Attorney with 'Sick Building Syndrome' Should Have Received LTD Benefits

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4/20/07 8:21 PM

10th Circuit: Attorney with 'Sick Building Syndrome' Should Have Received

LTD Benefits

By B. Thelen

A Denver attorney should have received long-term disability (LTD) benefits

for respiratory and sinus problems she experienced from " sick building

syndrome, " the 10th U.S. Circuit Court of Appeals decided.

Pamela Ray worked from 1982 until 1995 as a partner at the law firm of

Gibson, Dunn & Crutcher, where she specialized in major real estate, oil, gas

and

mining transactions. She was insured by the firm's LTD plan, which provided

benefits for disability when an insured was unable to perform " each of the

material duties of his or her regular occupation. "

Ray worked for the firm at its high-rise office building in Denver. In the

fall of 1992, she moved to a new office on the same floor where she had worked

for 10 years.

A few months later, she began to experience a severe cough, dizziness,

fatigue, sinus pressure and pain and chest congestion. Over the course of the

next

year, through February 1994, Ray saw several physicians and underwent

numerous medical tests to determine the cause of her ailments, which continued

unabated except on weekends when she was away from the office. Although her

symptoms improved when she worked from home for a brief period of time, Ray's

clients were unhappy with their access to her when she was not in the firm's

office, and she also was unable to work with and train associate attorneys from

home.

After trying other offices, working fewer hours in the office, and even

moving her office to another nearby building-all without improving her

condition-Ray's doctors generally concluded that she suffered from " sick

building syndrome " and diagnosed her as disabled from performing her usual

job duties in an office environment as an attorney.

Ray filed for long-term disability benefits from Unum Life Insurance Co.of

America, the firm's LTD carrier. Unum initially denied the claim, but later

granted benefits under a reservation of rights. Later still, however, Unum

finally denied the claim, concluding that Ray could still function as an

attorney, whether at another law firm or even from home.

In March 1997, Ray filed a lawsuit in federal district court, claiming

Unum's denial of benefits was arbitrary and capricious and in violation of the

Employee Retirement Income Security Act (ERISA).

Although the trial court agreed and awarded her benefits, the 10th Circuit

initially reversed the trial court's ruling because it did not apply the

proper standard of review to Ray's claims. After a new trial court review, in

which the court considered additional medical evidence, the trial court again

ruled in Ray's favor, awarding her benefits through age 65 (she was then in her

late 40s).

Unum again appealed, arguing primarily that the trial court improperly found

that working in a large office building at a large firm (such as Gibson,

Dunn & Crutcher) was a material part of her job.

The appeals court agreed with the trial court finding, however, that Ray's

practice specialty (complex real estate and oil and gas transactions) could

not be performed from home.

More importantly, the court concluded that the nature of Ray's practice was

such that it could be performed only at a large law firm, which is typically

located in a large office building. The 10th Circuit found that Unum

improperly disregarded evidence provided by other large-firm attorneys, who all

explained that it would be impractical, if not impossible, for Ray to carry on

her

practice outside of a large firm/large office building environment.

Finally, the appeals court upheld the trial court's decision to award Ray

future benefits, provided her disability continued. The 10th Circuit determined

that the ERISA provisions that authorized Ray's lawsuit specifically gave

the court authority to clarify Ray's right to future benefits under her LTD

plan.

Ray v. Unum Life Insurance Co. of America, 10th Cir., Nos. 05-1284,

05-1420 (March 28, 2007).

Professional Pointer: Although Ray apparently made no employment claims

against her employer, implicit in the court's lengthy written opinion was the

notion that her employer worked with her to attempt to accommodate what appears

to have been a disability covered by the Americans with Disabilities Act

(ADA). Ray's firm allowed her to work from home and even permitted her to try

out

other office space-all without success relative to her respiratory problems.

The Equal Employment Opportunity Commission (EEOC) considers such

accommodations to be appropriate under the ADA, provided they are reasonable

and do not

cause an undue hardship on the employer.

B. Thelen is a principal with the law firm , Canfield, Paddock

and Stone PLC, in Lansing, Mich.

Editor's Note: This article should not be construed as legal advice.

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