By: Edward O. Comitz, Esq

You have practiced medicine for your entire career. Your spouse and children rely on you, and you have numerous financial obligations both at home and at the office. The stress and trauma of a disability can cause you significant problems, including the financial requirement that you contribute toward your practice's overhead even when you are not raising revenue. To protect yourself in case of total or partial disability, you have purchased disability insurance.

Unfortunately, you suffer an injury or become so ill that you cannot continue your practice, and you then file a claim with your insurance agent. Of course, you expect it to be honored. Instead, shortly thereafter, you are contacted by an insurance adjuster, not your agent. Unlike your agent, the insurance adjuster is hostile; the questions he asks imply that you are malingering and have submitted a fraudulent claim. You try to be cooperative, providing the insurance adjuster with the additional information he requests, but again your claim is denied. Adding insult to injury, you learn from the adjuster that the insurance company has secretly videotaped your activities and, based on the tapes, believes that you are not disabled at all. Dumbfounded by the insurance company's response, you ask yourself if there is anything that you can do to make the insurance company pay the benefits it promised. The answer is yes.

Typically, the type of policy that a professional, particularly a doctor, purchases is what is known as an "own occupation policy." Such policies provide compensation following a disability that prevents the insured (the person who purchased the policy) from performing the particular duties of his or her profession. Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature. For example, if a surgeon purchases an "own occupation policy" and severely injures his hand, but could nevertheless perform the duties of an internist, the surgeon is considered disabled under an "own occupation policy" and entitled to benefits.

Disability provisions greatly vary in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases. Accordingly, each policy of insurance must be individually reviewed to determine whether a particular claim is covered. What may appear to be an "own occupation policy" could in fact be an "occupational policy" if "total disability" is defined to include the insured's inability to perform "all" duties or "every" duty pertaining to the insured's occupation. In such a case, the insured may not be entitled to benefits if he or she can perform comparable employment for which the person is suited by education, experience and physical condition.

If you purchase a "general disability" policy, as distinguished from the more limited "own occupation" or "occupational" disability policies, "total disability" requires that the insured be disabled not only from his or her own occupation, but also the substantial and material acts of any occupation. Despite the wording of many of these policies, courts often rule that benefits must be paid in a narrower situation, where the insured is unable to perform a comparable occupation for which he or she is suited by education, experience and physical condition. Thus, the term "total disability" is relative, depending in large measure on the character of the occupation in question, the capabilities of the insured and the circumstances of the particular case.

"Total disability" usually does not mean a state of absolute helplessness. Rather, it means that the insured is unable to perform the "substantial and material" acts necessary to carry out his or her profession in the customary and usual manner. That the insured performs, or is able to perform, some incidental duties connected with his or her usual employment typically does not preclude recovery of amounts due under the policy regardless of its wording.

A mental condition such as severe depression can also result in total or partial disability. A person may be considered mentally disabled even though he or she has moments of complete mental agility and comprehension. As might be expected, the subjective nature of the symptoms of mental conditions often result in a "battle of the experts." Factors considered by courts in determining whether a mental condition constitutes a total or partial disability include: the occupation of the insured, the effect of the insured's resumption of work during or following the period of disability, the receipt and amount of other compensation or income, the wording of the particular policy, and the adjudication of the insured's condition.

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