{"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 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 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\n
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