Mistake #5 in the list of The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, excerpted from disability attorney Ed Comitz’s article of the same name, as published by SEAK, Inc., (2005) is:

MISTAKE NO. 5:  Believing All Mental Conditions Are Excluded or Subject to Limitations

Most disability insurance contracts differentiate between mental and physical disabilities.  Most recent policies cut off benefits for psychiatric conditions after two or three years.  Insureds often blindly accept their carrier’s decision to deny or limit benefits based on these conditions without considering numerous relevant factors, including whether there are any physical aspects to the mental condition, whether the mental condition has a biological/organic cause, or whether another, covered condition was the legal cause of the disability.  Without exploring these issues in detail, insureds often blindly accept that certain conditions are limited or excluded from coverage when in fact they are not.

Action Step:  Physicians should understand their policy’s mental conditions limitation and work with counsel on submitting their claim in such a manner as to ensure payment of benefits.

The disability insurance attorneys at Comitz | Beethe provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.

[Excerpt from disability insurance attorney Edward O. Comitz's article, The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, SEAK, Inc. (2005)]

MISTAKE NO. 6:  Engaging in Inadequate Communication with Treating Physician

Physicians should not discuss their claim or that they are considering filing for disability insurance benefit with their treatment provider until after they have had several visits.  Physicians are often reluctant to support claims for benefits if they question the motivations behind the claims.  A physician who has treated, without success, the physician making the claim will likely be more willing to cooperate.  It is also important that the physician making the claim communicate his or her symptoms and limitations to the treating physician in an organized and detailed manner so that all relevant information is recorded in the medical records, which the insurer will ultimately request.  When finally speaking to the treating physician about the claim, the physician should ensure that the treating physician understands the definition of “disability” under the insurance policy, so that he or she can accurately opine as to the inability of the physicians making the claim to work.

Action Step:  Physicians should fully discuss their condition with their treating physician to ensure supportive medical records and, after several appointments, work with him or her on submitting the claim for “disability” as defined in the policy.

Next in the list of The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, excerpted from the article of the same name by disability insurance attorney Edward O. Comitz, and published by SEAK, Inc. (2005):

MISTAKE NO. 7:  Quantifying Time

Physicians should be wary of insurance companies asking them to compartmentalize in percentages what activities they were engaged in pre- and postdisability.  To the extent that there is any crossover, companies will often deny benefits or provide benefits for merely a residual disability.  It is important that physicians broadly describe their important duties—rather than their incidental duties—so that the insurer has a clear understanding of the thrust of their occupation.  For example, in response to a question about principal duties and the percentage of time spent on each duty, an anesthesiologist may be better off stating “100% surgical anesthesia” rather than compartmentalizing each and every incidental task (e.g., patient intake, supervising nurses during surgery, postoperative visits) into discrete percentages.  The reason is the insurer may erroneously consider an incidental task a “principal duty,” and therefore downgrade the amount of benefits.  For example, where a physician has duties as a businessman (e.g., supervising staff, overseeing payroll), the insurer may argue that the disabled physician can still manage his or her practice and is therefore only partially disabled.

Action Step:  Physicians should not quantify their time until after they fully understand the definitions of “principal duties,” “disability,” and “occupation” under their policy.

Northwestern Mutual Life Insurance—a major provider of disability income insurance for physicians and dentists—has just launched a new website, the “Disability Income Insurance Knowledge Center,” which it claims will help policyholders understand the terms of their “own occupation” disability insurance coverage.

“Own occupation” policies are often marketed by disability insurers as allowing physicians and dentists to receive their full disability insurance benefit, while at the same time working in another occupation, as long as they can no longer practice medicine or dentistry. Some insurance policies further specify that the insured’s specialty will be considered his “occupation” for purposes of “own occupation” coverage. Under these policies, as they are frequently marketed, an insured could receive his full benefit, even if he is still working as a physician or dentist, as long as he is disabled from his former specialty.

As an example, a neurosurgeon who develops a hand tremor may still be a capable doctor, but he can no longer perform surgery. Since he can no longer perform the principal medical duty of neurosurgery (i.e., surgery), it would be logical to conclude that he would be disabled from his occupation as a neurosurgeon. However, Northwestern’s new website has an interactive “Fact or Fiction” quiz in which it offers its interpretation as to how these “own occupation” provisions should be interpreted. Northwestern’s conclusions are gross oversimplifications that fail to consider the nuances of a disability claim, and ignore differences in policy language and the manner in which the policies have been interpreted under Arizona law. These oversimplifications appear designed to dissuade individuals with legitimate disability claims from pursuing their remedies. Nevertheless, they offer a glimpse into how disability insurers often view an insured’s occupational duties. Some samples from the “quiz” include the following statements:

Statement: If I could not perform my principal medical duty, the one that’s my “bread and butter,” I’d be considered totally disabled under an “own occ” policy.

Northwestern Mutual: FICTION. “To be totally disabled under traditional ‘own occ’ disability income insurance definitions, you would have to be unable to do ALL of your principal duties.“

Depending on the terms of his “own occupation” policy, an Arizona physician or dentist may be totally disabled if he cannot perform any substantial part of his ordinary duties in his usual and customary manner. In one major case, an invasive cardiologist was no longer able to perform invasive procedures—a substantial part of her original duties—but continued work in non-invasive cardiology and geriatrics. The jury found her totally disabled under her “own occupation” policy and held that her insurer had denied her disability insurance claim in bad faith. It then awarded her $84.5 million.

This statement also reflects an important issue in interpreting these policies – while countless words and phrases are defined, the phrase “principal duties” is generally not defined. Taking advantage of this fact, insurers often attempt to transmute incidental duties, such as staff oversight or pre- and post-operative patient consultation, into principal duties, without any justification for doing so. If insurers were permitted to do this, as Northwestern suggests, it would render “own occupation” coverage illusory since, absent a catastrophic injury, the insurer would always be able to find that the insured could perform some duty of his prior occupation. Fortunately, Arizona courts do not permit insurers to classify all duties as “principal duties.” As one Arizona court noted “[f]ew specialty occupations could survive such piecemeal scrutiny. If separated into an hour-by-hour analysis, only asking the question whether these tasks are also performed in a more general setting, specialists who choose to continue to work in a more general practice after becoming disabled from their specialty could never qualify for total disability benefits, although the policy specifically allows for this.”

Statement: With a traditional “own occ” policy, if I was totally disabled and could not perform all of my duties, I would be able to work in another occupation and make an unlimited amount of money.

Northwestern Mutual: FACT, but what type of disability would prevent you from doing all of your principal duties, and in what other type of occupation could you then work and earn a meaningful amount of income?“

The terms of these “own occupation” policies vary. Some Arizona physicians and dentists covered by these policies can indeed build a successful, lucrative career in another practice area and still collect full benefits for total disability. This is because Arizona law does not interpret the “total disability” requirement included in some “own occupation” policies as an absolute inability to perform any and all principal duties, as this question suggests. Instead, Arizona law states that if a physician or dentist’s “own occupation” policy meets certain qualifications and she can no longer perform any substantial part of her duties, she may be free to retrain in a practice area that accommodates her limitations and still collect total disability insurance benefits.

Statement: If I can do some, but not all, of my principal duties, I can stop working and receive my full benefit with a traditional “own occ” policy.

Northwestern Mutual: FICTION. “One reality of traditional ‘own occ’ is you must continue to work in order to receive a benefit when partially disabled.”

Many Arizona physicians and dentists who can only perform some of their principal duties are not simply “partially disabled,” as Northwestern implies. Depending on the terms of their policy, they may be entitled to full insurance benefits for total disability under their “own occupation” coverage. Physicians or dentists who hold an “own occupation” insurance policy and cannot perform any substantial part of their ordinary duties in their usual and customary manner may qualify for total disability benefits under Arizona law. If the terms of their policy are favorable, they may indeed be able to stop working entirely and still collect the full benefit amount.

If you’re a physician or dentist with an “own occupation” disability insurance policy, don’t be misled. Your insurance policy is a detailed, nuanced contract that may include a variety of terms, each of which is subject to the laws of your state. Rather than taking your insurer’s word about your policy, consult an experienced attorney who is familiar with your state’s insurance laws.

The disability insurance attorneys at Comitz | Beethe provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.

The physician considering a disability insurance claim is faced with a difficult decision: is it really time to look after her own health, or should she just keep working through the pain?  An article by Richard Gunderman, a Professor at Indiana University’s School of Medicine, in American Medical News’ Ethics Forum argues that, while physicians should not be too preoccupied with their own health, they must also consider the safety of their patients: “As physicians, we bear a duty to recognize our own health-related limitations and take appropriate steps to safeguard those that depend on us.”

On the one hand, a physician’s disability or impairment may be so severe that she honestly doubts her ability to safely care for her patients.  She may already be taking fewer shifts, seeking work accommodations, delegating tasks to her colleagues, and struggling to work around her disability.  She may genuinely fear that when the pain is at its worst, her patients’ health is at risk.

On the other hand, the mere pursuit of a disability insurance claim can be grueling.  Insurance carriers often resort to ruthless tactics to undermine a physician’s credibility and tear holes in legitimate evidence of disability just so they can deny the claim and save a dollar.

To complicate the matter, many physicians have loved ones who depend on their income.  The potential for a prolonged disability insurance claim denial—and the resulting financial and emotional distress—can be frightening.

Gunderman suggests a solution: the physician should ask herself if she is still physically able to accomplish the selfless goals that drew her to the profession and commit herself completely to the patients and the community.  “If we can position ourselves on the appropriate trajectory toward this higher end,” writes Gunderman, “the lesser goals, including the health of physicians, will find their proper orientation.”

And if the pain makes that impossible, it may be time to pursue a disability insurance claim.  The decision may be evidence of deeper commitment to patient care:  ”What might seem at first glance an admission of weakness,” says Gunderman, ”turns out to offer powerful testimony to the strength of a physician’s dedication to patients.”

The disability insurance attorneys at Comitz | Beethe provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff and Yuma.  We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.

Next in the series of The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, excerpted from disability attorney Ed Comitz’s article of the same name, published by SEAK, Inc., 2005, is Mistake #8:

MISTAKE NO. 8:  Ignoring the Possibility of Surveillance

Insurers are likely to videotape or photograph physicians who have filed for disability insurance benefits.  Physicians who engage in any activities that they claimed they could not perform and are caught on tape are likely to have their benefits denied and the contract could be terminated.

Action Step:  Physicians should not compromise their policy benefits by submitting a fictitious claim.

Continuing with the countdown of The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability (by Edward O. Comitz, SEAK, Inc., 2005):

MISTAKE NO. 9:  Blindly Accepting that Subjectively Diagnosed Conditions Are Not Covered

Disability insurers often deny benefits by insisting that the insured’s subjective symptoms do not provide objective, verifiabe evidence of disability.  In many cases, there is no provision or contractual requirement mandating that the insured submit objective evidence of disability.  Therefore, from the insured’s perspective, these insurance companies are merely trying to save money by generously interpreting policy language in favor of a claim termination.  Notwithstanding the subjective nature of a particular condition, the insured may be able to secure benefits with ample evidence bearing on the extent and severity of his or her limitations, which is far more important than providing a definitive diagnosis.

Action Step:  The severity and extent of the limitations are more important than an objectively verifiable diagnosis and must be fully communicated to a physician’s insurer.

In this series of posts, we will be counting down the The 10 Biggest Mistakes Physician Make When Filing a Claim for Disability, as written about in disability attorney Ed Comitz’s article of the same name, published by SEAK, Inc., 2005.

MISTAKE NO. 10:  Tossing Out Application, Policy, and Claims Documents

From the time of application forward, physicians should keep copies of everything (including notes from meeting with the insurer’s sale representative or agent, the policy application, and the policy itself).  If the sales representative provided a letter or verbal representation that the physician jotted down, those notes can go a long way if the insurer says that the policy says something different.  Similarly, information that the physician provided on the application may have a bearing on his or her reasonable expectations at the time of purchase.

Action Step:  Physicians should keep all of the disability insurance papers and notes in an organized file.

Ed Comitz and the disability insurance attorneys at Comitz | Beethe protect the disability insurance benefits of physicians and healthcare professionals nationwide. Our Arizona practice focuses on the cities of Phoenix, Scottsdale, Tucson, Flagstaff and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.

A study by the Journal of the American Medical Association suggests that patients must increasingly rely on their doctor’s honest assessment of his own health, rather than the supervision of his colleagues.  Physicians are simply not reporting colleagues whose disability endangers patients.

Traditionally, the medical profession has relied on internal mechanisms to guarantee that patients’ needs are met.  A number of ethical codes require a physician to report a colleague who is suffering any disability or impairment that leaves him unable to safely care for his patients.  As Matthew K. Wynia, MD, Director of the AMA Institute for Ethics, noted in an interview with American Medical News, “[r]eporting incompetent or impaired colleagues is a clear-cut professional obligation.”

Unfortunately, physicians are not following through on that obligation, even when the disability causes an unquestionable risk to patients.

The most common explanation given for failing to report a colleague was the belief that “someone else was taking care of the problem.”  Physicians may conclude that their colleague is already aware of the effect his disability could have on patients, and that he would take time off if he felt his condition merited it.  They may even assume that he is already taking steps to file a disability claim.  They may also be reluctant to intrude on a personal crisis, preferring to leave their colleague to his own social and financial safety nets, such as close friends, family, or disability insurance.

Perhaps more revealing is the fact that 8% of respondents “believed it could easily happen to them.”  The thought of being deprived of one’s own occupation, livelihood, and income by the sudden onset of an impairment or disability is certainly troubling at best.  Physicians may feel that, if they were disabled and could not safely continue working, their colleagues might doubt their personal fitness for the medical profession.  Moreover, they may fear a loss of income or the intense scrutiny imposed by disability insurers and claims representatives.  They cannot bring themselves to put a colleague—and perhaps a friend—in that position.

One solution is increased reliance on the physician’s own evaluation of his disability—he must remain cognizant of his own health, and recognize when it is appropriate to take disability leave.  Combined with an ongoing reporting obligation, the result would be a higher standard of care and safety for patients.

While the medical profession has always been self-regulating, the regulation of self—the honest evaluation of one’s own disability and capacity for fulfilling the obligations of his own occupation—may become an invaluable means for guaranteeing patient safety.  As Dr. Wynia points out, “It’s not just a matter of doctors peeping over each others shoulders.”

The detailed information many people reveal about themselves on popular social networking sites such as Facebook, Twitter, and MySpace has caught the attention of the insurance companies. Insureds with disability claims should be alert to their insurance company potentially using this investigation/surveillance tool and should think twice before posting photos and information about their daily lives that could be misconstrued and used against them. Marilyn Lewis has written an interesting article on Insure.com about the future of insurance companies investigating their insureds online not only in order to determine rates for home, auto and life insurance, but to conduct surveillance on insureds with claims. Marilyn Lewis’s article can be read here:   Look Who’s Lurking Around Your Facebook Page

Ed Comitz and the disability insurance attorneys at Comitz | Beethe protect the disability insurance benefits of physicians and healthcare professionals nationwide. Our Arizona practice focuses on the cities of Phoenix, Scottsdale, Tucson, Flagstaff and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.