Category Archives: Disability Claim Denials

Can You Move Out of the Country and Still Receive Disability Benefits?

The answer depends on what your disability policy says. Many people don’t realize that their policy may limit their ability to receive disability benefits if they move out of the country. If you’ve ever wondered why claims forms ask for your updated address, one of the reasons might be that your policy contains a foreign residency limitation, and your disability insurance company is trying to figure out if they can suspend your benefits.

Foreign residency limitations allow disability insurance companies to stop paying benefits under your policy if you move out of the country. These limitations may be especially relevant if you have dual citizenship, you want to visit family living abroad, or you plan to obtain medical care in another country. A foreign residency limitation may also affect you if your policy allows you to work in another occupation and you have a job opportunity in another country that you want to pursue. For instance, if you are a dentist and can receive disability benefits while working in another occupation, your insurance company may suspend your benefits if the opportunity you pursue is in another country.

Foreign residency limitations benefit disability insurance companies in several ways. By requiring you to remain mostly in the country while receiving benefits, these limitations simplify the payment process and reduce the possibility that insurers will need to communicate with doctors in other countries to manage your claim. They also make it easier for insurance companies to schedule field interviews and conduct surveillance of you to find out if you have done something that could be interpreted as inconsistent with your claim.

While these limitations are not included in every disability insurance policy, it is important to check if your policy—or a policy you are considering purchasing—contains a foreign residency limitation, because it could limit your ability to collect benefits later on.

Foreign residency limitations vary by policy. Here is an example of one foreign residency limitation from a Guardian policy:

This limitation highlights several details you should look for if your disability policy contains a foreign residency limitation, including the length of time you can spend in another country before your insurance company will suspend your benefits, whether you can resume receiving benefits if you return to the country, and when you will have to resume paying premiums if your insurance company suspends your benefits. Another important consideration is the effect a foreign residency limitation will have on your policy’s waiver of premium provision. Under the policy above, premiums will continue to be waived for six months after benefits are suspended. However, your policy may have a different requirement regarding payment of premiums, so it’s important to read your policy carefully.

Here is an example of another foreign residency limitation from a different Guardian policy:

This limitation contains much less detail than the first limitation. For instance, it does not clarify how suspension of benefits will affect waiver of premium. If your disability policy contains a foreign residency limitation that does not discuss waiver of premium, you should look to your policy’s waiver of premium provision to find out when premiums will become due after benefits are suspended. The policy above also defines foreign residency differently than the first policy. At first glance, it may seem that you can continue to receive disability benefits any time you leave the country for twelve months or less. What the policy actually says, though, is that the insurance company will only pay benefits for twelve months that you are out of the country at any time you are covered by the policy. So, if you have received benefits for twelve months while living in another country—even if those months were spread out over several years—your insurance company will not pay benefits in the future unless you are in the United States or Canada.

As you can see, foreign residency limitations vary among disability policies. If you are thinking about leaving the country, it is important to read your policy carefully first so that you understand how leaving the country may affect your ability to recover benefits.

Share

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.

Share

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.

Share

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.
Share

Am I Under Surveillance?

In previous posts we’ve looked at when disability insurance companies are most likely to conduct surveillance of claimants and new technologies that they’re deploying to do so.  Surveillance is a common tool used by disability insurance companies in the claims process.  Insurers claim that surveillance is merely used as a fraud prevention tool to ensure that claimants’ disabilities are legitimate.

Unfortunately, more often it is used to distort the true nature of the claimant’s disability and deny legitimate claims through photos, videos, and observations by investigators that are intentionally taken out of context.  Even if your limited activity is consistent with your disability, a photo or five-second video clip can paint a misleading picture.  Insurers can use this information to terminate benefits, shifting the burden to you to prove that the surveillance is not representative of your disability.  This process can drag on for long periods of time – during which you are not receiving your monthly benefits.

An insurance company’s investigators may employ a number of different tactics during surveillance of claimants.  In this post we’re going to take a look at several of these tactics and discuss some of the signs that may indicate you are under surveillance.

Social Media

Social media monitoring has become one of the most prominent methods of surveillance used by disability insurers during the claims process.  Disability insurance companies hire tech-savvy millenials to comb the Internet and social media websites for photos, videos, and posts they can use against you.  They will also look for patterns in your photos, check-ins, and posts to better predict where you are at any given time for in-person surveillance.

As a general rule of thumb for social media, you should adjust your privacy settings on Facebook, Instagram, Twitter, and other sites to allow only approved people to view your profile, your posts, and your photos/videos.  Some social media sites have separate privacy settings for your profile and your photos/videos – be sure to take a careful look at how the privacy settings on each site are organized so you’re covering all your bases.

If you receive a friend request from somebody you don’t recognize, it is better to err on the side of caution and reject the request.

 “Interview” by Investigator

One of the most obvious and most common signs that you are under surveillance is an investigator sent to your house by the insurance company to “interview” you.  During this interview, they may ask you what you do every hour of the day under the pretense that the insurer needs a better idea of how your disability affects your daily activities.  They may also ask to take a picture of you or take a photocopy of your driver’s license for “the file.”

These requests may seem harmless, but they have an ulterior motive.  The purpose asking what you do every hour of the day isn’t to get a better understanding of your disability, it’s to help the investigator get an idea of where you are at any given time so they can conduct more effective surveillance.  The purpose of taking your photo or asking for a copy of your driver’s license isn’t simply for the file – it’s to help investigators more readily identify you when you are out in public.

Unusual Telephone Calls

If you or your family members begin receiving telephone calls from unusual phone numbers, you might be under surveillance.  Investigators will sometimes call a number associated with you, your residence, or your family members, ask for you, and hang up after they get a response.  This tactic is used to determine whether or not you are home, and if not, to get an idea of where you are so they can conduct surveillance.  If you are able to, keep track of any phone numbers from which you receive multiple suspicious calls, and create a list of Do-Not-Answer phone numbers.

Unusual Vehicles Outside Your House

Investigators are known for sitting outside claimants’ houses for hours at a time to get photos and videos of claimants doing activities around the house and in the front yard.  If you see an unfamiliar car parked on the street near your house for long periods of time, it may be an investigator hired by your disability insurance company.  Occasionally they will put up “blackout” shades in their windows when they park so you cannot identify them, and in some cases will actually go as far as removing their license plates while parked.  If you see a vehicle like this parked near your house, we suggest closing your blinds and avoiding any activity in the front yard.

Unusual Driving Behavior

Another common surveillance tactic used by investigators is “tailing” claimants.  An investigator may follow a claimant for hours at a time as he or she drives around going about their daily activities.  Like home surveillance, tailing creates many opportunities for an investigator to snap a quick video or photo that the insurer can use to misrepresent your disability.  If you see a suspicious vehicle following you too closely, changing lanes when you change lanes, or exhibiting other unsafe driving behavior, it may be an investigator from your disability insurance company.

The safest way to determine whether or not you are being followed is to make three consecutive right turns.  If the suspicious vehicle follows you through all three turns, you are likely being followed.  If you are being followed, do not engage in unsafe driving behavior or attempt to confront the other driver.  It is better to simply return to your home.  If their driving behavior is unsafe or makes you uncomfortable, don’t hesitate to call the police.

Strangers at Your Door

Investigators are known to come to claimants’ doors posing as door to door salesmen or community members gathering signatures for petitions.  Like many of the other tactics, this is intended to give the investigator a closer look at your body movements, your posture, and your behavior.  If you see somebody unfamiliar at your door, ask a few questions through the door about the purpose of his or her visit before you open the door.  If the answers do not satisfy you, simply ask them to leave.

Rule Number One

With any of these surveillance tactics, the most important thing to remember is that if you feel uncomfortable or unsafe, you have every right to call the police.  Your disability insurance company has the right to conduct surveillance as long as they obey the law.  However, they do not have the right to trespass, endanger your safety or your family’s safety, or harass you.  If you think you may be under surveillance or have any questions about the tactics being used by your insurer, contact an experienced disability insurance attorney.

Share

Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 4

Care Dictation Provisions

Throughout this series of posts we’ve addressed the increasingly restrictive medical care provisions in disability insurance policies.  In Part 1, we discussed the evolution of the care standard and its effect on an insured’s ability to collect benefits and control their own medical treatment.  In Part 2 we looked at the “regular care” standard, which places no obligation on the insured to undergo any unwanted medical treatment.  In Part 3 we looked at the “appropriate care” and “most appropriate care” standards, which require much more vigilance on the part of policyholders, because they must be prepared at any time to establish that the treatment they are receiving is justified under the circumstances.  In this final post, we are going to look at the most aggressive and intrusive language that has been adopted by insurance companies in an effort to dictate the care of their policyholders.

Here is an example of a very strict care provision, taken from a Great West policy:

Regular Care of a Physician means personal care and treatment by a qualified Physician, which under prevailing medical standards is appropriate to the condition causing Total Disability or Residual Disability.  This care and treatment must be at such intervals as will tend to lead to a cure, alleviation, or minimization of the condition(s) causing Total Disability or Residual Disability and which will lead to the Member’s return to the substantial and material duties of his own profession or occupation or maximum medical improvement with appropriate maintenance care.

Clearly, this provision was designed with one goal in mind:  to give the insurer nearly unlimited power to scrutinize a policyholder’s course of treatment, including the ability to insist that any given procedure is necessary to cure or minimize the disability and maximize medical improvement.  It is easy to see how an insurer might invoke this provision to assert its control over the medical decision making of their policyholder and use the leverage of benefit termination and claims denial to dictate their treatment.

Imagine that you are a surgeon with a herniated disc in your cervical spine, and that your policy contains the provision cited above.  Your insurer insists that a fusion of the surrounding vertebra is the procedure most likely to alleviate your disability. Your doctor disagrees, recommending a more conservative course of treatment, such as physical therapy, modified activity and medication, such as muscle relaxants.  Your doctor also warns you that if you have the surgery, you will experience reduced mobility and risk adjacent segment degeneration.  However, your disability benefits are your only source of income.  Fearing a claim denial, you agree to the procedure despite your doctor’s concerns.  This results in a no-lose scenario for the insurer.

The best case scenario, from your insurer’s perspective, is that the surgery (for which you bore all the risk both physically and financially) is successful and you are no longer disabled.  At worst, the procedure fails and the insurer merely has to pay the benefits it was obligated to pay to you in the first place.  For you, however, an unsuccessful procedure can mean exacerbation of your condition, increased pain, and prolonged suffering.  It is therefore vital that you understand your rights under your policy.

Insurers are risk-averse by nature, and disability insurance is no different.  Modern disability insurance policies, and particularly the medical care provisions, are designed to minimize the financial risk to the insurer. Insurers place an enormous burden on claimants to prove that their course of treatment meets the rigorous standards in their policy. Though stringent policy language can make it significantly more difficult to obtain the benefits you are entitled to, it does not strip you of your right to make your own medical decisions.

In order to preserve your medical autonomy in the disability claims process, you must become familiar with the details of your policy before filing a claim.  Understanding the terms of your policy—including the care provision in your policy—is critical to successfully navigating a disability claim.  You need to be familiar with your policy’s care requirements from the outset, so that you can communicate effectively with your physician to develop a plan of treatment that you are comfortable with and that comports with the terms of your policy.

Even if you have a basic understanding of your rights under you policy, it can be daunting to deal with an insurer that is aggressively seeking to dictate your medical care.  In some cases, you may be forced to go to court to assert your right to make your own medical decisions—particularly if your policy contains one of the more recent, hyper-restrictive care provisions like the Great West provision above.  Insurers know this, and they also know that most claimants are in no position to engage in a protracted court battle over whether they are receiving appropriate care.  However, simply submitting to the medical mandates of your insurer to avoid the stresses and costs associated with litigation can have drastic consequences, depending on the nature of the medical care you are being asked to submit to.  If you should find yourself in this difficult position, you should contact an experienced disability insurance attorney.  He or she will be able to inform you of your rights under your policy and help you make an informed decision.

 

Share

Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 3

“Appropriate Care” and “Most Appropriate Care”

In this series, we are looking at the different types of care provisions disability insurers insert into their policies so that they can later argue that they have a right to dictate the terms of your medical care.  In Part 1, we discussed how many policyholders do not even realize that their policy contains a care provision until the insurance company threatens to deny their claim for failure to obtain what the insurer perceives as sufficient medical care.  We also discussed how care provisions have evolved over time to become more and more onerous to policyholders.  In Part 2, we looked at one of the earliest and least stringent care provisions—the “regular care” provision—in detail.

In this post, we will be looking at a stricter care provision—the “appropriate care” provision.  Here is an example of a typical “appropriate care” provision:

Appropriate Care means you are receiving care by a Physician which is appropriate for the condition causing the disability.”

Disability insurance carriers implemented this policy language to allow their claims handlers and in-house doctors to weigh in on the type and quality of care their policyholders receive.  As you’ll remember from Part 2 of this series, “regular care” provisions only required policyholders to be monitored regularly by a physician.  Thus, under a “regular care” provision, as long as the policyholder was seeing a doctor, the insurer could not scrutinize or direct his or her treatment.  Only by changing the policy language could they hope to have greater influence over the medical decisions of their policyholders.

This prompted insurers to add the additional requirement that the care must be “appropriate.”  But what is “appropriate?” If you are suffering from cervical spinal stenosis, you likely have several reasonable treatment options available to you. For example, your physician might recommend physical therapy, but also indicate that you would be a candidate for more invasive treatment, such as steroid injections.  If you have an “appropriate care” provision, does that mean that your insurer gets to decide which treatment you receive?

When presented with this question, most courts determined that “appropriate care” limits the insurer’s review of its policyholder’s care to whether it was necessary and causally related to the condition causing the disability.[1]  Courts also held that “appropriate” care does not mean perfect care or the best possible care—it simply means care that is suitable under the circumstances.[2]  Thus, if physical therapy, steroid injections, and surgery are all suitable treatments for cervical stenosis, most courts agree that your insurer cannot deny your claim or terminate your benefits based upon your decision to undergo a course of treatment they view as less effective than another.

In response to these cases, disability insurers again modified their policy language and created the “most appropriate” care provision.  Here is an example of what a “most appropriate” care provision looks like:

“[You must receive] appropriate treatment and care, which conforms with generally           accepted medical standards, by a doctor whose specialty or experience is the most      appropriate for the disabling condition.”

This change places significant restrictions on a claimant’s autonomy not only because it limits the type of physician the claimant may choose, but because it restricts the claimant’s medical care to a singular “appropriate” course of treatment.

These types of provisions can make collecting disability benefits extremely difficult.  For example, take the experience of Laura Neeb, a hospital administrator whose chemical sensitivity allergies became so severe that they rendered her totally disabled.  After one of her doctors—Dr. Grodofsky—concluded that she had no identifiable allergies, Ms. Need sought another opinion from Dr. William Rea, founder of the Environmental Health Center in Dallas, Texas.  Dr. Rea concluded that Ms. Neeb’s hypersensitivity to chemicals was so severe that she was “unable to engage in any type of work,” and required extensive treatment to manage the condition.  Ms. Neeb’s insurer, Unum, nonetheless denied the claim.  The court ultimately held that Ms. Neeb failed to obtain the “most appropriate care” by treating with Dr. Rea, agreeing with Unum that Dr. Grodofsky’s conclusions were correct.[3]

Ms. Neeb’s case illustrates just how restrictive the “most appropriate care” provision can be. It places the burden squarely on the policyholder to show that their chosen course of treatment and treatment provider are most appropriate for their condition.  If your policy contains a “most appropriate care” provision, it is essential that you find a qualified, supportive treatment provider who is willing to carefully document your treatment and the reasoning behind it.  You do not want to place yourself in a position where you cannot justify the treatment you are receiving and must choose between an unwanted medical procedure and losing your benefits.

In the final post of this series, we will discuss the hyper-restrictive care provisions appearing in disability insurance policies being issued today and the serious threats they pose to patient autonomy.

[1] 617 N.W.2d 777 (Mich. Ct. App. 2000)

[2] Sebastian v. Provident Life and Accident Insurance Co., 73 F.Supp.2d 521 (D. Md. 1999)

[3] Neeb v. Unum Life Ins. Co. of America, 2005 WL 839666 (2005).

Share

Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 2

“Regular Care”

If you are a doctor or dentist and you bought your individual disability insurance policy in the 1980s or 1990s, the medical care provision in your policy likely contains some variation of the following language:

Physician’s Care means you are under the regular care and attendance of a physician.”

This type of care provision is probably the least stringent of all the care provisions.  If your policy contains a “regular care” provision, courts have determined that you are under no obligation to minimize or mitigate your disability by undergoing medical treatment.[1]  In other words, you cannot be penalized for refusing to undergo surgery or other procedures—even if the procedure in question is minimally invasive and usually successful.[2]

Let’s look at an actual case involving a “regular care” provision.  In Heller v. Equitable Life Assurance Society, Dr. Stanley Heller was an invasive cardiologist suffering from carpal tunnel syndrome who declined to undergo corrective surgery on his left hand.  Equitable Life refused to pay his disability benefits, insisting that the surgery was routine, low risk, and required by the “regular care” provision of Dr. Heller’s policy.  The U.S. Court of Appeals disagreed, and determined that the “regular care” provision did not grant Equitable Life the right to scrutinize or direct Dr. Heller’s treatment.  To the contrary, the Court held that “regular care” simply meant that Dr. Heller’s health must be monitored by a treatment provider on a regular basis.[3]

Unfortunately, the Heller case didn’t stop insurance companies from looking for other ways to control policyholders’ care and threaten denial of benefits.  For instance, some disability insurance providers argued that provisions requiring policyholders to “cooperate” with their insurer grants them the right to request that a policyholder undergo surgery.  Remarkably, when insurers employ these tactics, they are interpreting the policy language in the broadest manner possible–even though they know that the laws in virtually every state require that insurance policies be construed narrowly against the insurer.

Why would insurance companies make these sorts of claims when it is likely that they would ultimately lose in court?  Because insurance companies also know that even if their position is wrong, most insureds who are disabled and/or prohibited from working under their disability policy cannot handle the strain and burden of protracted litigation.  They know that if they threaten to deny or terminate benefits, many insureds will seriously consider having surgery—if only to avoid the stress and expense of a lawsuit.  Unfortunately, this can lead to insureds submitting to unwanted medical procedures, despite having no legal obligation to do so.

As time went on, and more and more courts began to hold that “regular care” simply meant that the insured must regularly visit his or her doctor, Unum, Great West, Guardian, and other insurers stopped issuing policies containing that language.  Instead, insurers started to insert “appropriate care” standards into policies.  In the next post, we will discuss this heightened standard and how insurers predictably used it as a vehicle to challenge the judgment of policyholders’ doctors, in a renewed effort to dictate their policyholders’ medical care.

[1] Casson v. Nationwide Ins. Co., 455 A.2d 361, 366-77 (Del. Super. 1982)

[2] North American Acc. Ins. Co. v. Henderson, 170 So. 528, 529-30 (Miss. 1937)

[3] Heller v. Equitable Life Assurance Society, 833 F.2d 1253 (7th Cir. 1987)

Share

Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 1

Imagine that you are a dentist suffering from cervical degenerative disc disease.  You can no longer perform clinical work without experiencing excruciating pain.  You have been going to physical therapy and taking muscle relaxers prescribed by your primary care doctor, and you feel that these conservative treatments are helping.  Like most dentists, you probably have an “own occupation” disability insurance policy.  You are certain that if you file your disability claim, your insurer will approve your claim and pay you the benefits you need to replace your lost income and cover the costs of the medical treatment that has provided you with relief from your pain and improved your quality of life.

You file your claim, submit the forms and paperwork requested by the insurer, and wait for a response.  To your dismay, your insurer informs you that its in-house physician has determined that the treatment prescribed by your doctor was inadequate.  Your insurer then tells you that you should have been receiving steroid injections into your cervical spine, and tells you that if you do not submit to this unwanted, invasive medical procedure, your claim could be denied under the “medical care” provision in your policy.

You were not aware that such a provision existed, but, sure enough, when you review your policy more carefully, you realize that there is a provision requiring you to receive “appropriate medical care” in order to collect disability benefits.  You think that your insurer is going too far by dictating what procedures you should or should not be receiving, but you are afraid that if you don’t comply with their demands, you will lose your disability benefits, which you desperately need.

This is precisely the sort of scenario presented to Richard Van Gemert, an oral surgeon who lost the vision in his left eye due to a cataract and chronic inflammation.  Dr. Van Gemert’s disability insurance policies required that he receive care by a physician which is “appropriate for the condition causing the disability.”  After years of resisting pressure from his insurers to undergo surgery, Dr. Van Gemert finally capitulated.  Once Dr. Van Gemert received the surgery, you might expect that his insurer would pay his claim without further complaint.  Instead, Dr. Van Gemert’s insurer promptly sued him to recover the years of benefits it had paid to him since it first asserted that he was required to undergo the surgery.[1]

Unfortunately, “appropriate care” provisions, like the provision in Dr. Van Gemert’s policy, are becoming more and more common.  The language in such provisions has also evolved over time, and not for the better.  In the 1980s and 1990s, the simple “regular care” standard was commonplace.  In the late 1990s and into the 2000s, insurers began using the more restrictive “appropriate care” standard.  And, if you were to purchase a policy today, you would find that many contain a very stringent “most appropriate care” standard.

These increasingly onerous standards have been carefully crafted to provide insurers with more leverage to dictate policyholders’ medical care. However, there are several reasons why your insurance company should not be the one making your medical decisions.  To begin, if you undergo a surgical procedure, it is you—and not the insurance company—who is bearing both the physical risk and the financial cost of the procedure.  Perhaps you have co-morbid conditions that would make an otherwise safe and routine surgical procedure extremely risky.  Perhaps there are multiple treatment options that are reasonable under the circumstances.  Perhaps you believe conservative treatment provides better relief for your condition than surgery would.  These are decisions that you have a right to make about your own body, regardless of what your insurer may be telling you.

In the remaining posts in this series, we will be looking at the different types of care provisions in more detail, and how far insurance companies can go in dictating your care in exchange for the payment of your disability benefits.  We will also provide you with useful information that you can use when choosing a policy or reviewing the policy you have in place. In the next post we will be discussing the “regular care” standard found in most policies issued in the 1980s and early 1990s.

[1] See Provident Life and Accident Insurance Co. v. Van Gemert, 262 F.Supp.2d 1047 (2003)

Share

Unum Study Shows an Increase in Musculoskeletal Disability Claims Over the Past Decade

As we have discussed in previous posts, musculoskeletal disorders are very common among dentists due to the repetitive movements and awkward static positions required to perform dental procedures. Unum, one of the largest private disability insurers in the United States, recently released statistics showing an increase in the filing of musculoskeletal disability claims over the past 10 years.

According to Unum’s internal statistics, long term disability claims related to musculoskeletal issues have risen approximately 33% over the past ten years, and long term disability claims related to joint disorders have risen approximately 22%.  In that same period of time, short term disability claims for musculoskeletal issues have increased by 14%, and short term disability claims for joint disorders have risen 26%.

This trend may lead to Unum directing a greater degree of attention towards musculoskeletal claims as the volume of these claims continues to increase.  Musculoskeletal claims are often targeted by insurance companies for denial or termination because they are easy to undercut—primarily due to the limitations of medical testing in this area.  For instance, it can be difficult to definitively link a patient’s particular subjective symptoms to specific results on an MRI, and other tests, such as EMGs, are not always reliable indicators of the symptoms that a patient is actually experiencing.  Insurers also typically conduct surveillance on individuals with neck and back problems in an effort to collect footage they can use to deny or terminate the claim.  While such footage is usually taken out of context, it can be very difficult to convince the insurance company (or a jury) to reverse a claim denial once the insurer has obtained photos or videos of activities that appear inconsistent with the insured’s disability.

As we have noted in a previous post, Unum no longer sells individual disability insurance policies, so its disability insurance related income is now limited to the premiums being collected on existing policies.  Because benefit denials and termination are the primary ways insurers like Unum can continue to profit from a closed block of business, and musculoskeletal claims are on the rise, Unum may begin subjecting this type of claim to even higher scrutiny.

References:

http://www.businesswire.com/news/home/20160505006009/en/Aging-obesity-tip-scales-10-year-review-Unum

 

Share