Vertebral Compression Fracture and Wedging Claim Denial by UNUM Overturned by Federal Judge
One of the most painful back injuries is a compression fracture of the spine that results in wedging and a loss of height of the vertebral body. The bone of the spine can collapse and, as it heals, wedge.
The spinal bone can also fracture and fragment. That is known as a Retropulsed fragments. The fracture fragment is displaced into the spinal canal, potentially causing a spinal cord injury.
Common Causes and Symptoms of Vertebral Compression Fracture
The common causes are due to trauma, like ejection from a car or ejection seat, or something as “simple” as osteoporosis, lytic lesions, tumors, or infection.
Symptoms can include back pain, loss of height, and a hunched forward posture. It is not unusual for the pain to increase with repetitive back motion, walking or standing and even static sitting.
While treatment can include medication and injections, a more “radical” surgery is bone replacement surgery. However, that is not an option when there are bone fragments that could be pushed further into the spinal canal or compress the spinal nerves.
UNUM’s Approach to Long Term Disability Claims Involving Vertebral Compression Fractures
Disability carriers in long term disability claims will start the analysis by looking at the type of work the policy holder or plan beneficiary did, when and why they stopped working, treatment, and the response to treatment.
If the medical records are silent or the treating physician won’t comment on restrictions and limitations, the carrier will deny the disability claim or get an IME to justify a claim denial. It is not uncommon for the IME to opine, regardless of how injured one might be, that the policy holder or plan beneficiary can return to work.
Using a Functional Capacity Evaluation to Rebut the Liar for Hire IME in Long Term Disability Claims
If your physician refuses to fill out an attending physician statement form (APS) or you undergo an unfavorable liar for hire IME, you should undergo a functional capacity evaluation. A functional capacity evaluation (FCE) is a test that will measure your functional status – in other words how long you can sit, stand, walk, stoop, bend and how much you can lift.
Don’t be surprised if the disability carrier, including UNUM, rejects the functional capacity evaluation on the basis that it is not time relevant, notwithstanding the fact that their own IME is not time relevant.
What do courts do with this argument? In the case of Boykin v. Unum Life Insurance Co. of Am., 2022 WL 458213 (E.D. Cal. Feb. 15, 2022), the court noted that Boykin has the burden of proof to establish that he meet the standard of disability. In this case, Boykin had returned to work after sustaining a compression fracture in a motor vehicle accident. He worked for almost 8 months with increasing back pain and leg pain, as documented in his medical records. UNUM had failed to get these records and the judge was not impressed with UNUM’s lack of diligence.
The court noted that the FCE providers observations was the same as the treating physician and were time relevant because of the consistency in the medical records (which UNUM did not get). Those records showed a progression of his symptoms and the lack of response to medical treatment.
How Nancy Cavey Can Help with Retropulsed Spine Fragments and UNUM Disability Claims
When it comes to a disability claim with your insurance carrier, you need someone who can be in your corner and fight for your disability rights with your insurance policy. Give us a call today at 727-894-3188 to discuss your claim. Free consultations Nationwide!