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Don’t Let Your Disability Insurer Get Away with Cherry-Picking Evidence

L. Jason Cornell, Esq. Jan. 5, 2023

“Cherry-picking” has been defined as “the act of choosing the best or most profitable items for oneself out of a range of items, as in asset stripping a company.” See Oxford Reference Dictionary Disability insurers often like to cherry-pick an employee’s medical records when considering a long- or short-term disability claim. By that, the insurer cites only those records that may lend support to its denial of a claim, ignoring other medical records clearly showing the employee is unable to perform his or her job. 

In a recent case, a disability insurer was called out by the court for relying on those medical records that may have diminished an employee’s disability claim, yet ignoring clear evidence the employee was unable to work. See Gary v. Unum Life Insurance Company of America, No. 3:17-cv-01414-HZ at *5, 2021 WL 5625547 (D.Or. Nov. 29, 2021).  Quoting the appellate court, the court in Gary noted that the insurer’s “consultants cherry-picked certain observations from medical records numerous times.” Citing a string of prior decisions, the court continued, stating that an insurer or plan administrator “may not shut its eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary’s theory of entitlement.” 

The court in Gary v. Unum Life applied an abuse of discretion standard when deciding whether to uphold or reject the insurer’s denial of benefits.  This is a highly deferential standard which sometimes results in an insurer’s denial of benefits being upheld by the court. Here, however, the court did not uphold the insurer’s decision. Instead, the court explained that the “cherry-picking of certain observations from the record [by the insurer] … weighs in favor of finding an abuse of discretion.” 

By finding the insurer abused its discretion, the court rejected the insurer’s denial of benefits and ruled for the employee.