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Comitz | Beethe at Arizona Society of Anesthesiologists Scientific Meeting

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anesthesiologists 2014

This Friday and Saturday, May 16-17, Comitz | Beethe will have a booth in the exhibitor hall of the Arizona Society of Anesthesiologists 40th Annual Scientific Meeting at the Scottsdale Resort and Conference Center.  Attendees are invited to stop by our booth for information about our law firm, what doctors can expect when filing a disability insurance claim, and how our firm may be able to assist you.

How Does an Incontestability Clause Protect My Disability Insurance Claim?

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When reading your disability insurance policy you may come across a clause entitled “Incontestable.” An example of an incontestable clause from Berkshire (a subsidiary of Guardian Life Insurance Company) is as follows:

 Berkshire - Incontestable

This clause is required by statute, and it protects you in a couple of ways.

First, it protects you against being denied coverage because of a preexisting condition.  This clause precludes insurance carriers from inquiring into the representations you made on the policy application if the two-year incontestable period has lapsed.  In essence, the clause gives insurers a two-year time limit to review policy applications.  If the insurance company makes no inquiry in those two years, they lose the ability to rescind the policy based on the accuracy of your representations in the policy application’s paperwork.

For example in the case of Robison v. Brotherhood of R. R. Trainmen Ins. Dept.,[1] the plaintiff had been treated for tuberculosis prior to the effective date of the policy.  Three years after obtaining the policy he became disabled from tuberculosis.  When the insurance company tried to deny the insured’s claim, the Arizona Supreme Court ruled that the incontestable clause of the contract precluded the insurance company from inquiring about the insured’s health prior to the effective date of the policy.[2]

Second, this clause protects you against an insurance company’s attempt to deny a claim based on a representation you made that is not material.  For instance, when filling out the application for the insurance policy, you might write down the wrong year that you had some minor knee surgery.  An insurance company cannot use such a miniscule and immaterial mistake to deny you coverage when your claim is for debilitating arthritis in your hands which doesn’t allow you to practice properly in your field of medicine.

Third, this clause protects an insured that is completely truthful when filling out the policy paperwork.  In Paul Revere Life Ins. Co. v. Haas the court upheld a policy which limited “coverage to sicknesses that ‘first manifest’ themselves after the policy has been issued.”[3]  This means that if you have a condition before the insurer issued the policy, but you don’t become aware of it until after the policy has become effective, the condition should be covered.

It is important to remember that and incontestable clause usually includes a caveat: it does not protect an insured that knowingly or fraudulently misrepresents information during the application process. The Haas court stated that the language of the incontestable clause “does not protect insureds who make fraudulent misrepresentations in their applications. Rather, the language is intended to protect those insureds who are unaware of their diseases.”[4]  The insurance company in Haas (Paul Revere, a subsidiary of Unum) was allowed to deny coverage of the insured’s eye condition when the insured knew about and had been treated for the disease well before the start of the policy. The court believed that the legislature did not intend for the mandatory incontestable clause to be “an invitation for fraudulent applications for disability insurance.”[5]  The preexisting eye condition was deemed to be a fraudulent misrepresentation, and the insurance company denied its coverage.  We also discussed this topic in a previous post entitled “Medical History Misstatements On A Disability Insurance Application Can Void The Policy In The Future.”

The outcomes of the cases based on incontestable clauses show how important it is to be truthful throughout the insurance claim process.  The more accurate you are about your health condition, the fewer coverage problems you may have down the road.

[1] Robison v. Brotherhood of R. R. Trainmen Ins. Dept., 73 Ariz. 352, 241 P.2d 791 (1952), opinion modified on reh’g on other grounds, 74 Ariz. 44, 243 P.2d 472 (1952).

[2] Id.

[3] Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 210, 644 A.2d 1098, 1108 (1994).

[4] Id.

[5] Id. at 190, 208, 644 A.2d 1098, 1107.

Should Disability Insurance Companies Be Deciding What Kind of Care You Receive?

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What role should your insurance company play in determining your treatment options?  In our article, “Can Your Disability Insurer Dictate the Terms of Your Care?” by Ed Comitz and Michael Vincent, we discussed how, depending on the terms of your insurance policy, insurers can dictate what care you should receive, and whether you can be forced to undergo surgery in order to continue to receive policy benefits.

When prescribing you a specific treatment or medication, your doctor usually has very specific goals in mind.  First, they want to medically treat you in the best way possible.  They want to provide you with the best means for curing or coping with your situation after considering the totality of your circumstances and your recovery goals.  Second, they want to make you feel better and help you recover from your ailments if possible.

For example, if surgery isn’t an option for your consistently high levels of pain, your doctor may prescribe strong medication to give you the relief you need.  They may effectively manage the pain you struggle, but the side effects may impede you from returning to work.

Unlike doctors, insurance companies have one goal in mind: to get you off of their claims list and not pay monthly claim benefits.  They want you treated in a way that returns you to work in the short run and may not be as concerned about the long term side effects or repercussions of alternative treatment options.

One way they accomplish this is by having their doctor contact your doctor to discuss treatment alternatives.  Such alternative methods include using less effective medications that would allow you to return to work.  A strategy they employ is to point your doctor to studies like those outlined in the recent articles “Disability experts question long-term opioid use,” or “Reed Group Releases New Opioid Treatment Guidance in Disability Guidelines.”

What many people don’t realize is that the Reed Group, the company who released the “updated expert guidelines,” is a subsidiary of Guardian Life Insurance Company, parent company of Berkshire Life.  This company has a substantial incentive to downplay the safety and effectiveness of drugs, like opioids, that are able to manage acute pain, but render patients unable to return to work because of medication side effects.   These companies want to point your doctors to these guidelines to influence their bottom line by getting you back to work quickly.

The problem with this tactic is that these blanket guidelines do not take into account your pain, your needs, or your situation.  Yes, the alternative options may get you back to work, but in the long run you may experience repercussions.  Letting claims consultants, who aren’t medical professionals, or the insurance company’s doctors determine your care and treatment is a conflict of interest for insurance companies and is not always in your best interests.

Ed Comitz Presenting Course “Disability Insurance: Will It Be There When You Need It?” at Western Regional Dental Convention on Friday April 4 and Saturday April 5, 2014

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WRDC 2014 resized

Attorney Ed Comitz, the head of Comitz | Beethe’s healthcare and disability insurance practice, will be giving a presentation called “Disability Insurance:  Will It Be There When You Need It? Choosing Policies, Pursuing Benefits and Litigating Claims” on April 4th (Course Code F08) and April 5th (Course Code S06) at 8:30 a.m. at the Western Regional Dental Convention in Phoenix, Arizona.  The course is worth three CE credits for dentists who attend.  Registration information is available on the Western Regional Dental Convention’s website.

Comitz | Beethe is also an exhibitor at the dental convention.  Please feel free to stop by our Booth 537 (directly across from the Internet Cafe) if you have questions about your disability insurance policy or claim.

How Long Do I Have to Formally File My Claim?

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You have finally come to the realization that working through the pain and limitations of your disability is no longer in your best interests.  Continuing to work is not an option for you, so you have decided to make a long term disability insurance claim.  How long do you have to file your claim?  Does it have to be on the day that you become disabled, or can it happen couple months down the road?  The answer to that question is: it depends.

Insurance companies will try and exploit every option available to deny a claim for disability insurance benefits.  One method they utilize is to put strict requirements on how and when an insured must give notice to the company of their disability and what that notice must contain.

The first place to start looking to determine your insurance company’s requirements is the insurance policy itself.  Look through the policy index or headings for a section similar to “Notice of Claim.”  This section lets you know how much time is available to file a disability claim with the company.

The following are a couple of examples from different companies of what these sections look like.   MassMutual’s notice of claim section:

MM - Notice of claim

Berkshire’s notice of claim section:

Berkshire - Notice of a claim

Unum’s notice of claim section:

 Unum - Notice of a claim

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Unum Bases Its Decision to Deny Benefits on Surveillance of the Wrong Person

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surveillance camera man

A recent disability insurance case from the Southern District of California, Barbour v. Unum Life Insurance Company of America, 803 F. Supp. 2d 1135 (S.D. Cal. 2011), illustrates yet another way in which insurers sometimes improperly use surveillance to deny or terminate policyholders’ claims.  In this instance, Unum (parent company of Paul Revere, Provident, and UnumProvident) actually based its decision to deny a claimant benefits on surveillance footage of the wrong person.

Patricia Barbour was insured under a group disability insurance plan through her job as a school principal.  Ms. Barbour filed a claim under her policy due to “severe right quadrant abdominal pain—inflammation small intestines,” for which she had undergone two hernia surgeries, with serious complications.  She and her physician explained to Unum that her condition restricted her from driving, walking or standing, and sitting for extended periods of time, and that she was totally disabled from performing hers or any other occupation.  Ms. Barbour also reported that she used a cane, and that she needed her mother’s help for her daily activities.

As typically occurs, Ms. Barbour’s claims consultant at Unum retained a private investigator to perform three days of surveillance on Ms. Barbour.

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Provident Loses the Battle Over Discovery of Employee Compensation and Bonus Information Tied to the Denial of Insurance Benefits.

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In previous posts entitled “Why Is It So Hard To Collect On My Disability Insurance Policy?” and “Does Your Unum Claims Handler Have a Personal Financial Incentive to Deny or Terminate Your Disability Claim?”, we reviewed a leading reason behind insurance companies denying disability insurance claims: claims managers often receive incentives, including bonuses, depending on the amount of money they save the company.  For the claims department, saving the company money is frequently achieved by denying the claims of existing customers who are receiving disability insurance benefits.  This conflict of interest is a probable basis for denial or termination of many legitimate disability claims.

A recent discovery decision by the United States District Court, N.D. California in Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013) comes as a major win for those with legitimate disability claims.  There, Doctor Dana Welle injured her left arm in a bike accident.   After multiple surgeries, she was diagnosed with ulnar neuropathy and left medial epicondylitis.  This condition gave her pain and weakness in her left arm that impacted her ability to safely care for her patients.  After Provident Life Insurance (a Unum company) had paid almost three years of disability insurance benefits to Ms. Welle, the company denied her benefits.[1]

In her suit against Provident, which claimed bad faith denial of her benefits, Dr. Welle alleged that Provident’s “incentive structure was based on performance, and performance may be measured, in terms of resolution of claims, including her own.”[2]  Dr. Welle requested Provident to produce “any and all documents that reflect, refer or relate to bonus awards, including but not limited to the performance rating and percent of bonus awarded” to claims managers and claim handlers.[3]

Provident objected to the request because, as they argued, it was overly broad and sought to obtain information that was private, proprietary and confidential.  The Court overruled Provident’s objections and allowed the discovery.  The Court reasoned that the information she sought in her requests “speaks to whether her claim was improperly denied and whether Provident encourages bad faith practices.”[4]

The Court further reasoned that Dr. Welle had shown compelling need for the documents that related to the bonuses of those involved in adjusting her disability insurance claim, and that the information was “highly relevant to her bad faith claim.”[5]  The Court disagreed with Provident’s concern with the request being overly broad because it only requested bonus and performance related information of specific individuals.   The Court also disagreed with Provident’s defense that discovering the information would breach the employees’ privacy rights, or that the information was proprietary and confidential, because Dr. Welle had already stipulated to a confidentiality agreement and protective order that covered the entire proceeding.[6]

Thus, the Court allowed discovery of the employees’ bonus and performance related compensation documents.  Though this is not the end of Dr. Welle’s fight to receive her legitimate disability insurance benefits, it is a major step in helping her get the ammunition she needs to assure her of future benefits under the policy.

[1] Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

Comitz Beethe Named #1 Healthcare Law Firm

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Comitz | Beethe’s has been named Arizona’s #1 Healthcare Law Firm by Ranking Arizona: The Best of Arizona Business.

Ranking Arizona publishes the results of an annual poll of the Arizona business community. Residents are asked to share their opinions of the best products, services and people in the state, including who they would recommend doing business with.  Comitz | Beethe was selected as the state’s top healthcare law firm for its work representing physicians and dentists, including its handling of disability insurance claims for healthcare professionals.

The firm was also named as one of the top 5 Arizona law firms with 20 or fewer attorneys, the top 5 commercial litigation firms, and the top 10 real estate law firms.

To participate in this year’s selection, visit Ranking Arizona 2015.

(Image source: AZ Big Media)

Physicians and Dentists With Parkinson’s Disease: The Condition, Its Occupational Impact and Disability

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Among the most devastating degenerative medical conditions is Parkinson’s disease, which currently affects 6.3 million people worldwide. While certain genetic conditions and environmental triggers may increase susceptibility to the disease, it is impossible to accurately predict who will develop it.

For healthcare professionals (physicians and dentists) diagnosed with Parkinson’s disease, the disease can be career-ending as symptoms become more severe. This post will provide a brief overview of Parkinson’s disease; explain the limitations the condition may create and how this could impact a professional career; and provide a solid base of information for anyone struggling with the prospect or process of filing a disability insurance claim.


Every year, there are approximately 60,000 new diagnoses of Parkinson’s disease, a condition affecting the nervous system, motor control, and brain chemistry. Recent improvements in treatments, including exciting therapies involving “reprogramming” skin cells to behave like stem cells, act as small steps toward a solution, but there is currently no cure for Parkinson’s disease. Sufferers often go undiagnosed for many years, and because of the progressive nature of the illness, it can cause a slow deterioration in ability to function normally in day-to-day life.

Disease Progression

After the initial diagnosis and into early stages of Parkinson’s disease, symptoms may seem manageable and typically include fatigue, tremors, joint pain, and anxiousness.

As the disorder progresses, it is common to experience stiffness, lack of coordination, and slower movement. Everyday tasks such as getting dressed, shaving, writing, and brushing teeth can become strained, and there is a high susceptibility to falls and related injuries due to disturbed sense of balance.

Once Parkinson’s disease reaches advanced stages, affected individuals sometimes lose the ability to walk, speak, and properly care for themselves. Since Parkinson’s disease is a disorder of the nervous system, it can result in chemical changes within the brain, causing individuals to experience symptoms involving disruption of mental clarity, altered judgment, anxiety, or depression. In effort to control challenging symptoms, sufferers often go through the frustrating experience of experimenting with new medications, which can also produce unpleasant side effects.

Medical Professionals Diagnosed with Parkinson’s Disease

It is understandably difficult to grasp the frustrating new limitations that go along with Parkinson’s disease, as symptoms sometimes come and go, progressing gradually over time. Doctors who have been diagnosed with the illness may be tempted to continue practicing as usual, despite their worsening symptoms. Unfortunately, the reality is that the slightest side effect, such as tremor or delayed reaction time could potentially have life-altering consequences for practitioners or their patients. Should a doctor be sued for medical malpractice post-diagnosis, a jury could be convinced that the doctor should not have been practicing due to the nature of the illness, regardless of whether or not it was a factor in the incident. The dichotomy between lifelong work ethic and patient safety is what makes Parkinson’s disease so devastating to physicians and dentists – considering the amount of time, energy, and money invested into a professional career, there is a reasonable hesitancy to take a step back.

When to File a Disability Insurance Claim

Early Parkinson’s disease symptoms mimic other more common ailments, often causing the condition to go undiagnosed for lengthy periods of time; furthering the problem, no one test is able to confirm a diagnosis of Parkinson’s disease. Individuals undergoing the diagnosis process frequently experience a trial-and-error scenario, and symptom improvement with specific medications is often the litmus test for whether or not a person truly has the disease. These factors make it very difficult to determine when a disability insurance claim should be filed – when filed too soon, there may not be substantive proof of disability, but waiting too long could leave a practitioner exposed to liability.

A common mistake for sufferers of Parkinson’s disease is the attempt to modify work schedules and regular work duties with the progression of symptoms. Despite the fact that these measures are taken to avoid the risk of injury to the affected doctors or to their patients, the impact of this decision on future disability claims is substantial. A practitioner will typically perform fewer procedures, take on more management duties, and scale back hours over a period of time until working is no longer an option. The modification of one’s scope of practice and work hours can make it extraordinarily difficult, if not impossible, to collect future disability benefits, as insurance companies define a practitioner’s occupation (and ability to receive benefits) based on the work done at the time he or she becomes totally disabled. In short, this means that as one modifies his or her duties and hours, he or she is modifying both position and capability in the eyes of a disability insurance company to something less than that of a full time clinical practitioner. Keeping this in mind, it is best to explore the possibility of filing a total disability insurance claim as soon as possible after diagnosis, and it is prudent to speak with an attorney who is well-versed in filing disability claims.


Parkinson’s disease has had a personal impact on the lives of staff at Comitz Beethe, and we are no strangers to how difficult it can be to deal with long-term medical issues. Perhaps the most important step in accepting and understanding Parkinson’s disease is taking the time to get the help you need. Seek the support of family, friends, and professionals to help you cope with the changes ahead.

Additionally, understand that knowledge is power. Parkinson’s disease can have a major impact on finances, relationships, work, time, and various other aspects of daily life. Educating yourself about the future and what to expect, including when to file a disability insurance claim, will help you to feel more prepared and able to face challenges as they arise.

Understanding Residual Disability Benefits: Are They Worth The Cost? Part 2 – Prior Monthly Income

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In the first post in this series, we identified the basic formula disability insurers use to calculate residual (partial) disability benefits.  Now, we will examine how each of the components of that formula can change, depending on the insurer, and how those changes can affect the calculation of residual disability benefits, beginning with Prior Monthly Income (alternatively called Prior Earnings or Prior Net Monthly Income, depending on the insurer).

Prior Monthly Income, broadly speaking, is the baseline against which any loss of income is measured.  If you are pursuing a residual disability claim, it is in your best interest to have the highest Prior Monthly Income possible.  However, many doctors who file disability claims have conditions that are both chronic and progressive, like degenerative disc disease, which cause a slow, steady decline in productivity, and thus in earnings, for years before they ever make a claim for disability benefits.  In addition to lowering the Prior Monthly Income, this can cause other problems with a claim, as discussed in our recent article on residual disability claims.

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