Tag Archives: subjective symptoms

Subjective Conditions Limitation Provisions

In previous posts we’ve talked about mental health limitation provisions.  In this post, we are going to discuss a similar type of provision:  subjective symptom limitation provisions.

What are Subjective Symptom Conditions?

Insurance companies typically invoke these types of provisions when a claimant describes a disability or condition based upon self-reported symptoms, without producing objective medical evidence to back up the reported symptoms.  This can occur in situations where there is no standard accepted medical test to confirm a diagnosis, or when tests do not return any confirming or conclusive results, or when a claimant has not properly developed his or her medical records and/or simply neglected to have objective testing done.

We most often see these types of limitations in ERISA policies, but they are becoming more and more common in individual policies.  An example from an actual policy defines subjective symptoms as follows:

Some examples of conditions an insurance company might contend are encompassed by this provision include:

  • Fibromyalgia
  • Chronic Fatigue Syndrome
  • Sleep Apnea
  • Paresthesia/Dysesthesia
  • Carpal Tunnel Syndrome
  • Myofascial Pain Syndrome
  • Lyme Disease
  • Orthopedic Conditions
  • Temporal Lobe Phenomenon
  • Vertigo
  • Migraine
  • Tinnitus
  • Irritable Bowel Syndrome
  • Osteopathic and Rheumatoid Arthritis
  • Generalized Pain
  • Epstein-Barr Syndrome
  • Valley Fever

Insurers also use these limitation provisions to argue that other conditions should be limited, even when there is some objective evidence.  For example, a dentist suffering from a musculoskeletal condition might report to his or her doctor that he or she is experiencing neck pain, or lower back pain. The doctor might order an MRI, which might show that the dentist has some issues in his or her cervical or lumbar spine, but even with the MRI imaging, it can sometimes be difficult to pinpoint the precise cause of the symptoms that are being reported.  Insurers know this and target these types of claims because, under a broad reading of the policy provision, they involve subjective reports of pain and the  physical source of the pain cannot always be conclusively verified using tests.

Why is this provision important to know about?

These limitations typically cap benefits that will be paid out, generally at 12 to 24 months.  After this mark has been reached, no additional benefits will be issued even if your symptoms continue and you cannot return to work.  In other words, a policy you thought would last for the maximum benefit period can end up being good for as little as a year.

Insurance companies want to avoid paying out claims and often construct policies in a manner that allows them to restrict or deny coverage. This can include hiding limitations at the end of a policy or in a vaguely worded provision.  It is not enough to simply look at a policy’s schedule page, because a limitation provision may actually be much broader limitation than you might think when you read “mental/nervous limitation” in your policy summary.  Subjective condition limitation provisions are often combined with mental health and substance abuse limitation provisions, so it is easy for a policy holder to skip over this sort of provision when scanning through his or her policy, assuming that it only applies to mental health disorders or alcohol/addiction issues.

The Takeaway

When invoking these limitations, the insurance company is not denying that a claimant has an illness or even that it prevents a policyholder from working.  Rather, the insurance company is seeking to take advantage of the limits of medical science and/or lack of agreement in the medical community regarding finding and establishing guidelines regarding conditions like the examples listed above. They then use the subjective condition provision to cast doubt on a claim and complicate the claim procedure.  Often, they will use multiple in-house physicians to contradict a claimant’s own physician and medical records.

Fighting an insurance company’s decision to classify a condition as subject to this provision can be a costly and long process, and can turn into an expensive war of attrition that can often end in litigation. For these reasons, these types of claims must be handled with care from the start and require the assistance of a supportive doctor to properly document and treat the condition.

When purchasing a policy, it is important to watch out for subjective symptom condition limitation provisions.  Always be sure to read your policy or potential policy carefully so that you understand the scope of the your protection.


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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #9)

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

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

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

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

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #8)

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

MISTAKE NO. 8:  Ignoring the Possibility of Surveillance

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

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

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #7)

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

MISTAKE NO. 7:  Quantifying Time

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

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

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #6)

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

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

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

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

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #5)

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

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

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

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

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #4)

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

MISTAKE NO. 4:  Blindly Attending an Independent Medical Exam

After submitting their claim, physicians may be asked to submit to an “independent” medical examination by someone chosen and paid for by their insurer.  They may also be asked to undergo exams by someone other than a physician.  Before submitting to an independent medical exam or any other exam or evaluation, physicians must first ensure that their carrier has a right to conduct the exam per the policy language.  For example, a neuropsychological exam is conducted over several days by a psychologist, not a physician, and insurers often use the subjective findings from such an exam to deny benefits.  If the policy requires submitting only to “medical exams” or exams “conducted by a physician,” there is certainly an argument that a physician need not submit to neuropsychological testing.  Further, physicians may wish to be accompanied by an attorney or other legal or medical representatives who can monitor the independent medical exam.  Other considerations include receiving the examiner’s curriculum vitae in advance; limiting the scope of the exam to ensure that no diagnostic test that is painful, protracted, or intrusive will be performed; having the exam videotaped or audiotaped; and receiving a copy of all notes and materials generated.

Action Step:  Because the “independent” medical exam is a tool used for denying benefits where possible, physicians should work with an attorney to ensure that their rights are protected during this process.

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #3)

Continuing with the list of the Ten Biggest Mistakes Legal Mistakes Physicians Make When Filing a Claim for Disability, written by disability insurance attorney Edward Comitz and originally published by SEAK, Inc. (2005), is Mistake #3.

MISTAKE NO. 3:  Inadequate Documentation.

When submitting a claim and speaking with their carrier, it is important that physicians take notes to assist them in remembering what was said in the event that their claim is denied.  They should keep notes of all telephone conversations (including the date and time of the call, and what was said) and identify the person with whom they were speaking.  Every conversation with the carrier should be confirmed in a letter sent by certified mail so that there are no misunderstandings.  The “paper trail” may later be used as evidence to establish unreasonable treatment during the claim administration process.

Action Step:  Starting with their first telephone call to their insurer, physicians should document in detail their conversations and meetings, and confirm everything in writing, sent by certified mail..

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #2)

Continuing with the list of The Ten Biggest Legal Mistakes Physicians Make, as listed in disability attorney Ed Comitz’s article of the same name, published by SEAK, Inc. (2005), is Mistake #2.

MISTAKE NO. 2:   Misunderstanding the Definitions of “Disability” and “Occupation”

Because there is no such thing as a “standard” disability insurance policy, the definitions of “disability” can significantly vary.  Most physicians purchase “own-occupation” policies, which provide compensation following a disability that prevents the insured from performing the particular duties of his or her occupation.  Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature.  The central issue in many cases is the definition of “total disability,” which could variously mean that the insured cannot perform “all” or “every” duty of his or her occupation, or the “substantial and material duties” of his or her occupation.  Similarly, the term “occupation” may be specifically defined in the policy (e.g., “invasive cardiologist”) or may refer to the insured’s occupation immediately prior to the time that disability benefits are sought.  In the latter situation, if the physician reduces his or her hours in the months preceding claim filing, the insurer may consider his or her occupation to be part-time rather than full-time.  Similarly, the term “occupation” may be comprised not only of the duties of a physician’s specialty, but also of significant travel time, teaching engagements, or other areas in which the physician spends time or draws revenue.  For example, “occupation” may be defined as “internist/professor/business owner,” in which case the physician may not be “totally disabled” if he or she can still teach or perform management functions.

Action Step:  Physicians should read and fully understand their policy terms before filing a claim for benefits.

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The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #1)

We have been counting down the list of The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, from disability insurance attorney Ed Comitz’s article of the same name, as published by SEAK, Inc. (2005), and have now reached the number one mistake.

MISTAKE NO. 1:  Failing to Consult With Counsel

Physicians who are considering filing a claim for disability insurance benefits are advised to meet with an attorney experienced in the area before submitting a claim for payment.  Disability provisions vary greatly in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases.  Accordingly, each insurance policy must be individually reviewed to determine whether a particular claim is covered and, if so, how that claim is best presented to ensure payment.

Action Step:  Physicians should make a coordinated effort with the assistance of an attorney when interpreting their policy, presenting their claim, and providing subsequent information to their carrier.

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