Most of RW’s clients are highly driven, successful professionals and executives. As a group, these are people who have a great deal of themselves invested in their careers, emotionally, financially, and even in terms of their identities. Our clients do not want to be disabled. People like this deserve the benefit of the doubt when they tell their doctors and others they can no longer work. Unfortunately, that is not the way disability insurance works. Disability insurance companies demand proof, sometimes to an absurd degree.

The situation can become more complicated when a client comes to us with a severe medical problem that, so far, no doctor has been able to diagnose definitively. Proving a disability does not always require a definitive diagnosis, but it is certainly a plus. At a minimum, it is almost always necessary to verify and measure disabling symptoms through medical testing objectively. Often, RW has to recommend testing that is not strictly necessary for medical treatment. Sometimes we have to recommend testing for the sole objective of satisfying a (sometimes unreasonably) demanding insurance doctor that a disability is 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 worked out in the end.

Background Facts

Mr. Warncke represented the CEO of a growing tech company. He was as type-A driven as a person can be. He was high-energy, very ambitious, and uber-competitive in all things. On top of his responsibilities as a CEO, he was socially active, traveled, and exercised vigorously. Even into his late 50’s, he was an extreme, competitive skier, skiing and competing with current and former professionals and Olympians. 

Our client’s company took out a disability policy with Mutual of Omaha (aka United of Omaha) that promised to pay benefits if a medical condition rendered the CEO unable to perform his duties. Mutual of Omaha pledged to pay benefits to age 65 for a physical/medical disability but limited benefits to 24 months for disabilities caused or contributed to by a mental disorder. This “Mental Disorder Limitation” is nearly universally found in almost every modern disability policy. Link to MN Limitations article

Our client’s life took a serious turn when another skier struck him and suffered a head injury. He was rendered briefly unconscious but without obvious brain bleeding or other objective findings on the post-accident brain MRI. It is well-documented in medical research that even in the absence of a loss of consciousness and without abnormal MRI findings, some ten to twenty percent of TBI victims will have some degree of long-term residual consequences. After the accident, his physicians advised our client to engage in cognitive rest for several months after the injury.

Everyone who knew our client attested that he was 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, just as he had paid them to do and just as Mutual of Omaha had promised to do.

Even though our client’s disability started with a TBI, Mutual of Omaha sought to impose its Mental Disorder limitation, alleging in its decision letter that an underlying mental disorder caused the CEO’s disability. As is typical, a Mutual of Omaha “medical consultant” had concluded a mental disorder caused our client’s disability. The insurers all use medical consultants, claiming they are independent and well-qualified. In this case, we later learned that Mutual of Omaha’s TBI “expert” was a long-retired OB-GYN who had never treated a TBI patient in her life and happened to be a Vice President at the insurer. You can draw your conclusions about whether her opinions were well informed and 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 will perform legal research to see what the courts have held in the past. In the absence of any controlling legal authority, we will 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.

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 that interpreted this language, the limitations do not apply to disabilities “contributed to by” a Mental Disorder. This left Mutual of Omaha in the untenable position of proving that the CEO’s disabling symptoms were solely, or dominantly, caused by an emotional disorder. 

When our client came to us, his doctors had not linked his symptoms to his brain injury. Meanwhile, he had crippling fatigue, a lack of endurance for any physical or mental activity, and noticeably impaired cognitive functioning. 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.

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 and as his other medical symptoms worsened. 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. Not to mention the tics themselves were distracting and uncomfortable to listen to. 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, in this case, was the engagement of world-class TBI experts 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 recognized in the NFL concussion studies and had done extensive work with the military on brain injuries suffered by servicemen and women in IUD blasts. He had several times testified before Congress on matters relating to brain injury research and treatment. Mr. Warncke has worked with him several times, and every time the expense of hiring the best 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. NeuroQuant takes fine measurements of brain size and, via computer, compares the measurements to normative statistical data to detect abnormalities. Some, but not all, TBI’s result in atrophy of the brain. 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. These 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, from his heart problems, to his breathing problems, to the inflammation of his airway and exacerbation of his Tourette’s cough/tic.

RW explained in the administrative appeal to Mutual of Omaha that 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 like a mental or emotional disorder when it is universally agreed that it is a neurological disorder, suggesting she was not an expert in the relevant medical issues. 

Shockingly, Mutual of Omaha ignored all this objective evidence and maintained that this was a limited Mental Disorder, thereby forcing our client to sue them for benefits. This just demonstrates how impossibly demanding and unreasonable ERISA disability insurers can be. We did file suit on our client’s behalf. Once defense counsel got involved on behalf of Mutual of Omaha, settlement negotiations quickly commenced and ended with a confidential lump sum settlement.