Trial lawyer's depression could be retriggered by returning to work - appeals court

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REUTERS/Yuya Shino
  • Work-related depression caused lawyer to give up personal injury practice in 1998
  • Lower court failed to consider if improvement due to lengthy abstention from practicing law - 6th Circuit

(Reuters) - Provident Life and Accident Insurance Co must resume paying total-disability benefits to a former personal injury trial lawyer who suffers from recurrent major depression brought on by the stress of practicing law, a federal appeals court held.

The 6th U.S. Circuit Court of Appeals on Friday overturned last year’s ruling for Provident Life by a federal judge in Grand Rapids, Michigan, who rejected Mark Messing’s claim that he was still unable to return to the profession he left in 1998.

The 6th Circuit faulted the lower court’s reliance on Provident Life’s consulting psychiatrist, who concluded in 2018 that Messing’s depression was in remission – but never considered whether the remission was “likely attributable to his nearly two-decade abstention from practicing law.”

The improvements in Messing's mental health “do not necessarily mean he can return to working as a full-time personal injury attorney,” which is “a stressful occupation,” Circuit Judge Eric Clay wrote, joined by Circuit Judges John Rogers and Raymond Kethledge.

Only Messing’s psychiatrist “directly addressed the question at issue: whether Messing could return to work,” Clay wrote. “He squarely stated Messing could not.”

A spokeswoman for Unum Group, Provident Life's parent company, declined to comment on Monday.

Messing’s lead lawyer, Gerald Zelenock Jr, said in an email that his client “has been vindicated and we are very happy that substantial justice has been done, albeit after a four-year battle.”

According to Messing’s complaint and the 6th Circuit’s opinion, Messing was admitted to the Michigan bar in 1979 and had purchased long-term disability insurance through his law firm’s employee-benefit plan.

Messing was hospitalized for depression for several weeks in 1997, while serving as the firm’s managing partner. He resigned in 1998 and filed his claim for total-disability benefits, which Provident paid from 2000 until 2018.

Messing filed suit in U.S. District Court in Grand Rapids in 2020 under the Employee Retirement Income Security Act (ERISA) after the company denied his administrative appeal.

Although Chief U.S. District Judge Hala Jarbou upheld Provident Life’s cancellation of benefits based on the administrative record, she rejected the company’s counterclaim for an equitable lien on any benefits Messing had received while, allegedly, he was able to work as a lawyer.

The 6th Circuit affirmed that portion of Jarbou’s ruling, saying it would be “illogical” to grant Provident a lien “in light of our separate holding that Messing remains disabled.”

The case is Messing v. Provident Life and Accident Insurance Co, 6th U.S. Circuit Court of Appeals, No. 21-2780.

For Messing: Gerald Zelenock Jr of Jay Zelenock Law Firm; George Thompson of Thompson O’Neil

For Provident Life: Andrew Portinga and Jacob Carlton of Miller Johnson

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