I used to practice __________ but now I’m _____________?

 

You spent years in school and invested countless hours to establish and maintain your practice.  You even protected this investment by purchasing a disability policy.  Yet, if you do become disabled and make a claim, your insurer might still make the argument that you are only trying to retire and get paid for it.  Unfortunately, disability insurance claims by doctors and other healthcare professionals are especially targeted for denial or termination.

When you are disabled and are no longer able to practice in your profession, it may seem logical to simply refer to yourself as “retired,” especially if you are not working in another capacity.  While it’s certainly understandable that you may not want to explain to everyone who asks why you’ve hung up your lab coat, you need to keep in mind that innocently referring to yourself as retired will likely prompt your insurer to subject your claim to higher scrutiny.  Insurance companies often attempt to take statements out of context in order to deny or terminate benefits by alleging that a legitimately disabled claimant is:

  • Malingering
  • Making a lifestyle choice.
  • Unmotivated by or unsatisfied with work.
  • Embracing the sick role.

Remember, in the insurance company’s mind, there is a big difference between “disabled” and “retired.” Below are some common situations where you should avoid referring to yourself as retired:

  • When asked for your profession on claim forms.
  • When talking to your doctors or filling out medical paperwork.
  • On your taxes, other financial forms, and applications.
  • Around the office.
  • At social functions or gatherings.
  • On social media.

Insurers can—and often do—employ private investigators to follow claimants on social media; interview staff, family, or acquaintances; and track down “paper trail” documents (such as professional license renewal forms, loan applications, etc.) to see if you have made any statements that could be construed as inconsistent with your disability claim.  Insurers also routinely request medical records and may even contact your doctor(s) directly regarding your disability.  So, for example, saying something off-hand or even jokingly, such as “I’m retired—I can stay out as late as I want now!” to your doctor, or at a social event like a block party, could lead to your insurer trying to deny your claim if they later spoke to your doctor or your neighbor.

While the focus of your claim should be on your condition and how it prevents you from working, insurance companies can latch on to innocent statements like this in an effort to deny legitimate claims. Eschewing the word “retirement” is a good and easy first step to help avoid unwanted and unwarranted scrutiny from insurers.


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Comitz | Beethe Attorney Ed Comitz Posts CE Course on Dentaltown

Ed Comitz’s Continuing Education course “Disability Insurance Roulette: Why is it So Hard to Collect on My Policy” is now available through Dentaltown.  This CE is an electronically delivered, self-instructional program and is designated for 2 hours of CE credit.  In this course, Ed discusses why it is so difficult for dentists to collect disability benefits and how to avoid the most common mistakes made by dentists when filing disability claims.  Ed also covers the key provisions to look for in disability insurance policies and provides an overview of the disability claims process.  Finally, the course discusses how disability insurance claims are investigated and administered, and identifies common strategies used by insurance companies to deny claims.

Information on how to register can be found here

 

For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.


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Are Benefits Taxable?

 

The Answer Is: It Depends

Whether your disability benefit payments are taxable depends on what type of policy or plan you have and how your premiums are paid.  This post is not intended as tax advice—we’ve outlined some basic information below only.  You should always speak with a tax professional regarding your particular situation.

Individual Policies:  These are policies that you purchase yourself.  Generally speaking, if you pay the premiums with after-tax dollars, the benefits you receive are tax free.  However, if you pay with pre-tax dollars or deduct your premiums as a business expense, then your benefits will likely be subject to federal income taxation.

Group Policies: Group policies are those offered through associations such as the ADA or AMA.   These types of policies offer special terms, conditions, and rates to members and function much like individual policies, with similar tax consequences.  Generally speaking, if you pay the premiums (with after-tax dollars) then the benefits you receive are tax free.

Employer-Sponsored Policies: These types of policies can be less straightforward when it comes to taxes, as the payment of premiums can be structured several ways.  According to the IRS website:

  • If your employer pays the premium and does not include the cost of the premiums in your gross income, then benefits you receive will generally be fully taxable.
  • If the employer only offers a policy, but you pay the entire premium without taking a tax deduction, then the benefits you receive will generally be tax-free.
  • If both your employer and you pay the premiums then the tax liability will generally be split.

If you are unsure what type of policy or plan you have, and you think your employer might be paying the premiums, you can look at your application (there is typically a portion that states who is responsible for the premiums) or talk to your HR department.  For more information, talk to your accountant.  You can also go to to the IRS website on disability insurance proceeds to find additional information.

It may be tempting to save money by enrolling only in a plan solely paid for by your employer, paying premiums with pre-tax dollars, or deducting premiums as business expenses.  But keep in mind that, if you do become disabled, the amount of your benefits actually available to you will substantially decrease if you are required to pay income tax on them.

Selecting a policy is an important decision, and how benefits will be taxed is a significant factor to consider. With statistics showing that one in four dentists will be disabled long enough to collect benefits at some point in their careers, choosing to save now could hurt you financially down the road.


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Chronic Pain and Depression

Chronic pain is often difficult to diagnose and treat.  Consequently, those who suffer from chronic pain typically must also deal with a significant amount of stress, due to repeated failed treatments, numerous medical appointments, interruption of work and enjoyable activities, and the inability of their friends or family to understand their physical limitations.  This can, in turn, cause or worsen depression.  When depression occurs alongside chronic pain, it can make dealing with and treating the pain even harder.

Chronic Pain Disorders Associated with the Co-Occurrence of Depression

While mental health conditions, including depression, can often be disabling in and of themselves, they are unfortunately also quite common in those suffering from chronic pain.  Depression is more likely to co-occur with certain conditions, such as:

  • Back Pain
  • Neck Pain
  • Joint Pain
  • Arthritis
  • Migraines
  • Fibromyalgia

Studies show that rates of depression are high in residents and medical students (15%-30%) than rates in the general population, and the risk of depression continues throughout a physician’s career.[1]  According to a British study, 60% of dentists reported being anxious, tense, or depressed.

Dentists, doctors, and other medical professionals place extreme amounts of pressure on themselves because the stakes of their professions are so high.  In addition to perfectionism and self-criticism, other predictors of depression in doctors include:  lack of sleep, stressful interactions with patients and staff, dealing with death, constant responsibility, loneliness, and making mistakes.[2]

Often practitioners work through both chronic pain and psychiatric disorders for some time before acknowledging their disability or seeking adequate treatment.  In the case of depression, this can be due in part to the social stigma that surrounds it.  For all of these reasons, depression may go undiagnosed or seem less of an immediate concern to those suffering from chronic pain.  However, if you are experiencing symptoms of depression and chronic pain, studies show that it is important to treat both, because chronic pain can become much more difficulty to treat if the depression is allowed to progress unchecked.

Chronic Pain and Depression—Worse Together

Facing a long-term or permanent disability can trigger depression—this is especially understandable for doctors or dentists who have put years into medical school and establishing their careers, only to become disabled and have to step away from a profession that has become a significant part of their identity. Depression can also precede chronic pain.  For example, several studies have examined the link between depression before the onset of back-pain.[3]

Regardless of which came first, together they are formidable to treat.  Major depression is thought to be four times greater in people with chronic back pain than those in the general population, and studies show that individuals suffering from both chronic back pain and depression experienced a greater degree of impairment than those with either depression or back pain alone.[4]

Treatments for Depression

Focusing solely on pain management can prevent both the patient’s and treating physician’s ability to recognize that a psychiatric disorder is also present.  Yet, even with correct diagnoses, both issues can be difficult to treat together.[5]  For instance, those who suffer from both chronic pain and mental illnesses can have a lower pain threshold as well as increased sensitivity to medication side-effects.[6]  Some treatments that have proved successful in addressing depression in those with chronic pain include:

  • Cognitive-behavioral therapy (CBT)
  • Psychodynamic therapy (talk therapy)
  • Relaxation or meditation training
  • Acupuncture
  • Hypnosis
  • Exercise
  • Medication

Symptoms of Depression

  • Little interest or pleasure in doing things
  • Feeling down, depressed, or hopeless
  • Trouble falling asleep or sleeping too much
  • Feeling tired or having little energy
  • Poor appetite or overeating
  • Trouble concentrating
  • Feeling bad about yourself, or that you are a failure or have let yourself or others down
  • Thoughts that you would be better off dead, or hurting yourself in some way

Chronic pain sufferers who recognize any of the above-referenced symptoms in themselves should talk to their doctor to address these serious issues.

_________________________________________________________________________

[1] Robert P. Bright, MD, Depression and suicide among physicians, Current Psychiatry, April 10, 2011.

[2] Id.

[3] William W. Deardorff, PHD, ABPP, Depression Can Lead to Chronic Back Pain, Spine-health.com, Oct. 15, 2004, http://www.spine-health.com/conditions/depression/depression-can-lead-chronic-back-pain.

[4] William W. Deardorff, PhD, ABPP, Depression and Chronic Back Pain, Spine-health.com, Oct. 15, 2004, http://www.spine-health.com/conditions/depression/depression-and-chronic-back-pain.

[5] Celeste Robb-Nicholson, M.D., The pain-anxiety-depression connection, Harvard Health Publications, http://www.health.harvard.edu/healthbeat/the-pain-anxiety-depression-connection.

[6] Anxiety and Depression Association of America, Chronic Pain,  https://www.adaa.org/understanding-anxiety/related-illnesses/other-related-conditions/chronic-pain.


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Watch Out for “Work” Provisions

In a previous post, we discussed the importance of how your policy defines the key term “total disability,” and provides several examples of “total disability” definitions.  The definition of “total disability” in your policy can be good, bad, or somewhere in-between when it comes to collecting your benefits.

Policies with “true own occupation” provisions are ideal.  Here’s an example of a “true own occupation” provision:

Under this type of provision, you are “totally disabled” if you can’t work in your occupation (for example, you can no longer perform dentistry).  This means that you can still work in a different field and receive your benefits under this type of policy.

Insurance companies often try to make other policies look like true own occupation policies, and include phrases like “own occupation” or “your occupation,” but then tack on additional qualifiers to create more restrictive policies.

One common example of a restriction you should watch out for is a “no work” provision.  Although these provisions can contain the phrase “your occupation” they only pay total disability benefits if you are not working in any occupation.  Here’s an example from an actual policy:

As you can see, under this type of provision, you cannot work in another field and still receive benefits.  This can be problematic if you do not have sufficient disability coverage to meet all of your monthly expenses, as you’re not able to work to supplement your income.

A “no work” provision is something that is relatively easy to recognize and catch, if you read your policy carefully.  Recently, we have come across a definition of “total disability” that is not so easy to spot, but can dramatically impact you ability to collect benefits.  Here’s an example, taken from a 2015 MassMutual policy:

At first glance, this looks like a standard “own-occupation” provision—in fact, it is entitled “Own Occupation Rider.”  But if you take the time to read it more closely, you’ll notice that the second bullet point requires you to be working in another occupation in order to receive “total disability” benefits.

Obviously, this is not a policy you want.  If you have a severely disabling condition, it may prevent you from working in any occupation, placing you in the unfortunate position of being unable to collect your benefits, even though you are clearly disabled and unable to work in any capacity.  Additionally, many professionals have limited training or work history outside their profession, so it can be difficult for them to find alternative employment or transition into another field—particularly later in life.

These “work” provisions appear to be a relatively new phenomenon, and are becoming increasingly more common in the newer policies being issued by insurance companies.  It is crucial that you watch out for these “work” provisions and make sure to read both the policies definition of “own-occupation” and “total disability.”  While many plans contain the phrase “own-occupation”, including this example, they often aren’t true own-occupation policies and you shouldn’t rely on an insurance agent to disclose this information.  Oftentimes, your agent may not even realize all of the ramifications of the language and definitions in the policy that they are selling to you.

Lastly, you’ll also note that this particular provision was not included in the standard “definitions” section of the policy, but was instead attached to the policy as a “rider,” making it even harder to spot.  It’s important to remember that many definitions and provisions that limit coverage are contained in riders, which typically appear at the end of your policy.  Remember, you should read any policy from start to finish before purchasing.


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Protecting Your Retirement Income – Part 3

Retirement Protection Insurance

In our last two posts we discussed two different disability insurance policy riders that may help mitigate the problems that a disabling condition can create for your retirement planning. A graded lifetime benefits rider and a lump sum benefit rider offer two alternative solutions to the same problem, with one providing a reliable, steady income stream and the other providing a greater degree of financial flexibility. If neither of those options are particularly appealing, some disability insurance companies have created another product that, unlike lifetime benefits or a lump sum, is specifically tailored toward the retirement planning challenges posed by a total and permanent disability.

What Is Retirement Protection Insurance?

Retirement protection insurance was created by some insurers precisely to deal with these concerns. Depending on the insurer, this product may be offered as a standalone policy or as a rider to your existing disability insurance policy. The idea behind retirement protection insurance is to create an investment product that functions similarly to the qualified 401(k) you contribute to in your current occupation, allowing you to take advantage of both the market returns and employer contributions that you currently enjoy.

How does this work? If you become totally disabled and your claim is approved, your insurer will establish a trust for your benefit. Each month, benefits are deposited into the trust and invested in index funds and other investment portfolios similar to the options you have with your employer-sponsored 401(k). This product can cover up to 100% of your retirement contributions and 100% of employer contributions at a maximum of $50,000 per year. Under the terms of the trust, you will be able to access these funds after age 65.

Potential Problems

At first glance, this product appears to solve the problems that a disability can create for retirement savings. Specifically, it appears tailor made as a substitute for your employer-sponsored 401(k), which you can no longer contribute to once you stop working due to a disability. However, there are some issues with this particular product that you will want to clarify with your insurer before purchasing it as a rider or as a standalone policy.

First, some insurers are using a different definition of disability for this product than for your standard individual disability insurance policy. In many cases, the definition of total disability for this specific product is narrower and more stringent (i.e. you must be unable to perform work in any occupation) than the specialty-specific own-occupation definition in most disability insurance policies purchased by doctors and dentists.

For example, assume you have an own occupation policy with this rider and due to your medical condition you are unable to perform your duties as an orthopedic surgeon. For three years you collect monthly benefits through your policy and also enjoy three years’ worth of contributions to the trust account established for your benefit by your insurer. After three years, you go back to work as a primary care physician. Because you are still disabled under the terms of your own occupation policy, you continue receiving monthly benefits. However, the retirement contributions to your trust cease because the definition of total disability is “any occupation.” Under this scenario, even though you are totally disabled for the purposes of your policy, you are no longer receiving the benefit of the rider you paid good money for because it measures your disability by a different standard.

Second, because the investment account is held in trust, somebody has to manage it. As a result, there may be fees associated with both the management of the trust and the investment account. Also, 401(k) accounts receive special tax treatment – as long as the money stays in your account it is allowed to grow tax-free without any capital gains tax levied against your investment returns. It may very well be that any investment account held in trust by your insurer through this insurance product will be fully taxed.

Before you purchase retirement protection insurance either as a rider or as a standalone policy, you will want to clarify the issues addressed above. Make sure you fully understand the terms (including the definition of total disability), the fees, and the tax implications of this product before you purchase it. Though initially it may look like an attractive option, the costs may outweigh the benefits, and other options to protect your retirement income may be a better solution for your particular circumstances and objectives.


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Protecting Your Retirement Income – Part 2

Lump Sum Rider

In our last post we discussed some of the ways a disability can impact your retirement planning and how a graded lifetime benefits rider can help mitigate some of those problems. A lifetime benefits rider certainly has its advantages, but it is not the only solution to the retirement income problems created by a disabling condition. A lump sum rider offers an alternative solution to the same problem.

A lump sum rider offers a different approach to the retirement income issue. Unlike the lifetime benefits rider, which simply pays a set monthly amount for the remainder of your lifetime after you reach your policy expiration age (generally 65 or 67), the lump sum rider provides a one-time payment once you reach policy expiration age. With this rider, in order to be eligible for the lump sum payment, you must receive benefits equal to twelve times the monthly benefit amount during your policy term. Generally speaking, this just means you have to receive benefits for at least one year.

The amount of your lump sum payment is typically a percentage of the aggregate sum of benefits you received during your policy term, in many cases between thirty percent and forty percent of total benefits received. For example, assume you have a policy that pays $10,000 per month in benefits and you become disabled at age 50. By the time you reach age 65, your policy will have paid you a total of $1,800,000 in benefits. With this rider, when your regular monthly benefits terminated, you would receive an additional one-time lump sum payment of $630,000.

This rider has its advantages and disadvantages over a graded lifetime benefits rider. Receiving a lump sum, especially one as large as the example above, can provide you with a degree of immediate financial flexibility that is not available with a set monthly amount like what you would receive with a lifetime benefits rider. For example, you can take your lump sum and turn it over to an investment manager, who will in turn be able to put your money to work for you and create passive income. Or, alternatively, a lump sum can provide you with capital necessary to pay off your mortgage, auto loans, and any existing debt, and use the remainder to supplement any retirement savings you amassed prior to your disability. A lump sum payment also provides a measure of security that lifetime benefits do not: with lifetime benefits the insurance company still controls your monthly payments, and there is no guarantee that your benefits will never be terminated.

The disadvantage to a lump sum rider is self-evident: it is a one-time payment. Unlike the lifetime benefits rider, which provides the security and certainty of a steady monthly income, once the lump sum is gone, it’s gone. The degree to which this is a negative characteristic of the lump sum rider largely depends on the type of person it applies to. For individuals more likely to save, invest, and exercise financial restraint, the lump sum rider may offer a greater degree of financial freedom and flexibility. For those more likely to splurge and spend the money they have, a lump sum rider may not have the structure and stability to ensure a reliable stream of income throughout their retirement years. For those individuals, a lifetime benefits rider may be a better solution.

However, if neither the lifetime benefits rider nor the lump sum benefit rider seem to suit your retirement needs, there is a third option. In our next post, we will discuss retirement protection insurance – a product that is specifically tailored to the problems that a disability can create for retirement planning.

 

 


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Protecting Your Retirement Income – Part 1

Graded Lifetime Benefits Rider

In previous posts we’ve talked about the importance of protecting your investment in your education and your career with an individual disability insurance policy. A vast majority of doctors and dentists purchase individual disability insurance policies to protect their financial security and standard of living in the event they become disabled and can no longer practice. However, one factor that many healthcare professionals may not take into account is the effect that a disability may have on their retirement. Most standard disability insurance policies pay benefits until the policyholder reaches retirement age – often age 65. However, that is where the financial protection of a standard individual disability insurance policy ends.

As long as you have an adequate individual disability insurance policy, your income will be sufficiently replaced during your employable years. However, many people overlook the fact that even with adequate income protection during the term of your policy, a disabling condition can still seriously derail your efforts to financially prepare for your retirement years. If you had the foresight to obtain an individual disability insurance policy early in your career, you’ve likely been planning for your retirement as well by contributing to a qualified 401(k) plan or similar retirement vehicle.

However, you may not have considered the following scenario: at 50 years old you are suddenly no longer able to continue practicing dentistry due to debilitating back and neck pain. You’ve been contributing to your 401(k) for the last 20 years with employer-matched contributions. Your claim is approved by your disability insurer, but because you had to quit your job, not only is your employer no longer matching your contributions, but you can no longer contribute either because IRS rules prohibit contributions to a qualified 401(k) plan if you are not working. Your 401(k) is 15 years short of where it needs to be for retirement, and your disability insurance benefits stop at age 65. How do you continue planning for your “retirement” years?

Fortunately, there are several options available to you. First, many disability insurance companies offer a graded lifetime benefits rider. In exchange for an increased monthly premium, this rider extends your benefits from the standard policy term of age 65 or 67 to lifetime. With this rider, if you become disabled, you will receive your full policy benefits until age 65 or 67 (depending on your policy). After that, you will receive a certain percentage of your full benefits for the remainder of your lifetime, based upon the age at which you became disabled.

With many policies, the baseline age for graded lifetime benefits is 45 years old. Meaning, if you become disabled at or before age 45, your monthly benefits after age 65 will still be 100% of the monthly benefits you received before age 65. If, however, you become disabled after age 45, you will still receive 100% of your monthly benefit until age 65, but your monthly benefit amount after age 65 will be reduced by 5% for each 5-year period after age 45 that the disability began.

Using the example above, if you had a policy that pays $10,000 in monthly benefits and became disabled at age 50, you would receive $10,000 a month from age 50 until age 65, and $9,500.00 a month for the remainder of your lifetime. If you became disabled at age 55, you would receive $10,000 per month until age 65, and then $9,000 per month for the remainder of your lifetime.

This rider is one solution for the difficulties that a disabling condition can pose to your retirement planning. It offers a secure source of income to supplement any retirement savings you’ve already amassed. However, it is not the only solution to the retirement income issue created by a disability. In the next few posts, we will evaluate two additional options: the lump sum rider and retirement protection insurance.


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Disabilities Insurance and Student Loans: How Can I Protect Myself?

Picture this scenario: you’ve just graduated dental school.  You have well over $100,000 in student loan debt.  You recently started working in a dental practice.  But then, unexpectedly, you become disabled and are unable to work.  All of a sudden you have no income and no way to make your student loan payments.  What would you do?

This scenario may seem far fetched, but one in four people will become disabled at some point before retirement.  Medical and dental students routinely graduate with hundreds of thousands of dollars in debt, and student loan debt in the United States has surpassed $1.3 trillion.  If you are carrying a heavy student debt burden, a disabling condition can have a magnifying effect on your financial security.  An inability to pay your student loans puts you at risk for default and a slew of financially-damaging penalties.

You might also be surprised to learn that student loan debt cannot be discharged in bankruptcy.  In fact, the only individuals who are eligible to have their federal student loans discharged are those who meet the federal government’s stringent standard of “total and permanent disability.” Keep in mind that this discharge provision only applies to federal loans.  Private lenders may or may not have similar provisions in their loan agreements.

In the event of a disabling condition – even if you have a disability insurance policy – your monthly benefits may not be enough to cover both their living expenses and your student loan payments.  One potential solution is purchasing a disability insurance policy with a student loan protection rider.  Disability insurers have started to offer student loan protection riders that typically allow individuals to secure monthly benefits in addition to their standard policy benefits for the purpose of covering their student loan payments.  Usually, no loan documentation is required until a claim is filed.  Additionally, students can receive discounted rates, including no cost while in school, on group disability insurance policies through either the American Dental Association or local dental associations.  Whichever policy you choose, your insurance company must still determine that you are totally disabled before you are eligible to collect the benefits associated with this rider.

An alternative solution is to simply purchase additional coverage to ensure that both your monthly living expenses and student loan payments are accounted for in the event of a disability.  One advantage to this approach is that you have greater flexibility to allocate your monthly benefits where you see fit.  Before you purchase a student loan protection rider or additional coverage on your individual disability insurance policy, check with your insurance provider to see how much both options cost in comparison to the additional benefits you receive.  Depending on your carrier, one option may be more financially beneficial than the other.


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fMRI Brain Scanning: The Future of Proving Pain?

Many disability claimants suffering from chronic, intense pain are surprised and disheartened when their reported pain levels are received with skepticism by their insurance company.  Since pain is a subjective feeling, treating doctors typically ask patients to self-report their pain on a scale of 0-10, so that they can diagnose and treat the pain.  Unfortunately, most insurance companies are unwilling to accept self-reported pain levels and will often try to downplay the severity of the claimant’s pain, citing a lack of objective evidence.

Recently, researchers have developed a technology called functional MRI scans, or fMRIs, for short, which may provide a new way to objectively verify the existence of pain.  In this post, we will examine this technology and discuss how it might be used in the context of disability claims.

I.  What is an fMRI?

fMRI scanning is a noninvasive technique used by doctors to map and measure brain activity.  More specifically, fMRIs are used to measure and observe increases in MR signal caused by neural activity in the brain.  The fMRI data is then analyzed to determine which parts of the brain were active during the scan.  The data is then compared to known neurological signatures, or “biomarkers,” to determine if there are any correlations between the neural activity in the brain and the symptoms reported by the patient (such as chronic pain).

II. The Use of fMRI Scans to Prove Pain

Recently, a number of companies and researchers are focusing on using fMRI scans to produce objective evidence of pain.  For instance, Dr. Joy Hirsch, a professor at the Yale School of Medicine, claims to have developed a test that is capable of distinguishing real, chronic pain from imagined pain.

fMRI scans are also now being used to support the cases of claimants in disability cases. For example, a woman in New York recently used an fMRI scan to convince her insurer, after two years of litigation, that her disability claim never should have been denied.  An fMRI scan was also recently used in the case of Carl Koch, a truck driver from Arizona who suffered severe burns when the hose of his tanker broke loose and sprayed him with molten tar.  Mr. Koch visited Dr. Hirsch, who used functional brain mapping to conclude that Mr. Koch’s pain was real.  When the judge ruled that Dr. Hirsch’s testimony would be admissible at trial, the case settled for $800,000 – an amount ten times higher than the company’s original offer.

III. What the Skeptics Say

The use of fMRI scans to prove pain remains controversial. Some critics argue that the techniques being used in litigation have little support in existing publications.  Others, such as Tor Wager, a professor of psychology and neuroscience at UC Boulder, contend that the sample size in available studies is too small.  Proponents of fMRI refute both of these claims, arguing that a number of credible studies support the validity of their methods.

IV. The Future of fMRI Scans in Disability Cases

It’s easy to see how fMRI scans could prove useful in a disability claim.  For example, many dentists suffer from musculoskeletal disorders, particularly in their spines, that cause chronic, debilitating pain.  However, as noted above, these types of claims can be particularly difficult, because many insurance companies refuse to accept a claimant’s self-reported pain levels and limitations.  Co-workers, family, and friends can provide statements describing how the dentist’s pain is affecting his performance at work and his quality of life, but once again, insurance companies will typically similarly claim that such statements are “objectively verifiable” evidence of the pain.  Sometimes a cervical or lumbar MRI can identify potential causes for the pain, and/or a functional capacity exam (FCE) can help document the limitations the pain is causing—but these types of reports are also commonly challenged by insurance companies intent on denying benefits.

In such a case, an fMRI scan illustrating the doctor’s pain might serve as an additional, objectively verifiable method of establishing the existence of chronic pain.  Whether or not insurance companies are willing to accept fMRIs as reliable evidence of pain remains to be seen, and will likely depend, in large part, on how willing courts are to accept fMRIs as admissible evidence of pain.  If, in the future, this technology continues to develop and become more precise, and courts and juries demonstrate a willingness to accept fMRIs as proof of pain, fMRIs may eventually be enough to convince insurance companies to accept legitimate disability claims without ever setting foot in a courtroom.

REFERENCES:

  1. UC San Diego Sch. of Med., What is fMRI?, available at http://fmri.ucsd.edu/Research/whatisfmri.html.
  1. Sushrut Jangi, Measuring Pain Using Functional MRI, The New England Journal of Medicine, available at http://blogs.nejm.org/now/index.php/9863/2013/04/10/.
  1. Steven Levy, Brain Imaging of Pain Brings Success to Disability Claim, EIN Presswire (June 29, 2016), available at http://www.einpresswire.com/article/333249721/brain-imaging-of-pain-brings-success-to-disability-claim.
  1. Kevin Davis, Personal Injury Lawyers Turn to Neuroscience to Back Claims of Chronic Pain, ABA Journal (Mar. 1, 2016), available at http://www.abajournal.com/magazine/article/personal_injury_lawyers_turn_to_neuroscience_to_back_claims_of_chronic_pain.

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