Relying on File Reviews: A Case Study
It is not uncommon for disability insurance companies to rely on paper-only reviews when deciding whether to deny or terminate benefits. But will the reviewing physician consider all the evidence submitted in support of a claim when making a determination on whether an insured is disabled? The answer is – not always.
One such example is the case of Caudill v. Hartford.[1] Caudill filed a claim with his insurance company, Hartford, based on fibromyalgia and chronic obstructive pulmonary disorder (CODP). Hartford initially began paying benefits but later terminated them, claiming that Caudill was no longer too disabled to work. Caudill appealed, but Hartford upheld its termination. When making this decision, Hartford relied almost solely on an independent file review conducted by a Dr. Schulman.
Dr. Schulman opined that Caudill was able to work because he could sit or stand for 8 hours a day. While his conclusion concurred with the view of a doctor who had previously conduced an independent medical examination (IME), it failed to address questions that had been raised by Caudill about the purported deficiencies in the IME. Further, Dr. Schulman did not address a functional capacity evaluation (FCE) that reached a conclusion that Caudill’s issues, even with sitting, “would not be viable in most sedentary environments.”
Neither Dr. Schulman or the Hartford addressed the notes of Caudill’s treating physicians, which included statements that Caudill “does not have good exertional tolerance” and that he has difficulties with activities of daily living.
While the Court explained that, while there was nothing inherently objectionable about a file review, in this instance Caudill had “provided credible, objective evidence that he is unable to work in even a sedentary capacity” and that Hartford “cannot arbitrarily disregard a claimant’s evidence.” The Court found for Caudill and ordered that his benefits be retroactively reinstated.
This case highlights how insurance companies may rely on their own experts over other evidence in the case file. If you believe your insurance company has conducted a file review and you have questions, please feel free to reach out to one of our attorneys directly.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Caudill v. Hartford Life & Accident Ins. Co., No. 1:19-CV-963, 2023 WL 2306666 (S.D. Ohio Mar. 1, 2023)
Insurance Company Tactics: Trivializing Job Duties
Does your insurance company understand your job duties? If not, how much does it matter?
If you have an “own occupation” disability policy, it could be the difference between a benefit approval and a benefit denial.
Why is My Insurer Trivializing My Job Duties?
Your job duties are a critical component of an “own occupation” disability claim. For this reason, insurers may seek to misclassify or over-simplify your job duties to avoid payment.
One such example is the case Joyce v. Life Insurance Company of North America (LINA).[1] Joyce was a garbage-collection supervisor, or route manager. In 2016, Joyce was struck in the head by a tree branch during a storm. He suffered a concussion and several ongoing symptoms. These included cognitive dysfunction, headaches, visuospatial difficulties, visual problems, and frustration.
Joyce’s actual job included supervisory activities, interactions with workers, analyzing and solving problems and knowledge of equipment. However, LINA merely identified Joyce’s job as “laborer.” LINA then determined that Joyce could still perform “labor,” and relied on a paper file review of Joyce’s medical records to justify a claim denial.
The Outcome
Joyce took LINA to court, and the judge saw through LINA’s tactics. The judge recognized that LINA’s determination did not include the correct job description and noted that LINA had been selective in the records it chose to review. In this case, the court ordered LINA to reevaluate the claim, taking into account the proper job duties. However, it took a court order to ensure that LINA properly evaluated Joyce’s claim.
If you have filed a claim and feel like your insurance is misclassifying your job description and duties, please feel free to contact our attorneys directly to set up a consult.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Joyce v. Life Insurance Company of North America, Civil Action No. 2:18-cv-1293, 2021 WL 493262 (W.D. Pa. Feb. 10, 2021)
What Happens if I Miss the Proof of Loss Deadline?
Most disability insurance policies have a Proof of Loss provision. Proof of loss refers to the need to submit supporting evidence of your disability claim. This can include claim forms, medical records, and test results. Proof of Loss requirements also usually state an amount of time you have to file a claim. But what happens if you miss this deadline?
Don’t Make This Same Mistake
Many physicians and dentists, understandably, want to keep working as long as possible. It can be hard to know when to step away. This can be especially true with slowly progressive conditions (such as many musculoskeletal issues) or if isn’t clear whether symptoms will be permanent.
A physician or dentist in this situation may begin working part-time in an attempt to “get by” and hope things improve. In fact, they may even think they are doing their insurance company a favor by delaying filing a claim, without realizing that their policy may allow partial disability benefits if they are working part-time. However, delaying a claim may impact your ability to collect full benefits.
One example of this can be found in the case of Hsu v. Northwestern Mutual Life.[1] At the time of his disability, Dr. Hsu was a physician specializing in interventional medicine.
Dr. Hsu suffered from constant right elbow pain, which was exacerbated with wrist extension and/or elbow flexion. Both activities were required in his profession. Although his disabling condition had begun much earlier, he didn’t submit proof of his claim application until June 2019.
The Proof of Loss Deadline
Dr. Hsu’s policy with Northwestern Mutual (NWM) required him to provide notice of a claim “within 60 days after the start of any loss.” If this was not possible, “it must be given as soon as reasonably possible.” Further, written proof of loss was required 90 days after the end of each monthly period for which benefits are claimed, or as soon as possible but “[i]n any event . . . no later than one year and 90 days after the end of each monthly period for which benefits are claimed.”
After reviewing the policy’s Proof of Loss deadlines, the Court determined that Dr. Hsu had filed late and could not obtain benefits prior to March of 2018. However, the results in these cases can vary based on circumstances and policy language.
The Takeaway
There are many reasons that a doctor might put off filing a claim. He or she might be busy seeking additional treatment in an effort to find a way to abate symptoms or trying to keep working as long as possible, despite symptoms that impede the ability to safely practice. However, delaying filing a claim may mean, as in Dr. Hsu’s case, that you miss out on benefits.
If you have questions about your disability policy’s Proof of Loss provision or the timely filing of a claim, please feel free to contact one of our attorneys directly.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Hsu v. Northwestern Mutual Life, C20-88 TSZ, 2021 WL 735374 (W.D. Wash. Feb. 5, 2021)
Can My Disability Insurer Require Me to Have Surgery?
Can my insurance company make me have surgery or dictate the terms of my treatment?
This is a common question, and a complex one. The answer depends on the terms of your policy and your disabling condition. Recently, insurers have become more aggressive in this area. The case of Jue v. Unum is one such example.[1]
What if My Doctor Disagrees About Surgery?
Dr. Jue, a dentist, filed a claim in 1991 based on pain and swelling in both of her wrists, attributable to De Quervain’s Tenosynovitis. Dr. Jue’s physicians indicated that surgery was an option in some cases but more conservative treatment was warranted. Dr. Jue was reluctant to have surgery given her age and surgery risks.
Notably, Dr. Jue was on claim for many years before Unum brought up surgery, including a prolonged period from 2004-2011. Despite knowing that surgery was a potential option for De Quervian’s patients, Unum continued to pay benefits for a fifteen-year period. In fact, one Unum representative even told Dr. Jue in a phone call that they could not force her to have surgery. Yet, in 2017 Unum took the opposite position and told Dr. Jue that she had 90 days to schedule her surgery. If she did not, Unum told her that it would terminate her claim for failure to “obtain appropriate treatment for her condition.”
In response, Dr. Jue returned to one of her treating physicians, Dr. Hsu. Dr. Hsu opined that Dr. Jue had legitimate reason for concern, because no surgeon could guarantee that surgery would improve her condition. Dr. Hsu also stated that no surgeon could guarantee that surgery would not make her condition worse. Unum then secured its own set of physician opinions who said that surgery was the next appropriate treatment, and terminated the claim in spite of Dr. Hsu’s opinion.
The Takeaway:
As of the date of this post, Dr. Jue’s case remains ongoing. However, her case shows that insurers are willing to make surgery a requirement for ongoing benefits. This does not necessarily mean the insurer is right, but it may mean that a lawsuit is necessary to resolve the question.
If your insurance company is pressuring you to have more invasive treatment than you are comfortable with, please feel free to contact one of our attorneys directly.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.
[1] Jue v. Unum Group, Case No. 19-CV-08299-WHO, 2021 WL 427640 (N.D. Cal. Feb. 8, 2021).
Insurance Company Tactics: Conducting Multiple Paper Reviews
Insurance companies typically start their claim investigations by requesting forms and medical records from your treating provider(s). In order to deny a claim, they may go to great lengths to dismiss and ignore even the most supportive of records. One way they do this is by using consultants to conduct paper-only reviews of the insured’s file.
One such example of this is Allen v. MetLife[1], where multiple consultants were used to try and undercut Linda Allen’s supportive physician’s statements and treatment records. Allen, a highly educated professional, was exposed to toxic mold at her workplace and developed a myriad of symptoms/diagnoses as a result, including chronic rhinosinusitis, mold allergy, chronic fatigue disorder, neurocognitive disorder, vertigo, reactive airway disorder, depression, and anxiety disorder.
Although MetLife’s own doctor hired to examine Allen in-person concluded that her symptoms were “quite enough to limit her daily functioning”, MetLife denied her claim. In doing so, MetLife chose to place more weight on the multiple consulting physicians who only conducted paper reviews of Allen’s file. Alarmingly, one physician made several factual mistakes in his report (including errors in the names and types of medications Allen was taking) and another only reviewed a portion of Allen’s records.
Additionally, the Court noted that at least two of the reviewing doctors indicated a need for additional information. However, MetLife’s claim file revealed that MetLife did not share additional records received from Allen with its consulting doctors or ask its doctors to update their findings.
While the Court recognized “the importance of independent medical reviews” it also recognized the limitations of such reviews by doctors who did not examine a patient, going on to say “the mere fact that independent medical specialists were consulted does not automatically equate with a deliberate, reasoned process and substantial evidence.”
While the Court reversed MetLife’s wrongful denial and Allen was ultimately successful, it took litigation (which can often be costly and time consuming) to expose MetLife’s improper tactics and overturn MetLife’s denial of her legitimate claim.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Allen v. MetLife, No. 4:06-CV-175-H, 2008 WL 11429626 (E.D.N.C. March 31, 2008)
Can I File Anonymously if I File a Disability Lawsuit? A Case Study
When an insurance company denies a claim, the insured may have to resort to filing a lawsuit to collect their rightful benefits. Accordingly, insurance companies employ numerous tactics to deter insureds from filing lawsuits, especially those based on mental health claims like depression or anxiety.
One such example is the case of John Doe v. Berkshire Life Ins. Co.[1] where John Doe (formerly a high-powered CEO) sued his insurer, Guardian/Berkshire, for wrongfully denying his mental health claim. When the CEO filed the claim, he sought to remain anonymous because: (1) the nature of his disability was mental health related (including PTSD) and highly-sensitive; (2) he feared he would be placing himself in danger by using his name because a former disgruntled employee had harassed him in the past; and (3) proceeding under his real name might exacerbate his PTSD symptoms. Guardian opposed the CEO’s motion, likely in the hopes of dissuading the CEO from pursuing his lawsuit.
Ultimately, the CEO’s motion was denied by the Court, as it determined the request did not meet the strict legal standard required to allow a party to proceed anonymously. Arguably, in this case, Guardian would have suffered little to no harm by allowing Doe to proceed anonymously; yet, they still chose to object.
Insurance companies have a history of wrongfully deterring individuals from challenging claim denials in similar cases, and they are unfortunately not above taking advantage of insureds who are financially, physically and/or emotionally vulnerable. Insurance companies often pull out all the stops when it comes to litigation because they have the advantage of time and financial resources on their side. This can mean targeting those with mental health claims, especially those with strong reputations in their communities (including physicians and dentists), in the hopes that fear of public embarrassment may prompt them to drop the lawsuit, settle for less than they are owed, and/or allow an unfair denial to stand.
These can be challenging things to face—even for a CEO—especially if you are trying to take on the insurance company on your own. If you are concerned about how your insurance company has been treating you, or feel like your insurer is seeking to take advantage of your condition, an experienced disability attorney can help you evaluate the situation and what options are available to you.
[1] Doe v. Berkshire Life Ins. Co., Civil Action No. 20-CV-01033-PAB-NRN, 2020 WL 3429152 (D. Colo. June 23, 2020).
Filing for Disability Insurance Benefits In the Wake of Coronavirus: What Every Physician Should Know
Physicians across the country are experiencing heightened levels of anxiety and stress in the face of the coronavirus pandemic. They are bracing for a spike in cases that the U.S. healthcare system will not be prepared to face, and some are already running out of supplies. Others are working in hospitals that are short-staffed, tending to both sick and anxious patients. And many physicians are balancing their desire to help patients with the risk of becoming a potential sources of contagion to their loved ones and community.
One doctor described this unique type of stress as “pre-traumatic stress disorder” as doctors brace for an outbreak that seems inevitable.[1] Another doctor observed “[m]ost physicians have never seen this level of angst and anxiety in their careers.” [2]
These unprecedented stressors can have a significant impact on physicians already dealing with mental health issues like depression, anxiety, panic disorder, or similar conditions. Physicians currently are experiencing increased distress and worry over physician shortages[3], shortages of supplies[4], and fears of becoming ill and/or quarantined themselves.
Organizational psychologist Adam Grant, in a piece in The New York Times, also recently explained that over half of doctors experience “burnout,” and risks of stress/burnout become even “more acute” during a pandemic because medical professionals are “braving high disease exposure, long hours and inadequate resources.”[5]
Even for those physicians not on the front lines, this pandemic has drastically impacted their bottom lines and work schedules as they have to postpone procedures, and potentially cut back on hours or close their practices entirely to preserve personal protective equipment (PPE). However, as we’ve noted in prior posts, unemployment programs typically do not provide high enough benefits for doctors to meet their obligations and expenses.[6]
In light of all of this uncertainty, many physicians have been reaching out to us to see if it is possible to file disability claims under their own-occupation disability policies. We’ve answered the most common questions we’ve been receiving from doctors, below, and will be updating this post throughout the coronavirus crisis as we receive more questions from physicians.
Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Can I File A Claim for “Burnout”?
It depends on what you mean by “burnout,” and whether you have an actual, underlying mental health condition that has been treated by a mental health professional. Most disability policies require you to provide evidence of either a “sickness” or an “injury” that prevents you from being able to perform the material and substantial duties of your occupation.
If you file a claim based on increased stress levels and fatigue and label it “burnout,” we’ve seen insurers seek to minimize these things as “just part of the job,” determine that this does not qualify as a disabling condition and deny the claim. Some policies also specifically exclude coverage for mental health conditions, or limit benefits for mental health claims to a shorter time frame (usually around 24 months). So the first step is to determine whether your policy provides coverage for mental health claims.
If your policy covers mental health claims and you have a diagnosed condition, it is possible to file a disability claim; however, mental health claims are also some of the most challenging disability claims. They receive a high level of scrutiny, and can be difficult to prove up since most mental health conditions are diagnosed based upon subjective symptoms that are reported to your treating providers.
As a result, insurer’s medical consultants and in-house doctors often challenge and second-guess the diagnoses and treatment plans submitted by your providers. Oftentimes, an insurer will suggest more aggressive treatment because they want you to go back to work so they can save money. But if work is a trigger for you, that may not be in the best interest of your mental health.
Additionally, while some policies expressly require you to pursue treatment that would lead to a “return to work” and/or “maximum medical improvement,” other policies simply require you to be under the “regular” care of a provider, or require you to receive “appropriate” care. Where your policy falls on this spectrum typically informs how aggressive an insurer will be about challenging your treatment, and if there is a disagreement over whether a certain treatment is required by your policy, it may require the intervention of a disability insurance attorney and/or court involvement to resolve.
Our office has dealt with these issues before and has helped numerous professionals successfully navigate their mental health claims. While it can be a difficult process, it is possible to collect, if you have a legitimate mental health condition, an understanding of how your policy works and supporting documentation of your condition.
For a more detailed discussion of the challenges physician’s face when filing mental health claims, see our article in MD Magazine, “Can You Collect Disability Benefits For Burnout?”
Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I Am a High-Risk Individual. Can I File a Disability Claim if My Office Environment Places My Health at Risk?
This is an interesting legal question that has not been fully developed in the context of a national pandemic. Most legal questions are resolved by consulting precedent and since, in many ways, the current COVID-19/coronavirus in unprecedented (particularly in the last 30 or so years when private disability insurance policies for professionals have been the most prominent) this is a open question that would likely require a disability lawyer and court involvement to resolve.
The strength of this sort of claim would largely depend on the physician’s specialty, the underlying policy, and the law of the jurisdiction in question. While most disability policies do not directly address what happens if there is a national epidemic, like the coronavirus, some policies do address situations that could be pointed to by analogy.
For example, some physician policies have riders that state that the company will recognize disability if the physician contracts a sickness or disease that could place the physician’s patients at risk (for instance, if a physician tests positive for HIV and there is a risk that the virus could be transmitted to patients in the course of the physician’s normal duties). If a physician has coronavirus, one could argue that practicing similarly places patients at risk and arguably falls under this sort of rider.
There is a fundamental difference, however, because the coronavirus is not something that is normally expected to be contagious for an extended period of time. If it is something that passes in a few weeks, then it is unlikely that any benefits would be due, because most policies require the disability to last for a specific elimination period before benefits are payable, and those waiting periods usually last at least three months (or longer).
Looking at it from another perspective, some courts have held that a physician should be considered disabled if the physician’s work environment places the physician’s health at risk. For example, if a physician were diagnosed with a heart condition and the stress and demands of practicing could cause a heart attack, a court might recognize such a condition to be totally disabling. By analogy, if a physician’s health were at risk due to coronavirus, one could argue that the physician is disabled from practicing for as long as that risk is present.
Again, these are untested waters, and there is no guarantee that a court would approve such a disability. Most likely, if the risk were just the general risk of contracting coronavirus, we expect that the insurer would deny the claim and a court would most likely uphold the denial. However, if there is an underlying health condition that places the physician at heightened risk of mortality if exposed to coronavirus (for example, the physician had a compromised immune system due to another condition, like leukemia) courts may be more sympathetic and more willing to recognize disability.
Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I Can’t Focus and Am Afraid I’m Going to Hurt Somebody. Can I File a Claim?
If you are a physician and your ability to focus and think critically is compromised, you may qualify for disability benefits. However, mental health claims are often subject to policy exclusions and limitations, and are some of the most difficult claims to make.
For frame of reference, our physician clients who have filed claims for anxiety typically have a history of panic attacks that were non-responsive to treatment. Their specialties required a high degree of attention to detail and critical thinking, and often there is an underlying event or specific trigger that is work-related. Additionally, they take medication for their condition and that medication impacts their ability to think clearly and concentrate to a degree that it is not possible for them to safely practice their specialty when they are taking the medication.
So, in sum, whether you can file a claim depends on factors such as the severity of your condition, whether you have a history of receiving treatment for the condition, whether the anxiety is triggered by something that is work/occupation related, whether you are taking medication for the condition, and the nature of your specialty and job duties.
See also Can I File A Claim for “Burnout”?
Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I Have Had to Isolate from My Family Because I’m Afraid to Get them Sick. Can I File a Claim for Depression?
If you are a physician suffering from severe depression, to the point where you would be putting patients at risk by practicing, you may be able to file a disability claim, as long as your policy provides coverage for mental health conditions.
As with a disability claim based upon anxiety/panic disorder, whether you can file a claim depends on factors such as the severity of your condition, whether you have a history of receiving treatment for the condition, whether the depression is triggered by something that is work/occupation related, whether you are taking medication for the condition, and the nature of your specialty and job duties.
See also Can I File A Claim for “Burnout”?
Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
References:
[1] Alison Block, Doctors and nurses are already feeling the psychic shock of treating the coronavirus, The Washington Post, March 18, 2020, https://www.washingtonpost.com/outlook/2020/03/18/doctors-nurses-are-already-feeling-psychic-shock-treating-coronavirus/.
[2] Karen Weise, Doctors Fear Bringing Cornavirus Home: ‘I am Sort of a Pariah in My Family’, The New York Times, March 16, 2020 (updated March 17, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-doctors-nurses.html.
[3] Stephanie Innes, Number of hospital beds, doctors in Arizona are low compared with rest of U.S., Arizona Republic, March 15, 2020 (updated March 16, 2020), https://www.azcentral.com/story/news/local/arizona-health/2020/03/15/number-hospital-beds-doctors-arizona-low-compared-rest-u-s/5038216002/.
[4] As an example, The Utah Department of Health, according to a news article in The Salt Lake Tribune, announced on March 24th a halt to nonurgent medical, dental, and veterinary procedures in order to preserve protective gear for health professionals. The order currently runs through April 25th. See Sean P. Means, Lee Davidson, Bethany Rodgers, Utah increases COVID-19 testing, halts non-urgent care – but some doctors urge stay-at-home orders, The Salt Lake Tribune, March 24, 2020, https://www.sltrib.com/news/2020/03/24/utah-increases-covid/.
[5] Adam Grant, Burnout Isn’t Just in Your Head. It’s in Your Circumstances, The New York Times, March 19, 2020, https://www.nytimes.com/2020/03/19/smarter-living/coronavirus-emotional-support.html.
[6] For example, the maximum weekly unemployment benefit insurance in Utah is $580, with a total maximum benefit of $15,080.00.
See Unemployment Insurance Benefit Schedule, January 2020, Workforce Services Unemployment Insurance, https://jobs.utah.gov/ui/UIShared/PDFs/BenefitCalculation.pdf.
Filing for Disability Insurance Benefits In the Wake of Coronavirus: What Every Dentist Should Know
Now that the COVID-19/Coronavirus epidemic has reached the U.S. and spread throughout the country with no end in sight, dentists are being forced to face the reality that they may have to go without income for weeks, or maybe even months.
Some states, like California and New York are ordering dentists (and everyone else) to close their offices and shelter-in-place. And the American Dental Association (ADA) has called upon dentists to postpone elective procedures for the next three weeks.
In Utah, many dental offices have closed or drastically cut back on seeing patients following the ADA’s statement and the Utah Dental Association’s warning that dentists are “one of the highest risk categories for transmission and contraction of the virus, with many routine dental procedures potentially transmitting the virus.”
Similarly, in Arizona, Governor Doug Ducey has discontinued “all non-essential or elective surgeries, including elective dental surgeries, that utilize personal protective equipment or ventilators” in an effort to preserve PPE for an anticipated spike in the pandemic. Dr. Jennifer Enos, president of the Arizona Dental Association, has also issued a statement asking “dentists to donate available supplies of personal protective equipment, such as medical gloves and masks,” which effectively would mean that dentists would need to close their offices until those supplies become generally available again.
Given all of this uncertainty, our attorneys have been receiving a host of questions from dentists who are trying to determine if they can file a disability insurance claim and/or how the coronavirus developments impact their disability claim/benefits. So, for the next several weeks our disability attorneys are going to dedicate our blog to answering dentist’s questions about coronavirus and disability claims under their private, own-occupation policies, in an effort to help the dental community be more informed on these important and complex legal/disability industry issues.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Sources:
ADA Calls Upon Dentists to Postpone Elective Procedures, American Dental Association, March 16, 2020, https://www.ada.org/en/press-room/news-releases/2020-archives/march/ada-calls-upon-dentists-to-postpone-elective-procedures.
UPDATE on COVID-19 , Arizona Board of Dental Examiners, March 19, 2020, https://dentalboard.az.gov/.
The Latest on COVID-19 from AzDA, Arizona Dental Association, https://www.azda.org/news-publications/the-latest-on-covid-19.
Utah Dental Association, https://www.uda.org/.
Hannah Tiede, Dental surgeons postpone elective procedures to combat COVID-19 spread, KOLD, March 18, 2020, https://www.kold.com/2020/03/19/dental-surgeons-limit-elective-procedures-combat-covid-spread/.
Hannah Miller, Dentists reduce hours, postpone elective procedures to combat coronavirus, CNBC, March 19, 2020, https://www.cnbc.com/2020/03/19/coronavirus-dentists-reduce-hours-postpone-elective-procedures.html.
Paighten Harkins, Some Utah dentists are closing because of coronavirus. Others don’t think they can., The Salt Lake Tribune, published March 17, 2020 (updated March 18, 2020), https://www.sltrib.com/news/2020/03/17/some-utah-dentists-are/.
Do I Lose My Disability Coverage If I’m Not Working?
It depends. Some disability policies (most often employer policies or group/association policies) have a requirement that you must remain “actively at work” or working “full-time” in order to stay eligible for coverage.
While sometimes “full-time” is defined, other policies, like the ADA/Great-West policy, have an hourly work requirement that must be met to maintain eligibility. For example, you may need to work 20 hours a week, or 30 hours a week, depending on the disability policy.
Many times, there are exceptions that can be utilized to maintain eligibility, but it may require further action, like obtaining a formal leave of absence from your employer or getting approval for FMLA leave. However, these are things that need to be done proactively, to preserve eligibility.
Additionally, if you lose eligibility and regain it later (say, after the national coronavirus epidemic has passed), this can re-set the coverage date and preexisting condition provisions under some policies. As a result, your claim could be denied on the basis that your disabling condition pre-dates the new coverage date, even if you technically regain the ability to file a claim under the policy upon returning to work.
There are certain legal principles that will work in tandem with the provisions of your policy, and that may help you, especially in circumstance like coronavirus pandemic. However, the administrators of your policy may or may not believe that it is in their best interest to voluntarily assist you, notwithstanding these laws.
Action Step: Locate your disability policies and become familiar with the requirements for maintaining eligibility. If necessary, take additional steps to preserve your eligibility during periods where you are not able to meet the normal hourly work requirements. Talk to a disability attorney if you have questions about ways to maintain your eligibility during the coronavirus crisis.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Can I File a Disability Claim if My Office Has Already Closed?
Yes, but your claim will likely receive heightened scrutiny—particularly if you worked normal hours seeing roughly the same number of dental patients up until your office was closed due to coronavirus.
Many disability policies require you to prove that your disability (or loss of income resulting from disability) was caused “solely” by an underlying sickness/injury, and not by other secondary causes. Other policies require you to show a “demonstrated relationship” between the disabling condition and your inability to practice dentistry. And some newer disability policies even exclude disabilities if they are “caused or contributed to” by something other than your underlying medical condition. If your disability policy contains such language, your insurer may deny or reduce your benefits on the grounds that your loss of income/inability to practice is due to causes other than your disabling condition.
Additionally, if you can’t work because you were forced to close your office or give away your supplies, or your employer sent you home and you can’t work for other dentists because of a non-compete agreement, your insurer may also try to use that as a basis to deny your claim.
This is called the “legal disability” defense and is usually used in situations where a dentist has legally lost the ability to practice—for example, if the dentist lost his/her license. Courts have addressed this differently in different jurisdictions, but generally the defense—where recognized—allows the insurer to avoid payment if it can show that you lost the legal ability to practice before you became disabled.
If your disability insurance company raises this legal defense, it typically results in a “chicken v. egg” scenario where your medical records and the timeline is parsed to determine what came first. And, while it is certainly possible to prevail, these claims may require court involvement to resolve—particularly if care is not taken at the outset to ensure that the timeline and facts are properly submitted with the original notice of claim.
Action Step: If you are considering filing a disability claim during the national coronavirus epidemic, recognize that your claim will be subjected to close scrutiny and make sure that you carefully review and double-check your responses when submitting your proof of loss to ensure that the timeline is accurate. If you are concerned about your insurer asserting a “legal disability” defense, speak with an experienced disability lawyer about your situation.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
If I Close My Office Will That Hurt My Chances of Using My Disability Policy?
It could. See Can I File a Disability Claim if My Office Has Already Closed?
If I Change the Volume and/or Types of Procedures I’m Doing, Will that Hurt My Chances of Using My Disability Policy?
It could. While most policies sold to dentist are “own occupation” policies, the term “occupation” is a malleable term. Typically, “occupation” is defined as the “occupation or occupations” you were engaged in immediately prior to your date of disability.
As we’ve explained in our prior articles, this means that you can modify your occupation and hurt your chances of collecting if you change the types of procedures you are doing. If you reduce your hours, stop doing certain dental procedures and/or focus more on office administration and are not able to resume your normal schedule before filing a claim, your disability insurance company may determine your occupation is a “part-time dentist” and “part-time administrator,” determine that you can still do office administration, and refuse to pay total disability benefits.
Action Step: If you think that you may need to file a disability claim in the future, carefully weigh the risk of modifying your occupation against the risk of your future claim being evaluated based upon a modified occupation. If appropriate, consider filing a disability claim prior to pursuing non-clinical options, but discuss this first with an experienced disability insurance lawyer.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
How Do I File a Disability Claim if I Can’t Get in to See My Doctor?
Most disability insurance policies require you to produce proof of loss within a limited time frame and state that the company can limit or deny providing you with disability benefits if you do not provide the information within that time frame. However, there are legal rules that allow for delay if it would be impossible or unreasonable for you to produce the proof within the required time frame.
These same exceptions also may apply in instances where you are already on claim and the disability insurance company is requiring an update from your doctor. Whether these exceptions are available to you will depend on what your policy says and the law in your jurisdiction. An experienced disability attorney can help you request an extension if you need it.
Action Step. Speak with an experienced disability lawyer to assess whether it would be appropriate to file a claim and start the process prior to obtaining your doctor’s statement. If you are already on claim, ask for an extension and if the insurance company refuses to grant one, speak with a disability lawyer.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
If I file a Partial Disability Claim How Do They Calculate Loss of Income? What If My Income Goes Down Because of Coronavirus?
Each disability insurance policy has a different formula for calculating prior income and loss of income. Some policies look to the year or 24 months immediately prior to date the disability claim was filed, other policies use averages over a several year period, and some policies give dentists the option to pick between the two.
Once your prior income is determined, it is typically averaged out on a monthly basis and compared to your actual monthly income to determine the loss of income, expressed as a percentage. If you meet a certain percentage loss, usually 15% or 20%, you are eligible for benefits.
If your disability policy averages out prior income over a period of several years, the impact on prior income will likely not be that significant if the drop in income dips for a few months and then recovers. However, if the policy looks to the period immediately prior to filing the claim, a series of a few months with little to no income could have a more drastic impact on how prior income is calculated. And if your prior income remains low when you ultimately file a partial disability claim, it becomes much harder to meet the threshold loss of income to qualify for partial disability benefits.
See also Can I File a Disability Claim if My Office Has Already Closed?
Action Step: If you are considering filing a partial disability claim, review your policy’s partial disability provision and become familiar with how “prior income” and “loss of income” are calculated under your policy. If you had a drop in income related a disabling condition prior to the loss of income from the coronavirus, and you are able to back that up with documentation, evaluate whether it would be appropriate under your policy to file partial disability claim based upon that loss of income.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Should I Try to File for Unemployment or Get Another Job Until I Can Go Back to Dentistry?
If you try to find another non-clinical job, you risk modifying your occupation. See If I Change the Volume and/or Types of Procedures I’m Doing Will that Hurt My Chances of Using My Disability Policy?
While unemployment benefits vary from state to state, barring significant changes to the programs, it is unlikely that these sorts of benefits will allow dentists to meet their expenses if dentists are forced to close their offices for extended periods of time. For example, in Arizona, the maximum weekly benefit is $240, or roughly $960/month. Additionally, there is a chance that the various programs will not be able to address the spike in people filing for benefits. In just Arizona alone, the non-partisan Economic Policy Institute released a new study showing that Arizona will lose more than 100,000 jobs by this summer related to COVID-19, including 4.2% of private sector jobs, which will place significant strain on the unemployment benefit program.
Obviously, you should not file a disability claim if you do not have a medical condition that limits you from practicing. However, if you are a dentist with a slowly progressive condition, like degenerative disc disease or an essential tremor and you have been considering filing a disability claim, your disability claim may be a better option than seeking unemployment benefits. While there are some new considerations when filing a disability claim in this environment, your policy probably provides greater financial protection than unemployment benefits, if you have a legitimate disability claim.
Action Step: Learn more about your state’s unemployment benefits and how they compare to your disability policy’s benefits. If appropriate, consider filing a disability claim.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Sources:
Eligibility for Unemployment Insurance Benefits – How much will my weekly benefit amount be? https://des.az.gov/services/employment/unemployment-individual/eligibility-unemployment-insurance-benefits.
Steve Irvin, Analysis: Arizona will face huge job losses because of coronavirus, ABC 15, March 19, 2020
https://www.abc15.com/news/state/analysis-arizona-will-face-huge-job-losses-because-of-coronavirus.
Arizona increases access to unemployment benefits, moves tax deadline due to coronavirus, 12 News, March 20, 2020 (updated March 21, 2020)
https://www.12news.com/article/news/health/coronavirus/az-unemployment-benefits-tax-deadline-covid-19/75-d8a15335-2560-460c-89f2-1bdf7f52f412.
The Latest on COVID-19 from AzDA, Arizona Dental Association, https://www.azda.org/news-publications/the-latest-on-covid-19.
I Filed a Disability Insurance Claim Months Ago and Still Do Not Have a Decision – What Is Taking So Long?
While it is not unusual for a disability insurance company to take several months to make a benefits decision, it is important (and particularly important now) to be following up so that your disability claim is not placed on the back burner, particularly when insurers may be operating with limited staff.
If you feel your claim decision is being delayed, you have submitted all requested information, and you are in need of income for a particular reason (like the coronavirus) disability insurers will sometimes make advance payments under a “reservation of rights.” However, this money can be clawed back, so it is important to carefully evaluate whether this sort of thing is appropriate, and it may require the involvement of an experienced disability attorney to secure the advance payment.
Action Step: Be proactive and follow-up with your disability insurance company to determine when they will be making a benefits decision. If you feel that a decision is being wrongfully delayed, speak with a disability lawyer.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I Am Stuck Out of the Country and Can’t Get Back – Can My Disability Insurance Company Cut Off My Disability Benefits?
Some policies, particularly newer policies, contain “foreign residency” provisions that require you to be in the U.S. (or sometimes, the U.S., Canada or Mexico) in order to remain eligible to receive disability benefits. Oftentimes, the disability policy will allow for a certain period of time that you can be out of the country and then cut off benefits if you do not return.
At the same time, these provisions do not say what happens if your failure to return is due to something that is not your fault—like the coronavirus, quarantines or travel bans. Consequently, this is a difficult question that would likely hinge on the legal interpretation of the exact language in your policy, the law of your jurisdiction, and the court who is asked to resolve the issue, if the insurer is not willing to waive the terms of the contract or come to a compromise.
Action Step: Review your policy to determine whether it has a foreign residency provision. If it does and you are concerned that you may not be able to return to the U.S. in time to comply with its provisions, contact a disability lawyer.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
My Insurer Says I Have to Undergo an IME But I Don’t Want to Get Coronavirus
Most policies contain provisions that require you to submit to medical examinations and allow the company to terminate benefits if you do not attend. Some policies only allow for a limited type of exams, while others contain provisions that go on for several paragraphs outlining the several types of tests and exams that the company can require. So the first step is assessing whether the exam that is being required is appropriate under the terms of your policy.
If so, then the second question is whether you should be forced to put your health at risk to secure or maintain your disability benefits. Again, this is something that may require the intervention of an experienced disability attorney to resolve, as it will likely initially require an in-depth assessment of whether the insurer can obtain the relevant information by other means. Other options include negotiating a postponement of the IME or, if the insurer is particularly aggressive, taking the insurer to court to determine whether these provisions are enforceable under these particular circumstances.
Action Step: If you are concerned about your insurer requiring an in-person IME, speak with a disability lawyer and have him or her evaluate whether the IME is required under your policy and whether there are other means to provide the requested information.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
My Disability Insurance Company Wants to Send A Field Examiner to My House – Do I Have to Let Them In?
See My Insurer Says I Have to Undergo an IME But I Don’t Want to Get Coronavirus.
Most policies do require provisions that require you to submit to in-person examinations. However, there is also typically a “reasonableness” requirement. An experienced disability attorney can evaluate your claim to determine whether an examination is appropriate under the circumstance and/or whether there are alternative methods of obtaining the relevant information that do not place your health at risk.
Action Step: If you are concerned about your insurer requiring and in-person field interview, speak with a disability lawyer and have him or her evaluate whether the field exam is required under your policy and whether there are other means to provide the requested information.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I Can’t Get My Doctor to Complete My Disability Paperwork – What Do I Do?
See How Do I File a Disability Claim if I Can’t Get in to See My Doctor to get Claim Forms Completed?
Under certain circumstances it may be possible to request extensions and/or get the insurer to agree to accept proof of loss in other formats, such as medical records, test results, etc. However, it is important to be wary of the disability insurance company offering to do peer-to-peer calls with your doctor in lieu of reports.
Action Step. Ask for an extension and if the insurance company refuses to grant one, speak with a disability lawyer.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
I’ve Been On Claim With Reduced Reporting and Now My Disability Insurance Company Wants to Do an Interview/IME – Is My Claim Being Targeted for Denial?
Historically, disability insurers have engaged in bad faith more frequently when they faced sustained periods of financial loss. Additionally, during the last recession, we noted that many companies began revisiting claims that had been ongoing for years, and subjecting them to in-depths reviews to see if there had been any improvement or if they could find any basis for termination.
At the very least, disability claims—particularly high-dollar claims filed by dentists—are going to be receiving heightened scrutiny during this time. Field examiners, IME doctors, and other third parties who work with insurance companies, as well as the companies’ own analysts and in-house doctors conducting medical records reviews, will all be under substantial pressure to keep their jobs by saving costs for the insurance company.
Action Step: If you feel that your disability insurance company is improperly targeting your claim for denial, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.
Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.
Insurance Company Tactics: IMEs, Rushed Exams and Piecemeal Testing
Many policies allow insurers to conduct Independent Medical Examinations (IMEs) throughout the course of a claim. While the stated goal of an IME is usually to “verify” your disabling condition, insurance companies often use IMEs as a tactic for denying or terminating claims.
One such example of this is the case of Hughes v. Hartford.[1] Patricia Hughes was working as a registered nurse when she began to experience vertigo and was diagnosed with Meniere’s disease. She ultimately filed a claim with her disability insurance carrier, Hartford. Hartford initially approved the claim; however, a few years later, they became particularly aggressive, interviewed her treating provider, conducted a field interview, hired an in-house doctor to review records, hired a surveillance company to follow Hughes, and terminated her benefits.
When Hughes appealed the denial, Hartford scheduled her to undergo an IME with a neurologist, Dr. Schiff, who concluded that Hughes’ test results were normal and that her diagnosis of vestibular dysfunction was inconsistent with the previously gathered surveillance footage. Hartford then used the report as a basis for upholding the denial, in spite of the fact that a nurse who accompanied Hughes to the exam stated that the examination was “very elementary,” “limited”, and “rushed”. Hartford also ignored concerns Hughes’s treating doctor raised about the exam—namely that Dr. Schiff was not trained in vestibular disorders and that Dr. Schiff notably “did not perform any of the tests which actually [had] been historically abnormal for Ms. Hughes including audiogram, video ENG, or posturography, so he seems to have omitted the most relevant data from his examination.”
Upon reviewing Hartford’s conduct, the judge determined that, under the circumstances, Hartford had not conducted a “full and fair review” and required Hartford to reconsider its denial of Hughes’s claim.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is not giving your claim a full and fair review, an experienced disability insurance attorney can help you assess your particular situation and determine whether your insurer’s actions are appropriate.
[1] Patricia Hughes v. Hartford Life and Accident Insurance Co., No. 3:17-cv-1561 (JAM), 2019 WL 1324947 (D. Conn. March 25, 2019)
Why You Should Read Your Policy Carefully: A Case Study
In prior posts, we’ve discussed the importance of thinking through the pros and cons of replacing an older policy with a newer one. We’ve also cautioned against blindly relying on agents when selecting a policy, without taking the time to read through what you are purchasing yourself.
The recent case of Mathis v. MetLife[1] illustrates why this is so important. Dr. Mathis, an orthopedic surgeon, had a Standard policy that he decided to replace in order to protect his increased income and earning ability. At the suggestion of his insurance broker, Dr. Mathis purchased a MetLife policy to replace the Standard policy. While the benefit amount of this new policy was higher and the MetLife policy was marketed as an “own-occupation” policy, it had additional terms that limited Dr. Mathis’s ability to work in a different capacity and collect disability benefits, if he could no longer be a surgeon.
Over ten years after purchasing this MetLife policy, Dr. Mathis became disabled and was no longer able to practice as an orthopedic surgeon. Believing that he had a policy that allowed him to collect benefits as long as he couldn’t do his prior occupation (and under the assumption that it didn’t matter if he was employed in a different profession), he took a job at an orthopedic device manufacturer.
Upon learning of this new job, MetLife informed Dr. Mathis that, in addition to being unable to perform the material and substantial duties of his regular occupation (orthopedic surgeon) he also had to demonstrate he was “not gainfully employed” in order to qualify for total disability benefits.
At that point, Dr. Mathis could not undo the decision to start the new job, so Dr. Mathis and his lawyer sued MetLife, the brokerage firm, and his insurance broker for breach of contract, alleging that they were negligent in becoming familiar with the MetLife policy and negligently failed to insure him for total disability within his occupation (without the need to be gainfully employed), which was the coverage he thought he was getting. In response, the defendants argued that Dr. Mathis had had the policy for over ten years, and that he had a duty to read the policy when he first received it.
To date, the dispute is still ongoing and has not been fully resolved by the courts. However, so far, Dr. Mathis has had to deal with the additional initial headache of arguing over which state law applies to the dispute, since Dr. Mathis had been living and practicing in Alabama when he bought the policy (but now lives in Massachusetts), MetLife is headquartered in New York, and the broker’s company is headquartered in Indiana. It remains to be seen whether Dr. Mathis ultimately prevails, but at the very least, he would have saved significant expense and stress if he had simply read the terms of the MetLife policy carefully before paying years of premiums for coverage that he did not want.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Mathis v. MetLife, No. 1:18-cv-01893-JRS-DLP, 2019 WL 1409464 (S.D. Ind. March 28, 2019).
Insurance Company Tactics: Overemphasizing Daily Activities
In prior posts, we’ve discussed how insurers conduct surveillance to determine if you can go back to work. Insurers also gather information about your daily activities through field interviews, claim forms and looking through your medical records for statements about your activity levels.
Many dentists and physicians with “own occupation” policies wonder why they are being asked these questions. In their minds, their hobbies and activities are completely unrelated to whether they can return to practice. However, to an insurer, gathering this information is often the first step towards challenging (and potentially denying) a claim. Insurers like to use reports or surveillance footage of daily activities to argue that a claimant’s condition has improved—particularly when a claim involves subjective symptoms, such as pain or numbness, that may be difficult to objectively verify.
The recent case of Dewsnup v. Unum[1] illustrates how insurers attempt to use information about claimants’ daily activities against them. Dewsnup was trial attorney who underwent quadruple bypass surgery after suffering a heart attack. Although the surgery was successful as far as his heart was concerned, he developed a constant burning pain across his chest at the incision site.
When he was not able to return to work after the surgery due to pain and fatigue, Dewsnup filed a total disability claim with Unum. Unum initially approved Dewsnup’s claim, but when Dewsnup eventually returned to the office part-time, Unum conducted a renewed, in-depth investigation of his claim and ordered a review of his medical records. When Unum contacted him, Dewsnup explained that his time in the office was limited, that he was only there to interact with clients, and that he was in no condition to go back to the rigors of practicing as a trial attorney (such as staying up all night, dealing with other attorneys, etc.).
Although Dewsnup had an own-occupation policy, Unum terminated Dewsnup’s benefits. When Dewsnup sued Unum, Unum argued that he could return full-time to the demanding and stressful work of a trial attorney, in part because he’d told Unum in phone interviews and other forms that he was able to wear his seatbelt when in a car, help his wife with chores, walk on a treadmill most days of the week, and had carved a wooden mantle.
Fortunately, the court was familiar with the duties of a trial attorney and held Unum in check. The court reversed the claim denial, observing that “Mr. Dewsnup never claimed that his pain was completely disabling in every facet of his life. . . . It is probable that his pain would prevent him completing the mentally-taxing work of trial attorney, but not prevent him from accomplishing relatively simple and low-stress daily tasks.”
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly targeting your claim for denial, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.
[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah)
Insurance Company Tactics: Questioning Medical Decisions
Who gets to decide what treatment is best for you?
Of course, the answer is ultimately you (with the guidance of your treatment provider). At the same time, many disability policies require you to be receiving ongoing treatment for your disabling condition in order to remain eligible for benefits. Some newer policies we have seen even go so far as to state that you must receive care that is directed towards a “return to work” or “maximum medical improvement.”
These provisions can give rise to disputes with your insurer if you do not want to undergo a particular procedure, but your insurer maintains that you are not seeking appropriate treatment and/or that you are malingering (i.e. your symptoms are not as severe as you are reporting). For example, your insurer may use an in-house doctor to review your medical records and challenge your treating provider’s treatment recommendations, stating that a more invasive procedure (like surgery) would fix your condition and allow you to return to work.
This is a tactic that Unum tried to use in the recent case of Dewsnup v. Unum[1]. Dewsnup was a trial attorney who had quadruple bypass surgery after suffering a heart attack. After the surgery, he had a constant burning pain across his chest at the incision site, which was exacerbated by stress and led to fatigue that eventually made it impossible for him to work.
Dewsnup was ultimately diagnosed with intercostal neuralgia. When a recommended diagnostic nerve block did not help, Dewsnup decided to not pursue a nerve ablation. His treating doctor supported this decision, as there were risks to the ablation procedure and the failed injection suggested that the ablation would likely not fix his pain. Dewsnup also began taking medication for the pain, but later stopped taking the medication when he determined that the potential risks and negative side effects of the medication outweighed any benefits.
In an effort to deny his claim, Unum hired several doctors to review Dewsnup’s medical records. The doctors noted that Dewsnup’s pain levels were subjectively reported, and concluded that he was not disabled, even though Dewsnup’s treating doctors all agreed that he was. Unum’s doctors based this decision, in part, on the fact that he had stopped his medication and was foregoing the ablation and additional treatment. Essentially, Unum argued that the pain must not be so bad, since he had decided not to have the nerve ablation and had stopped taking the medication.
Fortunately, in Dewsnup’s case, the court determined that that there was sufficient evidence that his pain was “severe enough to cause fatigue, hinder concentration, and prevent him from performing the mentally-demanding duties of a trial attorney.” The court also disapproved of Unum’s approach, noting that “[n]one of Unum’s reviewers examined Mr. Dewsnup in person” and that “[a]part from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence.” Ultimately, the court reversed Unum’s claim denial (but only after costly, time-consuming litigation).
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that the terms of your policy aren’t being applied correctly, or if your insurer is questioning your treatment decisions in an attempt to undermine your claim, an experienced disability insurance attorney can help you understand your policy and apply it to your particular situation.
[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah).
Insurance Company Tactics: Surveillance
We’ve discussed before how insurers often use surveillance in disability claims. Physicians’ claims and dentists’ claims, in particular, are often targeted due to the high benefit amounts the company can save by denying or terminating the claim. Accordingly, professionals filing claims should expect that they’ll be under surveillance at least once, and sometimes several times, throughout the course of their claim.
If the company is able to obtain surveillance footage, the company may overstate the significance of the footage in an effort to deny or terminate benefits. The case of Fleming v. Unum[1] illustrates how insurers use surveillance as a tactic to improperly terminate benefits. Pamela Fleming worked a litigation attorney until she was in a serious car accident and suffered severe injuries to her neck and thoracic spine, leaving her unable to work. Fleming had own occupation policies that defined “disability” as the inability to do the material and substantial duties of her occupation.
After having paid her claim for over a decade, Unum hired a surveillance company to videotape Fleming. The surveillance video showed Fleming throwing away a bag of garbage, putting a cooler in her car, and then driving a significant distance. Unum told Fleming that the footage conflicted with her previously reported limitations and terminated her benefits.
When her claim was denied, Fleming sued Unum and the court ultimately reversed the claim denial. In doing so, the court determined that Unum had greatly overemphasized the significance of the surveillance footage. The court noted that while the video showed Fleming lifting a garbage bag, “[l]ifting the bag over her head was no feat of strength or indication of recovery” because it was clear from the surveillance footage itself that “the bag of trash contain[ed] empty plastic bottles.” The court then concluded that “[t]he fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney.”
Similarly, the court criticized Unum for taking the footage out of context, observing that the footage “shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days.” The Court then noted that “[b]oth coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support” and concluded, “[i]f anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment . . . . The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records” (emphasis added).
Luckily for Fleming, the judge in her case saw through Unum’s attempt to improperly terminate her claim. But, unfortunately, judges and juries can all too often put undue weight on surveillance footage, because it is easy to present out of context and is more interesting and attention-grabbing than other relevant evidence, such as medical records and doctors’ opinions. Consequently, it is likely that companies will continue to take this sort of footage out of context, in the hopes that claimants will give up and not challenge the denial, or give in and accept a low-ball settlement once their benefits are cut off.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly using surveillance, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.
[1] Fleming v. Unum, 2018 WL 6133859 (2018).
Why Was My Claim Denied? Can I Sue for Bad Faith in Arizona?
An Arizona disability insurance claim can be denied for a variety of reasons. Some reasons are legitimate, and some are not. This can be especially true for dentist and physician claims that can be targeted for denial simply because of the policies’ high benefit amounts and how much money is at stake.
Knowing the specific reason or reasons for a disability insurance claim denial is critical to deciding what your next step should be. Because of this, some states, including Arizona, have adopted laws that require insurers to provide you with timely information explaining the basis for a denial. In both Arizona and California, an insurer that denies a claim must provide a reasonable explanation for the denial based on the terms of the policy, the facts, or the applicable law.[1] Some states’ laws also require that the notice of denial must be in writing, must reference any specific grounds for denial, and must explain how those grounds specifically apply to your claim.[2] Failure to provide an explanation could lead to a finding that your insurer acted in bad faith.
When you receive the explanation of denial, chances are it may be confusing to understand. Even if an explanation is provided, it may still warrant a finding of bad faith if the explanation fails to clearly communicate the rationale behind a denial[3] , or the denial was founded on an improper bases (e.g. a biased medical exam).
If you have already filed and your insurance company has wholly or partially denied your claim, there is often a short window of time in which to act if you wish to preserve your claim.
If you have filed a claim, or you are facing a denial from your insurance company, an experienced Arizona disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] A.R.S. § 20-461(A)(15) (2018); Cal. Ins. Code § 790.03(h)(13) (2018).
[2] Cal. Code Regs. tit. 10, § 2695.7 (2018).
[3] See, e.g., the California case of du Mortier v. Mass. General Life Ins. Co., 805 F.Supp. 816, 823 (C.D. Cal. 1992).
Can You Collect On Your Specialty Specific Policy? An Arizona Case Study
Arizona disability claims filed by professionals can be complex, particularly when the dentist or physician’s underlying occupation is a specialty specific field.
If the claim involves a discrete practice area, disability insurers may use that as an excuse to drag their feet when making a claims decision. For example, they may make repeated requests for employer questionnaires, financial information and/or vocational examinations, among other things. Then, as time goes on, the financial pressures of being left with no income build, prompting some doctors to consider a return to work even though it’s not safe for them to be practicing on patients. Other doctors with specialty-specific policies reason that they can return to work in a different field and expect to receive their benefits as a supplement to the new job, only to find that their insurer disagrees that they were, in fact, a specialist, and refuses to pay total disability benefits.
This is what happened to Joanne Ceimo, M.D., a former invasive cardiologist from Scottsdale, Arizona who practiced at Banner Boswell Medical Center in Sun City, Arizona.[1] Dr. Ceimo had an own occupation policy and was practicing within her medically recognized specialty of invasive cardiology. In 1994, doctors diagnosed Dr. Ceimo with cervical degenerative disc disease, which made it increasingly difficult for her to perform surgeries and prevented her from performing on call duties. Eventually, she was forced to stop performing surgeries as well and instead began practicing general cardiology.
In her mind, Dr. Ceimo’s new job as a general cardiologist was substantially different than her prior job as an invasive cardiologist. However, Dr. Ceimo ultimately had to sue General American, along with Paul Revere and Provident (the other insurance companies administering her claim) for the benefits she was due under her policy. She filed her disability insurance claim in 1995 and, after a long, drawn-out claim investigation, was eventually denied benefits in 1998. Due to the long delay, Dr. Ceimo was forced to continue working as a general cardiologist in the Phoenix area to meet her expenses, even though it was bad for her health and working made her pain worse.
When they denied her claim, the companies asserted that Dr. Ceimo was not a specialty cardiologist because she had only spent six to ten hours on surgeries per week. The companies then stated that her occupation before her date of disability was that of a general cardiologist, and concluded she was not eligible for total disability benefits because she continued to practice in that capacity. In making this argument, the companies ignored the fact that Dr. Ceimo had practiced invasive cardiology from when she was licensed by the Arizona Medical Board in 1982 through the onset of her disability in 1995. The companies also failed to mention that their own medical records review classified Dr. Ceimo as an “invasive cardiologist.”
Dr. Ceimo and her lawyers filed a bad faith lawsuit in the District of Arizona against General American, Paul Revere and Provident.[2] In addition to arguing that the companies improperly interpreted her specialty, Dr. Ceimo and her attorneys also asserted that the companies improperly relied on biased in-house medical consultants and internal company practices geared towards denying high-dollar physician claims like Dr. Ceimo’s. The case ultimately produced a large verdict in favor of Dr. Ceimo, with almost $6.7 million in consequential damages, but it took nearly a decade of fighting before she obtained the benefits she was due under her policy.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your company is improperly delaying a claims determination and/or targeting your claim for denial or termination, an experienced Arizona disability insurance attorney can help you assess your claim and determine what action, if any, needs to be taken.
[1] See Ceimo v. Gen. Am. Life Ins. Co., 2003 WL 25481095 (D. Ariz. Sept. 17, 2003).
[2] They alleged that all three companies were licensed to do business in Arizona, subject to Arizona’s bad faith laws and required to abide by the Arizona Unfair Claims Settlement Practices Act.
Are There Options Besides A Trial When My Claim is Denied?
Reducing the risk of having to fight for disability benefits requires understanding the terms of your disability insurance policy from the beginning, carefully and thoroughly filling out the application, and ensuring accuracy and consistency in your claim packet and subsequent filings. As the saying goes, the best defense is a good offense, and the best way to avoid litigation is to file the disability claim correctly the first time.
Although filing a successful disability claim is not easy, it is the ideal. Unfortunately, insurance companies have a strong incentive to increase their bottom lines and often they practice aggressive tactics in improper attempts to justify the denial or termination of even a wholly legitimate disability claim. If your disability claim has been terminated or denied, it can seem overwhelming or hopeless to try to reverse the decision. In the event of a denial or termination, many insureds know they can sue their disability insurer and go to trial. Yet, even if you are ultimately successful in a lawsuit, litigation can sometimes drag on for years. While a lawsuit is pending, you’ll not only have legal expenses, but will also not be receiving disability benefits (and likely not be in a position to work to offset your expenses, due to the nature of your disability or your policy’s language). There are, however, some alternative options that can be attractive to both parties that policyholders may not be aware of, namely mediation and lump sum settlements.
Mediation
All too often we see legitimate disability claims denied or terminated, with the insurance company refusing to reconsider their position. If your disability claim is terminated, the company knows that it wields a lot of power over the denied individual, including the power of money, the power of time, the power of institutional knowledge, and the power to tolerate litigation. In other words, insurers calculate that spending money on even protracted litigation will end up being cheaper than continuing to pay disability benefits, and they know that many claimants will just give up and go away if they draw out court proceedings long enough.
While this might sound bleak, there can be alternatives to a full-fledged lawsuit that culminates in a trial (and potentially drawn-out appeals). One such method is mediation. Mediation is where the parties to a lawsuit meet with a neutral third party in an effort to settle the case.
For the most part, mediators are retired judges, or active or retired attorneys. The mediator reviews the case file and then meets with both parties, seeking to facilitate discussions between the parties and try to find common ground in order to reach an acceptable compromise. Because mediation is not binding, the mediator’s recommendation and any subsequent agreement between the parties is not final until the parties memorialize it by putting all the agreed upon terms in writing and signing the document.
Often the insurance company will offer to draft the agreement so they can have control over what the agreement says, and so it is important to stay engaged in the process even after the mediation has ended, in order to ensure that the parties’ agreement is accurately documented. The settlement agreement itself is a very important document, so you should be sure to take the time to carefully review it before signing, to be sure it encapsulates all the agreed upon terms.
It is also important to keep in mind that mediation typically does not result in a full restoration of disability benefits nor is not always successful. The non-binding nature of mediation means that if the insurance company low-balls and refuses to budge in its offer, the claimant may need to just walk away and resume litigation.
Lump Sum Settlement
Another way of avoiding trial is through negotiating a lump sum settlement. This typically occurs outside of the mediation setting, but sometimes requires the filing of a lawsuit before the insurance company is willing to come to the table. When this happens, your insurer agrees to buy out your disability insurance policy and you release your right to collect disability benefits under your policy and your insurer from any obligation to you. The buyout amount will be your disability insurance policy’s “present value” (i.e. the amount of money you could invest upon receipt, based on a determined interest rate, and end up with the same amount of money you would have received in disability benefits at the end of your policy), discounted by a percentage that is negotiated by the parties.
A buyout can be an attractive offer and can occur at any stage of the litigation process. A lump sum buyout could even be a preferable alternative to having disability benefits reinstated, as you would no longer have to deal with your insurer. Your disability benefit payments would cease being on hold pending the outcome of a trial and you could invest the lump sum in order to provide for your and your family’s future. In addition, unlike monthly disability benefits, the lump sum settlement you receive would be inheritable and available to be passed on to your heirs, should something happen to you.
There are, however, certain drawbacks to a lump sum buyout, including the fact that you and your disability insurers cannot accurately predict the future of the market with 100% certainty, so the calculations will only be a best estimate. If you are healthy and have lifetime benefits, you could also receive more money cumulatively over time if you were to stay on claim. So, while attractive, especially when faced with litigation, the pros and cons must be carefully weighted when considering lump sum buyouts during the litigation process.
We often see claimants who face the loss of their disability benefits simply give up and accept a denial, daunted by the thought of protracted litigation. While litigation may sometimes be the most advisable way to get benefits, and possibly punitive damages, there are other avenues to explore, advisably with the help of a disability insurance attorney, that can end in your retaining at least some of the disability benefits you stand to lose completely when an insurance company denies your disability claim.
Case Study: Can You Sue Your Insurer For Emotional Distress?
At least one court thinks so. In Daie v. The Reed Grp., Ltd.[1], the claimant was denied long term disability benefits under an ERISA plan. Instead of merely asking the court to reverse the denial of disability benefits (a result that can be difficult to achieve under ERISA), claimant filed a complaint in state court alleging intentional infliction of emotional distress.
The claimant asserted that the insurer “repeatedly engaged in extreme and outrageous conduct with the aim of forcing plaintiff to drop his claim and return to work.” Id. More specifically, the claimant alleged that the insurer had falsely claimed the claimant was “lying” about his disability and “exaggerating” his symptoms. Id. According to the claimant, the insurer had also urged claimant to take “experimental medications,” induced claimant to “increase his medications,” forced claimant “to undergo a litany of rigorous medical examinations without considering their results,” and pressured claimant “to engage in further medical testing that it knew would cause . . . pain, emotional distress and anxiety.” Id.
The insurer filed a motion to dismiss, arguing that ERISA preempted claimant from bringing the state law claim. The court denied the motion to dismiss for two reasons. First, the court determined that the claim was based on “harassing and oppressive conduct independent of the duties of administering an ERISA plan.” Id. Second, the court determined the insurer had a “duty not to engage in the alleged tortious conduct” that existed “independent of defendants’ duties under the ERISA plan.” Id.
The federal court then sent the case back to state court, where, as of the date of this post, the state court has not yet determined whether claimant should be awarded damages for emotional distress.
At this point, this ruling has only been adopted by the District Court, and not the Court of Appeals, so it is not binding upon other courts. However, it could potentially persuade other courts to recognize similar claims. It will be interesting to see how many other courts follow suit, and whether this ruling will ultimately be adopted by courts at the appellate level.
[1] No. C 15-03813 WHA, 2015 WL 6954915, at *1 (N.D. Cal. Nov. 10, 2015).
Unum Denies Its Own Employee Disability Benefits
In previous posts, we have discussed how Unum is notorious for wrongfully denying disability claims. Recently, Unum refused to pay its own employee disability benefits.[1]
Apparently, the Unum employee suffered from carpal tunnel—due to all the typing that her job required—and also suffered a back injury in her home office. Naturally, the Unum employee saw a hand specialist for the carpal tunnel, and a back specialist for the back injury. After the Unum employee had surgery on her hand to treat the carpal tunnel, the Unum employee’s primary care physician placed her on work restrictions. However, the primary care physician did not send the work restrictions to Unum because she thought that the other doctors had already documented the restrictions.
Unfortunately for the Unum employee, the other doctors had not forwarded the restrictions to Unum. Instead of reaching out to the Unum employee’s doctors to see if the disability claim was legitimate, Unum simply denied the long term disability claim due to a lack of documentation. At that point, the primary care physician came forward and expressly told Unum that she supported the restrictions, but Unum still refused to pay any benefits.
[1] See http://www.lawyersandsettlements.com/articles/first_unum/interview-unum-lawsuit-insurance-29-20883.html#.VfhBwxFVikp.
What to Do When Your
Disability Insurance Claim Is Denied
A large part of our practice consists of helping physicians and dentists whose disability insurance claims have been denied or terminated. When our clients come to us, we carefully analyze their medical records, the claim file, and the law to craft a specific strategy for getting the disability insurer to reverse its adverse determination. Unfortunately, we sometimes find that in between receiving notice that their claim has been denied or terminated and getting in touch with our firm, doctors will inadvertently take actions that prejudice their disability claims. With that in mind, it’s important to review what to do and what not to do in the first few days after your claim is denied or terminated.
- In all likelihood, you will first find out that your insurer is denying or ending your disability benefits via a telephone call from the claims consultant who analyzed your claim. As we’ve explained before, the consultant will be taking detailed notes about anything you say during that call. Therefore, even if you are justifiably upset or angry, be very mindful of what you say. Anything you tell the consultant will certainly be written down and saved in your file.
- During the call with your consultant, make your own notes. You don’t have to ask a lot of questions at this stage, but you do want to make sure to record whatever information the consultant gives you.
- Following the phone call, you should receive a letter from the insurance company stating that it has denied your disability claim or discontinued your disability benefit payments. According to most state and federal law, the letter should have a detailed explanation of the evidence the company reviewed and why the insurer thinks that evidence shows you aren’t entitled to disability benefits. When you receive the letter, read through it carefully. Make notes on a separate document about any inaccuracies you identify.
- Make sure you keep a copy of the denial or termination letter as well as the envelope it came in. You should also make a note of the date on which you received the letter. The date the letter was actually mailed and received could be important to your legal rights in the future. Then, the best thing to do is to scan the documents electronically or make a photocopy for your file, just in case the original denial letter gets lost or damaged.
- Once you find out that your disability claim has been denied or terminated, you should contact a disability insurance attorney. Some doctors and dentists attempt to handle an appeal of their claim on their own, but we strongly suggest at least consulting with a law firm. Every insurance company has its own team of highly-trained claims analysts, in-house doctors, and specialized insurance lawyers to help it support the denial of your claim. Having your own counsel can level the playing field by making sure you know your rights under your policy and what leverage the applicable law provides you, and help you avoid the common traps that insurance companies lay for claimants on appeal.
- The lawyer you consult can be in your area, or it can be a firm with a national practice that’s physically located in another state. You may want to review these questions to ask potential attorneys before you decide who you would like to represent you.
- Whatever attorney you choose to contact, make sure you do so as soon as possible. In many circumstances, you will only have a limited amount of time to appeal the insurance company’s decision. Particularly in claims governed by the federal law ERISA, the clock starts ticking as soon as you find out your disability claim has been denied or terminated.
- It’s usually best to contact a disability insurance attorney before you respond to the denial letter, to avoid saying anything that could prejudice your appeal. For instance, if you have a disability insurance policy that is governed by ERISA, and you submit some additional information, the insurance company may not allow you to submit any additional information after your initial response.
- Before you meet with potential disability insurance lawyers, gather whatever documents you can to help them evaluate what’s going on with your claim. Our firm will always want to review the insurance policy or policies. (Here’s information on how to get a copy of your policy). We typically also like to see your relevant medical records and any correspondence between you and your insurance company. If you aren’t able to locate this information, it could cause delays in starting the appeal process.
- If you are a physician or dentist that is totally disabled, you should not try to go back to work just because your insurance company thinks you don’t qualify for disability benefits. Trying to practice when you aren’t in a physical or mental condition to do so could cause you to re-injure yourself or accidentally harm your patients. Of course, trying to work on patients after you’ve claimed that you are totally disabled can expose you to professional liability as well. Further, trying to return to work could impair your ability to collect your disability benefits upon appeal.
Electronic Medical Records: What You Don’t Tell Your Doctor Might Hurt Your Disability Claim
Over the last ten years, there has been an increasing movement away from paper records and toward Electronic Medical Records (EMR). This move has been accelerated by the federal government’s mandate that doctors who treat Medicare and Medicaid patients must have adopted and implemented EMR systems as of January 1, 2014.
There are many benefits to using EMR. They can facilitate patient care between referring doctors, improve data tracking over time, increase efficiency and reduce errors. However, EMR systems have drawbacks when they are used for purposes never intended, such as to document a disability claim.
Many EMR systems allow the doctor to input his findings for every major system in the human body, such as the cardiovascular, musculoskeletal, gastrointestinal, neurological and psychiatric systems. However, if the doctor does not put in something regarding one of the symptoms, the default setting on the EMR will report the system as being “within normal limits” or that the patient has “no complaints.” The concern with this from a disability perspective occurs when a patient sees his doctor for a condition unrelated to his disability.
For example, a patient with a history of degenerative disc disease could visit his doctor for an unrelated infection or illness. Since the doctor is conducting only a limited examination for purposes of treating the presenting illness, he may not input any information related to the patient’s disabling condition. The EMR will then generate an inaccurate record stating that the patient’s musculoskeletal system and neurological system are within normal limits.
Disability insurance carriers can then use these default settings to their own advantage to raise questions about the severity of the claimed disability, justify an independent medical examination or functional capacity evaluation, or support a claim termination. For patients who are receiving disability benefits, it is therefore important to know what their medical records look like and to effectively communicate with their physicians to ensure that their conditions and symptoms are accurately recorded on each visit.
