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PAUL J. DOMBECK, ESQ.

Arizona State Bar No. 022418

THE LAW OFFICE OF PAUL J. DOMBECK, PLLC

18444 N. 25 Ave., Ste 420 th

Phoenix, AZ 85023

telephone (602) 648-2035

facsimile 1-866-648-2128

paul.dombeck@azbar.org

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Anthony Fontana 

Plaintiff

v.

United of Omaha Life Insurance

Company,

Defendant.

_________________________________

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No.

COMPLAINT

Comes now the Plaintiff, Anthony Fontana, and by his attorney, PAUL

J. DOMBECK, and complaining against the defendant, states:

JURISDICTION AND VENUE

I.

Jurisdiction of the court is based upon the Employee Retirement Income

Security Act of 1974 (ERISA); and in particular, 29 U.S.C.§§1132(e)(1) and 1132(f).

Those provisions give the district courts jurisdiction to hear civil actions brought to

recover benefits due under the terms of employee welfare benefit plans which, in this

case, consists of group short term and long term disability benefit plans to employees

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of Scottsdale Healthcare Corp. (“SHC”) set forth as Scottsdale Healthcare Corp,

Group Short Term and Long Term Disability Plan (“Plans” or “Plan(s)” or “Plan”)

administered and/or adjudicated by Plan(s) Fiduciary, United of Omaha Life

Insurance Company, and/or Mutual of Omaha (“United of Omaha”), provided by SHC

to plaintiff Anthony Fontana, one of its employees. In addition, this action may be

brought before this Court pursuant to 28 U.S.C. §1331, which gives the District Court

jurisdiction over actions that arise under the laws of the United States. 

II.

The ERISA statute provides, at 29 U.S.C.§1133, a mechanism for

administrative or internal appeal of benefit denials. Those avenues of appeal have

been exhausted.

III.

Venue is proper in the Phoenix District of Arizona. 29

U.S.C.§§1132(e)(2), 28 U.S.C. §1391, ERISA § 502(e), because the “breach” of the

subject disability benefit Plans occurred in Maricopa County, Arizona, and because

defendant may be found in Maricopa County Arizona.

NATURE OF ACTION

IV.

This is a claim seeking an award to Plaintiff of disability income benefits

pursuant to the aforereferenced subject Plans, said Plans designated in Plan

Documents as Group Policy Number (GP) GUD-09P58 by United of Omaha,

providing group Short Term Disability (“STD”) and Long Term Disability (“LTD”)

benefits to employees of SHC; said Plans are provided by United of Omaha and

administered by United of Omaha under group control numbers and/or policy

numbers not limited to Plan Number GUD-09P58 and Claim Number 111810000301.

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This action, seeking recovery of benefits, is brought pursuant to §502(a)(1)(B) of

ERISA 29 U.S.C. §1132(a)(1)(B).

THE PARTIES AND THE DISABILITY PLANS

V.

That the Plaintiff is a resident of the County of Maricopa, State of

Arizona, and has been at all times hereinafter stated.

VI.

That the Plans, as described in the Plan(s) documents, are, upon

information and belief, welfare benefit plans providing respectively Group Short Term

Disability and Group Long Term Disability for employees of SHC.

VII.

That Employer SHC is a Plan(s) fiduciary per 402(a) of ERISA, and upon

information and belief, is an Arizona corporation licensed to and doing business in

Arizona, and further that Defendant United of Omaha, is a Nebraska corporation

licensed to and doing business in Arizona.

VIII.

That SHC, is the LTD Plan(s) administrator, and maintains health care

coverages that are funded through Plan Number GUD-09P58 and/or Claim Number

111810000301, issued by United of Omaha, and that claims upon said coverages are

in actuality functionally administered and/or adjudicated by United of Omaha, and that

SHC was at all times relevant the employer of Plaintiff Anthony Fontana.

IX.

That as claims adjudicator, defendant United of Omaha reviews disability

claims for the purpose of approving, adjusting, denying or issuing benefits, based

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upon information that United of Omaha and SHC generate.

X.

That the Plaintiff, as an employee of SHC was eligible for certain

employee benefits, including disability plans and policies, as per the terms and

conditions of the written Plans, as outlined on Summary Plan Description brochures

and/or Group Benefit Plan documents offered to, disseminated amongst and granted

to employees of SHC, including but not limited to the benefits described as a Group

Policy contract between United of Omaha as the Company and SHC, as a subscriber

to the Plan number GUD-09P58 and Claim Number 111810000301. That Anthony

Fontana elected and/or was provided benefit coverage paying 66 2/3% of monthly

gross salary, and paid all premiums therefor as required. 

XI.

At all times relevant hereto, the subject Plans constituted “employee

welfare benefit plan(s)” as defined by 29 U.S.C. §1002(1); and incident to his

employment, Anthony Fontana received coverage under the Plans as a “participant”

as defined by 29 U.S.C. §1002(7). This claim relates to benefits under the foregoing

Plans. 

XII.

On or about October of 2007, Mr. Fontana began working for SHC, in

Scottsdale, Arizona as a Sonographer Technician. His position required the claimant

to work at the highest level of mental acuity to process images, and physical ability

as required to assist patients in getting in and out of the sonography bed and prepare

patients to obtain appropriate imaging as required and move heavy medical

equipment.

///

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STATEMENT OF FACTS

XIII.

At all appropriate times, Anthony Fontana was a full-time employee of

SHC, and he was actively employed at SHC until on our about May 31, 2011 when

he ceased working due to severe back pain. From May 31, 2011 until the present

Anthony Fontana has not engaged in any substantial gainful activity.

XIV.

On or around May 31, 2011, and while still maintaining status as a SHC

employee, Plaintiff Anthony Fontana made a timely application under the subject

Short Term Disability (STD) Plan, under claim number(s) not limited to

111810000301, stating that on or about May 31, 2011 he met the Plan(s) definitions

of disability on account of medical conditions which rendered him unable to perform

at least one of the material duties of his regular job on a part-time or full-time basis.

XV.

Said medical conditions were specifically, severe chronic back pain due

to spinal impairments requiring spinal surgical procedures and specifically resulting

in failed spinal surgical procedures and the conditions, limitations and sequella

therefrom, and for which the plaintiff supported his claim for LTD benefits with

medical records and reports and other evidence certifying his disability.

XVI.

Based upon this application and supporting evidence United of Omaha

initially awarded the plaintiff STD benefits from May 31, 2011, and paid said benefits

through, the maximum 90-day STD benefit payment duration limitation,

contemporaneous with which the plaintiff also completed a timely application for LTD

benefits and received LTD benefits from the defendant until August 21, 2014, a time

period during which the United of Omaha subject STD and LTD Plans stated in

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pertinent part the following “Own-Occupation” definition of disability: “...because of

an injury or sickness, a significant change in your mental or physical functional

capacity has occurred in which you are prevented from performing at least one of the

material duties of your regular job on a part-time or full-time basis”.

XVII.

The Subject LTD Plan disability-definition broadens after the first 24

months, stating in pertinent part: “Disability and Disabled mean you are unable to

perform all of the material duties of any gainful occupation.” 

XVIII.

During the time-period of the LTD “own-occupation” standard, on or

around September 3, 2013, the plaintiff was awarded Social Security Disability (SSDI)

benefits retroactive to May 31, 2011.

XIX.

The SSDI disability definition (“inability to engage in any substantial

gainful activity by reason of any medically determinable physical . . . impairment” that

is of “such severity that [the claimant] . . . cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists

in the national economy, regardless of whether such work exists in the immediate

area in which he lives.” See 42 U.S.C. § 423(d)(1)(A), (2)(A)”) is at least as strict as

the broadest United of Omaha “Any Occupation” disability definition under the subject

LTD Plan because the Social Security standard offers no definitional leniency for a

claimant’s past earnings or location, See Montour v. Hartford 588 F3d. at 636; cf.

DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d, 440, 446 (6th Cir. 2009)

XX.

During the latter part of the subject LTD Plan’s “own occupation”

disability period, specifically on or around June of 2014, United of Omaha hired a

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defense medical examination consultant (Jon D. Zoltan M.D.) to examine the Plaintiff

and write a consultative opinion; and consultant Zoltan’s opinion was that the plaintiff

could sustain competitive work at the “light” exertional level.

XXI.

Also during this “own occupation” disability period, Defendant United of

Omaha also conducted “sub-rosa” surveillance of the plaintiff’s activities and

movements, specifically recording observations of the plaintiff on or about the dates

of September 10 thru 12 of 2013 and March 15 , 17 and 18 of 2014 and June th th th th th

18 and19 of 2014; and United of Omaha during all of this time continued to pay the th th

benefits to the plaintiff until August 21, 2014.

XXII.

Prior to consultant-Zoltan’s report, but also during this “own occupation”

disability period, on or around September 11, 2013, Defendant United of Omaha also

had hired a physical therapy practitioner to conduct a functional capacity examination

(FCE) of the plaintiff, and upon information and belief United of Omaha did not

provide this vendor with motion footage from the surveillance; this consultant’s

conclusion, in contrast to that of consultant Zoltan, was that the plaintiff could only

sustain a “sedentary” exertional level work. 

XXIII.

Shortly after United of Omaha’s FCE vendor completed the report for

United of Omaha concluding that the plaintiff could only sustain a “sedentary”

exertional level, upon information and belief United of Omaha then sent this FCE

vendor a copy of the actual motion footage of the surveillance; after viewing the

motion footage, the FCE vendor sent United of Omaha a supplemental report

concluding that the motion footage did not change the earlier conclusion that the

plaintiff could only sustain a sedentary level of work. 

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XXIV.

By August 28, 2014, United of Omaha informed the plaintiff that pursuant

to an alleged further review of Plaintiff’s medical evidence, that the plaintiff’s

impairments and functional limitations supposedly no longer met the requisite

definition of disability, which after the August 21, 2014 had broadened to the ”any

occupation” standard.

XV.

On or around September 5, 2014 the plaintiff, as yet unrepresented by

counsel, asked United of Omaha, both over the phone and in writing, for a copy of the

claim file and/or administrative record, and in response United of Omaha forwarded

to the plaintiff some portions of the administrative record that did not include motion

footage of the surveillance that United of Omaha and its consultants had cited in their

reports, and had also cited in its August 28, 2014 denial of benefits, rather regarding

the surveillance United of Omaha only provided the Plaintiff with a limited number of

select still-photo type images taken from the footage. 

XXVI.

Then on or around December 1, 2014 Plaintiff, through counsel,

requested in writing (for the second time), pursuant to 29 U.S.C. §1132(c)(1), a copy

of those portions of the administrative record that United of Omaha had not already

provided to the plaintiff, and as part of this request specifically also requested that

United of Omaha forward a copy of the ‘full-motion’ surveillance footage, specifically

explaining to United of Omaha that said surveillance was referenced in United of

Omaha’s August 28, 2014 denial letter as well as in consultant Zoltan’s report;

Following this communication however United of Omaha still did not produce the

motion footage nor otherwise respond to Plaintiff’s request regarding the motion

footage. 

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XXVII.

On or about February 24, 2015, Anthony Fontana submitted to

Defendant United of Omaha in accordance with 29 U.S.C. § 1133 an administrative

appeal of the August 28, 2014 denial of his LTD benefits. In support of this appeal,

Plaintiff Fontana submitted additional medical evidence from treating and examining

physicians and vocational and other sources demonstrating substantially that his

condition had not improved, and that his condition precluded him from performing any

alternative occupation and thereby that at all relevant times he met and continued to

meet the Plan(s)’ requisite disability definitions. 

XXVIII.

In this February 24, 2015 appeal, the Plaintiff (for the third time) also

specifically reminded United of Omaha that on or around December 1, 2014 Plaintiff

through counsel had requested United of Omaha forward a copy of the ‘full-motion’

copy of the surveillance footage referenced in United of Omaha’s August 28, 2014

denial, and that to date United of Omaha had not forwarded copies of this footage,

and thus the plaintiff had not been able to obtain comprehensive opinions from Mr.

Fontana’s physicians regarding the alleged exertions depicted in that motion footage;

and Plaintiff also advised United of Omaha that to the extent that United of Omaha

continued to rely for denial upon any of the motion-footage, United of Omaha’s

refusal to disclose that footage undermined the plaintiff’s ability to understand and/or

address issues arising from those images and consequently undermined the plaintiff’s

ability to demonstrate to United of Omaha that he continues to meet the requisite

Plan definition, which in turn failed to afford to Plaintiff the ‘full and fair review’

contemplated by contemporary ERISA jurisprudence, e.g., Harris v. Aetna Life

Insurance Company, 379 F.Supp 2d 1366, 1371-1372. 

XXIX.

In his February 24, 2015 appeal Mr. Fontana also specifically advised

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United of Omaha that it was apparent that United of Omaha had misconstrued at

least the surveillance still-images that United of Omaha had provided, and also that

it was unclear from all of United of Omaha’s evidence, including consultative opinions

and reports, whether United of Omaha’s consultants had seen and relied upon motion

footage from the surveillance and/or whether United of Omaha’s consultants had only

seen still-photo depictions of the surveillance footage.

XXX.

In his February 24, 2015 appeal the plaintiff also specifically advised

United of Omaha that it was apparent that United of Omaha and its consultants had

also failed to properly consider Mr. Fontana’s spinal impairments, including

documentary evidence of worsening pain with activity. 

XXXI.

In his February 24, 2015 appeal Mr. Fontana also specifically referenced

medical, vocational, and functional capacity examinations and reports all of which

concluded and/or otherwise demonstrated that the claimant as a result of his

conditions and functional limitations at all pertinent times could not sustain any type

of competitive employment, and pursuant to which the plaintiff requested that United

of Omaha reverse the August 28, 2014 denial and reinstate Mr. Fontana’s LTD

benefits. 

 XXXII.

In support of his February 24, 2015 appeal request, the plaintiff also

specifically and in writing brought the defendant’s attention to each of the following

arguments and issues:

A) That from the opinions and conclusions expressed in Consultant Zoltan’s

June 19, 2014 report, it is apparent Zoltan viewed only ‘stills’ from the

surveillance footage, and that the surveillance vendor did not observe any

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activity suggesting an ability by this plaintiff to sustain full-time competitive work

at any exertional level, and that the plaintiff was not observed doing anything

inconsistent with his claimed limitations. 

B) The written report of the September 10 -12 , 2013 surveillance allegedly th th

depicted the plaintiff lifting a garbage bag and a box, but that since United of

Omaha did not provide access to the motion-footage the plaintiff and his medical

providers could not assess how heavy or large the bag and the box were. 

C) United of Omaha’s own consultative medical assessment was that the

plaintiff was restricted from repeatedly lifting more than 10 lbs, yet the

surveillance reports did not state that the plaintiff had repeatedly lifted more than

10 lbs.

D) United of Omaha’s 2013 Functional Capacity examiner also concluded that

the 2013 surveillance footage did not depict lifting above the 10-lbs limitation.

E) With the ‘still’ surveillance images provided by United of Omaha it was not

possible to determine if the plaintiff was wincing or otherwise having difficulty

lifting the alleged bag and/or box and/or for how long and over what distance(s)

he lifted/carried them. 

F) The 2013 surveillance report also did not depict consequential pain,

discomfort or decompensation from those exertions, including whether the

plaintiff had to rest or decompensate after the depicted activities. 

G) That the 2013 surveillance report alleges the plaintiff was carrying a “medium

sized dog”, by which United of Omaha and/or its vendors and agents imply a

dog of 25lbs, but that the Plaintiff owns only a 10-12 lbs “toy-breed” Pomeranian

dog, and that this inaccuracy was compounded by consultant Zoltan referencing

the surveillance report and proffering that because of the plaintiff’s supposed

ability to lift the “medium sized dog” described by the surveillance vendor, that

the plaintiff’s functional capacity is inconsistent with a September 11, 2013

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functional capacity exam ordered by United of Omaha which concluded that this

plaintiff cannot do anything more strenuous than sedentary work; and thus if

Zoltan viewed the motion-footage (that United of Omaha still had not turned over

to Plaintiff) he distorted the size of the dog, but alternatively if he viewed only

stills, his conclusions were nevertheless based upon the surveillance vendor’s

distortion. 

H) Consultant Zoltan’s report contains other improper speculation, hearsay,

distortions and wrong information including that:

i) Zoltan concludes the plaintiff can do light work substantially as a result

of Zoltan’s conclusion that the plaintiff can lift 10 lbs occasionally, but

that Zoltan does not meaningfully consider other significant factors in

evidence such as interruptions with work activities flowing from the

plaintiff’s requirement of lying down a significant portion of each day,

and also Plaintiff’s diminished concentration and attention because of

chronic pain, and also the necessity for additional work-breaks. 

ii) Zoltan also references and in pertinent part relies upon a vague

statement from the 2013 Liberty Mutual Functional Capacity Evaluation

that alleges the plaintiff was ‘walking the dog a little more than indicated’,

yet fails to consider that the plaintiff’s doctor told the plaintiff to walk as

a form of home-exercise, particularly considering that neither the United

of Omaha physical therapy FCE vendor nor consultant Zoltan explain

what is meant by “more than indicated”; and that there is no indication

Zoltan observed the plaintiff for the extended time-period necessary to

establish this assertion, and that if there is some surveillance evidence

establishing how long the plaintiff walks his dog, this has not been

disclosed to the plaintiff.

iii) Zoltan reported that the plaintiff entered the examination room with

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more normal gait, then displayed more abnormal gait during the

examination and then (based upon the hearsay statement of an

unidentified Zoltan employee) a more normal gait once again after the

examination, yet declined to consider or acknowledge the effect upon

the plaintiff of the time and exertions that the plaintiff was required to

make as part of the examination. 

iv) Zoltan’s actual physical examination of the plaintiff showed

tenderness at various levels of the plaintiff’s spine and numbness on

certain areas of the feet, yet Zoltan concludes that sensory tests are

‘inconsistent’ without explaining how or why that is the case or how the

plaintiff would be expected to sustain employment in light of those

symptoms. 

v.) That United of Omaha asked Zoltan to focus more upon the 2013

surveillance with the result that there was scant mention of the latest

(2014) surveillance in Zoltan’s report, a report which indicated less

exertional-type activity than the 2013 surveillance, and no exertions

suggestive of a sustained sedentary work capacity. 

vii) that consultant Zoltan’s response to United of Omaha’s question

number 4 (regarding consistency of casual versus examination

observations) appears to indiscriminately cobble together Zoltan’s

foundationally suspect conclusions regarding the 2014 observations with

observations by the 2013 United of Omaha functional capacity examiner

six months prior, with the effect that Zoltan’s conclusion is based on a

distortion of the factual evidence.

I) The 2013 functional capacity examination purchased by United of Omaha

around the time of the September 2013 surveillance indicates that Mr. Fontana

had difficulties with several activities that were interrupted due to pain, and that

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Mr. Fontana was unable to complete testing. These observations were found by

the FCE examiner to be consistent with the plaintiff’s subjective complaints,

including higher blood pressure confirming pain, and also with the examiner’s

observations as to how the plaintiff was performing the FCE test, indicating

specifically that he was compensating for pain and not exaggerating; and that

it was apparent from his report that soon after the functional capacity

examination, the examiner was able to view the actual motion footage of the

2013 surveillance and thereby only noted some minor differences from the

examination compared to the surveillance activity, concluding that the plaintiff

could still only do sedentary work. 

J) Zoltan’s 2014 report on the other hand appears to conclude that the plaintiff

should be able to perform his prior duties which Zoltan classifies as ‘light duty’,

and that because the claim definition had already transitioned from “ownoccupation” to “any occupation”, it is unclear why Zoltan and United of Omaha

were focused upon supposed discrepancies between the 2013 FCE and the

2013 surveillance, both of which implicated the “own occupation” time period,

whereas the 2014 surveillance which depicted significantly less plaintiff-activity

or suggestion of a sedentary capacity is the surveillance that is contemporary

with Zoltan’s 2014 examination. 

K) It is apparent the records given by United of Omaha to Zoltan were older

records from the time-period during which United of Omaha was paying

benefits, and that some of those were records from a doctor who was no longer

seeing the plaintiff.

L) United of Omaha’s vocational consultant was presented primarily with

Zoltan’s report and a general job description that was inconsistent with the

plaintiff’s actual job description, and that primarily based upon these documents

this vocational consultant concluded that the plaintiff could do his prior job,

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which according to the Dictionary of Occupational Titles (DOT) code is

considered ‘light duty’. 

M) This vocational consultant’s conclusion that the plaintiff could do ‘light duty’

is primarily based upon Zoltan’s report, which in turn was substantially based

upon irrelevant or erroneous information such as the misrepresentation of the

size of the plaintiff’s dog and the outdated 2013 surveillance. 

N) This vocational consultant did not interview the plaintiff nor request a job

description from the plaintiff’s employer, information which would likely have

clarified that the plaintiff’s job was classified at no less than the “medium” if not

the “heavy” exertional category. 

O) Upon information and belief United of Omaha’s vocational consultant was not

provided by United of Omaha with documents and/or information that United of

Omaha’s functional capacity vendor who conducted the September 2013

examination had concluded even after reviewing the surveillance motion footage

that the plaintiff was still in the “sedentary” exertional category, and as a result

the vocational vendor erroneously concluded that the plaintiff could do ‘light

duty’. 

P) The plaintiff was awarded Social Security (deemed below sedentary

exertional capacity) around the time of the first surveillance (September 3,

2013), which was at a time that United of Omaha acknowledged at least that the

plaintiff had no more than a sedentary capacity; and that moreover the Social

Security disability award was also contemporaneous with the subject Plan’s

transition from the ‘Own Occupation’’ to the Any Occupation’ disability definition.

Q) With his February 2015 appeal the Plaintiff requested that in light of

consultant Zoltan’s suspect methodology and conclusions, it was evident that

Zoltan and United of Omaha were operating pursuant to a conflict of interest,

and thus that under current prevailing Ninth Circuit jurisprudence the plaintiff is

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entitled to receive from United of Omaha information pertinent to any such

conflict, such as statistics on how often consultant Zoltan was hired by United

of Omaha and how often consultant Zoltan found claimants ‘not disabled’,

because without this information the plaintiff could not assess the extent to

which any such conflict of interest might have compromised the review process

and decisions about his claim, and the denial of this information would thereby

be a denial of the ‘full and fair review’ process mandated by ERISA provisions

and the court decisions interpreting those provisions; United of Omaha failed to

respond to this request. 

XXXIII.

Despite Mr. Fontana’s submission of these arguments, evidence and

requests, and without turning over or otherwise even mentioning the surveillance

motion footage that Plaintiff had now already requested three times, United of

Omaha, on or about May 29, 2015, issued a “final” administrative denial of Mr.

Fontana’s LTD claim, alleging in pertinent part that the “medical evidence does not

support restrictions and/or limitations that would preclude Mr. Fontana from

performing the material duties of his regular occupation from August 22, 2014 and

ongoing”. 

XXXIV.

As indicated in United of Omaha’s May 29, 2015 final denial, United of

Omaha retained to review Plaintiff’s appeal evidence and arguments another peer

(“paper”) review consultant (William M. Strassberg, M.D.) from University Disability

Consortium, who upon information and belief is another vendor specialized in

providing disability reports for insurance companies; however United of Omaha did

not ask or otherwise have United of Omaha’s prior consultants respond to the

plaintiff’s questions and concerns regarding those consultants’ methodologies and

conclusions. 

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XXXV.

United of Omaha’s retention of new consultant Strassberg during its

appeal review followed by the issuance of United of Omaha’s final denial on May 29,

2015 denied full and fair review to the plaintiff because with its final denial United of

Omaha expressly stated its intent to close the administrative record to the input of

further evidence, thereby denying the plaintiff an opportunity to submit evidence

responsive to the conclusions of consultant Strassberg.

XXXVI.

United of Omaha’s May 29, 2015 assertion that by retaining new

consultant Strassberg United of Omaha had provided a full and fair review of the

plaintiff’s appeal is also false because United of Omaha still had not provided the

surveillance motion footage that the plaintiff had repeatedly requested, nor clarified

what knowledge or opinions, if any, its earlier consultants had of the surveillance, nor

permitted the plaintiff’s treating providers a chance to review the motion footage. 

XXXVII.

United of Omaha’s May 29, 2015 final denial also failed to address the

plaintiff’s stated appeal concerns regarding United of Omaha’s vocational report,

specifically that United of Omaha’s vocational consultant failed to interview the

plaintiff and instead based his conclusions primarily upon consultant Zoltan’s

foundationally suspect conclusions; and also that United of Omaha’s vocational

consultant was not provided with nor otherwise obtained a complete description of

the plaintiff’s job, a job which had greater exertional requirements than the vocational

consultant acknowledged.

XXXVIII.

Consultant Strassberg declared in his report that he was critical of the

examination by and the methods of Plaintiff’s occupational capacity provider (Mary

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Louis Hymen, MOT, OTR/L, FAOTA); however United of Omaha’s stated intent of

closing the record to new evidence via its May 29 denial denies full and fair review th

because it denies therapist Hymen an opportunity to respond to consultant

Strassberg’s criticisms. 

XXXIX.

Consultant Strassberg’s report also places into the record allegations

about supposed drug non-compliance by the plaintiff and/or other drug issues, and

thereby claims for the first time with its final denial that the plaintiff’s credibility is

thereby diminished, asserting in his report that he interpreted medical records to

mean that the plaintiff wasn’t taking his prescription medication correctly and was

improperly taking medical-THC and also had a positive (November 2014) test for

methamphetamine use; inferences and conclusions that United of Omaha relied upon

in their final denial. 

XL.

By asserting in its final denial that it intended to close the administrative

record, United of Omaha denied full and fair review to the plaintiff by denying the

plaintiff an opportunity to place the following responsive facts into the evidence: 1)

that consultant Strassberg misconstrued a general prescription drug use warning he

found in a consultative record as evidence that the plaintiff had violated the provider’s

prescription use policy; 2) that the plaintiff was discharged by his earlier pain

management doctor for merely asking about medical-THC; 3) that the plaintiff’s

current pain management doctor did not object to the plaintiff incorporating medicalTHC into his medication regimen, and that after only a few months the plaintiff

discontinued THC use as he found it only minimally helpful; 4) the plaintiff has never

used methamphetamine and his pain management doctor has in fact clarified that the

evidence indicates the single November 2014 lab test is a “false positive”.

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XLI.

Because United of Omaha did not give the plaintiff and his doctors a

chance to respond, United of Omaha’s new denial-rationale (supposed drug

infractions), effectively moved the ‘goal-post’ of what United of Omaha required the

plaintiff to demonstrate in order to meet the requisite Plans’ disability definition(s), and

thereby United of Omaha has denied the plaintiff a full and fair review as

contemplated by ERISA. See e.g., Sterio v. HM Life, 369 Fed. Appx. 801, 805 (9th

Cir. 2010) (Tacking a new reason for the denial onto a final denial letter can be

considered an abuse of discretion and a procedural violation, as it forecloses the

insured from addressing the basis for the denial).

XLII.

On or around June 3, 2014, a representative of United of Omaha

contacted Plaintiff’s counsel over the phone and advised that United of Omaha would

be issuing a final denial of the plaintiff’s claims, following which plaintiff through

counsel issued on June 4, 2015 yet another written (fourth) request for the

surveillance footage. United of Omaha finally sent the surveillance footage along with

a written copy of the final denial dated May 29, 2015, said mailing received by the

plaintiff on or about June 6, 2015. 

XLIII.

Consultant Strassberg either did not view the actual surveillance motion

images or he substantially distorted what he did see; Strassberg’s report declares

that the March 17, 2014 surveillance shows that the plaintiff walked with ease and

with fluid movements and/or drove uninterruptedly for 45 minutes and was able to

enter and leave his car without any difficulty, whereas the actual images clearly depict

the plaintiff moving slowly and with difficulty and do not depict a 45-minute drive.

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XLIV.

United of Omaha’s surveillance vendor declares in his report of the

September 2013 surveillance that the plaintiff variously operated a vehicle, entered

and exited his vehicle, carried a large trash bag and a box (unspecified as to size) to

a dumpster, walked his dog, carried his dog, conversed, and moved his head and

neck freely, and repeatedly bent at the waist; however the actual September 2013

motion footage shows 1) the plaintiff entering and exiting his vehicle with difficulty; 2)

walking stiffly and with slow stride; 3) briefly carrying the small Pomeranian dog stiffly

and with difficulty and with both arms, and; 4) slow and hesitant and stiff movements

throughout the footage; and 5) that the referenced “box” is merely an empty plastic

salad container that could not weigh more than 10 grams. 

XLV.

Consultant Zoltan cites the surveillance vendor’s September 2013 report

for Zoltan’s conclusion that the plaintiff can sustain full time work because the plaintiff

supposedly had no difficulty throwing the referenced “box” and “bag” into the

dumpster; yet the trash bag in the actual motion footage reveals the plaintiff to be

swing-dragging the bag with obvious difficulty to the dumpster even though the bag

does not appear from the footage to weigh more than 5 to 8 lbs and the footage also

depicts the plaintiff making two attempts with difficulty to lift the bag into the

dumpster.

XLVI.

It is further apparent from the actual September 2013 motion footage

that the plaintiff only dragged one bag, not the multiple “bags” suggested by Zoltan’s

June 19, 2014 report.

XLVII.

Zoltan’s June 2014 report declares that the surveillance depicts the

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plaintiff bending over to carry the bag, however the actual September 2013 footage

only depicts the plaintiff stiffly swing-dragging the bag and not discernibly bending.

XLVIII.

The actual motion footage from September 2013 confirms the dog is

merely a toy-breed and yet that the plaintiff still had difficulty carrying it and placing

it in the front seat of the SUV type vehicle, which was at waist level, and did not

require the bending that Zoltan’s report suggests took place. 

XLIX.

Consultant Zoltan cites supposedly fluid neck movements on

surveillance as a basis for his conclusion that the plaintiff could sustain full-time work,

yet the plaintiff’s chief claimed impairment is lower (lumbar) spine injuries; further the

motion footage does not depict sudden or dramatic neck movements that contraindicate the plaintiff’s diagnoses and claimed limitations.

L.

The September 2013 surveillance report only states that the plaintiff was

able to drive to and from his doctor appointment, but the actual motion footage shows

a slow and stiff entering into and operation of the vehicle. 

LI.

The September 2013 surveillance report also describes on another

occasion the plaintiff exiting his apartment with his dog on his right arm and bending

at the waist but the actual footage shows the plaintiff carrying the dog with a slow

stride and no bending at the waist. 

LII.

The surveillance vendor’s written report of episodic footage over three

days in March of 2014 describes only the plaintiff sitting and/or walking while talking

on his cell phone and smoking on his patio and test-driving a vehicle for purchase;

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but the actual motion footage shows the plaintiff walking and moving stiffly on his

patio, and appearing to be in pain with both sitting and standing and walking, and that

he is switching positions to relieve pain, moving slowly and bending only once and

slightly at the waist while looking at the vehicle for sale.

LIII.

The surveillance vendor’s written report of episodic footage over a

couple of days in June of 2014 describes the plaintiff driving a vehicle into a remote

area and/or suggests the plaintiff was driving for a total of 55 minutes whereas the

actual motion footage only shows that the surveillance vendor lost track of the

plaintiff’s vehicle for most of the alleged 55 minutes. 

LIV. 

The June 2014 written surveillance report alleges that the plaintiff’s

girlfriend is observed acting in a “suspicious manner”; whereas the actual footage

only depicts her talking on a cell-phone on the sidewalk in front of the plaintiff’s

apartment for a minute or so.

LV.

The June 2014 written surveillance report references only that the

plaintiff drove to the defense medical (Zoltan’s) examination that United of Omaha

required him to attend but fails to acknowledge that the actual motion footage depicts

the plaintiff walking like a much older person in a slow stride both to and from the

examination building, which also contra-indicates Zoltan’s report that an unnamed

Zoltan employee allegedly saw the plaintiff walking through the exam building’s

parking lot without difficulty after the exam. 

LVI.

Ultimately Defendant has substantially based its denials upon a gross

distortion of surveillance footage by Defendant’s surveillance vendor, distortions

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which were in turn relied upon by medical and vocational vendors hired by United of

Omaha whose reports were in turn relied upon by United of Omaha insurance

adjusters; surveillance footage which United of Omaha throughout the entire claim

and denial and appeal process concealed from the plaintiff despite the plaintiff’s

repeated requests for this footage at every key point of the claim chronology; footage

which in actuality depicts only movements and observable limitations consistent with

and supportive of the plaintiff’s claimed impairments and treatment records to such

a degree that the plaintiff could have himself cited in his appeal the subject

surveillance footage as further evidence supportive of his claimed condition,

restrictions and limitations. 

LVII.

Since May 31, 2011, Anthony Fontana has been “totally disabled” as

such terms are defined in the subject Plans, inclusive of any waiting periods and has

remained under continuous medical care by physicians.

LVIII. 

As a result of the issuance of the final May 29, 2015 denial, all

administrative remedies have been exhausted, and this matter is ripe for judicial

review.

LIX.

That the plaintiff requests the Court declare the rights and legal

obligations of the parties and declare that the Long Term Disability Plan constitutes

a binding and enforceable agreement. That the plaintiff prays for full relief for

accumulated and accumulating monthly benefits and interest through the conclusion

of litigation.

LX.

That this litigation is timely brought having followed within appropriate

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and/or applicable time limitations the defendant’s final denial and resultant exhaustion

of administrative remedies, and is appropriate for a Federal District Court deciding

Short Term and Long Term Disability issues per Section 502(a)(1)(B) of ERISA.

Claim for Benefits Under ERISA

LXI.

Defendant United of Omaha abused its discretion because its decisions

denying the plaintiff’s disability benefits were arbitrary and capricious and have no

rational support in the evidence, and were caused or influenced by United of

Omaha’s consultants’ financial conflicts of interest and also by United of Omaha’s

and/or the Plan(s)’ own inherent financial conflict(s) of interest that arise from

Policyholder SHC’s grant of discretion to Defendant United of Omaha to determine

eligibility for benefits and interpret all terms and provisions of the Policy. These

conflicts of interest have undermined the full and fair review required by ERISA, 29

U.S.C. 1133(2) and 29 C.F.R. §2560.503-1(g)(1) and (h)(2). 

LXII.

Under the de novo standard or review, United of Omaha’s decisions

were erroneous, contrary to the Plan(s) terms, and contrary to the medical and

vocational evidence. 

LXIII.

Upon information and belief, United of Omaha, the Plans, and the

purportedly “independent” consultants Zoltan and Strassberg and United of Omaha’s

other consultants who evaluated the plaintiff’s subject claim also suffer from financial

conflicts of interest and bias all of which has precluded a full and fair review of the

plaintiff’s claim. 

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LXIV.

As a rationale for denying benefits, Defendant United of Omaha has

improperly favored said hired-consultants’ conclusions over the conclusions of

treating physicians; specifically that in reaching their conclusions, defendant United

of Omaha’s physician consultants failed to consider all of the plaintiff’s signs,

symptoms, impairments and limitations. 

LXV.

That the defendant’s consultants’ opinions are so conclusory,

unsubstantiated and against the weight of the evidence as to indicate that said

consultants were improperly influenced by United of Omaha to support a benefits

denial and/or that said consultants had a financial interest in supporting the claim

denial in order to ensure repeat business, which infected the claims process and

constitutes a procedural irregularity under ERISA that denied the plaintiff the full and

fair review to which he is entitled.

LXVI.

That the plaintiff is entitled to discovery regarding the effects of the

procedural irregularities evidencing conflicts of interest that occurred during the

claims handling process and also regarding the effects of United of Omaha’s

consultants and United of Omaha’s and/or the subject Plan’s financial conflicts of

interest upon the claim denials. 

LXVII.

The defendant’s misrepresentation of the contents of surveillance

footage while at the same time denying Plaintiff’s repeated requests to view the

footage; and also the defendant’s reliance in pertinent part for its final claim denial

upon Defendant’s newly presented medical opinions and theories, substantially

refutable by Plaintiff if not denied the chance, are all present procedural irregularities

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of such significance that the District Court may consider evidence outside the

administrative record in order to fully develop the administrative record. Aluisi v. Elliott

Mfg. Co. Inc., 672 F. Supp. 2d, 1068, 1082 (E.D. Calif, 2009); Burke v. Pitney Bowes

Inc. LTD Plan, 544 F.3d 1016, 1028 (9 Cir. 2008); Abatie v. Alta Health & Life Inc. th

Co. 458 F.3d, 955, 972-73 (9 Cir. 2006) th

 LXVIII.

In light of the procedural irregularities and authority referenced in

preceding paragraph LXVII, Plaintiff attaches to this Complaint the following

additional evidence responsive to the issues newly raised by Defendant’s final May

29, 2015 denial and by Defendant’s withholding of the surveillance motion footage:

1) Exhibit A: August 25, 2015 opinion of Plaintiff’s occupational therapist (Mary

Louise Hymen , MOT, OTR/L) regarding the contents of surveillance motion-footage

and also her testing methodology; and 

2) Exhibit B: June 29, 2015 correspondence from Aaron Rodarte PA-C of Arizona

CPR, Plaintiff’s treating pain-management provider, clarifying that the laboratory test

cited by consultant Strassberg as evidence of supposed illicit drug use by Plaintiff

reflects merely a false positive for the alleged illicit substance; and 

3) Exhibit C: September 15, 2015 correspondence from Plaintiff Anthony Fontana

attesting that he has not and does not use illegal drugs.

4) Exhibit D: October 7, 2015 toxicology screening from HealthCore Labs LLC,

reflecting negative for illicit and/or illegal substances. 

LXIX.

That the plaintiff has been injured and has suffered damages in the form

of lost LTD benefits as a result of the defendant’s wrongful actions and decision to

deny the plaintiff disability benefits. 

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LXX.

Pursuant to ERISA, 29 U.S.C. § 1132, the plaintiff is entitled to recover

unpaid disability benefits, prejudgment interest, reasonable attorney’s fees, and costs

from Defendant and/or is entitled to an order enforcing his right to disability benefits

under the subject LTD plan. 

LXXI.

As a direct and proximate result thereof, based upon the evidence

submitted by Plaintiff to Defendant establishing that Plaintiff has met the LTD Plan’s

requisite disability definitions continuously since May 31, 2011, Plaintiff is entitled to

his monthly disability insurance payments retroactive to the subject denial date of

August 28, 2014.

LXXII.

The plaintiff has further been injured and suffered damages by losing

other benefits to which he may have been entitled under his employer’s

ERISA-governed benefits plans. 

LXXIII.

Upon information and belief, that Group Control Number GUD-09P58

also contains a waiver of premium benefit on certain life insurance benefits and

policies to which the plaintiff is entitled if disabled as alleged in the causes of action

heretofore, and that in connection with the denial of the subject LTD benefits, the

plaintiff was notified that he no longer met eligibility requirements for said premium

waiver and therefore has already lost or soon will lose the substantial ERISA benefit

of said life insurance policies.

LXXIV.

That the Defendant, United of Omaha, the Plans and Employer SHC,

stand as fiduciaries to one another and to the plaintiff, and each has the power to

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bind the other, as agent. 

LXXV.

That the actions of Defendant are a breach of contractual and/or

fiduciary duties inuring to the subject Plan pursuant to the requirements of 29 U.S.C.

§502(a)(1)(B). 

LXXVI.

That the defendant’s actions are an unwarranted breach of the subject

Long Term Disability Plan, representations by Plan(s)’ documents, ERISA, and the

contract(s) of insurance, and have caused and continue to cause the plaintiff great

financial hardship. That the plaintiff meets the subject and requisite disability

definition(s) and provisions of his “own” and/or “any” occupation policy provisions of

the subject LTD Plan, with special essential duties and hourly provisions. 

LXXVII.

That the plaintiff’s damages are at least $41,773.62 to date and

accumulating, currently calculated under the subject Plan as $5,182.73 (66.67% of

a $7,773.70 gross monthly salary) offset by the monthly Social Security Disability

benefits of $2,198.90 per month, leaving a net LTD monthly benefit of $2,983.83,

multiplied by the approximate 14 months elapsed thus far since August 28, 2014, the

date after which the defendant United of Omaha denied further benefit payments.

WHEREFORE, the Plaintiff prays judgment as follows:

A. For a judgment for benefits and an Order such benefits continue, per ERISA,

including 29 U.S.C. § 1132(g)(2). 

B. For $2,983.93 per month for LTD benefits from August 28, 2014 and ongoing,

through judgment and post-judgment as appropriate, and all monthly payments and

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accumulated interest due from day of judgment.

C. For declaratory judgment granting Plaintiff all rights and benefits under the written

Policies/Plans, and to award the plaintiff a money judgment for all sums due and

owing with interest from time of breach; and/or an order enforcing the plaintiff’s right

to benefits under the subject Plans;

D. For all other damages as may be just and proper under Arizona State law or

developing ERISA and/or other Federal case and statutory law. 

E. For attorney fees, pursuant to ERISA, see 29 USC § 1132(g)(1).

F. For appropriate relief under 29 USC § 502(a)(1)(B), to redress such violations, or

to enforce any provision of this title or the terms of the Plans.

G. For reimbursement for any funds paid by Plaintiff or due the plaintiff for the

continuation of life insurance policies as an employee benefit dependent upon

STD//LTD-eligibility on behalf of the plaintiff and any dependents, and, in the

eventuality of death during the pendency of this litigation, to full payment on all

policies to the named beneficiaries.

H. For costs and disbursements of this action and interest on all sums owed until

payment.

DATED this 26th day of October 2015

THE LAW OFFICE OF PAUL J. DOMBECK, PLLC

By s/ Paul J. Dombeck

PAUL J. DOMBECK, ESQ.

18444 North 25 Avenue, Ste 420 th

Phoenix, Arizona 85023

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on this 26 day of October, 2015, I electronically th

transmitted the attached documents to the Court Clerk’s Office using the CM/ECF

System for filing and transmittal of a Parties’ Civil Coversheet, Summons and

Complaint, and Exhibits.

 s/ Paul J. Dombeck

 

 Paul J. Dombeck

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