Most of our clients are extraordinarily driven, highly successful professionals and executives. Our clients typically have a great deal of themselves invested in their careers, in terms of education, time and energy. Their very identities are very much tied to their careers.
People like this deserve the benefit of the doubt when they say they are too sick to work. Our clients hate being disabled, but they have no choice in the matter. Unfortunately, disability insurance companies are not in the business of giving the benefit of the doubt. They demand proof, and sometimes to an unreasonable degree.
Disability claims become are far more complicated when the insured has a severe medical problem that, so far, no doctor has been able to diagnose definitively. While the law recognizes that you can prove a disability even without a definitive diagnosis, having one is certainly a plus. The law recognizes that symptoms disable people from working, not the diagnosis that causes those symptoms. With that thought in mind, sometimes we can verify and measure the disabling symptoms through medical testing, even before there is certainty about what is causing them. Often, we have recommended testing that, from a treatment perspective, is not strictly necessary. Sometimes we have to recommend testing for the sole objective of satisfying a (sometimes unreasonably) demanding insurance doctor that disabling symptoms are legitimate.
This case presented precisely this challenge, and the evidence did not come quickly, easily, or cheaply. But, through perseverance and our client’s willingness to do whatever it took, this case ended well.
Mr. Warncke represented the CEO of a high-growth green-energy company. His life story demonstrated that he was brilliant, ambitious, and uber-competitive in all things. On top of his massive responsibilities as the CEO, he was socially active, traveled, and exercised vigorously. He was especially competitive as a skier. Even into his late 50’s, he skied with and competed against current and former professionals and Olympians.
Our client’s company took out a disability policy with Mutual of Omaha (aka United of Omaha) promising to pay benefits if the CEO’s health prevented him from performing his duties. Like most ERISA policies, this one promised to pay benefits to age 65 for a physical/medical disability but limited benefits to 24 months for disabilities caused or contributed to by an emotional disorder.
Our client’s life took a serious turn when another skier struck him causing a traumatic brain injury (TBI). He was rendered briefly unconscious, but he didn’t have the kind of medical signs an insurance doctor looks for, like brain bleeding on the post-accident MRI. Insurance doctors often point to the absence of these findings as a reason to deny a claim even though medical research confirms that many TBI victims will have long-term consequences even with “normal” MRI findings.
Everyone who knew our client attested that he was permanently changed after the injury. The differences were striking, and he never fully bounced back. Our client was no longer in any shape to handle his responsibilities as a CEO. He self-filed his disability claim assuming the Mutual of Omaha would protect him financially. After all, that is what he had paid them to do and that is what Mutual of Omaha had promised in writing.
Even though our client’s disability started with a TBI, Mutual of Omaha eventually sought to impose its Mental Disorder limitation, alleging in its decision letter that an underlying emotional disorder caused the CEO’s disability. This conclusion was first reached by an employee “medical consultant.” Disability insurers all use them, claiming they are independent, fair and well-qualified. In this case, we later learned that Mutual of Omaha’s consultant was a long-retired OB-GYN who had never treated a TBI patient in her life. She also happened to be a Vice President at Mutual of Omaha. You can draw your conclusions about whether her opinions were well informed and/or free from bias.
One of the first things we do with a new case at RW is carefully analyze the applicable policy language. Mental Disorder Limitations come in a variety of flavors, some being broader than others. Most of these different formulations have already been interpreted by courts, so we perform legal research to see what the courts have said about specific policy language in the past. In the absence of any controlling case law, we also rely on basic principles of insurance law. In particular, we rely on the basic legal rule requiring ambiguous language in a policy to be construed against the insurer and in favor of broader coverage (called “contra proferentum” if you are one of those people who love Latin legalisms).
RW noted that Mutual of Omaha drafted its mental disorder limitation in a way that should narrow its scope. The restriction applied only to disabilities that were “a result of” a Mental Disorder. According to federal courts interpreting this language, this phrasing does not apply to disabilities merely “contributed to by” a Mental Disorder. This left Mutual of Omaha in position of having to prove that the CEO’s disabling symptoms were solely, or dominantly, caused by an emotional disorder. We believed this would be a difficult burden under the circumstances.
When our client came to us, he was complaining of crippling fatigue, a lack of endurance for any physical or mental activity, and noticeably impaired cognitive functioning. These are all fairly common symptoms of TBI. However, he also suffered several seemingly unrelated physical symptoms, including polyarthralgia (multiple joint pain), cardiologic issues (ectopy, atrial a-fib, tachycardia, premature ventricular contractions), shortness of breath, fatigue, inflammation of the esophagus, lungs and airway, Tourette’s Syndrome which manifested primarily as a cough-like tic, and intestinal inflammation issues resulting in irritable bowel syndrome. These are not typical brain injury or mental disorder symptoms. Whenever a client has multi-systemic failures, an autoimmune diagnosis often winds up being the explanation. These cause whole-body inflammation and damage.
When RW became involved, our CEO was under the care of a pulmonologist, cardiologist, gastroenterologist, rheumatologist, and psychiatrist. The doctors had varying theories as to the underlying diagnosis and whether it was connected to his head injury.
Mr. Warncke interviewed all of the CEOs treating physicians. He provided signed statements or interview transcripts to Mutual of Omaha. The physicians unanimously agreed that the CEO had a debilitating physical disability due to medical conditions rather than a mental disorder. But they still weren’t sure of the underlying cause or diagnosis.
The CEO’s psychiatrist explained that he had been treating Tourette’s Syndrome, which was being managed with medication, and for very mild OCD, a common component of Tourette’s. He had always had the tic, but it had never affected his ability to function or his social life. It was barely noticeable. He confirmed it became much worse after his accident. The coughing tic became very distracting, and it wasn’t very pleasant to both the CEO and others. The longer he spoke to people, the worse his symptoms became. After less than an hour of trying to talk, he would lose his breath, cough, and become so fatigued that he could not continue. To document the severity of the condition and how it affected the CEO’s ability to communicate (a necessary component of his job as CEO), Mr. Warncke arranged to video-record an interview of the CEO.
But the real key to the positive outcome was the engagement of a world-class TBI expert and the arrangement of extensive additional testing. Often further testing is valuable, if not outright necessary, to proving a complex, high-value disability claim. Mr. Warncke arranged to consult with an internationally prominent neurologist who has been at the forefront of brain injury research for decades. He was heavily involved in the NFL concussion studies and had done extensive work with the military on IUD blasts brain injuries suffered by servicemen and women. He had several times testified before Congress on matters relating to brain injury research and treatment. Mr. Warncke has worked with him on a few of his more complex cases. The expense of hiring the very best expert has always been worth it.
Our TBI expert helped identify which forms of testing would likely help remove any further controversy. The testing included higher sensitivity 3 Tesla MRI, Diffusion Tensor Imaging, and a newer technology called NeuroQuant. Some, but not all, TBI’s result in atrophy of the brain. NeuroQuant detects atrophy by taking fine measurements of brain size and, via computer, compares the measurements to normative statistical data. In this case, NeuroQuant revealed an alarming degree of atrophy on the injured side of our client’s brain.
All the test data pointed in the same direction. Our client suffered a brain injury that initially looked mild (brief loss of consciousness, no brain bleed) but set in motion a sequence of cascading problems leading to his current, overall health picture. The TBI expert took a more careful TBI history and discovered a history of multiple concussions, which we now know increases the likelihood of a permanent problem. Moreover, the atrophy findings on NeuroQuant coincided with the areas of the brain known to control our client’s impaired cognition, as confirmed on neuropsychological testing. In other words, the malfunctioning parts of the brain on cognitive (neuropsych) testing were the same as the damaged parts shown on imaging. This correlation of data is essential in proving a medically-based, as opposed to an emotional, disability.
Cognitive testing showed our client operating in the 4th percentile relative to his peers. In other words, out of a normative sample of 100 Caucasian men with his level of education, he tested worse than all but 3. The testing also included several tests of validity and effort that effectively detect people who are malingering or exaggerating their symptoms. The CEO passed all of these measures with flying colors, demonstrating that he gave his total effort. Furthermore, the validity measures were consistent with what everyone who knew the CEO said about him – which is that he hated not working, he hated being limited in the way that he was. He was not the same person they had known before.
The icing on the cake, though, was the TBI expert’s insight that the area of our client’s brain with the most damage was the area controlling “autonomic functioning.” He furnished published medical research confirming that nearly all our client’s physical problems were likely caused by an autonomic disorder – his heart problems, his breathing problems, the inflammation of his airway and the exacerbation of his Tourette’s cough/tic were all explained by autonomic dysfunction.
RW explained in the administrative appeal to Mutual of Omaha that, in light of all this evidence, there was simply no way that any underlying mental disorder could explain his disabling symptoms. We also pointed out that the insurer’s “expert” OB-GYN had misclassified Tourette’s as a mental or emotional disorder when it is universally agreed that it is a neurological disorder, further proving she was not an expert in the relevant medical issues. We argued that our client was entitled to continuing benefits, likely to age 65.
Mutual of Omaha hired a slew of well-known insurance doctors who ignored all this objective evidence and maintained that this was a limited Mental Disorder. Our client was forced to sue Mutual of Omaha for benefits.
One lesson this case teaches is just how demanding ERISA disability insurers can be. We did file suit on our client’s behalf. Once defense counsel got involved, settlement negotiations quickly commenced, ending with a confidential lump sum settlement. Our client was satisfied with the outcome.