Snapper v. Unum Life Ins. Co. of Am.

Jeffrey Cummings, Magistrate Judge.

William T. Reynolds Attorney for Plaintiff

William T. Reynolds

DeBofsky Sherman Casciari Reynolds, P.C.

Hon. John Z. Lee, J.

PLAINTIFF'S PROPOSED FINDINGS OF FACT IN SUPPORT OF HIS MOTION FOR ENTRY OF JUDGMENT

Jeffrey Cummings, Magistrate Judge.

Pursuant to Fed.R.Civ.P. 52(a), plaintiff, JOSEPH SNAPPER (“Snapper” or “Plaintiff”), hereby submits his Proposed Findings of Fact in support of his Motion for Entry of Judgment filed pursuant to Fed.R.Civ.P. 52 against defendant, UNUM LIFE INSURANCE COMPANY OF AMERICA (“Unum Life” or “Defendant”):

Background Information

1. Snapper, born in 1976, is currently 45 years old. He was 42 years old when he became unable to work due to severe medical impairments on February 19, 2019. UA-CL-LTD-000104.

2. At the time this lawsuit was filed, and at all other relevant times hereto, Snapper resided in Chicago, Cook County and was a citizen of the State of Illinois. UA-CL-LTD-000104.

The Unum Life Group Disability Policy

3. On or about January 1, 2015, Unum Life issued a group policy of long-term disability insurance, policy number 59243 001, for the benefit of Mayer Brown LLP employees to provide “financial protection by paying a portion of [a covered employee's] income while [he] is disabled.” (“the Policy”). UA-CL-LTD-000136. The Policy was amended and replaced in full on January 1, 2018, with changes applying to all disabilities beginning on or after that date. UA-CL-LTD-000135.

4. The Policy provides divides coverage into seven separates groups of eligible employees. UA-CL-LTD-000138. Group 3 provides coverage for “Equity Partners with <5 years of service, Income Partners, Counsel & Associates [who have] waived, declined or [are] not insured for [individual disability insurance] in active employment in the United States” with Mayer Brown LLP. Id.

5. The Policy states:

HOW DOES UNUM DEFINE DISABILITY?

Groups 1-6

The employee is disabled when Unum determines that due to his or her sickness or injury:

1. The employee is unable to perform the material and substantial duties in his or her regular occupation and is not working in his or her regular occupation or any other occupation;

or,

2. The employee is unable to perform one or more of the material and substantial duties of his or her regular occupation, and the employee has a 20% or more loss in his or her indexed monthly earnings while working in his or her regular occupation or in any occupation.

UA-CL-LTD-000151.

6. The Policy further states:

REGULAR OCCUPATION means the occupation you are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the local economy, instead of how the work tasks are performed for a specific employer or at a specific location.

For attorneys, ‘regular occupation' means the material and substantial duties that you are performing just prior to disability.

UA-CL-LTD-000181.

7. The Policy further states:

MATERIAL AND SUBSTANTIAL DUTIES means duties that:

- are normally required for the performance of your regular occupation; and

- cannot be reasonably omitted or modified.

UA-CL-LTD-000179.

Snapper's Occupation

8. Beginning in August 2013 and through February 19, 2019, Snapper was employed by Mayer Brown LLP as an Attorney specializing in commercial litigation. UA-CL-LTD-000037-38; 104; 4512.

9. Mayer Brown LLP requires an Attorney to have the ability to do each of the following:

a. Perform and/or understand technical legal research issues and analysis;

b. Review and analyze complex and sophisticated facts, issues, risks, and documents;

c. Confer with colleagues about research findings or analysis and communicate findings or analysis effectively;

d. Draft clear, cogent, and well-structured written materials, including but not limited to emails, correspondence, legal memoranda, and transaction documents;

e. Handle oral presentations effectively and professionally within the Firm;

f. Handle oral presentations effectively and professionally outside the Firm, e.g., before clients, experts, witnesses, judges, juries, arbitrators, investigators, and government agencies and/or their representatives;

g. Work well with other internal and external lawyers (including lawyers representing adverse parties), with clients, and with support staff;

h. Be an effective team member on cases, transactions, or any other matters;

i. Effectively manage time, including making time and/or travel commitments and/or sacrifices necessary to satisfy client demands and meet deadlines;

j. Handle the demands of a high volume of work and be able to prioritize multiple assignments;

k. Use computer resources and software applications necessary to complete assigned projects;

l. Sit at a computer and type for extended hours;

m. Read voluminous amounts of records both on-line and in hard copy;

n. Participate in conference calls of varying durations;

o. Satisfy designated competencies for the appropriate level of practice in the designated practice area;

p. Act in a manner which complies with legal and ethical duties and responsibilities; and

q. Attend and complete necessary CLE coursework.

UA-CL-LTD-000037-38. Each of these job responsibilities are “material and substantial” duties to the position as that term was defined by the Policy. UA-CL-LTD-004517.

10. As a required part of his job, Snapper was required to travel via airplane on average once per month, and up to seven times over a four-week period. UA-CL-LTD-004513.

11. Snapper was also regularly required to attend depositions, court proceedings, client meetings, CLE events, and other activities or events that required him to continuously sit without the ability to take breaks or change position at-will. UA-CL-LTD-004514; 4518.

12. In the course of his work, Snapper was regularly required to lift more than ten pounds; including times when, for example, he was transporting or moving exhibits for depositions and court proceedings and when handling personal and work luggage. UA-CL-LTD-004516.

13. Snapper regularly worked more than 10 hours per day and more than 40 hours per week. UA-CL-LTD-002359.

Snapper's Coverage Under the Policy

14. Incident to his employment with Mayer Brown LLP, Snapper received long-term disability insurance coverage under the Policy as a Group 3 participant. Def.'s Ans., ECF No. 10, ¶ 2.

15. The Policy was in full effect on February 19, 2019 and provided coverage to Snapper on that date. UA-CL-LTD-000005-6.

16. At the time he ceased work, Snapper earned an annual salary of $340, 000 and his covered monthly earnings under the Policy were $28, 333.33 per month. UA-CL-LTD-000216.

Snapper's Medical History

17. Snapper has a history of impairing low back and leg pain since at least 2008, for which he sought test-taking accommodations during law school. UA-CL-LTD-004512. He also has a family history of severe lumbar spinal impairment, including a brother with radiating low back and lower extremity pain persisting despite multiple surgeries and his mother with chronic disc disease. UA-CL-LTD-001281; 1597.

18. In 2012, Snapper underwent an L5-S1 microdiscectomy, his first spinal surgery. UA-CL-LTD-001136; 002605.

19. In September 2016, Snapper was involved in a motor vehicle accident that exacerbated his low back pain. UA-CL-LTD-001597; 4514. He continued to suffer worsening low back and left-sided buttocks pain, radiating down into his left hamstring, calf, and toes, in the eighteen months following his car accident. UA-CL-LTD-001597.

20. Snapper underwent a lumber spine MRI on April 8, 2018 which showed a disc bulge with a posterior annular tear and right paracentral disc protrusion on the spinal cord at ¶ 4-L5, mild to moderate left subarticular zone stenosis at ¶ 5-S1, mild bilateral foraminal stenosis at ¶ 5-S1, and a small amount of granulation/scar tissue surrounding the traversing left S1 nerve root. UA-CL-LTD-001824.

21. Following review of his April 8, 2018 MRI report, neurosurgeon Dr. Wellington Hsu completed paperwork for Snapper to take a leave of absence to manage the progression of his low back pain. UA-CL-LTD-001503-1506; 1597.

22. On May 10, 2018, pain management specialist Dr. Dost Khan administered Snapper an epidural steroid injection and referred him for physical therapy at the Shirley Ryan AbilityLab in Chicago. UA-CL-LTD-001597-1598.

23. Upon beginning treatment at the Shirley Ryan AbilityLab on June 15, 2018, Snapper demonstrated left leg pain, weakness, and difficulty with walking on examination and was diagnosed with chronic left lumbosacral radiculopathy, mood disturbance, and sleep disturbance. UA-CL-LTD-001780-1782.

24. Snapper returned to Dr. Khan for a second epidural steroid injection on June 21, 2018 and sought additional treatment from Dr. Hsu on June 27, 2018, where he was recommended to continue with physical therapy. UA-CL-LTD-001590-1591; 2127-2129.

25. On or around July 9, 2018, Snapper returned to work after a three-month medical leave of absence. UA-CL-LTD-002856; 4514.

26. On August 2, 2018 and October 4, 2018, Snapper received a third and fourth epidural steroid injection from Dr. Khan. UA-CL-LTD-001576-1588.

27. Snapper returned to Dr. Khan on December 6, 2018 reporting that the effectiveness of the epidural steroid injections was waning. Dr. Khan administered a fifth injection and referred Snapper for neurosurgical consultation to assess additional treatment options. UA-CL-LTD-001570-1575.

28. Prior to his neurosurgical evaluation, Snapper exchanged emails with Dr. Khan over several days reporting an extreme level of pain unimproved by the epidural injection or with narcotic pain medications. UA-CL-LTD-002068-2075. Dr. Khan prescribed trials of several different pain medications in an attempt to manage Snapper's symptoms, all of which were unsuccessful. Id.

29. On February 4, 2019, Snapper was examined by neurosurgeon Dr. Nader Dahdaleh, who referred Snapper for updated CT and MRI imaging. UA-CL-LTD-002032. The MRI and CT reports revealed posterior endplate osteophytosis, disc bulge, and facet arthropathy results in mild left subarticular zone stenosis at ¶ 5-S1, bilateral foraminal narrowing at ¶ 5-S1, and abutment of the descending left S1 nerve root, similar to the prior MRIs. UA-CL-LTD-001826-1830.

30. Snapper again took a leave of absence from work beginning February 18, 2019 due to his uncontrolled pain. UA-CL-LTD-001511-1514. He has not worked in any capacity since that date.

31. On February 21, 2019, Snapper was evaluated by Dr. Khan and Dr. Jason Michaels. UA-CL-LTD-001565-1569. Following review of his latest symptoms and lack of benefit from his last epidural injection, Snapper was diagnosed with Failed Back Syndrome and was recommended to undergo a spinal cord stimulator trial. UA-CL-LTD-001568-1569.

32. On March 21, 2019, Snapper underwent percutaneous placement of spinal cord stimulator electrode arrays in two locations and was discharged to follow up in seven days. UA-CL-LTD-001605-1606.

33. Snapper returned to Dr. Khan on March 27, 2019, reporting that the spinal cord stimulator provided no pain relief and had aggravated his symptoms. UA-CL-LTD-001563-1564; 1838. The leads were removed by Dr. Khan. UA-CL-LTD-001563-1564.

34. On April 16, 2019, Snapper was evaluated by neurosurgeon Dr. Frank Phillips. UA-CL-LTD-001837-1840. Dr. Phillips reviewed the February 2019 MRI and CT imaging and noted evidence of disk desiccation with maintained disk height at ¶ 4 through S1, advanced disk space collapse with Modic changes and evidence of a left-sided hemilaminectomy at ¶ 5-S1, a central disk-osteophyte complex perhaps contacting the left S1 nerve root, and edema of the S1 nerve root. UA-CL-LTD-001839.

35. Snapper underwent an EMG/NCV study on May 10, 2019, which revealed electrophysiological evidence of a chronic left S1 radiculopathy, most consistent with reinnervation with recent or ongoing axonal loss. UA-CL-LTD-001841.

36. On May 14, 2019, Snapper was evaluated by neurosurgeon Dr. Alpesh Patel for a second opinion on neurosurgery. UA-CL-LTD-001934-1938. Dr. Patel recommended against additional neurosurgery, opining that it was not expected to improve his symptoms and may worsen his condition. UA-CL-LTD-001937.

37. On May 20, 2019, Snapper was evaluated by neurosurgeon Dr. George Cybulski for a third opinion on neurosurgery. UA-CL-LTD-001928-1930. Dr. Cybulski concluded that further surgery would be unlikely to improve Snapper's condition. UA-CL-LTD-001929.

38. On May 23, 2019, Snapper was evaluated by neurosurgeon Dr. Daniel Laich for a fourth opinion on neurosurgery. UA-CL-LTD-001553-1558. Considering Snapper's level of pain and the failure of all other treatments, Dr. Laich offered to perform a spinal decompression surgery. UA-CL-LTD-001557.

39. On June 25, 2019, Snapper underwent an L5-S1 extra-pedicular decompression, foraminotomy, ligamentectomy, discectomy, and osteophytectomy performed by Dr. Laich. UA-CL-LTD-001275-1278.

40. Snapper returned to Dr. Laich on July 12, 2019. UA-CL-LTD-001539-1542. He reported improvement in left gluteal and hamstring cramping but complained of continued pain down his posterior thigh and leg to the bottom of his foot and no change in numbness. UA-CL-LTD-001539. Dr. Laich cleared Snapper to begin rehabilitation at the Shirley Ryan AbilityLab. UA-CL-LTD-001542.

41. Snapper began receiving bi-weekly physical therapy treatment at the Shirley Ryan AbilityLab on July 16, 2019. UA-CL-LTD-001762-1776.

42. On July 26, 2019, Snapper reported to Dr. Laich that his pain was worsened with physical therapy and was now the same or worse as compared to pre-surgery. UA-CL-LTD-001544. Updated MRI and CT scans on August 19 and August 22, 2019 showed evidence of recurrent or residual disc herniation at ¶ 5-S1 following surgery, as well as ongoing bilateral foramina stenoses. UA-CL-LTD-001267-1269; 2345-2346.

43. On August 29, 2019, Dr. Laich recommended a follow-up lumbar spinal surgery after re-examining Snapper and reviewing the recent imaging studies. Dr. Laich referred Snapper to be fitted for a custom TLSO back brace the following week. UA-CL-LTD-001616.

44. On October 8, 2019, Snapper underwent his third lumbar spine surgery, an L5-S1 discectomy and anterior lumbar interbody fusion (“ALIF”), performed by Dr. Laich. UA-CL-LTD-001623-1624.

45. Snapper returned to Dr. Laich on November 7, 2019, reporting ongoing severe radiating left leg pain. UA-CL-LTD-001623-1626. An updated CT scan taken that same day showed intact surgical hardware at the site of Snapper's recent surgeries and Snapper was cleared to begin physical therapy. UA-CL-LTD-002343.

46. Snapper restarted bi-weekly physical therapy at the Shirley Ryan Ability Lab on November 8, 2019. UA-CL-LTD-001711-1716. He was discharged from physical therapy on December 13, 2019 with no change in his level of pain after nine sessions. UA-CL-LTD-001720-1721.

47. On January 9, 2020, Snapper reported to Dr. Laich that he continued to suffer ongoing pain radiating down his left leg relieved only with laying down. UA-CL-LTD-001628-1631. Following review of new x-rays, Dr. Laich ordered Snapper to increase his Gabapentin dosage to 600mg three times per day, to be taken with his ongoing prescription of Percocet, 10-325mg as needed. UA-CL-LTD-001631; 2340.

48. On January 13, 2020, Snapper was seen for a new patient evaluation in the Shirley Ryan AbilityLab intensive pain management clinic. UA-CL-LTD-001652-1657. During his intake to the pain management program, Snapper noted a worsening in confusion following the recent increase in Gabapentin. UA-CL-LTD-001653. Snapper also reported that although he can swim 1000-1500 yards in the pool, it was difficult for him to walk the two blocks and one flight of stairs to get to the pool and that he needed to take “a couple” breaks along his way due to pain. UA-CL-LTD-001653-1654.

49. Snapper began the Shirley Ryan AbilityLab intensive pain management program on January 20, 2020 under the supervision of Dr. Karina Bouffard. UA-CL-LTD-001645-1649. At the end of the first day of the program, Snapper reported an excruciating amount of pain and later reported that he required additional pain medication that evening. UA-CL-LTD-001644; 1668. Snapper was unable to complete the second day of the program due to pain and left early. UA-CL-LTD-001644. He was discharged from the program by Dr. Bouffard on January 22, 2020. Id.

50. On February 3 and February 10, 2020, Snapper underwent updated spinal CT and MRI scans. UA-CL-LTD-002335 -2339. The imaging showed facet joint degeneration at ¶ 4-L5 causing bilateral neural foraminal stenosis and degenerative changes in the facet joints causing additional neural foraminal stenosis bilaterally. UA-CL-LTD-002335. Structural changes at ¶ 5-S1 were noted to be obscured by surgical hardware. Id.

51. Snapper returned to Dr. Laich on February 13, 2020. UA-CL-LTD-001637-40. He reported some improvement in symptoms allowing him better sleep but stated that his radiating left leg pain was still at ¶ 7-8 out of 10 and aggravated by “standing, walking, sitting, lifting, bending, climbing stairs, riding in car, activity in general, [and] nothing in particular.” UA-CL-LTD-001637.

52. On May 21, 2020, Snapper was virtually evaluated by Dr. Laich due to COVID-19 protocols. UA-CL-LTD-001805-1806. He reported that due to COVID-19 closures he had been unable to swim or receive muscle activation therapy and had subsequently experienced a worsening in symptoms. UA-CL-LTD-001805. Dr. Laich increased Snapper's Gabapentin dosage to 600mg four times daily. UA-CL-LTD-001806.

53. Snapper was again evaluated by Dr. Laich virtually on July 24, 2020. He reported that his pain was worse when “vertical (stand, sit, walk)” and that his entire left leg was a “crescendo of pain.” UA-CL-LTD-001281. He reported being able to swim and use a stairmill to exercise but reported that he needed to take 1-2 Percocet to workout. Id.

54. On August 3, 2020, Snapper wrote Dr. Khan reporting that he had experienced no sustained improvement in the burning sensation in his left leg since surgery and that he was taking Gabapentin, 600mg four times per day and Percocet, 10-325mg two times per day. UA-CL-LTD-001916. Dr. Khan's office invited Snapper to call to schedule a telehealth visit. Id.

55. Snapper returned to Dr. Khan for a telehealth visit on August 20, 2020. UA-CL-LTD-001912-1914. He reported “burning, shooting pain that is constant in nature, located in his left low back, left buttock, with radiation into the hamstring into the calf and involving the entirety of his foot” as well as excessive sedation with Gabapentin. UA-CL-LTD-001912. Following examination, Dr. Khan opined:

Patient with continued FBSS [Failed Back Surgery Syndrome] status post L5-S1 microdiscectomy x 2 and most recently L5-S1: PSF. Symptoms appear to be S1 mediated, and he has failed PT, exercise program, caudal ESI's, S1 TFESI's, and conventional SCS trial. Options going forward are to maximize neuropathic medications, which he has previously tried and failed, or to consider S1 DRG stimulator trial to see

whether more targeted stimulation could provide improved analgesia. We will have patient come in to clinic in 4 weeks for re-evaluation. In the interim we will discontinue Gabapentin and start Lyrica 100 mg 3 times daily. Patient aware not to discontinue Gabapentin until he physically picks up Lyrica script because of risk of rebound seizures.

Id.

56. On August 24, 2020, Snapper was evaluated by pain management specialist Dr. Samuel Chu at Shirley Ryan AbilityLab. UA-CL-LTD-002209-2211. Dr. Chu examined Snapper and noted his chronic left leg pain was “consistent with chronic lumbosacral radicular pain.” UA-CL-LTD-002211. Dr. Chu ordered targeted physical therapy (including pool therapy) and endorsed the transition from Gabapentin to Lyrica. Id.

57. On September 8, 2020, Snapper wrote Dr. Khan reporting that the side effects with Lyrica were worse than with Gabapentin. UA-CL-LTD-001909. Following a telehealth visit on September 9, 2020, Dr. Khan re-prescribed Gabapentin, 600mg four times daily. UA-CL-LTD-001905. Dr. Khan opined that Snapper would be evaluated for a different type of spinal stimulator at the next visit, but concluded that if that fails the “only option is to maintain him on long-term medications, including opiates.” Id.

58. Snapper was evaluated to restart physical therapy at Shirley Ryan AbilityLab on September 10, 2020. UA-CL-LTD-002196-2201. Snapper reported chronic left buttock pain radiating down the left lateral thigh and down to the entire lower leg, significant difficulty with weight bearing on his left leg, and immediate pain with standing, walking, negotiating stairs, and sitting. UA-CL-LTD-002200; 2202. On examination, he demonstrated “significant limitations in lumbar spine mobility, especially lumbar extension in addition to significant limitations in left neural mobility.” UA-CL-LTD-002200.

Snapper's Functional Capacity Evaluation

59. On September 16, 2020, Snapper underwent a three-hour Physical Work Performance Evaluation (“PWPE”) performed by Angela Pennisi, PT, MS, Board-certified Clinical Specialist in Orthopedic Physical Therapy. UA-CL-LTD-001224-1234.

60. Ms. Pennisi reported that Snapper “cooperated fully with this lengthy evaluation” and “appeared to give full maximum effort” through the examination, leading her to opine that the report was “presented with a high level of confidence in the reliability and validity of its findings.” UA-CL-LTD-001224-1225.

61. The PWPE report detailed the following restrictions and limitations:

TASK PERFORMANCE

Please note that the results noted below in red italics and marked SL are tasks on which the client self-limited. On these self-limiting tasks, the performance represents a minimal rather than a maximal performance. On these tasks we cannot determine a maximum performance.

Tasks	Client Performance	Self-limiting Reasons
Floor to waist lift	29 lb Occas.	Fear [of] Reinjury
Waist to eye level lift	17 lb Occas.-SL	Pain
Two handed carrying	27 lb Occas.-SL
One handed carrying	L19 lb Occ
Pushing	18 lb Occas.
Pulling	18 lb Occas.
Sitting	Never
Standing	Never

Work kneeling	Never
Climbing stairs	Occasionally
Repetitive squatting	Never
Walking	Never
Crawling	Occasionally
Repetitive trunk rotation-standing	Never
Balance on level surfaces	Adequate
Balance on uneven surfaces	Adequate
Grip Strength	L95 R98 lb

1 Occasionally = up to 1/3 of the day, Frequently = 1/3 to 2/3 of the day, Constantly = 2/3 to the full day. Frequent lifting = 50% of Occasional; Constant lifting = 20% of Occasional.

2 D.O.T. The aptitudes: 1 (90-100 percentile), 2 (67-89 percentile), 3 (34-66 percentile), 4 (11-33 percentile), 5 (0-10 percentile).

3 Pounds of force is the amount of force the client exerted during the pushing and pulling tasks. If pushing or pulling is required for work, the force required for the task should be measured with a force gauge for comparison.

4 A never score for sitting, standing and walking does not mean that the client literally can never sit, stand or walk. The client may be able to sit, stand or walk for brief periods but is not able to sustain these for up to 1/3 of the day as required for the “Occasional” category.

UA-CL-LTD-001227.

62. Ms. Pennisi further reported that Snapper's impaired positional tolerance was demonstrated by “severe deviations in sitting and standing” such as his “[inability] to maintain an upright posture with hips bent during sitting and a break was taken during grip testing and Stokes protocol due to his inability to sit still for the duration of testing”, and noted that Snapper also demonstrated decreased weightbearing tolerance, poor tolerance of positioning upright against gravity, decreased motor control, and impaired left hip strength. UA-CL-LTD-001228.

63. Ms. Pennisi provided the following summary and conclusions:

1. Mr. Snapper is incapable of performing his current work of Attorney. His employer's job description for the job of Attorney

includes “sit at a computer and type for extended hours” and “Handle oral presentations [performed in standing]”, which he is unable to perform. His limitations would similarly preclude him from being able to “Attend and complete necessary CLE coursework” and “…engaging in speaking opportunities.”

2. Mr. Snapper is able to perform the materials handling requirements of Sedentary work, which was limited to 10 pounds. Mr. Snapper is able to lift a maximum of 29 pounds Occasionally.

3. However, he is unable to perform Sedentary work for the 8-hour day, 40 hours per week due to his ability to Sit, Stand or Walk for work Never, which is less than 1/3 of the workday.

4. Mr. Snapper demonstrated declining performance over time, primarily related to the cumulative effects of weightbearing and maintaining positions against gravity.

UA-CL-LTD-001228.

64. Finally, Ms. Pennisi reported that:

Mr. Snapper contacted me on the two days following the evaluation to report requiring twice the normal dosage of Percocet after the evaluation to manage his symptoms. He reported the nausea that began near the end of the evaluation had persisted for more than 24 hours. He reported continued limitations in his function, stating he could only take small shuffling steps due to radicular symptoms and feeling of weakness. He deferred a planned errand to the pharmacy due to these symptoms. On September 18, 2020, he reported slight improvement, but continued exacerbation of symptoms and continued impaired gait and nausea.

UA-CL-LTD-001228-1229.

65. Snapper was again virtually evaluated by Dr. Laich on December 18, 2020 and noted as continuing to suffer severe lower extremity pain. UA-CL-LTD-004482-4484. Dr. Laich opined that he reviewed and agreed with the restrictions and limitations contained in the PWPE report. UA-CL-LTD-004482. On January 7, 2021, Dr. Laich reiterated his opinion that he agreed that the PWPE provided an accurate portrayal of Snapper's functional limitations. UA-CL-LTD-004466-4467.

Unum's Administration of Snapper's LTD Claim

66. Snapper submitted a claim for LTD benefits under the Policy to Unum Life on or about July 29, 2019. UA-CL-LTD-000105-107.

67. On August 16, 2019, Unum Life notified Snapper that it had approved his LTD claim with a benefit start date of August 18, 2019. UA-CL-LTD-000224-227.

68. On November 20, 2019, Unum Life wrote Dr. Laich asking for responses to several questions regarding Snapper's disability status. UA-CL-LTD-000452-453. Dr. Laich responded on December 3, 2019 that Snapper had just had spinal surgery and would not be able to return to work in at least a year. UA-CL-LTD-000608-609.

69. On December 17, 2019, Dr. Laich provided a second update of Snapper's condition to Unum Life, stating in part that Snapper was unable to lift more than ten pounds, unable to twist/turn at the waist, and unable to walk, stand, or sit for prolonged periods of time. UA-CL-LTD-000626-628.

70. On December 27, 2019, an investigator hired by Unum Life attempted an unannounced walk-up visit of Snapper at his home but a doorman at Snapper's building refused him entry. UA-CL-LTD-000647; 651. Snapper called Unum Life that same day reporting that its investigator had lied to the doorman in his attempt to gain entry to his building. UA-CL-LTD-000647. Snapper asked to decline the meeting with a field investigator if the interview was optional, and Unum Life failed to further follow up with Snapper regarding whether the meeting was optional or to reschedule the interview. Id.

71. On January 23, 2020, Snapper completed claim forms at Unum Life's request. He reported no improvement in his symptoms and stated that he was “largely confined to his residence, except for physical therapy and very occasional social outings.” UA-CL-LTD-000717.

72. Unum Life again wrote Dr. Laich on January 27, 2020 asking for an updated status of Snapper's functionality. UA-CL-LTD-000732-733. Dr. Laich responded on February 1, 2020 that Snapper remained unable to perform his work duties. UA-CL-LTD-000746-747. Dr. Laich again reported to Unum Life on March 19, 2020 that Snapper was unable to perform his work duties. UA-CL-LTD-000808-809.

73. On March 23, 2020, Snapper completed a Disability Status Update form at Unum Life's request, stating that he mostly stays at home as walking is painful. UA-CL-LTD-000835.

74. On June 23, 2020, Dr. Laich provided another update to Unum Life on Snapper's status, stating:

Due to Covid-19, Joseph has not completed his full medical rehabilitation. He is still with episodic pain limiting his work hours to [less than] 6 hours/day with breaks, lifting 5-7 pounds, sitting [with] breaks every 20 minutes, and travel be automobile restricted to 20 minutes. We recommend resuming rehab program and evaluating his MMI [maximum medical improvement] at his 1 year anniversary in October 2020. Further work capacity will be evaluated at this time.

UA-CL-LTD-001113.

75. On July 17, 2020, Unum Life terminated Snapper's LTD benefit claim based on the file-review opinions of two in-house review physicians, Dr. Stephen Kirsch and Dr. Jamie Lewis. UA-CL-LTD-001138-1144.

76. Snapper submitted an appeal of Unum Life's termination on December 4, 2020, challenging the opinions of Unum Life's file review physicians as well as Unum Life's misclassification of material duties of his occupation. UA-CL-LTD-001349-1366. While the appeal was pending, Snapper additionally provided updated opinion and medical evidence on January 12, 2021 and additional argument and vocational expert report on February 17, 2021. (UA-CL-LTD-004466-4468; 4482-4489; 4509-4520)

77. Upon receipt of Snapper's complete appeal submission, Unum Life obtained a file review opinion of Snapper's restrictions and limitations from another one of its Medical Directors, Dr. Scott Norris. UA-CL-LTD-004439-4443. Unum Life also obtained an updated vocational review from Kelly Marsiano, M.Ed., CRC. UA-CL-LTD-002859-2861.

78. On January 14, 2021, counsel for Snapper wrote Unum Life requesting the CVs of Dr. Norris and Ms. Marsiano. UA-CL-LTD-004495. In response, Unum Life stated that it “is not obligated to release additional information related to these employees and declines to do so.” UA-CL-LTD-004498.

79. On March 21, 2021, Unum Life upheld its claim termination based on the opinions of Dr. Norris and Ms. Marsiano. UA-CL-LTD-004553-4564.