NEW YORK – A policyholder that refused to submit to an electromyelograph study did not breach its duty to cooperate, the Second Department New York Supreme Court Appellate Division has ruled, finding the request unreasonable (Ann Marie Hurley v. First Unum Life Insurance Co., No. 2003-05891, N.Y. Sup., App. Div. 2nd Dept.; 2005 N.Y. App. Div. LEXIS 14219).
Ann Marie Hurley, a dental hygienist, was insured under an own occupation policy with First Unum Life Insurance Co. In 1994, Hurley was diagnosed with carpal tunnel syndrome. Hurley’s treating physician, Dr. Peter Stein, submitted an attending physician statement attesting to Hurley’s disability.
First Unum had Hurley submit to an independent medical exam; the examining doctor diagnosed her with pronator teres syndrome, in addition to or in place of carpal tunnel syndrome. Hurley also had an electromyelograph (EMG) study, which was negative.
First Unum initially approved Hurley’s claim for benefits. In 1997, First Unum began to question whether Hurley was still disabled. First Unum had a medical records review conducted and the reviewing physician suggested another EMG. Plaintiff initially agreed to submit to an EMG but later changed her mind. Stein, in a letter dated May 12, 1997, said that because of the complexity of her problems, further invasive testing “will be deferred” at the current time.
The claims examiner continued to ask Hurley to submit to an EMG. In a letter, First Unum said it was closing Hurley’s file because of her continued refusals to submit to an EMG. First Unum terminated Hurley’s benefits, concluding that she was not disabled under the policy. Hurley sued First Unum for breach of contract. The Nassau County Supreme Court dismissed the complaint without prejudice, finding that Hurley breached her duty to cooperate under the policy. Both sides appealed.
Duty To Cooperate
The appeals court said “a willful failure of the insured to submit to a reasonably requested examination is a legitimate basis for denying the claim,” citing Argento v. Aetna Cas. & Sur. Co. (184 A.D.2d 487, 488, 584 N.Y.S.2d 607) and Pizzirusso v. Allstate Ins. Co. (143 A.D.2d 340, 341, 532 N.Y.S. 2d 309). The appeals court, however, said the request must be “reasonable in relation to the insurer’s decision to approve or deny the claim.
Here, the court said, First Unum’s request for another EMG was not reasonable.
“The plaintiff was diagnosed as suffering from carpal tunnel syndrome over two years before the claim was closed despite a negative EMG. The plaintiff’s treating physician testified, and the physician who conducted the original medical evaluation on behalf of the defendant confirmed, that this was not unusual in light of the relatively high number of false negative results from the test. The plaintiff’s treating physician further testified cogently that in light of this fact, a further EMG would not alter his diagnosis or his conclusion that the plaintiff suffered from a disabling condition. The medical evidence submitted by the defendant failed to counter the testimony. As a result, the plaintiff’s refusal to undergo the EMG was not inconsistent with her obligations under the policy,” the court held.
Prima Facie Case
Additionally, the court found that First Unum’s claim denial was unreasonable.
“The plaintiff made out a prima facie case that the defendant breached the contract of insurance by establishing that the defendant admitted that she was disabled within the meaning of the ‘own occupation’ disability policy by paying her claim for a period of 2 ½ years, and that there had been no change in her medical condition since that time. The defendant’s proof, consisting, essentially, of testimony that without the EMG there was no ‘objective’ proof of plaintiff’s disability, was insufficient to overcome the plaintiff’s showing,” the court ruled.
The opinion was issued Dec. 12.
Richard J. Quadrino of Quadrino & Schwartz in Garden City, N.Y. represents Hurley. Louis M. Lagalante of Gallagher, Harnett & Lagalante in New York represents First Unum.
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