On December 11, 2009, a district court out of Arkansas ordered Unum to reinstate a claimant’s long-term disability benefits that she had been receiving as a result of degenerative disc disease including arthritis and carpal tunnel syndrome. Although the Court reviewed Unum’s termination of benefits de novo as opposed to the more common arbitrary and capricious standard, it found that Unum’s “independent medical examination” (IME) report and other medical reviews it relied upon contained contradictory findings as well as lacked the benefit of claimant’s advanced diagnostics, and that its Functional Capacity Evaluation (FCE) reports failed to include the specific evidence for their conclusions and were result driven. The court recognized, for example, that an FCE report that found the claimant had more than sedentary capacity over an eight hour day, seemed to focus on the Plaintiff’s alleged self-limiting behavior rather than explain the testing and observations that supported such conclusion. The Court also importantly made the distinction between the ability to do some work, and the ability to work in a gainful occupation, i.e. an eight hour day or forty hour week. Last, the Court criticized Unum for “overlooking” Plaintiff’s medications when determining she was capable of gainful employment which included a narcotic, a muscle relaxer and anti-anxiety medication that would “drastically inhibit her ability to work” due to drowsiness. Lowery v. Unum
