{"id":7510,"date":"2020-04-08T16:11:43","date_gmt":"2020-04-08T21:11:43","guid":{"rendered":"https:\/\/www.nickortizlaw.com\/?p=7510"},"modified":"2024-02-06T13:14:08","modified_gmt":"2024-02-06T18:14:08","slug":"kaiser-v-mutual-of-omaha-pre-existing-condition-exclusion-does-not-apply","status":"publish","type":"post","link":"https:\/\/www.nickortizlaw.com\/kaiser-v-mutual-of-omaha-pre-existing-condition-exclusion-does-not-apply\/","title":{"rendered":"Kaiser v. Mutual of Omaha – Pre-Existing Condition Exclusion Does Not Apply"},"content":{"rendered":"\n

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

Court: <\/strong>United States District Court for the Western District of Wisconsin<\/p>\n\n\n\n

Type of Claim: <\/strong>Long-Term Disability<\/a><\/p>\n\n\n\n

Insurance Company: <\/strong>United of Omaha Life Insurance Company, d\/b\/a Mutual of Omaha)<\/a><\/p>\n\n\n\n

Claimant\u2019s Employer: <\/strong>Wisconsin Energy Conservation Corporation (\u201cWECC\u201d)<\/p>\n\n\n\n

Claimant\u2019s Occupation \/ Job Position: <\/strong>Unknown<\/p>\n\n\n\n

Disabilities: <\/strong>Cancer<\/p>\n\n\n\n

Definition of Disability: <\/strong>The Plan defines \u201cDisability\u201d and \u201cDisabled\u201d to mean:<\/p>\n\n\n\n

\n

that because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred in which:<\/p>\n\n\n\n

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<\/p>\n\n\n\n

b) after the Elimination Period, You are:<\/p>\n\n\n\n

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

2. unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness.<\/p>\n<\/blockquote>\n\n\n\n

Other Key Definitions in the Plan\/Policy: <\/strong>Critical to this appeal, the Plan has a pre-existing condition exclusion: \u201cWe will not provide benefits for any Disability caused by, attributable to, or resulting from a pre-existing condition<\/a> which begins in the first 12 months after You are continuously insured under the Policy.\u201d This exclusion includes:<\/p>\n\n\n\n

\n

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.<\/p>\n<\/blockquote>\n\n\n\n

Since Dee became insured under the Policy as of April 1, 2013, her \u201cpre-existing condition three-month look-back\u201d period was from January 1, 2013, through March 31, 2013.<\/p>\n\n\n\n

Finally, \u201csickness\u201d is defined as \u201ca 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.\u201d<\/p>\n\n\n\n

The term \u201cinjury\u201d is \u201can 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.\u201d<\/p>\n\n\n\n

Benefits Paid? <\/strong>No.<\/p>\n\n\n\n

Basis For Denial \/ Termination of Benefits: <\/strong>Defendants denied benefits because Dee Kaiser\u2019s disability fell within the pre-existing condition coverage exception of the long-term disability insurance plan at issue.<\/p>\n\n\n\n

Procedural history: <\/strong>Plaintiff Robert Kaiser\u2019s 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<\/a> against Mutual of Omaha to recover long-term disability (\u201cLTD\u201d) benefits.<\/p>\n\n\n\n

The Claimant\u2019s History of Treatment: <\/strong>The concurrent 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 \u201cdenies 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.\u201d (AR 722.) After examining Dee\u2019s shoulder, Dr. Patro\u2019s impression was \u201c[l]eft shoulder pain secondary to rotator cuff and bicipital tendinitis, likely triggered by the repetitious activity.\u201d Dee was prescribed Naproxen, an anti-inflammatory pain medication. Dr. Patro also discussed with Dee the possibility of future physical therapy and cortisone injections.<\/p>\n\n\n\n

On March 27, 2013, Dee called Patro\u2019s office and requested a physical therapy referral. 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 \u201cpresents with a complaint of left shoulder pain.\u201d She also recorded that the physical examination of Dee\u2019s shoulder revealed \u201ctenderness over acromioclavicular joint\u201d and \u201cflexion 170 degrees with mid-range pain.\u201d The physical therapist concluded that Dee \u201chas signs and symptoms consistent with rotator cuff impingement<\/a>, possible degenerative rotator cuff pathology.\u201d<\/p>\n\n\n\n

Neither Dr. Patro\u2019s nor the physical therapist Roe\u2019s notes document any concern or suspicion of cancer metastasis from primary lung cancer.<\/b><\/p>\n\n\n\n

After the \u201clook-back\u201d period, the medical diagnoses changed. On May 1, 2013, Dee\u2019s 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 the 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 a \u201cpermeative destructive mass involving the glenoid extending into the coracoid process and scapular body, with a pathologic fracture of the glenoid.\u201d<\/p>\n\n\n\n

In addition, the radiologists reviewing the MRI results opined that the left shoulder lesions \u201cpresumably represent metastatic disease potentially from breast cancer or lung primary.\u201d A May 8th chest x-ray revealed a \u201ccavitary right lung mass.\u201d On May 14, Joseph T. Yang, M.D., diagnosed Dee with metastatic cancer from primary lung cancer.<\/p>\n\n\n\n

The LTD Claim: <\/strong>On June 11, 2013, just less than a month after the cancer diagnosis, Dee\u2019s employer emailed an LTD claim form to Omaha on her behalf. Omaha reviewed medical records from Dee\u2019s treating physicians as part of the claims process. 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\u2019s disability fell within the pre-existing condition exception. On August 29, 2013, Omaha denied Dee\u2019s claim for benefits on the sole basis that Dee was treated for her lung cancer within the look-back period.<\/p>\n\n\n\n

Issues: <\/strong>\u201dAs quoted above, each of the events falling between January 1 and March 31, 2013, could constitute a \u201cpre-existing condition\u201d under the policy if it concerned an \u201cInjury\u201d or \u201cSickness\u201d (here, Dee\u2019s lung cancer) \u201cfor which [she] received medical treatment, advice or consultation, care or services, including diagnostic measures, or had drugs or medicines prescribed or taken.\u201d (AR 25.) There is no doubt that the \u201cSickness\u201d here is lung cancer. The question, therefore, is whether a doctor\u2019s visit for shoulder pain, prescription of pain medication, subsequent referral to physical therapy, and one physical therapy session were \u201cfor<\/em>\u201d Dee\u2019s cancer.\u201d<\/p>\n\n\n\n

Test to Review Denials Based on a Pre-Existing Condition Exclusion: <\/strong>Reading Bullwinkel<\/em> and Pitcher <\/em>together, a test arguably emerges for reviewing denials based on a pre-existing condition exclusion: \u201calthough 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<\/em> the particular condition.\u201d Goerig v. Phoenix Home Life Mut. Ins. Co<\/em>., 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<\/em>., 530 F.3d 442, (6th Cir. 2008) (\u201cCourts have concluded that the ultimate condition need only have been suspected with a reasonable degree of likelihood in order to be considered \u2018pre-existing.\u2019\u201d); Lawson v. Fortis Ins. Co.<\/em>, 301 F.3d 159, (3d Cir. 2002) (rejecting pre-existing condition denial because \u201cit does not make sense to say that [the plaintiff] received treatment \u2018for\u2019 leukemia when the actual condition was not suspected\u201d); Hughes v. Boston Mut. Life Ins.<\/em> Co., 26 F.3d 264, 269 (1st Cir. 1994) (requiring \u201csome awareness on the part of the physician or the insured that the insured is receiving treatment for the condition itself\u201d to qualify as treatment \u201cfor\u201d a condition).<\/p>\n\n\n\n

Holdings: <\/strong>\u201dUnlike LoCoco, there is nothing<\/em> <\/strong>in this record to support a finding that Dee\u2019s medical treatment providers \u2014 her primary doctor at that time, that doctor\u2019s nurse, or the physical therapist \u2014 suspected that Dee\u2019s shoulder pain was due to cancer. Their contemporaneous notes show that a cancer diagnosis was not even on the radar screen.<\/p>\n\n\n\n

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 symptoms of shoulder pain were due to cancer. On the contrary, everyone suspected during this period that Dee\u2019s pain and loss of strength in her arm was due to overuse in shoveling snow or impingement\/deterioration of her rotator cuff.<\/p>\n\n\n\n

The fact that Dee was eventually diagnosed with cancer and that her shoulder pain \u201cin retrospect<\/em>\u201d 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. \u201cTo 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.\u201d Lawson, 301 F.3d at 166 (internal citation and quotation marks omitted).\u201d<\/p>\n\n\n\n

Summary: <\/strong>\u201dIn its opposition to plaintiff\u2019s motion for summary judgment, defendants attempt to distinguish Pitcher<\/em> and other cases on the basis that those courts reviewed the denials de novo<\/em>. 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\u2019s preexisting provision unreasonably and contrary to Seventh Circuit law.\u201d<\/p>\n\n\n\n

Disclaimer:<\/strong> This case was not 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.<\/p>\n\n\n\n

Here is a copy of the decision in PDF: Kaiser v. United of Omaha<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The fact that Dee was eventually diagnosed with cancer and that her shoulder pain \u201cin retrospect\u201d 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.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[1],"tags":[269],"_links":{"self":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts\/7510"}],"collection":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/comments?post=7510"}],"version-history":[{"count":0,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts\/7510\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/media?parent=7510"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/categories?post=7510"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/tags?post=7510"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}