{"id":7581,"date":"2021-01-06T22:42:36","date_gmt":"2021-01-07T03:42:36","guid":{"rendered":"https:\/\/www.nickortizlaw.com\/?p=7581"},"modified":"2024-01-04T17:24:41","modified_gmt":"2024-01-04T22:24:41","slug":"counts-v-united-of-omaha-court-rules-that-united-of-omaha-must-pay","status":"publish","type":"post","link":"https:\/\/www.nickortizlaw.com\/counts-v-united-of-omaha-court-rules-that-united-of-omaha-must-pay\/","title":{"rendered":"Counts v. United of Omaha – Court Rules That United of Omaha Must Pay"},"content":{"rendered":"

Brenda Counts (\u201cCounts\u201d) previously worked as an employee of Denver Wholesale Florist-Flint as a flower sales specialist. Her job title was formally known as \u201cInside Sales Associate\u201d which required \u201cmaking sales calls, pulling product[,] and packing.\u201d Through her job, she held a disability insurance<\/a> policy with United of Omaha Life Insurance Company (\u201cUnited\u201d)<\/a>. Under this plan, \u201cdisability\u201d is defined as the following:<\/p>\n

\u201cDisability<\/i><\/em>\u00a0and Disabled<\/i><\/em>\u00a0mean that because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred, as a result of which:<\/p>\n

    \n
  1. 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<\/li>\n
  2. after the Elimination Period, You are:<\/li>\n
  3. prevented from performing at least one of the Material Duties of Your Regular Job (on a part-time or full-time basis); and<\/li>\n
  4. unable to generate Current Earnings which exceed 99% of Your Basic Weekly Earnings due to that same Injury or Sickness.\u201d<\/li>\n<\/ol>\n

    \u201cSickness\u201d was 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 \u201cMaterial duties\u201d are considered \u201cthe essential tasks, functions, and operations relating to Your Regular Job that cannot be reasonably omitted or modified.\u201d<\/p>\n

    Following a multi-year battle with lower back pain<\/a>, Counts was considered \u201ctotally medically disabled\u201d by her treating physicians. She started out with herniated disc syndrome, and later was diagnosed with \u201clumbar spondylosis,\u201d \u201clumbar degenerative disc disease,\u201d \u201cL4-5 stenosis from ligamentum flavum hypertrophy and facet arthropathy and diffuse disc bulge,\u201d \u201clow back pain,\u201d \u201cneurogenic claudication,\u201d and \u201cbilateral lower extremity radiculopathy.\u201d Counts additionally had several surgeries and eventually was unable to return to work.<\/p>\n

    She then filed for short-term benefits in June of 2017. After a review of Counts\u2019 medical file, United opted to deny her claim for benefits. Its conclusion explained that \u201cIn summary, the medical documentation fails to support the restrictions and limitations. Therefore, no benefits are payable, and your claim has been denied.\u201d 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 \u201ctotally permanently disabled. She is not capable of any competitive employment.\u201d<\/p>\n

    At this point, United gave Counts a provisional denial. United had an orthopedic surgeon named Dr. Margaret Harvey review her medical records and history<\/a>. She overall concluded both that \u201c[t]here are no inconsistencies in the available medical records,\u201d and that there were \u201cinsufficient physical exam findings to support work impairment.\u201d Counts responded by arguing that every one of her treating doctors contested this. Dr. Hak even stated that Counts\u2019 diagnoses \u201care supported by physical examination and MRI imaging.\u201d Harvey then explained that her decision \u201chad not changed.\u201d<\/p>\n

    United subsequently denied Counts\u2019 short-term disability claim in June of 2018. Specifically, \u201cthe 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.\u201d<\/p>\n

    In August of 2018, United also denied Counts\u2019 long-term benefits claim. In this case, United cited that \u201cIn 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.\u201d 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.<\/p>\n

    The court opined that Counts would be entitled to benefits if she could meet the elements that are stated in the definition of \u201cdisability\u201d 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\u2019 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.<\/p>\n

    Secondly, the court ruled that Counts\u2019 injury or sickness caused her to experience \u201ca significant change\u201d in her capacity to function. This was supported by Counts\u2019 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.<\/p>\n

    Thirdly, the court held that Counts\u2019 injury or sickness kept her from performing the material duties of her regular job. Here, the court relied on affidavits from Counts\u2019 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.<\/p>\n

    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 \u201ctotally permanently disabled\u201d according to her doctors, she was \u201cnot capable of any competitive employment.\u201d<\/p>\n

    As a result of the court\u2019s 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\u2019 claim for benefits and denied United\u2019s motion for denial of those benefits.<\/p>\n[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.]\n

    Here is a copy of the decision in PDF:\u00a0Counts v. United of Omaha<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

    Brenda Counts (\u201cCounts\u201d) previously worked as an employee of Denver Wholesale Florist-Flint as a flower sales specialist. Her job title was formally known as \u201cInside Sales Associate\u201d which required \u201cmaking sales calls, pulling product[,] and packing.\u201d Through her job, she held a disability insurance policy with United of Omaha Life Insurance Company (\u201cUnited\u201d). Under this …<\/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\/7581"}],"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=7581"}],"version-history":[{"count":0,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/posts\/7581\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/media?parent=7581"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/categories?post=7581"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nickortizlaw.com\/wp-json\/wp\/v2\/tags?post=7581"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}