At Dell & Schaefer, our nationwide team of long term disability insurance attorneys has helped thousands of clients recover disability insurance benefits from major insurer Mutual of Omaha. The claims process can be a maze of lengthy and confusing claim request forms, waivers and releases for medical records, and even independent physical examinations – which means that claimants who go into this process without a disability attorney may be putting themselves at a disadvantage later. What should disability insurance claimants expect when they sue Mutual of Omaha to recover benefits under a long term disability insurance policy?
GREG DELL: Hi, I’m Greg Dell, here with attorney Alex Palamara, and we are going to bring you what we believe will be some helpful information about a lawsuit for a disability denial against Mutual of Omaha. Now, Alex, you’ve handled a lot of claims on behalf of claimants against Mutual of Omaha at all different stages, whether it’s an application, an appeal, or obviously, a lawsuit. And having seen from start to finish so many of these claims, you have tremendous insight in terms of what’s going to be involved, especially at the litigation stage, and how to go about determining what did Mutual of Omaha do wrong.
Now Mutual of Omaha does a lot of group employer provided policies, which means we’re dealing with ERISA. So we’re going to focus our conversation on an ERISA-governed disability lawsuit, and what the expectations should be for someone who’s recently been denied by Mutual of Omaha. So what’s the first thing that you need to do once a claim has been denied and you’re considering to file a lawsuit for them?
The Starting Point for Evaluating the Merits of a Lawsuit: The Mutual of Omaha Denial Letter and Claim File
ALEX PALAMARA: Well, we need to review the denial letter. The denial letter’s going to be giving us their reasons of why they denied your claim. Once you see that denial letter, you’re going to have contact information for the insurance company. The first thing I’m going to do when I see the denial letter and I’m representing a person, a claimant, I’m going to order a copy of their claim file. I need to get a copy of all the records that Mutual of Omaha is relying upon in denying this claim.
The claim file has, I mean, they’re required by law to create this claim file, which is going to be anywhere from, depending on how old your claim is, anywhere from a few hundred pages to up towards 5,000 pages long. It’s going to contain all the documentation you’ve submitted in support of your claim, your application documents, all your medical records, any medical records that the insurance company’s gathered. It’s also going to contain the reviews that they’ve relied upon in denying your claim. Whether they did, quote unquote, independent physician or consultant reviews or they just did a paper review of all your medical records.
Whether they had you go to an independent medical examination or a neuropsychological evaluation. There are all those reports which will be in the file. You need to review those reports to figure out the strengths of their denial and the strengths of your claim as well. Once you have a chance to get a copy of the claim file, then I can start drafting a complaint, figuring out what the dates were when you filed your claim, became disabled. When they denied your claim. The dates of the different denial letters and whatnot. I put together a complaint, and I’ll end up filing this lawsuit in federal court.
GREG DELL: Let’s talk about this claim file, because this is a unique creature to ERISA. And in these claims, we’re disability insurance lawyers, not social security disability lawyers, and it’s very niche, it’s highly specialized area of law in the disability insurance world. And really in terms of any other form of litigation that’s out there, because here, before you even file a lawsuit, you basically get everything.
ALEX PALAMARA: Right.
GREG DELL: You get all the facts, all the paperwork. And why is that in ERISA that you’re getting everything upfront, and that during litigation, there’s basically going to be what’s called discovery, but no discovery?
All Information is Required to Be in the Claim File for a ERISA Disability Lawsuits
ALEX PALAMARA: Correct. ERISA is a weird set of laws that they passed. I mean, they call it the Employee Retirement Income Security Act. One of my clients came up with a different acronym that it should be the Employee Really Is Screwed Act. Because actually, the ERISA laws do not favor the claimants. They’re terrible laws.
You’re people in your shoes, that are making these disability insurance claim or have been denied disability insurance claims, and if you’re watching this video, you’ve probably been denied and you’re living it right now, unfortunately. What these ERISA laws did, first and foremost, they took away your right to a jury trial. So there’s no jury of your peers rendering a decision on your potential lawsuit.
Secondly they took out your right to discovery. So you can’t depose any of the people that the insurance company hired to review your claim. You can’t depose their doctors that they hired to review your claim, or that IME doctor they sent you. To you can’t do any of that stuff. But the one thing you do have, they’re required to create this claim file and they’re required to give it to you. And they have to give it to you.
So they don’t have any, there’s no magic tricks, there’s no rabbit, they can pull out of a hat. Whatever they have, they have to give it to you. So when you file your lawsuit, you really know what they’re going to rely upon. You don’t know the arguments they’re going to make. Everyone can read the same document and interpret it differently. But you can have a general idea. And we’ve done so many lawsuits, filed so many motions for summary judgment, that we can review a document that they’ve created for your claim and we know the arguments they’re going to make for the federal judge.
GREG DELL: So, and every company is different, and you’ve handled so many Mutual of Omaha claims, especially combined with all the lawyers in our firm that do this, and we get to see their internal workings as to how they look at claims versus other companies, the outside doctors they use, the in-house nurses, the in-house physicians that they use, their methods for using video surveillance, the method in which how they may, how much weight they’re going to give to the opinions of the treating doctors versus those of their own doctors, which is often very little in terms of the own, the claimant’s treating doctors.
When it comes time to, when you’re litigating your lawsuit, how aggressive is Mutual of Omaha in standing behind their position and really continuing to support the decision that their claims handler made at Mutual of Omaha?
ALEX PALAMARA: I can tell you this. I’ve sued them, I don’t even know, 100 times? I can’t, I lost count. I can tell you that at no point ever during mediation or prior to mediation or prior to a judge issuing a ruling on one of my Mutual of Omaha cases, has the insurance company ever said, you know what? We messed this one up. We’re going to put your client back on claim.
Mutual of Omaha Takes a Strong Position in Support of Their Disability Denials
So they’re defending their decision to the very end. To the bitter end are they defending their decision. I know sometimes it doesn’t smell right to their attorneys. It probably doesn’t even smell right to the person in charge of this case, of the lawsuit now at Mutual of Omaha. But they litigate to the end. If we don’t come to a negotiated resolution, they’re going to file their motions for summary judgment and do their best job they possibly can to win this case.
So it is our duty to do the best job we possibly can doing the right course of action for our client. Whether that’s negotiating a lump sum settlement of this lawsuit or taking the case to the end, letting the federal judge issue a decision whether our client is disabled or not, and whether the decision by Mutual Omaha was arbitrary and capricious.
GREG DELL: So you would say that Mutual of Omaha is consistently aggressive with their position, much like many of the other.
ALEX PALAMARA: Certainly are
GREG DELL: Carriers.
ALEX PALAMARA: They’re not going to roll over by any means.
GREG DELL: OK. A claimant watching this always wants to know, OK, I know I have to file a lawsuit. I’ve already been at least 180 days with my appeal, plus they took 60, 90 or six months to make a decision. So most of them are nine months to a year away. They haven’t been paid. Now they first hire us to file a lawsuit. Talk about a low to high of timeframe that our claimants should expect before we’re either going to get a settlement or we’re going to get to a verdict from a judge.
ALEX PALAMARA: I mean, I have filed lawsuits and within, I mean, before they had a time to answer, the opposing counsel has called me and we’ve negotiated a resolution of the lawsuit, meaning we negotiated a settlement of the lawsuit. So sometimes you can file a lawsuit and get a settlement out of them within a couple weeks, 14 days, 21 days.
Other times, if you let a judge render a decision on the claim, depending on how busy the judge is, some judges have, if they see it’s an ERISA claim, they’ll set it down on a quick schedule. Or maybe the motions for summary judgment are due nine to 12 months out. By the time the judge has the time to sit down, review the claim file, review the motions from the parties, you might get a decision 18 months out.
I mean, the quickest you could possibly get a resolution in this claim if it’s not a settlement, is anywhere from 18 to 24 months, unfortunately. And this happens to be just because our backlog of our legal system.
GREG DELL: Right. Not our firm.
ALEX PALAMARA: Not our firm. Listen, we want to litigate these cases and prosecute these cases as quickly as we possibly can, because our clients are without money. It’s a sad thing they’re going through with insurance company forcing them to suffer.
GREG DELL: And when a client takes a case all the way and gets a judge’s verdict and gets a favorable verdict, what is that verdict? Does that mean they’re going to be on claim forever? What are you winning?
ALEX PALAMARA: You’re winning essentially the time period where they should have been paying you from until either the time of the verdict or as far as your medical documentation proves that you’re disabled. The judge can’t award benefits into the future, because a few things could happen. You could get better. Sciences are always progressing, medical science, and you could get better. They’d find a new treatment for you or a new drug for you.
Unfortunately, you could also die. So there’s no way the judge can say, I award this person benefits to the age of 65 or 67. So the judge only has the ability to award you a finite amount of benefits. Then you’re going to go back on claim, and unfortunately, the insurance company can always conduct new reviews and deny your claim again. It’s a really weird situation where you could win your lawsuit, but only win it for a certain amount of time. And then the insurance company can either double down and say, let’s do a new review of this claim and deny you again the future.
The other thing that could possibly happen, is that let’s just say they denied you within the first two years. And most disability insurance policies have a change in definition of disability. So for the first two years, you typically have to be disabled from your own occupation. And after two years, in order to be considered disabled under the policy, now you have to prove that you’re disabled from any occupation.
GREG DELL: Right.
ALEX PALAMARA: To take into account your training, education and experience. So let’s just say they initially denied your claim within that first two-year period for the own occupation. You file a lawsuit. The judge says, hey, I find this person disabled from their own occupation. That’s all the judge reviews, because the insurance company never made a decision whether you’re disabled from any occupation. The judge can award you benefits for the remainder of the own occupation standard.
A Lawsuit Win Gets You Back Benefits and the Right to Have Your Claim Re-Evaluated for Future Benefits
Then it goes back to the insurance company to render a new decision on any occupation. So you can win your lawsuit and then get denied a matter of months later. And they basically have to pay you just a few months of benefits, or maybe to the first 24 months of benefits and nothing more. It’s a weird scenario here. That’s why ERISA kind of stinks, like we keep on saying, but it is what it is.
GREG DELL: One of the most scary remedies, which I kind of consider, I don’t want to see you win the battle and lose the war, because it’s not as bad as that, but talk about what a remand is as a possible remedy in an ERISA lawsuit, because it happens more than 50% of the time.
More Than 50% of ERISA Disability Lawsuits Result in A “Remand”
ALEX PALAMARA: It’s scary. Because you could go and you have the best case ever, and a judge can say, the insurance company failed to review this document or failed to review that or failed to consider something. And instead of awarding you benefits, judge saying their decision was wrong and arbitrary and capricious, the judge could say, I’m going to remand this case back to the insurance company.
Essentially giving them another bite at the apple to review the case yet again to render a decision whether they believe that you are disabled or not. And it’s very frustrating, because we can spend all this time litigating the case and file upwards of, I don’t know, 35 pages, 45 pages of motions trying to win the case, the judge sending it back to the insurance company to issue a new decision.
GREG DELL: And hundreds of hours in litigated time. Now with that remand, from what we see, they’re more commonly done if you’re a person who’s never been approved for benefits at all. Whereas if you’re a person who was already approved for benefits, and then you got denied at some point in time, then the judge, the judge is less likely to do a remand, because then the judge will say, well, I’m trying to put you back in the position you were in, which is a person who’s being paid.
But the theory on a remand with someone who hasn’t been paid, is I’m trying to put you back in the position you are at, which is a person who wasn’t getting paid. Doesn’t make any sense at all to me.
ALEX PALAMARA: Not to me.
GREG DELL: And I don’t think it should happen. But there’s been this body case law, which is not good, which somewhat leans towards remand. However, there are many judges who do say, I’m going to award benefits. Now, remand is not a complete disaster, because a judge can say, I’m remanding with instructions that I find the claimant disabled,
ALEX PALAMARA: Right.
GREG DELL: Which is, which is great as well. So there’s so many nuances in these Mutual of Omaha policies, and so many different scenarios of different policy language, different time periods that a person’s been on claim, so many different medical conditions that we’ve seen. Arguing over different limited pay period type things and whether or not it qualifies. But every case has so many different facts and circumstances based upon the quality of review that Mutual of Omaha has done on their claim.
And Mutual of Omaha is one of the smaller carriers out there in the country. So they still have a pretty decent volume, but I don’t know if they put as much detail into their claims as maybe we see some of our other carriers. So that can work to a huge advantage for the claimants that we’ve represented. And I find that we’ve been able to have good success against Mutual of Omaha in the past.
So if you have a claim with Mutual of Omaha, we welcome you to contact us to learn how we could help you with our claim, with your claim. It’s a very easy process. You can call the toll-free number that’s on our screen on this video below. You can go to our website at diattorney.com, click a free consultation form. Your call will be returned immediately from one of the attorneys in our firm.
We’re going to ask you to send us a copy of your denial letter, a copy of your policy, if you have it. We’re going to review it, provide an immediate free phone consultation. And you’re going to get an idea of how we can help you. We’re going to discuss our attorney fees with you right away when we speak with you. All of our clients are all over the country, so where you live is no problem whatsoever for us, because we’ve helped everyone in just about every single state to move forward with these cases against Mutual of Omaha, no matter what stage they’re at.
Hopefully, you’ve found this video helpful to provide you with some information about Mutual of Omaha. And we welcome you to subscribe to our YouTube channel in which we have well over 500 videos that we’ve been producing for many years. And every week we’re coming out with new videos, which we hope will provide you with helpful information in terms of dealing with your long-term disability claim. So thank you again for considering us, and we look forward to the opportunity to speak with you.
As you’ve heard, even “winning” your lawsuit against Mutual of Omaha doesn’t necessarily involve recovering much more than the long term disability benefits to which you were already entitled if you’d been approved when you should have. As a result, it’s important for claimants to have an attorney by their side who can help navigate the process and bolster the strength of your disability claim. If you’re ready to get started on appealing Mutual of Omaha’s denial of your long term disability benefits, contact Dell & Schaefer today to set up a FREE consultation with one of our experienced long term disability insurance attorneys.