to disability insurance companies that they can’t abandon people in their time of need just because a disability is hard to see and diagnose.”
Updates were made at 3:45 p.m. Aug. 1 to include the names of Wessberg’s counsel.
