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Our long term disability client is 36 years old. He last worked as a journeyman plumber and pipefitter. His work was very physically demanding, requiring him to do a lot of heavy lifting as well as extensive crawling, bending, and stooping. When he had an episode of back pain that did not resolve on its own, the plumber stopped working because his degenerative disc disease, lumbar back pain, back, and leg compression, and left thigh neuritis prevented him from performing the heavy lifting and other heavy physical tasks of his occupation (lifting, carrying, bending, kneeling, stooping, etc.). 

At first, the plumber’s treating orthopedist hoped that his patient would be able to return to work by shortly, thinking that the back pain was nothing more than a lumbar strain. However, as the plumber's condition failed to improve and he continued to experience back pain that prevented him from performing his occupation, the doctor ordered an MRI, which showed the beginning of degenerative disk disease as well as arthropathy. Based on those findings, the orthopedist continued to restrict our client from heavy work, limiting him to light duty only and directing him to avoid bending, stooping, and lifting. Understandably, his employer confirmed by way of an email to Mutual of Omaha that his heavy duty occupation cannot be performed with those light duty restrictions and limitations. 

As he was unable to work in his own occupation as a plumber and pipefitter, our client filed for and received short-term disability benefits, which were paid and extended through the maximum date of January 10, 2021, meeting the long-term disability elimination period. LTD benefits should have started January 11, 2021. 

Mutual of Omaha initially denied the long term disability application based solely on the opinion of its peer reviewer, Dr. Hulett. We found that in addition to being internally inconsistent, Dr. Hulett’s conclusion was inconsistent with the medical evidence, the opinion of the treating physician, and Mutual of Omaha's prior findings (where it found he was disabled for STD benefits until January 10, 2021). 

We filed a long term disability appeal on November 17, 2021. Initially, the appeal review followed the pattern we are accustomed to - MOO requested records, we provided them, MOO informed us that the claim was under review.

Eventually, MOO approved the claim, but only through June 4, 2021.

Fair enough, but the letter went on to say, at this time, [client] has exhausted all administrative rights to appeal regarding the Long Term Disability claim denial, of which he was notified of in Mutual of Omaha (United of Omaha Life Insurance Company's) letter dated April 6, 2021. This claim determination reflects an evaluation of the claim facts and policy provisions. We have conducted a full and fair review of the appeal.

 And here we are. A lawsuit filed for violation of ERISA's regulations and for abuse of discretion.

 We think this is about as clear-cut as ERISA disability cases come. The initial reason that MOO gave for denying the LTD claim was that the plumber was not disabled. That’s the determination we appealed.

During the appeal review, MOO’s peer reviewer, Dr. Rose, first agreed that the plumber was disabled, but then opined that he could have returned to work in his heavy-duty job as of June 5, 2021, with no restrictions or limitations whatsoever. MOO did not give us the opportunity to respond to that opinion. Instead of reopening Mr. Fahrig’s claim and asking for updated medical records, or a response to Dr. Rose’s review, MOO issued a final determination and closed Mr. Fahrig’s claim as of June 5, 2021 – effectively finding that while Mr. Fahrig had been disabled since October 2020, he had improved to the point where he could return to his own heavy-duty job with no restrictions at all as of June 5, 2021. 

Under ERISA, a review of denial is limited to the reasons stated in the initial denial letter. Here, the reason MOO gave in its initial April 6, 2021 letter for denying the plumber's LTD claim was that “as of October 26, 2020, there were no significant clinical findings to indicate ongoing impairment.” During the appeal review, MOO determined that was wrong – the medical records did indicate that our client had ongoing impairment and was unable to return to work as of October 26, 2021. MOO did not reveal that it considered the disability supported only through June 4, 2021 until the final denial letter, without asking for additional records or allowing us to respond to the medical review used to decide his claim!

At a minimum, we believe the client will be entitled to a remand with a new opportunity to appeal MOO’s determination that while the medical information he provided does support his disability into the LTD period, his claim after June 4, 2021 is unsupported. See Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 240 (4th Cir. 2008). However, we think it far more likely that the judge will be able to determine that given the physical requirements of the heavy duty job, there is nothing in the record to suggest his condition has improved to the point where he could return to work with no restrictions or limitations at all. No remand will be necessary. MOO will be ordered to pay benefits to date (which, by the time of briefing, will likely be the entirety of his benefits for the 24-month own occupation period in the policy), plus, most likely, attorney fees for the claimant. He would then be entitled to an “any occupation” review to see whether his degenerative disc disease and arthropathy and other conditions continued to get progressively worse and, as of the end of the “own occupation” period in January 2023, would impair his ability to work at any gainful occupation (especially important in light of his relatively high salary and high school education, which limit the other jobs that would be gainful employment for him).
 

Ben Glass
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Ben Glass is a nationally recognized car accident and ERISA disability attorney in Fairfax, VA.
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