Kaiser V Mutual Of Omaha – Preexisting Condition Exclusion Does Not Apply

Case Name: Kaiser v. United of Omaha Life Insurance Company, d/b/a Mutual of Omaha and Group Long-Term Disability Policy GLTD-AMMA

Court: United States District Court for the Western District of Wisconsin.

Type of Claim: Long Term Disability.

Insurance Company: United of Omaha Life Insurance Company, d/b/a Mutual of Omaha (hereinafter “Mutual of Omaha”).

Claimant’s Employer: Wisconsin Energy Conservation Corporation (“WECC”).

Claimant’s Occupation / Job Position: Unknown.

Disabilities: Stage IV lung cancer.

Definition of Disability: 
The Plan defines “Disability” and “Disabled” to mean:

that because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred in which:

a) during the Elimination Period, You are prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and

b) after the Elimination Period, You are:

1. prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and

2. unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness.

Other key definitions in the Plan/Policy: 
Critical to this appeal, the Plan has a pre-existing condition exclusion: “We will not provide benefits for any Disability caused by, attributable to, or resulting from a Pre-Existing Condition which begins in the first 12 months after You are continuously insured under the Policy.” This exclusion includes:

any Injury or Sickness for which You received medical treatment, advice or consultation, care or services, including diagnostic measures, or had drugs or medicines prescribed or taken in the 3 months prior to the day You become insured under the Policy.

Since Dee became insured under the Policy as of April 1, 2013, her “pre-existing condition three-month look-back” period was from January 1, 2013, through March 31, 2013.

Finally, “sickness” is defined as: “a disease, disorder or condition, including pregnancy, that requires treatment by a Physician. Disability resulting from a sickness must occur while You are insured under the Policy.”

And the term “injury” is defined as: “an accidental bodily injury that requires treatment by a Physician. It must result in loss independently of Sickness and other causes. Disability resulting from an injury must occur while You are insured under the Policy.”

Benefits Paid? No.

Basis For Denial / Termination of Benefits: Defendants denied benefits on the basis that Dee Kaiser’s disability fell within the pre-existing condition coverage exception of the long-term disability insurance plan at issue.

Procedural history: Plaintiff Robert Kaiser’s spouse, Dee Kaiser, passed away on December 3, 2014, due to progressive brain metastases as a consequence of lung cancer. (For ease of reference, the court referred to Robert Kaiser and Dee Kaiser by their first names.) Robert brought a lawsuit under ERISA against Mutual of Omaha to recover long-term disability (“LTD”) benefits.

The Claimant’s History of Treatment: 
The contemporaneous medical record indicates that Dee injured her shoulder in February 2013 while shoveling snow and scraping ice. Dee suffered a continuous dull ache from her shoulder to her elbow, which increased with lifting her arm above her head. On March 12, 2013, Dee saw Dr. Patro for her left shoulder pain. The treatment notes indicate that Dee “[d]enies any injury or any trauma. However, she has been doing a lot of snow shoveling over the past 3-4 weeks. She first noted pain while she was shoveling snow, and it would be when she would do some lifting. This has gotten progressively worse where she is having trouble doing any lifting, or reaching behind her back, or reaching overhead.” (AR 722.) After examining Dee’s shoulder, Dr. Patro’s impression was “[l]eft shoulder pain secondary to rotator cuff and bicipital tendinitis, likely triggered by the repetitious activity.” Patro prescribed Naproxen, an anti-inflammatory pain medication. Dr. Patro also discussed with Dee the possibility of future physical therapy and cortisone injections.

On March 27, 2013, Dee called Patro’s office back and requested a referral to physical therapy. The nurse submitted an order for physical therapy and refilled her Naproxen prescription. On March 29, Dee attended an initial physical therapy evaluation with Elizabeth M. Roe, PT. Her notes reveal that Dee “presents with a complaint of left shoulder pain.” She also recorded that the physical examination of Dee’s shoulder revealed “tenderness over acromioclavicular joint” and “flexion 170 degrees with mid-range pain.” The physical therapist concluded that Dee “has signs and symptoms consistent with rotator cuff impingement, possible degenerative rotator cuff pathology.”

Neither Dr. Patro’s or the physical therapist Roe’s notes document any concern or suspicion of cancer of metastasis from a primary lung cancer.

After the “look-back” period, the medical diagnoses changed. On May 1, 2013, Dee’s health insurance changed, and she began treatment with new physicians. On May 3, she was evaluated by John F. Orwin, M.D., an orthopedic surgeon. Dr. Orwin concluded that Kaiser had a possible silent massive tear of her rotator cuff of her left shoulder, and ordered an MRI of her shoulder. On May 7, Dee had an MRI of her left shoulder, which revealed “permeative destructive mass involving the glenoid extending into the coracoid process and scapular body, with a pathologic fracture of the glenoid.”

In addition, the radiologists reviewing the MRI results opined that the left shoulder lesions “presumably represent metastatic disease potentially from breast cancer or lung primary.” A May 8th chest x-ray revealed a “cavitary right lung mass.” On May 14, Joseph T. Yang, M.D., diagnosed Dee with metastatic cancer from a primary lung cancer.

The LTD Claim: On June 11, 2013, just less than a month after the cancer diagnosis, Dee’s employer WECC emailed an LTD claim form to Omaha on her behalf. As part of the claims process, Omaha reviewed medical records from Dee’s treating physicians. Because the date of disability was within the first 12 months of the effective policy date, Omaha examined the medical records to determine whether Dee’s disability fell within the pre-existing condition exception. On August 29, 2013, Omaha denied Dee’s claim for benefits on the sole basis that Dee was treated for her lung cancer within the look-back period.

Issues: ”As quoted above, each of the events falling between January 1 and March 31, 2013, could constitute a “pre-existing condition” under the policy if it concerned an “Injury” or “Sickness” (here, Dee’s lung cancer) “for which [she] received medical treatment, advice or consultation, care or services, including diagnostic measures, or had drugs or medicines prescribed or taken.” (AR 25.) There is no doubt that the “Sickness” here is lung cancer. The question, therefore, is whether a doctor’s visit for shoulder pain, prescription of pain medication, subsequent referral to physical therapy, and one physical therapy session were “for” Dee’s cancer.”

Test to Review Denials Based on a Pre-Existing Condition Exclusion: Reading Bullwinkel and Pitchertogether, a test arguably emerges for reviewing denials based on a pre-existing condition exclusion: “although a plaintiff need not be definitely diagnosed with a condition during the [look-back] period[,] there at least must have been some concern or suspicion at that time that the observed symptoms were caused by the particular condition in order for the patient to be considered as being treated or seen for the particular condition.” Goerig v. Phoenix Home Life Mut. Ins. Co., No. 97 C 1890, 1998 WL 801793, at *7 (N.D. Ill. Nov. 13, 1998). Indeed, this test has been embraced by other circuits presented with the same issue as here. See, e.g., LoCoco v. Med. Savings Ins., 530 F.3d 442, (6th Cir. 2008) (“[C]ourts have concluded that the ultimate condition need only have been suspected with a reasonable degree of likelihood in order to be considered ‘pre-existing.’”); Lawson v. Fortis Ins. Co., 301 F.3d 159, (3d Cir. 2002) (rejecting pre-existing condition denial because “it does not make sense to say that [the plaintiff] received treatment ‘for’ leukemia when the actual condition was not suspected”); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 269 (1st Cir. 1994) (requiring “some awareness on the part of the physician or the insured that the insured is receiving treatment for the condition itself” in order to qualify as treatment “for” a condition).

Holdings: ”Unlike LoCoco, there is nothing in this record to support a finding that Dee’s medical treatment providers — her primary doctor at that time, that doctor’s nurse, or the physical therapist — suspected that Dee’s shoulder pain was due to cancer. Their contemporaneous notes show that a cancer diagnosis was not even on the radar screen.

Instead, Dee received medical treatment and was prescribed medication for shoulder pain. During the entire three month period pre-dating her coverage, neither her physicians nor Dee had any reason to suspect that her symptom of shoulder pain was due to cancer. To the contrary, everyone suspected during this period that Dee’s pain and loss of strength in her arm was due to overuse in shoveling snow or impingement / deterioration of her rotator cuff.

The fact that Dee was eventually diagnosed with cancer and that her shoulder pain “in retrospect” was caused by her cancer is not material to a determination of whether her medical care providers at the time of the medical treatment suspected cancer. “To permit such backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of preexisting condition as to make that term meaningless: any prior symptoms not inconsistent with the ultimate diagnosis would provide a basis for denial.” Lawson, 301 F.3d at 166 (internal citation and quotation marks omitted).”

Summary: ”In its opposition to plaintiff’s motion for summary judgment, defendants attempt to distinguish Pitcher and other cases on the basis that those courts reviewed the denials de novo. While the standard of review in some cases is outcome determinative, it is not here. Defendants acted arbitrarily and capriciously in interpreting and applying the Plan’s preexisting provision unreasonably and contrary to Seventh Circuit law.”

Disclaimer: This was not a case handled by disability attorney Nick A. Ortiz. The court case is summarized here to give readers a better understanding of how Federal Courts decide long term disability ERISA claims.

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