The claim for disability benefits can be an extremely long and arduous process. The fact that one wins a judgment in a lawsuit against a disability insurance company for wrongful denial of disability benefits is no assurance that the fight for one’s legal right is at a conclusion. Disability Insurance Companies can still fight that judgment if they decide not to concede defeat in their challenge of an insured’s claim for disability benefits.
The case of Zbigniew Slupinski Vs First Unum Life Insurance Company and Weil, Gotshal & Manges Long Term Disability Income Plan is a good illustration of how wearisome and frustrating a fight for long term disability benefits can be.
The plaintiff Zbigniew Slupinski in this case was an associate attorney with the international law firm Weil, Gotshal & Manges. He participated in the Weil, Gotshal & Manges Long Term Disability Income Plan (The “Plan”) to which the First Unum Life Insurance Company (First Unum) is the insurer of the Plan and acted as the Claims and Plan Administrator for the Plan.
The Alleged Background of the Case
The plaintiff, in 1991, was working in Poland for Weil, Gotshal & Manges as an associate attorney when he was involved in an automobile accident while travelling as a passenger in a taxi. Accordingly, during the accident, the plaintiff was thrown out of the window of the taxi and was ran over by another vehicle resulting in him suffering numerous severe injuries including having his left arm nearly severed off.
As a beneficiary of the above mentioned plan, the plaintiff stated that he received long term disability (LTD) benefits under the plan from 1992 until January 1996. The plaintiff stated that in January 1996, First Unum terminated his LTD benefits on the ground that he was no longer disabled within the meaning of the Plan. The plaintiff then made an appeal to First Unum against this decision but was unsuccessful in his appeal.
First Legal Action against First Unum (Slupinski I)
As a result of the denial of LTD benefits, the plaintiff then instituted legal action against First Unum in the District Court for the Southern District of New York and was assigned the Honorable Judge Thomas P. Griesa to hear the plaintiff’s lawsuit.
In “Slupinski I” the plaintiff moved for summary judgment on three of his claims for relief, namely:
(I) that First Unum had used the wrong definition of disability to terminate Plaintiff’s benefits and that Plaintiff was disabled pursuant to the correct definition;
(2) For a determination that regardless of which definition of disability was applicable, Plaintiff was at all times disabled within the meaning of the Plan; and,
(3) For prejudgment interest on all retroactive benefits owed. The Prayer for Relief in Plaintiff’s Amended Complaint sought. inter alia: full retroactive benefits; reinstatement of disability benefits prospectively; prejudgment interest on all retroactive benefits; and attorney’s fees pursuant to ERISA § 502(g)(l), 29 U.S.C. § 1 l32(g)(l).
On September 16th 2005, the Honorable Judge Thomas P. Griesa denied First Unum’s motion to dismiss the complaint and granted judgment for the plaintiff’s motion. The Court also held that:
- First Unum had used the correct definition of disability in considering the plaintiff’s condition but held that the plaintiff was disabled within the meaning of that definition.
- First Unum had ignored overwhelming evidence to the contrary in terminating Plaintiff’s benefits
The plaintiff’s motions for prejudgment interest and attorney’s fees were however denied.
However, First Unum asserted the position that “Slupinski I” only required them to pay the plaintiff benefits from the date the record closed in plaintiff’s administrative appeal in 1997. The plaintiff disagreed with this assertion and argued that “Slupinski I” required full retroactive benefits and commencement of prospective benefits.
Regardless, the plaintiff stated that First Unum still “…refused to pay any benefits that became due after the close of the administrative record ostensibly because they had not had the opportunity to evaluate Plaintiffs condition since that time and refused to reinstate Plaintiff’s benefits prospectively.”
Second Legal Action against First Unum (Slupinski II) – Notice of Appeal
The plaintiff stated in the lawsuit that as precautionary measure, among other things, on October 28th 2005, he filed a Notice of Appeal from “Slupinski I” raising the issue that the Judgment in “Slupinski I” might not have provided the plaintiff with full retroactive and prospective disability benefits.
A motion was then filed before the Honorable Judge Thomas seeking:
- Clarification of the Judgment in “Slupinski I”
- Reconsideration of the denial of attorney’s fees
The Plaintiff’s Motion for Clarification of the Judgment was granted by the Honorable Judge Thomas and stated:
1.That under the Plan (Plan insurance policy at Section lV), once benefits had initially been granted, Plaintiff was only required to submit information pertaining to his condition on request and, since the close of the administrative record, First Unum had not made any such requests; id. at *5-6; and
2.That Slupinski I did “order First Unum to pay benefits not just for the period encompassed by the administrative record, but for the entire period they were suspended and prospectively[.]” Slupinski II at *8-9. The Court also adhered to its denial of attorney’s fees.
As a result of the denial of the plaintiff’s Motion for Reconsideration with respect to the claim for attorney’s fees, the plaintiff filed a Notice of appeal on September 6th 2006. According the lawsuit, in the post-judgment proceedings in the district court which resulted in “Slupinski II”, First Unum submitted a declaration that First Unum argued would establishe that the plaintiff had been working and hence will refute the plaintiff’s claim of disability. The plaintiff argued that this submission was inappropriate and the Honorable Judge Thomas agreed and stated that:
“As a procedural matter, the issue may not properly be considered in the present context. First Unum is, of course, entitled to seek relief in an appropriate post-judgment motion or a new action.”
The plaintiff argued that “if First Unum [had] actually believed the matter raised in the Declaration [would have refuted the plaintiff’s claim of disability,]… First Unum would have filed a motion or commenced a new action as the Court mentioned [but] First Unum has still done neither.”
Despite the fact that the Honorable Judge Thomas held that that submission was improper and the plaintiff’s objectied to the inclusion of the Declaration in the Appeal Appendix, First Unum insisted on having the Declaration included. The plaintiff stated that due to the Federal Rules of Appellate Procedure 30(b)(l), he had no choice but to include it.
Under the Federal Rules of Appellate Procedure:
Rule 30. Appendix to the Briefs
(b) All Parties’ Responsibilities.
(1) Determining the Contents of the Appendix.
The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, within 14 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review. The appellee may, within 14 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court’s attention. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee.
The plaintiff stated that he was worried that First Unum would utilize the Declaration in an attempt to divert the Court’s attention from the actual issues on appeal with the hope that it might improperly sway that Court in their favor.
The plaintiff stated that his concern was well founded as First Unum’s Appeal Brief was rife with references to the Declaration.
The “Work Allegations” – Publication Of A Book While Being Disabled
Apart from the Declaration, the focus of First Unum’s appeal argument was centered on a claim that was never raised before. First Unum claimed that the plaintiff had lied about the fact that a book he had drafted prior to his accident in 1991, Investment Law in Poland: Legislation and Commentary, had never been published. This assertion was made based solely on their viewing on the website amazon.com that the “book” was published in 1998 and was available for sale.
The plaintiff argued that despite the “book” being published in 1998 and listed as for sale on amazon.com, the so called publisher of the book “Springer”, had never published the book and did not have any record of the book being published. The fact that there exist an ISBN number for the book only serve to indicate that someone had applied for the ISBN number in advance of the completion of a book. The plaintiff asserted that the book was never published contrary to First Unum’s allegation.
The plaintiff also pointed out that this information indicated the book was published in 1998 was available to be raised in the district court before but was never brought before the Court.
Speculation about the Legitimacy of the Plaintiff’s Claim
First Unum next, argued in their Appeal Brief that it is possible to infer from the withdrawal of the plaintiff’s initial counsel Mark Scherzer, Esq that “Mr. Scherzer no longer wanted to represent him due to concerns about his claim.”
The plaintiff argued that there was only one basis that the plaintiff’s initial counsel withdrew from representing him:
“He had not being paid”.
The plaintiff pointed out in the lawsuit that First Unum’s counsel had represented First Unum since the inception of the initial court action and was well aware why the plaintiff’s initial counsel withdrew from representing him. Yet, First Unum’s counsel attempted to convince the Second Circuit otherwise.
In addition, to the above for the first time, the First Unum’s Appeal Brief stated that they “generally disagree” with the plaintiff’s claim that he was severely injured in an automobile accident in Poland, and alleged that they “could not timely investigate” the accident. This was despite the fact that the Honorable Judge Thomas had found for the plaintiff that the evidence of the plaintiff’s disability was “overwhelming”. The plaintiff pointed out that First Unum never appealed “Slupinski I“‘ finding that the Plaintiff is severely disabled.
While the motion for the Reconsideration for the claim of attorney’s fees was denied, the Second Circuit rendered its opinion that:
“Finally. we note that First Unum has argued on this appeal that Slupinski was in fact able to work during at least part of the period in which his disability benefits were being denied. In support of this argument, First Unum has speculated that Slupinski’s first counsel withdrew because of concerns about the legitimacy of Slupinski’s claim (see First Unum brief on appeal at 5) and has attempted to argue alleged facts that are not in the record (see, e. g., id. at 3-4). Facts that are not in the record are not properly brought to our attention, and we do not consider them. See, e. g., Galabya v. New York City Board of Education, 202 F.3d 636, 640 n.1 (2d Cir. 2000).
We note that First Unum made a similar attempt in opposing Slupinski’s postjudgment motions in the district court, proffering documents that were not in the record. The district court noted that the documents did appear to raise some serious questions as to Slupinski’s eligibility for disability benefits under the Plan and stated that “First Unum is, of course. entitled to seek relief in an appropriate post–judgment motion or a new action.” Slupinski II, 2006 U.S. Dist. LEXIS 55545, 2006 WL 2266569, at *3. Our review of the district court docket reveals that, in the years since the district court made that suggestion, First Unum has done neither. Its choice instead to persist in proffering evidence that is not in the record, despite being expressly informed of the inappropriateness of such conduct, tends to cast doubt both on the substantive validity of its proffers and on its claim that the equities in this case weigh in its favor. “
The plaintiff stated that after “Slupinski II” was decided, First Unum tried to terminate his LTD benefits again. The plaintiff alleged that it was improper for First Unum to terminate the plaintiff’s LTD benefits because of the plaintiff’s refusal to comply with the Tax Return Request. The plaintiff’s refusal to provide the requested Tax return stems from the plaintiff’s belief that First Unum’s only purpose for Tax Returns was an attempt to prove the Work Allegations that ran contrary to the admonitions that the Honorable Judge Thomas made in “Slupinski II” which stated:
1.”First Unum must pay full retroactive benefits through the present and prospective benefits until such time as First Unum determines that Plaintiff is longer disabled” and
2.Any attempt to prove the Work Allegations should be in the form of a post-judgment motion or a new action.
Hence, the plaintiff alleged that the sole basis for First Unum’s decision to terminate the plaintiffs benefits was because of the plaintiff’s refusal to provide the Tax Return.
Relief Sought By The Plaintiff
The plaintiff is seeking from the Court the following relief:
- A determination if all or any part of the Tax Return Request was appropriate.
- If the Court determined that the Tax Return Request was appropriate, the plaintiff requested that the Court remand this matter to First Unum so that the plaintiff may provide the tax returns that the Court ordered be provided and a determination of his eligibility for reinstatement of his benefits under the Plan may be made.
- A declaration that the plaintiff is entitled to full retroactive and prospective monthly LTD benefits under the Plan.
- An order to First Unum to pay those benefits
- A declaration that the plaintiff is entitled to appropriate interest on the retroactive benefit payments.
- Established the rate of interest applicable to the retroactive benefit payments.
- An order to First Unum to pay interest on the retroactive benefit payments at the rate established.
- Alternatively, remand the matter to First Unum for a determination of Plaintiff’s eligibility for reinstatement of his benefits under the Plan.
- An Award of attorneys’ fees and Costs.
- An award for any other relief deem just and proper by the Court.