Brenda Counts (“Counts”) previously worked as an employee of Denver Wholesale Florist-Flint as a flower sales specialist. Her job title was formally known as “Inside Sales Associate” which required “making sales calls, pulling product[,] and packing.” Through her job, she held a disability insurance policy with United of Omaha Life Insurance Company (“United”). Under this plan, “disability” is defined as the following:
“Disability and Disabled mean that because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred, as a result of which:
- during the Elimination Period, You are prevented from performing at least one of the Material Duties of Your Regular Job (on a part-time or full-time basis); and
- after the Elimination Period, You are:
- prevented from performing at least one of the Material Duties of Your Regular Job (on a part-time or full-time basis); and
- unable to generate Current Earnings which exceed 99% of Your Basic Weekly Earnings due to that same Injury or Sickness.”
“Sickness” was 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.” “Material duties” are considered “the essential tasks, functions, and operations relating to Your Regular Job that cannot be reasonably omitted or modified.”
Following a multi-year battle with lower back pain, Counts was considered “totally medically disabled” by her treating physicians. She started out with herniated disc syndrome, and later was diagnosed with “lumbar spondylosis,” “lumbar degenerative disc disease,” “L4-5 stenosis from ligamentum flavum hypertrophy and facet arthropathy and diffuse disc bulge,” “low back pain,” “neurogenic claudication,” and “bilateral lower extremity radiculopathy.” Counts additionally had several surgeries and eventually was unable to return to work.
She then filed for short-term benefits in June of 2017. After a review of Counts’ medical file, United opted to deny her claim for benefits. Its conclusion explained that “In summary, the medical documentation fails to support the restrictions and limitations. Therefore, no benefits are payable, and your claim has been denied.” However, United did not provide any further explanation of its denial. At that time, Counts applied for long-term disability benefits, followed by an appeal of her short-term disability claim. She then submitted additional records from a Dr. Hak and a Dr. Fernandez and also supplied an independent medical evaluation from Dr. Todd Best, a rehab specialist. He stated that Counts was “totally permanently disabled. She is not capable of any competitive employment.”
At this point, United gave Counts a provisional denial. United had an orthopedic surgeon named Dr. Margaret Harvey review her medical records and history. She overall concluded both that “[t]here are no inconsistencies in the available medical records,” and that there were “insufficient physical exam findings to support work impairment.” Counts responded by arguing that every one of her treating doctors contested this. Dr. Hak even stated that Counts’ diagnoses “are supported by physical examination and MRI imaging.” Harvey then explained that her decision “had not changed.”
United subsequently denied Counts’ short-term disability claim in June of 2018. Specifically, “the documentation submitted for review does not support a total disability for the time period reviewed. The available medical records document self-reported claims of low back pain; however, there are insufficient physical examination findings to support impairment.”
In August of 2018, United also denied Counts’ long-term benefits claim. In this case, United cited that “In summary, the medical documentation fails to substantiate a condition or conditions that would render you Disabled from performing the Material Duties of your Regular Occupation as an Inside Sales Representative.” United’s reasoning largely depended on its previous analysis of the short-term disability benefits claim. Counts then filed the present lawsuit. Counts argued that she has proven her disability and is therefore entitled to previous benefits and ongoing benefits. Alternatively, United claims that Counts is unable to prove that she should receive these benefits.
The court opined that Counts would be entitled to benefits if she could meet the elements that are stated in the definition of “disability” in her policy. First, the court affirmed that Counts had an injury or sickness as described by the policy. More particularly, the court held that Counts’ medical record provided sufficient evidence to support the existence of an injury or sickness because of her numerous conditions including but not limited to: postsurgical scarring, posterolateral disc protrusion, carpal tunnel syndrome, chronic low back pain, lumbar spondylosis, lumbar degenerative disc disease, and diffuse disc bulging.
Secondly, the court ruled that Counts’ injury or sickness caused her to experience “a significant change” in her capacity to function. This was supported by Counts’ medical records which showed a multi-year medical decline from 2014 to May 2017. She had gone from being able to perform her work duties to being unable to carry, stand, walk, or sit without special restrictions.
Thirdly, the court held that Counts’ injury or sickness kept her from performing the material duties of her regular job. Here, the court relied on affidavits from Counts’ treating physicians, which cited her declining condition for several years. These records indicated that Counts was unable to lift a required weight, as well as was limited in her sitting and standing time during work shifts.
Fourthly and lastly, the court ruled that Counts was able to show that her injury or sickness kept her from being able to produce 99% of her weekly earnings in alternative ways. As Counts was “totally permanently disabled” according to her doctors, she was “not capable of any competitive employment.”
As a result of the court’s analysis, it determined that Counts was entitled to both her short and long-term benefits. However, the court chose not to consider the amount of benefits that she was entitled to. The court then directed United to determine the amount of benefits according to the language of the policy. Therefore, the court granted Counts’ claim for benefits and denied United’s motion for denial of those benefits.[Note: this claim was not handled by the Ortiz Law Firm. It is merely summarized here for a better understanding of how Federal Courts are handling long term disability insurance claims.]
Here is a copy of the decision in PDF: Counts v. United of Omaha