Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 11: What You Need To Know As A Mutual Of Omaha Long Term Disability Policy Holder

November 09, 2020 Nancy L. Cavey Season 1 Episode 11
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 11: What You Need To Know As A Mutual Of Omaha Long Term Disability Policy Holder
Show Notes Transcript

In this week's podcast - Nationwide Long Term Disability ERISA Attorney Nancy Cavey talks everything Mutual of Omaha and your disability policy.

Show Title: Episode 11: What You Need To Know As A Mutual Of Omaha Long Term Disability Policy Holder

In this episode - you will learn about :

  • How Mutual Of Omaha Uses Discretionary Clauses To Deny Or Terminate Claims 
  • Mutual of Omaha's Objective Testing & Policy Limitations Used To Deny Claims   
  • How Mutual Of Omaha Attempts To Mis-classify Your Occupation To Deny Benefits


Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

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Nancy L. Cavey:

I'm Nancy Cavey national ERISA and individual disability attorney. Welcome to Winning. Isn't Easy. Before I get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I have to say this. So I've said it, but nothing prevents me from giving you an easy to understand overview of the disability insurance world, the games, the carriers play and what you need to know to get the disability benefits you deserve the already in this podcast, I'm going to be talking about Mutual of Omaha's wild kingdom of disability. Claims management Mutual of Omaha was founded in 1909. It's based in Omaha, Nebraska. It owns United of Omaha. And from this point forward, when I use the term Mutual of Omaha, I'm going to mean both companies because they both play from the same playbook. Now, both companies will offer a variety of insurance options, including disability insurance products. In fact, it was one of the first companies that offered a disability insurance policies to nonprofessional workers. I remember watching Mutual of Omaha's wild kingdom that was hosted by Marlin Perkins and Jim Fowler. It was on TV for over 20 years and the wild kingdom now has a segment on animal planet. Unfortunately, many of my Mutual of Omaha, disability, insurance clients feel like they've been eaten by the lion on the wild kingdom. All too often, Mutual of Omaha were ripped the financial rug and safety net from under its policy holders. One of the things that they do offer, as I said, is group a risk of disability insurance. And if it is offered by an employer, most likely it's going to be governed by a ERISA. If you are purchasing the policy through a church plan or through a municipality probably is not an ERISA plan, but the majority of, of a Mutual of Omaha policies are offered under the auspices of , uh , the ERISA statute. Now what's important is that most of these mutual Omaha policies will have limitations on how long you can get payment for mental conditions or subjective conditions like fibromyalgia pain, headaches, or chronic fatigue. And these policies have strict definitions of disability and occupation. So as a result, I'm going to be talking about those characteristics of mutual Omaha policies. So first I'm going to talk about how mutual Omaha and policies use the double whammy of objective evidence and subjective medical condition, policy limitations to deny or limit the payment of benefits. The myths that Mutual of Omaha, disability, insurance policy holders, believe and the truth. And I'm going to close with a story of two Mutual of Omaha policy holders who had to deal with Mutual of Omaha games in determining their own occupation. And what happened when the definition of disability changed in their policy. I'm going to take a quick break, but when I come back, we'll continue, stay tuned.

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Nancy L. Cavey:

So first let's talk about how Mutual of Omaha policies use the double whammy of objective evidence and subjective medical condition, policy limitations to deny or limit the payment of benefits. The most common policy provision that I'll see in a Mutual of Omaha policy is one that requires objective medical evidence mutual. The law is going to require that you have objective medical evidence of your diagnosis. And while that's easy, if you have a herniated disc in your spine, it can be impossible. If you've got migraines, chronic fatigue, fibromyalgia, or if your doctor is having difficulty making a definitive diagnosis. Now there's another whammy in the policy and that's the subjective medical condition limitation Mutual of Omaha will reject your subjective complaints of pain, fatigue, concentration, and even side effects of medication they actually might have in the policy of particular list of medical conditions that they think are subjective medical conditions. And that can include even a back condition. If there is no longer any evidence of objective findings on a diagnostic study, like an MRI or EMG and nerve conduction study test , it also is broadly drawn to include conditions like migraines, chronic fatigue, fibromyalgia , uh, or even , um, symptoms that are consistent with difficulties. Um, uh , with this such things as chest pain , um, or problems with breathing or swallowing. I mean, it's amazing how they will kind of limit , uh, the medical conditions covered under the subjective medical condition limitation. So it really becomes a double whammy. If you are, for example, applying for your benefits as a result of let's say fibromyalgia , um , because mutual Omaha wants objective evidence of the diagnosis of fibromyalgia and your complaints, and that they're going to try to ultimately limit their exposure to the benefits under the , uh , year subjective medical condition limitation. So I think it's crucial that before you stop working and apply for your Mutual of Omaha benefits, that you look at the terms of your policy because many of their plans or policies will have limitations on , uh , the hearing of payment of benefits for subjective medical conditions or self-reported conditions. For example, in the case of Curran versus United Omaha life insurance company, the ninth circuit held that a policy limited the payment of self-reported symptoms to just two years, if there wasn't any objective evidence of disability. Now, current suffered from fibromyalgia and the diagnosis was based on the traditional 18 point trigger point test that has been recognized by the American college of rheumatology. But as we all know, there's really no gold standard objective test . And this uninvited surrogate court said that that was too bad. So sad since there was no objective basis of the diagnosis. Now I say that it's a bad decision because there are many circuits that acknowledged that conditions like fibromyalgia or migraines are not susceptible of the objective proof. And they'll simply look to see if other medical conditions have been ruled out, but the diagnostic examination or studies show the consistency of the complaints. And whether that entire picture is consistent with a diagnosis of fibromyalgia or a migraine. So you can see, you need to know what's in your Mutual of Omaha policy before you stop working and apply for your disability benefits. In the next segment, I'm going to do some myth-busting today's myth is going to be that Mutual of Omahal will use a deliberate reason and principle process in reviewing, deciding, and paying my benefits stay tuned. So welcome back to our myth-busting segment. The myths that Mutual of Omaha disability policy holders believe about their policy and the truth. You know, my job is to be a MythBuster so that you understand your risk of disability policy, the games that are played and the process by which carriers will review a file and make a decision. I hear these myths every day about disability carriers. And my job, as I said, is to blow those myths apart. So today the myth involves mutual Omaha , but we could substitute any carrier for Mutual of Omaha. So the myth is I've paid my premium for my Mutual of Omaha display policy for years. Now that I'm disabled, I know that Mutual of Omaha will pay my benefits without any delay or hassle because I'm on a level playing field with them . In fact, they're going to use a deliberate reason and principle process in reviewing, deciding, and paying my benefits. Well, let's start talking about disability insurance policies , uh, including those from Mutual of Omaha. One of the things that you need to look at, and it's normally in this sort of the back of the policy, hidden in the details is what we call the discretionary clause. I call it the get out of jail free card clause . So that clause is important for you to review because that is really going to be the key of whether or not you're going to get your benefits and how long you're going to get your benefits. I want you to make no mistake. You are not on a level playing field with Mutual of Omaha. If you have an ERISA policy and you have an ERISA policy that has the discretionary clause, what's so important about a discretionary clause. Well, the policy will normally say we Mutual of Omaha have the discretion to interpret the terms of your policy and makes a claims determination. And the issue here is whether or not a judge ultimately will be bounded by that denial under the abuse of discretion standard or whether or not the judge can substitute their own judgment for that of Mutual of Omaha known as the de Novo standard. Now, of course, I would prefer to have the Denovo standard so that I can have a judge say that, look, I'm not bound by this decision. I'm going to interpret and review this claim. I'm going to make an independent decision and the heck with what Mutual of Omaha does say. But unfortunately, when the policy says, we have the discretion to interpret the terms of the policy and make the claims determination. That's really known as discretionary language and mutual Omaha will hide behind this clause to deny claims because they know that they can get away with an unfair claims. Now in federal court, let me give you an example of how a Mutual of Omaha will abuse their discretion. It's not uncommon for Mutual of Omaha to issue a denial that doesn't really explain the basis of the denial and says, based on our medical analysis restrictions and limitations, your claim is not supported well, that doesn't make a whole lot of sense. Does it? But would that decision be upheld under , uh, an abusive discretion standard? Well, the answer would be, yes. Let me tell you about the case of Bailey vs United of Omaha life insurance, which is a Tennessee case. In that case, the court held that the plan administrators decision-making process was arbitrary and capricious because the administrators' claims denial letter spent the majority of the denial letter explaining what the plan terms were and the medical evidence it reviewed, and then announced that the restrictions and limitations didn't appear to be supported. The court held consistent with the ERISA claims regulations that a denial letter has to specifically address to what extent Mutual of Omaha considered and credited the opinions of treating and peer review physicians, how any limitations impacted their disability determinations and , uh, explain in detail what additional documentation the Mutual of Omaha is looking for to make a claims decision in favor of the policy holder. The court said that if the carrier doesn't do those things, and not only is it not just Mutual of Omaha, but any disability care that the carrier therefore has not engaged in a deliberate principle and reasoned process, look, disability carriers like Mutual of Omaha in the business of collecting your gold and then ultimately ruling that you're not entitled to your disability benefits. That's the carriers version of the golden rule. The truth is that mutual Omaha is going to use that discretionary clause to avoid you engaging in a deliberate principle and reasons process in handling your claim in the next segment, I'm going to tell you the story of two Mutual of Omaha policy holders, who had to deal with games that the Mutual of Omaha played in determining their own occupation. And then what happened when the definition of disability changed, not uncommon games, and we can learn from these stories, stay tuned.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. You know, I read cases from , uh, courts across the United States because I think that I can learn many lessons from judges , uh, how cases are handled and what carriers do to deny claims. And I learned from those lessons and incorporate these lessons in the way I handle cases. Now, sometimes reading these cases can be like a mystery story, because you're not quite sure how the ending is gonna turn out until you read the last page. Sometimes they read like a fairytale and sometimes they read like a horror story. But before I tell you these stories, let me explain how , um , Mutual of Omaha will determine the definition of occupation. Now you need to get out that particular policy that you have, because as I've said, Mutual of Omaha has a lot of different versions of the policy, and we want to be specific to your policy. So now that you've got the policy out, let's talk about the story of Ms. Winooski. Now mutual Omaha policies will ensure your own occupation policy doesn't ensure your job, and it ensures your occupation. At the time you become disabled. As I said, they have a variety of policies and some of these policies will define occupation as how it's performed in a dictionary of occupational titles. Others will define it as how it's performed in the national economy. While other Mutual of Omaha policies will define it as how it's performed, performed for your specific employer. So obviously you need to know the definition of your own occupation, because that's what you're going to have to prove you're unable to do. Now, part of this involves giving the doctor an accurate history of your physical, cognitive, and social duties , uh, that you have to perform as part of your occupation. You want to give that history not only to Mutual of Omaha, but you want to give it to your doctor. The reason I say that is that the Mutual of Omaha is going to ultimately contact your employer and get their version of your occupational duties. And they just might not use that. Or they might not use the one that you've prepared, where they may come up with yet and different definitions of your occupation. But ultimately Mutual of Omaha is going to be sending your doctor and attending physician statement form. Your doctor's going to be asked to identify what you can do physically, cognitively and socially , uh, and measure , uh, whether or not you're capable of doing your occupational duties. Now sometimes, and more often than not the APS worm doesn't really give them any history about your occupational duties. It just asks the doctor about your functional capabilities. That's why I think it's important that your doctor understand from you and your perspective what your occupational duties are. So when the doctors asked to answer this question, they can consider the answer in conjunction with, or in view of the actual duties that you are to perform of your occupation. Now, I will tell you one of the biggest fights with mutual Omaha is how they decide what your occupation was at the time you become disabled and they'll often misclassify a policyholder's occupation. And that means one thing, a claims denial. So let me tell you about the case of Ms. Winooski. Now, interestingly enough, she had an IDI policy, so she was able to testify. This doesn't happen in an arrest case. Now she was a mechanical engineer who became disabled by a number of health conditions, including idiopathic gastroparesis. Her claim was denied because Mutual of Omaha concluded that her job duties were sedentary and that she could do sedentary work now because there was a trial, she was able to testify in front of the judge. And the judge noted that the material duties of her occupation were intellectual and not physical. In other words, as an engineer, she was thinking, designing, drawing, plotting out things. She wasn't necessarily standing up walking around or , or on, in any type of , uh , floor or a construction site. What happened in that case was that the judge took Mutual of Omaha to task for finding that under the own occupation standard, the medical evidence only addressed part of the equation. In other words, what she could do physically, the judge held that to assess her abilities, to perform her own occupation. They have to be aware of and actually address the physical, cognitive and social behavior requirements of the occupation. Now that was a great result, but that only happened because she had the ability to testify to the judge. If this is an ERISA case, you, as I said, have to make sure that in your description of your occupational duties that you give to mutual Omaha, that you're accurate about those physical duties, those cognitive duties, and , uh, and , uh, the social behavior , um, goal aspects of your duties. Well , what do I mean by the way, why social behavioral aspects? I'm sure that as a mechanical engineer, Ms. Wanniski was in her acting with , uh , coworkers or supervisors and maybe even a client. And so how her medical condition impact her ability to concentrate, how her pain may have interfered with her ability to be pleasant , uh , and engaging with her co-employees or supervisor or , uh , her , uh , client are obviously very important things. So the court wants to make sure that you have considered and reasonable laws considered the full range of your duties. If your claim has been denied. I suggest that as part of the claims denial appeal, that you submit an affidavit , uh , regarding your occupational duties, particularly if they have , uh , misconstrued your occupation or your occupational duties. Now you also probably going to have to get a vocational evaluator involved. And I'll talk about that in a minute. Now, another game that the Mutual of Omaha will play is whether the definition of discipline changes from own occupation to any occupation. The game is defined that you can perform sedentary work, and that's all it takes to justify claims now, because the issue is, is there other , uh , work that you're capable of engaging in, in other words, is there another occupation that you can do the materialist substantial duties of based on your education training and skills that you've learned at a way such that Mutual of Omaha would not have to pay your benefits? So that's a lot to unpack visual though . Law has to look at your prior work history, your prior educational history, the duties that you've learned in your current occupation and determine whether or not through the use of a vocational evaluator that you have, what's called skills, transferable skills. So for example , um, as an engineer, if you got certain skills, you might be able to take them to another occupation that uses, for example, spreadsheets for a better example, might be a nurse. You know, you might not be able to be a surgical nurse, but you've got transferable skills that would let you be , um , a peer review nurse, or just a nurse reviewing medical records or a charting nurse. So the issue obviously is one of importance to make sure that we're talking about , um, getting a vocational evaluation as part of any appeal. So let me tell you about the tale of Mr. Canteras. Uh, this is a Northern Illinois case Canteras versus the United of Omaha. And in that case, the definition of any occupation included terms as follows and occupation, for which you're reasonably fitted by training educational experience. And can we expect it to provide you with current earnings of at least 85% of the basic monthly earnings within 12 months of your return to work? Now, some courts will conclude that absent a time limit in the policy on where the target wage can be earned, but transferable skills alone are going to be sufficient to justify termination of benefits, but that wasn't the case here because Mr Contrarez lacked the job skills training or ability to perform the jobs that United of Omaha had identified in the transferable skills analysis. And he couldn't meet the wage requirements within 12 months, the way he was able to prove that was to hire a vocational evaluator, to test him, to determine his skills, the transferability of his skills, and to take apart Mutual of Omaha's transferable skills analysis. The other thing that the vocational evaluator did was to do a labor market survey to determine what the availability of these jobs or occupations work that Michigan , sorry, United of Omaha had found that allegedly he was capable of performing and the vocational evaluator also, as part of that labor market survey did a wage survey to determine what the wages were and whether it was even possible for him to meet at least 85% of his basic monthly earnings within 12 months of a return to work. I use vocational evaluation reports all the time in my appeals. And you can see in this case that having that vocational reward could make all the difference in getting benefits. And certainly in my first example would make all the difference if there was a fight about what in fact , um, that person's Ms. Waznosky occupation was. So the lessons I learned and I hope you learn from these two cases is make sure that you explain your work history backwards. Well, what do I mean by that? You want to make sure that you're thinking about the physical cognitive and social behavioral duties that you have of your occupation. And right now then want a piece of paper in a column for each. Then I want you to think about why it is you can't do those specific specific duties because when you write your occupational duties, your work history form, or the Mutual of Omaha, you want to make sure that all those things are covered. And of course, as I said, you want to make sure you give it to your doctor. And the second lesson is that you get a vocational evaluation report. If your claim is denied based on a misclassification of your occupation or at the, any occupation stage. Well, that's it for this episode, if you like this podcast, please like the page, leave a review or share it with your friends and family. Remember the podcast comes out weekly, stay tuned next week for another insightful episode of winning isn't easy.