Category Archives: Disability News

SEAK Inc.’s 14th Annual Non-Clinical Careers for Physicians Conference, Oct. 21-22, 2017

SEAK, Inc.’s 14th Annual Non-Clinical Careers for Physicians Conference will be held on October 21 -22, 2017 in Chicago, Illinois.  The conference is intended for physicians looking to explore careers outside the clinical setting.

Many doctors and dentists find themselves unable to practice, whether due to a disability, fatigue, burnout, loss of opportunity, wanting more control over their schedule, hope of financial gain, or just the desire to try a different career path or become an entrepreneur.  The 375+ attendees at the conference will range from interns and residents to veteran physicians in their 70s. The conference aims to show physicians that switching to a non-clinical career is an opportunity with financial potential, and “is in fact a step forward, not a step backwards.”  Attendees at the conference will network, meet with employers and recruiters, attend workshops and presentations and participate in one-on-one mentoring with physicians who have successfully made the transition to non-clinical careers.  Several of the presenters have not only moved out of the clinical practice, but are also experienced life coaches dedicated to guiding other physicians into new careers.  Sessions discuss opportunities for physicians with insurance companies, medical device companies, the pharmaceutical industry, contract research organizations, healthcare IT and medical informatics companies, and in education as well as in the consulting, medical administration, patient safety/quality, medical writing, and entrepreneurial fields.

Returning speakers include Gretchen M. Bosack, MD, who has transitioned to the Chief Medical Director of the Securian Financial Group and is also an accomplished public speaker; Rishi Anand, MD, who transitioned to the director of the Electrophysiology Laboratory at Holy Cross Hospital in Ft. Lauderdale, Florida, as well as serving as a medical legal consultant and expert witness, and a successful real estate investor; and Savi Chadha, MD, MPH, a medical science liaison with Tardis Medical Consultancy.  The opening speaker, Philippa Kennealy, MD, MPH, CPCC, PCC, is president of The Entrepreneurial MD and the Physician Odyssey Program, where she helps physicians further their non-clinical careers.

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Chronic Pain and Anxiety Disorders

Chronic pain by itself is often debilitating, and the struggle to obtain a correct diagnosis, effective pain management, and ongoing treatment can be stressful and overwhelming.  As we discussed in a previous post, depression often co-occurs with chronic pain, and can further complicate treatment.  The same is true of anxiety disorders.

Chronic Pain Disorders Associated with the Co-Occurrence of Anxiety

Like depression, anxiety is more likely to co-occur with certain conditions, such as:

It is no secret that physicians and dentists have stressful and demanding careers.  One Cardiff University study showed that of 2,000 British doctors, at various stages of their careers, 60% had experienced mental illness.[1]  Often practitioners ignore or fight through both chronic pain and anxiety and show up to work, to the point of endangering themselves or others before acknowledging their disability or seeking adequate treatment.

While anxiety alone can result in an inability to practice, either indefinitely or in the short-term, it is also quite common in those suffering from chronic pain to experience an anxiety disorder.  Anxiety disorders are also the most common type of psychiatric disorders in the United States, with 19 million adults affected.[2]

Chronic Pain and Anxiety—Worse Together

Facing a long-term or permanent disability can be anxiety provoking for a physician, who must (1) face giving up a career he or she invested so much time and financial resources to establish; (2) seek a correct diagnosis, course of treatment, and adequate pain management; and (3) often struggle with adapting to the loss of a previously enjoyed quality of life.  Conversely, chronic pain is also common in people with anxiety disorders,[3]  with up to 70% of people with certain medical conditions (including hypertension, diabetes, and arthritis) had an anxiety disorder first.[4]

Regardless of whether anxiety or chronic pain came first, individuals suffering from anxiety can experience pain that is particularly intense and hard to treat.[5]  In a 2013 study, 45% of 250 patients who had moderate to severe chronic joint or back pain screened positive for at least one of the common anxiety disorders (generalized anxiety, social anxiety, PTSD, OCD).  Further, those that had an anxiety disorder reported significantly worse pain and health-related quality of life than their counterparts without anxiety.[6]

Symptoms of Anxiety[7]

There are several anxiety disorders and, while the below list is by no means exhaustive, sufferers of anxiety often exhibit the following symptoms:

Generalized Anxiety Disorder

  • Difficulty controlling worry
  • Restlessness, feeling wound-up or on edge, irritability, muscle tension
  • Being easily fatigued and problems with sleep
  • Difficulty concentrating or having their minds go blank

Panic Disorder

  • Sudden and repeated attacks of intense fear
  • Feelings of being out of control during a panic attack
  • Intense worries about when the next attack will happen
  • Avoidance of places where panic attacks have occurred in the past

Social Anxiety Disorder

  • Feeling highly anxious about being around other people (including having a hard time talking to them, blushing, sweating, trembling, or feeling sick to your stomach)
  • Feeling self-conscious in front of others and worried about feeling humiliated, embarrassed or rejected, or fearful of offending others
  • Worrying before an event and/or avoiding places where there are other people
  • Having a hard time making and keeping friends

Post-Traumatic Stress Disorder

  • Flashbacks, bad dreams, difficulty sleeping, frightening thoughts, angry outbursts
  • Avoiding places, events, objects, thoughts, or feelings that are reminders of the traumatic experience and trouble remembering key features of the traumatic event
  • Being easily startled and feeling tense or “on edge”
  • Negative feelings about oneself or the world, and distorted feelings like guilt or blame
  • Loss of interest in enjoyable activities

Obsessive Compulsive Disorder

  • Fear of germs or contamination
  • Unwanted or forbidden thoughts, including aggressive thoughts towards others or self
  • Having things symmetrical or in perfect order; excessive clearing and/or hand washing; ordering and arranging things in a precise way; repeatedly checking on things; compulsive counting

Treatments for Anxiety

Some of the treatments that have been successful in addressing anxiety in those with chronic pain include:

  • Cognitive-behavioral therapy (CBT)
  • Psychodynamic therapy (talk therapy)
  • Support groups
  • Relaxation or meditation training
  • Alternative treatments, such as acupuncture and hypnosis
  • Exercise
  • Medication

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

[1] Michael Brooks, Why doctors’ mental health should be a concern for us all, NewStatesmen, April 11, 2016, http://www.newstatesman.com/politics/health/2016/04/why-doctors-mental-health-should-be-concern-us-all

[2] What are Anxiety Disorders?, Global Medical Education, https://www.gmeded.com/gme-info-graphics/what-are-anxiety-disorders

[3] Chronic Pain, Anxiety and Depression Association of America, April, 2016, https://www.adaa.org/understanding-anxiety/related-illnesses/other-related-conditions/chronic-pain

[4] Global Medical Education, Supra.

[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] Health Behavior News Service, part of the Center for Advancing Health, Chronic pain sufferers likely to have anxiety, ScienceDaily, May 8, 2013, https://www.sciencedaily.com/releases/2013/05/130508213112.htm

[7] Definitions according to National Institute of Mental Health: https://www.nimh.nih.gov/index.shtml

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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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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.

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[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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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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New Genetic Testing Predicts Most Effective Medications

In today’s pharmaceutical market there are countless prescription drugs marketed to people suffering from disabling conditions, and many of these drugs promise breakthrough relief not offered by their competitors. Individuals suffering from chronic pain and mental health disorders such as anxiety, PTSD, depression and bipolar must often take potent drugs for prolonged periods of time to get relief from their symptoms. But the search for relief can be incredibly frustrating – every person responds differently to the same drugs, and oftentimes powerful side effects can overshadow any relief.

For an individual suffering from the chronic and disabling pain brought on by severe spinal stenosis, there are several forms of treatment available – many of which are non-invasive. If other non-invasive treatments are unsuccessful, suffering through the side effects of several drugs in search of relief can be demoralizing. Powerful opioids can cause severe nausea, vomiting, dizziness, and/or constipation in certain individuals. The compounding effects of trying several different drugs can have a significant effect on one’s physical and mental health.

Recently, however, a genetic testing company has developed a simple test that will help countless individuals avoid dealing with unwanted side effects while cycling through different medications in their quest for relief.

Genesight has developed breakthrough genetic tests for both narcotic analgesics (pain medications) and psychotropic medications (treating mental health disorders). By taking a simple cheek swab, the company is able to analyze your DNA and determine which medications are match for your specific genetic profile. A clinical study of Gensight’s testing and analysis showed that patients were twice as likely to respond to the recommended medication.

This testing will likely be welcome news among those for whom relief is elusive. For many individuals suffering from disabling conditions, medications are very rarely the magic bullet that brings complete relief.  Symptoms may be so severe that no drug will ever be one hundred percent effective. More often, relief means alleviation of one’s symptoms just enough to get through the day without interminable pain or crippling anxiety while suffering only the more mild side effects. Genesight’s testing may offer hope for these individuals – people who will likely never be able to return to their previous career or their own occupation, but are in search of just enough relief from their symptoms to lead and enjoy a normal life.

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Ninth Circuit Determines That Persons Who Can’t Sit for More than Four Hours Can’t Perform Sedentary Work

 

In a previous post, we summarized the five exertion levels (sedentary work, light work, medium work, heavy work, and very heavy work), as defined by the Dictionary of Occupational Titles (DOT), and discussed why they matter in the context of disability claims.  Essentially, these exertion levels function as broad classifications that are used to categorize particular jobs and occupations.  The physical requirements under each exertion level increase as you move up from level to level, with sedentary work requiring the least physical exertion and very heavy work requiring the most physical exertion.

If you have an “own occupation” policy, these exertion levels will likely not come into play, because the terms of your policy will require your insurer to consider the particular duties of your specific occupation, as opposed to the broader requirements of the various exertion levels.  However, if you have an “any occupation” policy, which requires you to establish that your disability prevents you from working in any capacity, your insurer will likely seek to determine your restrictions and limitations at the outset of your claim, using claim forms or possibly a functional capacity evaluation (FCE).  Once they have done so, they will then likely seek to fit you into one of the five exertion levels listed above and have their in-house vocational consultant provide them with a list of jobs that you can perform given your limitations.

Not surprisingly, your insurer will generally try to fit you into the highest category possible, and then argue that you can perform all of the jobs at that exertion level, and all jobs classified at a lower exertion level.  Typically, someone suffering from a disabling condition can easily establish that they cannot perform medium, heavy, or very heavy work, so, in most cases, the insurer will be trying to establish that you can perform light work, or sedentary work, at the very least.

As you might expect, one of the key differences between sedentary and light work is that sedentary work mostly involves sitting, without much need for physical exertion, whereas light work involves a significant amount of walking and standing, in addition to other physical requirements, such as the ability to push or pull objects and the ability to operate controls.  Given the low physical demands of sedentary work, it can often be difficult to establish that you cannot perform sedentary work.  This can be problematic, because there are many jobs that qualify as sedentary work.  However, if you have a disability that prevents you from sitting for extended periods of time, the very thing that makes sedentary work less physically demanding—i.e. the fact that you can sit during the job—actually ends up being the very reason why you cannot perform sedentary work.

While this is a common sense argument, many insurance companies refuse to accept it and nevertheless determine that claimants who cannot sit for extended periods of time can perform sedentary work.  However, the Ninth Circuit Court of Appeals recently held in Armani v. Northwestern Mutual Life Insurance Company that insurers must consider how long a claimant can sit at a time when assessing whether they can perform sedentary work.

Avery Armani was a full-time controller for the Renaissance Insurance Agency who injured his back on the job in January 2011.  He eventually stopped working as a result of the pain from a disc herniation, muscle spasms, and sciatica.  Multiple doctors confirmed that Avery was unable to perform the duties of his job, which required him to sit for approximately seven hours per day. In July 2011, Northwestern Mutual classified Avery’s occupation as “sedentary” and approved his claim under the “own occupation” provision of his employer-sponsored plan.

Despite regular statements to Northwestern Mutual from his doctor that he could only sit between two and four hours a day and must alternate between standing and sitting every thirty minutes, Avery’s disability benefits were terminated in July 2013.  Northwestern Mutual’s claims handler identified three similar positions in addition to Avery’s own position that he could perform at a “sedentary” level, and determined that his condition no longer qualified as a disability under his policy.

When his benefits were terminated, Avery sued Northwestern Mutual.  After several years, his case ultimately reached the Ninth Circuit Court of Appeals.  In resolving the case, the Ninth Circuit held that an individual who cannot sit more than four hours in an eight-hour workday cannot perform “sedentary” work that requires “sitting most of the time.”  In reaching its conclusion, the Ninth Circuit cited seven other federal courts that follow similar rules, including the Second Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the District of Oregon, the Central District of California, the Northern District of New York, the Southern District of New York, and the District of Vermont.

While this case is not binding in every jurisdiction, it does serve to reinforce the common sense argument that a claimant who cannot sit for extended periods of time due to his or her disability cannot perform sedentary work.  Additionally, though this rule was created in the context of a disability insurance policy governed by ERISA, the court did not qualify its definition or expressly limit its holding to cases involving employer-sponsored policies.  Accordingly, in light of this recent ruling, it would be reasonable to argue that a court assessing an “own occupation” provision of an individual policy should similarly consider whether sitting for extended periods of time is a material and substantial duty of the insured’s occupation.  If it is, and the insured has a condition that prevents him or her from sitting for more than four hours of a time—such as deep vein thrombosis (DVT) or chronic pain due to degenerative disc disease—then the insured arguably cannot perform his or her prior occupation and is entitled to disability benefits.

In short, the Armani case is noteworthy because its reasoning could potentially be applied to not only ERISA cases, but also disability cases involving individual policies and occupations—such as oral surgeon, endodontist, periodontist, attorney, accountant, etc.—that require the insured to sit for long periods of time in order to perform the occupation’s material duties.  It will be interesting to see if, in the future, courts expand the Armani holding to cases involving individual policies outside of the ERISA context.

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Source: Armani v. Northwestern Mutual Life Insurance Company, No. 14-56866, 2016 WL 6543523 (2016)

 

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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

 

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Dealing with the Demands of Dentistry: It’s Ok to Ask for Help

Dentistry is not an easy profession.  The clinical aspects of dentistry are physically and emotionally demanding.  Performing repetitive procedures and holding static postures for prolonged periods of time can leave dentists feeling mentally drained, sore and fatigued.  And given the frequent exposure to patient anxiety and the need for precision when performing dental procedures, it is not uncommon for dentists themselves to develop anxiety about causing pain to patients or making a mistake when performing a procedure.

The other aspects of dentistry are no less challenging.  Many dentists work long hours, which makes balancing work, family, and other responsibilities difficult.  Other stressors include difficult and uncooperative patients, dissatisfied patients, finances, business problems, collecting payments, paperwork/bureaucracy, time pressure, cancellations, no-shows—the list goes on and on.  And that is not even taking into consideration major stressors, such as staff issues, board complaints, audits, and malpractice lawsuits.

When presented with these difficulties, dentists can become anxious and depressed.  Some even seek out mood altering drugs and/or begin to abuse alcohol, in an effort to alleviate the stress.

Thankfully, there are resources available where dentists can turn to for help.  Most dental associations have a subcommittee or group designed to provide confidential help to dentists struggling with emotional, mental and/or substance abuse issues.

For example, the Arizona Dental Association (AzDA) has a group called the Dentists Concerned for Dentist Committee (DCD).  The DCD is a group of fellow dentists who work with other dentists to help them with substance abuse problems, with an emphasis on “cure and return to practice.”  When the DCD is contacted, everything remains strictly confidential, and the State Board is not notified.  As explained by the DCD, “[t]here should be no grief or shame in seeking help.”  Accordingly, DCD records are “sealed and cannot be accessed by anyone.”

If you are a dentist in Arizona struggling with substance abuse, or you know a dentist who is, consider contacting the AzDA so that a referral can be made to the DCD.  You can find the contact information for the AzDA here.

If you live outside Arizona, consider contacting your local dental association to see if it has a similar program.

Remember, it’s ok to ask for help.

References:

“When Life Feels Just Too Hard,” INSCRIPTIONS, Vol. 30, No. 8 (August 2016) at p. 24.

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