Can You Sue Your Insurance Company for Invasion of Privacy?

We’ve talked before about how insurers often hire private investigators to follow and investigate claimants.  While the purported goal is to find claimants who are “scamming the system” and faking a disability, investigators often employ invasive tactics in their attempts to gather videos and other information requested by insurers.

Unfortunately, all too often investigators go too far and claimants feel threatened or endangered by these investigators’ actions. The question then arises–at what point do insurance companies become legally liable for the actions of investigators that they hired?  Can you sue your insurance company for invasion of privacy?

At least one court thinks so. In Dishman v. Unum Life Insurance Company of America, 269 F.3d 974 (9th Cir. 2001), the Court agreed with Dishman that he could sue Unum for tortious invasion of privacy committed by investigative firms hired by Unum. In this case, the investigative firms in question aggressively attempted to find out employment information on Dishman by (1) falsely claiming to be a bank loan officer; (2) telling neighbors and acquaintances that Dishman had volunteered to coach a basketball team and using that as a pretext to request background information about Dishman; (3) successfully obtaining personal credit card information and travel itineraries by impersonating Dishman; (4) falsely identifying themselves when they were caught photographing Dishman’s residence; and (5) repeatedly calling Dishman’s house and either hanging up or harassing the person who answered for information about Dishman.

Because the underlying Unum disability insurance policy was an ERISA policy, the Court assessed whether Dishman’s invasion of privacy claim (which was based on California law) was precluded by statutory language which states that ERISA “shall supersede any and all state laws insofar as they . . . relate to any employee benefit plan.” 29 U.S.C. Sec. 1144 (a).  The Court, in its decision, went on to discuss a lack of consensus on this issue, but ultimately ruled that, in this particular instance, “[t]hough there is clearly some relationship between the conduct alleged and the administration of the plan, it is not enough of a relationship to warrant preemption” of state tort law, because Dishman’s “damages for invasion of privacy remain whether or not Unum ultimately pays his claim.” In other words, the Court explained, ERISA law does not provide Unum with blanket immunity for “garden variety tort[s] which only peripherally impact plan administration.”

It should be noted the Court in Dishman cautioned that there is no consensus regarding how far ERISA reaches, and not every disability is governed by ERISA, so not every court will necessarily reach the same conclusion as the Dishman court. This is a complicated area of the law, and whether or not you can sue your insurer for invasion of privacy will largely depend on the facts of the case, the type of policy you have, whether your jurisdiction recognizes an “invasion of privacy” cause of action, and the existing case law in your jurisdiction.

Information offered purely for general informational purposes and not intended to create an attorney-client relationship.  Anyone reading this post should not act on any information contained herein without seeking professional counsel from an attorney.

Cubital Tunnel Syndrome

In previous posts, we’ve discussed several chronic conditions that can affect dentists in particular, as their jobs require them to hold unnatural, static positions for extended periods of time while continuously gripping instruments. This puts tremendous stress on their musculoskeletal systems, especially their hands, and this is, in part, why dentists experience nearly four times the prevalence of hand, wrist and arm pain found in the general public.

While most dentists and surgeons are likely familiar with carpal tunnel syndrome, there are other conditions affecting the hands that can be just as debilitating. In this post we will examine the causes, diagnosis, symptoms, and treatment of cubital tunnel syndrome, a similar condition that arises from nerve impingement at the elbow.

Overview

Cubital tunnel syndrome is a condition that involves pressure or stretching of the ulnar nerve (also known as the “funny bone” nerve) that runs in a groove on the inner side of the elbow. This can cause numbness or tingling in the ring and small fingers, pain in the forearm, and/or weakness in the hand. Those suffering from cubital tunnel syndrome can find it difficult or impossible to function with the same level of dexterity that they used to have.

Causes

Cubital tunnel syndrome occurs when the ulnar nerve becomes compressed or irritated at the elbow, but the exact cause of this is often unknown. There are several factors that can lead to nerve irritation such as:

  • Keeping your elbow bent for long periods of time
  • Repeatedly bending your elbow
  • Leaning on your elbow for long periods of time
  • Repetitive activities that require the elbow to be flexed
  • Prior fractures or dislocations of the elbow

Diagnosis

In order to diagnose cubital tunnel syndrome, a physician will perform a medical history review and physical examination. The examination will include an evaluation of the sensation of the hand and fingers as well as a test of your elbow reflex. Additional screening may be required, including:

  • X-rays: to check for bone spurs, arthritis, or other places that the bone may be compressing the nerve
  • Nerve conduction studies: to determine how well the nerve is working and to help identify where it is being compressed
  • Electromyogram: a test that measures the electrical discharges produced in the muscles

Symptoms

Generalized symptoms of cubital tunnel syndrome include:

  • Numbness and tingling in the ring finger and pinky finger, usually occurring when the elbow is bent (such as when driving or holding a phone)
  • Feeling of pins and needles or the feeling of the hand “falling asleep” in the ring and pinky finger
  • Weakening of the grip and difficulty with finger coordination, especially when manipulating objects

Severe symptoms can include:

  • Weakness in the ring and little fingers
  • Decreased hand grip
  • Muscle wasting in the hand
  • Curling up of the pinky and ring finger along with pain, or a claw-like deformity of the hand

Treatment

Mild symptoms of cubital tunnel syndrome can be managed with home remedies such as:

  • Avoiding activities that require you to keep your arm bent for long periods of time
  • Avoiding leaning on your elbow or putting pressure on the inside of your arm
  • Keeping your elbow straight at night when sleeping by wrapping a towel around your elbow or wearing an elbow pad backwards
  • Performing nerve gliding exercise

More severe cases of cubital tunnel syndrome may require medical interventions such as:

  • Use of non-steroidal anti-inflammatory drugs (NSAIDs) to reduce swelling around the nerve
  • Use of corticosteroids
  • Bracing or splinting
  • Surgery to increase the size of the cubital tunnel or to transpose the nerve in order to relieve the pressure

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

References:

American Society for Surgery of the Hand, http://www.assh.org

American Academy of Orthopaedic Surgeons, https://orthoinfo.aaos.org/

Mayo Clinic, www.mayoclinic.org

WebMD, www.webmd.com

Healthline, www.healthline.com

Dental Products Report, dentalproductsreport.com

Multiple Sclerosis

Multiple sclerosis (MS) is a disease of the central nervous system, which is made up of the brain, spinal cord, and optic nerves. It’s estimated that 2.3 million people worldwide have MS.  In this post we’ll examine the symptoms, causes, diagnosis, and treatment of this disease.

Overview

With MS, the immune system begins to attack the protective sheath, called myelin, that covers the nerve fibers.  The result is faulty communication between the brain and the rest of the body.  The disease may eventually cause the nerves deteriorate and they may even become irreversibly damaged.

The symptoms experienced and the rate of progression and severity of the disease will vary greatly from person to person.  Some individuals may have a very minor form of MS, while others will go on to become paralyzed, or, in rare instances, have a potentially fatal form that progresses rapidly from onset.

MS has several difference courses, in terms of how the disease progresses:

Relapse-Remitting MS: Most people with MS experience times of new symptoms, or relapses, that develop in a relatively short period of time followed by periods remission where there are few or no symptoms.

Secondary-Progressive MS: About 60 to 70% of people with relapse-remitting MS type will go on to experience a steady progression of symptoms.

Primary-Progressive MS: Some individuals have a gradual onset and progression of symptoms without relapses.

Benign MS: MS is considered benign if the individual has no relapses and a mild, stable disability after about 15 years from the time of diagnosis.

Symptoms 

Because MS attacks the central nervous systems, a wide range of symptoms in nearly any function can occur.  Symptoms will also vary in type and severity from one person to another.  Symptoms can resolve, come and go, or be permanent. Common symptoms include:

  • Blurred vision
  • Partial or complete loss of vision
  • Loss of balance
  • Poor coordination
  • Dizziness or vertigo
  • Slurred speech
  • Tremors
  • Tingling
  • Electric shock sensations
  • Numbness or weakness
  • Extreme fatigue
  • Depression
  • Temperature sensitivity
  • Memory and concentration problems
  • Paralysis

Causes and Risks Factors 

While the cause of MS is unknown, many believe it is a mix of genetics and environmental factors.  Scientists have identified several risk factors that may be associated with MS:

  • Genetics and family history
  • Gender (women are 2 to 3 times more likely to develop MS)
  • Age (most people are diagnosed between the ages of 20-50)
  • Certain infections, including the Epstein-Barr virus
  • Certain autoimmune diseases, including type 1 diabetes or thyroid disease
  • Smoking

Diagnosis 

MS is often a hard disease to diagnose, especially because symptoms vary from person to person, can come and go, and are similar to other disorders of the nervous system.  While there is no single diagnostic test, there are several methods physicians use to evaluate individuals for MS, including:

  • Blood tests to screen for other diseases with similar symptoms (e.g. Lyme disease)
  • Balance, coordination, vision, and other tests to see how the nerves are functioning
  • MRIs to detect changes in the brain (lesions) and/or spinal cord
  • Evoked potentials tests, which evaluate electrical activity in the brain
  • Analysis of the cerebrospinal fluid (CSF) in the brain and spinal cord for specific proteins
  • Spinal tap to look for abnormalities in antibodies, and look for infections or other conditions with similar symptoms

Treatment

At present, there is no cure for MS.  However, there are several treatments doctors utilize in an effort to manage symptoms, shorten the length of attacks, and modify the progression of symptoms.  Some of them are listed below.

Treatment to Modify Progression

  • Medications to curb the body’s immune system to attempt to stem the body’s attack on the myelin

Treatment for MS Attacks

  • Corticosteroids to reduce nerve inflammation
  • Muscle relaxants
  • Plasma exchange

Treatments for Symptoms

  • Medications (fatigue, depression, and other symptoms)
  • Muscle relaxants
  • Physical therapy
  • Staying cool, sometimes with devises such as a cooling vest (symptoms often worsen when body temperature rises)
  • Alternative medicine (acupuncture, massage, relaxation techniques)
  • Exercise and reducing stress

Treatment will often involve an interdisciplinary approach and may require treatment from a care team including neurologists, physiatrists, urologists, psychiatrists, physical and occupational therapists, and others as needed.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional.  If you are experiencing any of the symptoms described below and have yet to consult with a doctor, do not use this resource to self-diagnose.  Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

References

National Multiple Sclerosis Society, https://www.nationalmssociety.org
Mayo Clinic, https://www.mayoclinic.org
John Hopkins Medicine, https://www.hopkinsmedicine.org
WebMD, https://www.mayoclinic.org

Why You Can’t Blindly Rely on Your Agent to Choose the Right Policy for You

In earlier posts we’ve discussed how agents don’t have the authority to change, delete, or add provisions to a policy.  We’ve also discussed how most policy applications now contain language stating that you cannot rely upon representations made by agents regarding the scope of coverage, or eligibility for coverage.  Thus, while agents can provide helpful advice and help to point you in the direction of a policy that may fit your needs, it is ultimately up to you, the purchaser, to review your policy, become familiar with the provisions of the policy, and confirm that you are in fact purchasing the coverage that you expected to receive.

If you don’t take the time to do this, and blindly pay premiums without reviewing your policy first, you could end up paying for coverage that provides less protection than you thought you were getting when you applied for the policy.  For example, most physicians and dentists know that their disability insurance policies should be “own occupation”, meaning a policyholder is considered totally disabled (and eligible to collect benefits) when he or she can no longer work in his or her profession, versus being unable to work at all, in any profession.  In some policies, own occupation is further defined as being unable to practice in a particular medical or dental specialty (i.e. anesthesiologist, periodontist, etc.).

Quite often physicians and dentists decide to buy another policy, either because they let a previous one lapse, or because they want to purchase additional coverage as their income increases and they can afford higher premiums, and they ask their agent for a new policy with the “same coverage”.  This can be incredibly difficult or impossible to achieve, because over time policies have evolved to become more restrictive, and each company has variations on what they deem an “own occupation” policy.  Consequently, while your agent may present you with a policy that contains the phrase “own occupation”, it may not be a true own occupation policy at all.

For example, some policies are actually conversion policies, which mean they start out as “own occupation” policies, but after a certain time frame (e.g 2 years, or 5 years), they change to an “any occupation” policy, which means that, in order to continue receiving benefits, you would have to show that you can’t work at all.  This can be very difficult to prove, particularly if you worked in another capacity for all or some of the prior “own occupation” period.

Even if your agent does locate an own occupation plan with similar premiums and benefit amounts to an older policy, there may also be provisions that cancel each other out in the new and old policies.  One scenario we’ve seen is a policy containing the provision that a claimant must not be working (a “no work” provision) in their own occupation or another profession in order to collect benefits, while the second policy states that a claimant must not be working in their own occupation but must be working in another field in order to collect benefits (a “work provision”).  Under this scenario, in essence, one of the policies you’ve been paying years of premiums for is worthless, as both requirements cannot be met at once.

These examples highlight why it is important that you do more than just check an “own-occupation” box on your application and/or blindly rely on your agent’s assurance that a new policy is compatible and/or the same as an existing one.  If you end up with a policy you essentially cannot use, your recourse is limited, as insurance companies have gone to significant lengths to shield themselves from any liability based on an agent’s representations of a policy.  It is therefore far better to take the time to review your policy at the outset, before you pay years of premiums, to ensure that it provides the coverage that you applied for and need.

Diabetes: An Overview

We’ve talked before about how diabetes can occur in conjunction with other diseases, such as anxiety, or contribute to certain medical conditions, such as radiculopathy. In this post we will be taking a broader look at diabetes and its complications.

Overview:

Diabetes (diabetes mellitus) refers to a group of diseases, including prediabetes, type 1, type 2, and gestational diabetes. While prediabetes and gestational diabetes can be reversible, types 1 and 2 are chronic and there is currently no cure.

Diabetes can occur either when the pancreas produces very little or no insulin, or when the body does not respond to the insulin that the pancreas does produce. In this post we will examine only types 1 and 2.

Type 1 diabetes typically appears during childhood or adolescence (it is also called juvenile diabetes), and the symptoms come on quickly and are more severe. Type 2 diabetes is more common, and more often occurs in people over 40 (it is often referred to as adult onset diabetes). Those with type 2 diabetes may not exhibit symptoms at first.

Symptoms:

  • Increased thirst
  • Extreme hunger
  • Frequent urination
  • Unexplained weight loss
  • Ketones in the urine
  • Fatigue
  • Irritability
  • Blurred vision
  • Difficulty breathing

Additional symptoms experienced in Type 2 diabetes include:

  • Cuts or sores that are slow to heal
  • Infections
  • Itchy skin (often in the groin area)
  • Recent weight gain
  • Numbness or tingling of the hands and feet
  • Impotence or ED

Causes:

Type 1 diabetes occurs when the body’s immune system destroys the insulin producing cells of the pancreas. Scientists believe that Type 1 is caused by genetic and environmental factors, such as exposure to certain viruses.

Type 2 diabetes is caused primarily by lifestyle factors and genes. Some risk factors include:

  • Being overweight
  • Lack of physical activity
  • High blood pressure
  • Abnormal cholesterol and/or triglyceride levels
  • Family history (having a parent or sibling with diabetes increases risk)
  • Age
  • History of gestational diabetes while pregnant
  • Polycystic ovary syndrome

Diagnosis:

Diabetes can be diagnosed based on blood tests that show a patient’s blood sugar levels, using a glycated hemoglobin (A1C) test, random blood sugar test, fasting blood sugar test, and/or an oral glucose tolerance test.

With respect to type 1 diabetes, a patient’s urine will be analyzed for ketones, a byproduct produced when muscles and fat are used for energy when the body doesn’t have enough insulin to use available glucose.

Treatment:

While there is no cure for diabetes, ongoing monitoring and management of symptoms is required to prevent serious complications from occurring. Possible treatments include:

Lifestyle changes 

  • Diet/healthy eating
  • Exercise
  • Weight loss

Medication

  • Those with Type 1 diabetes must take insulin because it is no longer made by the body
  • Those with Type 2 may need to take insulin, but may also take different medications (such as metformin, which lowers the amount of glucose the liver makes)

Surgery

  • Bariatric surgery
  • Artificial pancreas
  • Pancreatic islet transplantation

Serious Complications:

Undiagnosted, untreated, or resistant to treatment, diabetes can have serious health consequences, including:

  • Cardiovascular disease;
  • Nerve damage (neuropathy), especially in the limbs (which left untreated can result in loss of feeling); nerve damage is also connected to problems with internal organs, weakness, weight-loss, and depression;
  • Kidney damage (nephropathy), which may result in the eventual need for dialysis or kidney transplant;
  • Eye damage (retinopathy), which may result in cataracts, glaucoma, or blindness;
  • Skin conditions, including bacterial and fungal infections;
  • Foot damage, which can often lead to the need for amputation;
  • Depression; and
  • Alzheimer’s disease (type 2 diabetes)—currently there is no agreed upon theory about why there is a correlation between the two diseases.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described below and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

References:

Center for Disease Control (CDC), www.cdc.gov
WebMD, webmd.com
Mayo Clinic, mayoclinic.com
National Institute of Diabetes and Digestive and Kidney Disease, www.niddk.nih.gov
American Diabetes Association, www.diabetes.org

How Do I Know if My Insurer Might Be Interested in a Lump Sum Settlement?

We are often asked whether a particular claim is the type of claim that an insurance company would be interested in settling for a lump sum buyout.  The answer, as explained in more detail below, is always, it depends, because there are a number of factors that come into play, and many of those factors are not even directly related to whether the claim itself is legitimate or whether the insured’s condition is permanent (although those are important factors that impact whether a buyout is a possibility).

What is a Lump Sum Buyout?

You may be familiar with the terms of your disability policy, but you may not know that, in certain instances, insurers are willing to enter a lump sum settlement. Under a lump sum settlement, your insurer agrees to buy out your policy and, in return, you agree to surrender the policy and release the insurer from any further obligations to you going forward.

There are certain pros and cons to this sort of settlement.  Some claimants prefer a lump sum settlement, because it allows them to avoid having to rely on month-to-month payments from their insurer (which may or may not arrive, or if they do arrive, may not arrive on time) and/or to avoid the hassle of dealing with claim forms, medical exams, etc. for years to come.  A lump sum settlement can also allow you to take advantage of present investment opportunities that can provide for your and your family’s future.  But there are also other considerations that you will need to discuss with your attorney as well as your accountant and other financial advisors.  For example, if your benefit period lasts to age 65 (and you end up living to the end of the benefit period), you would likely receive more money cumulatively over time if you stayed on claim and received monthly benefits in lieu of a lump sum settlement.

Lump sum settlements can also be attractive to insurance companies.  A settlement can allow insurance companies to release money from their reserves and to eliminate administrative expenses associated with the ongoing review of your claim year after year. But just as you might receive more money cumulatively over time if you stayed on the claim, the insurer might benefit financially from not offering you a lump sum settlement. For example, if your policy provided for lifetime benefits, and you met an untimely demise, your insurance company’s obligation to pay benefits would cease, and they may end up ultimately paying out a lower amount in total monthly benefits than they would have if they paid out a lump sum settlement on your claim.

Because this process is completely discretionary on their part, insurance companies are very deliberate about offering lump sum settlements. Before doing so, they must weigh multiple factors including the following:

    • Permanency. The insurer is more likely to offer a settlement if its actuaries determine that you will likely be on claim for the maximum benefit period.
    • Reserves. Over the course of your claim, your claim’s reserves slowly peak as you are on claim for an extended period of time (and permanency is established) and then at some point, they start to diminish as the claim is paid out, and you get closer and closer to the end of the maximum benefit period. The insurer is more likely to offer a settlement when the reserves are at their peak (typically around 3-5 years into a claim), because that is when the insurance company would improve its bottom line the most by freeing up the reserves.
    • Mortality/Morbidity Issues. The insurer is more likely to offer a settlement if its actuaries determine that you will probably live to the end of the maximum benefit period. Or if you have lifetime benefits, the insurer will estimate your lifespan based on your health history to determine whether it is financially beneficial for the company to offer a lump sum settlement.
    • Offsets. The insurer is more likely to offer a settlement if it determines that you will probably not receive income in the future that would offset the benefit amount before the end of the maximum benefit period.
    • Anticipated Gain. Companies will not offer a buyout unless they stand to save money in the long run, so they have their actuaries calculate how much of a gain (percentage-wise) the company would net if they settle the claim. Insurers often have internal financial objectives that impact the amount they are willing to offer on settlements such as requiring a net gain amount of a certain percentage (e.g. 35%).
    • Cash Outflow. The insurer will be more or less willing to offer a settlement depending on their quarterly or even annual cash outflows. Thus, if a company had paid out a lot of buyouts recently, the company may not have enough cash available to offer additional lump sum settlements.

The bottom line is that offering a lump sum settlement is completely voluntary on the part of the insurer and doing so depends on the unique factual circumstances of your claim. Nevertheless, knowing the factors that insurers consider in making this decision can help you understand whether a lump sum settlement is appropriate in your case.

The Importance of Reviewing Your Policy Application

In our last post we discussed why you should not rely solely on your agent’s representations when purchasing a new disability policy. It is similarly important that you not rely solely on your agent to complete the policy application.

While an agent may offer to help you by filling out the application, this could end up negatively impacting a future claim or even voiding your policy down the road, if the application contains any errors or omissions.  As explained in our prior posts, while it may seem like telephone interviewers, licensed representatives, agents, and medical examiners have significant control over the application process and whether you receive a policy, many applications have language that explicitly limits your ability to rely upon representations made by such individuals, and expressly places the burden of reviewing the application for accuracy upon you (regardless of who completed the application).  Below is a sample of policy language:

 

Thus, you may speak with several people during the application process, and give them the requested information, but it is ultimately up to you to make sure the information provided to the insurance company is correct.  It is therefore very important that you read through your application carefully to make sure it is complete and accurate before signing.

It is also very important that you carefully review your policy when you receive it from the insurance company, and not just file it away without a second thought.  When you receive your copy of the full policy, it will typically contain language stating that you have a certain time period (e.g. 10 or 30 days) to review the policy and return it to be voided if it does not contain the terms you expected.  This clause will normally be found on the first page of the policy, and typically looks something like this:

If you decide to keep your policy and do not send it back within this review period, you are bound by all provisions of the policy, regardless of whether you are actually aware of them or not.  For instance, if you asked your agent for a certain provision and/or requested it on your application, but the insurance company omits it for some reason, and you don’t catch it during this review period, you may end up paying years of premiums for coverage that is different than what you thought you had purchased.  Similarly, if your policy contains an unfavorable provision that you didn’t know was going to be in the policy, you will still be bound by it unless you return the policy.

How Insurance Companies Distance Themselves from Agents (And Why It Matters)

Reading through contracts, especially lengthy insurance ones, can be time consuming. Many policies contain confusing language, terms of art, and often include supplemental riders that change the terms or definitions contained in the main body of the policy.  But if you don’t read your policy until it’s time for you to file a claim, you may be caught off-guard by what your policy actually says.  This next series of posts will discuss the importance of taking the time to read through your policy, and will review some things to watch out for when you buy a disability insurance policy.

Dentists and physicians are often swamped with work, and rely heavily on insurance agents when selecting and purchasing a policy.  One scenario we commonly see is doctors requesting a policy that is “the same” policy that the other doctors in the practice have. Another common scenario is the doctor who wants more coverage and just asks his or her agent for another policy that is “like” his or her existing policy, or has the “same coverage” as his or her existing policy.  What they don’t realize is that some of the same favorable terms may no longer be available in today’s policies.  For example, while most older policies contained “true own occupation” provisions, there are now several different variations of “own occupation” provisions, so if you just ask for an “own occupation” policy, you may not actually be receiving the coverage that you think you are.

It is also important to be aware that, over the years, insurers have sought to distance themselves from agents and now often go so far as to include clauses or statements in their policies and applications that state no agent or broker has the authority to determine insurability or make, change, or discharge any contract requirement.  Here’s an example of this type of policy language:

So what does this mean?  It means that, while solely relying upon an agent’s assurance of the terms of a policy may have been a more acceptable (but not advisable) option in the past (when policies were often similar and generally favorable to policyholders), you can no longer solely rely upon your agent’s description of the policy.  No matter how well-meaning or knowledgeable your agent may seem, ultimately, you are going to be on the hook if your policy doesn’t say what you thought it said, so it is crucial that you carefully review your disability policy to ensure you are receiving sufficient coverage.

Our next post will discuss the importance of the application process and policy review period.

Radiculopathy

In previous posts, we’ve discussed chronic pain, including how chronic conditions can affect dentists.  Dentists and surgeons have strenuous jobs that require them to hold unnatural and static positions for extended periods of time, putting stress on their musculoskeletal systems.  Consequently, it is not uncommon for dentists and surgeons to experience spinal issues, including radiculopathy.  In this post we will examine the causes, diagnosis, symptoms, and treatment of radiculopathy.

Overview

Radiculopathy is a condition caused by a compressed nerve in the spinal column. This pinched nerve can occur at any spot in the spine, but is typically found in the cervical or lumbar portions of the back and, less frequently, in the thoracic spine.  Symptoms vary based on where the nerve roots are compressed; however, the roots typically become inflamed and cause numbness, weakness, and pain. Those suffering from radiculopathy can find it difficult or impossible to function with the same level of dexterity they used to have.

Symptoms

Generalized symptoms of radiculopathy include:

  • Sharp or shooting pains in the back, arms, legs, or shoulders that may worsen during certain activities
  • Weakness or loss of reflexes in the arms or legs
  • Numbness of the skin or “pins and needles” sensations in the arms or legs
  • Some individuals develop a hypersensitivity to light touch at the affected areas

The location of and specific symptoms will vary based on where the compressed nerve occurs:

  • Cervical Radiculopathy: Pressure on a nerve root in the neck. Symptoms include weakness, burning or tingling sensations, or loss of feeling in the shoulder, arm, hand, or fingers.
  • Lumbar Radiculopathy: Pressure on a nerve root in the lower back. Symptoms include pain, weakness, or numbness that starts in the lower back and radiates through the buttocks down the back of the leg.
  • Thoracic Radiculopathy: A pinched nerve in the upper/mid back. Symptoms include pain in the chest or torso, which can be mistaken for shingles.

Causes

Radiculopathy is caused by the irritation or compression of the nerves where they exit the spine.  This compression can occur in several ways:

  • Disc herniation, osteophytes (bone spurs), osteoarthritis, or the thickening of the surrounding ligaments
  • Scoliosis
  • Inflammation due to trauma or degeneration
  • Conditions such as diabetes, rheumatoid arthritis, and obesity
  • Poor posture and/or repetitive movements
  • Aging
  • Genetic pre-disposition

Diagnosis

In order to diagnose radiculopathy, a physician will perform a medical history review and physical examination. The examination will include an evaluation of muscle strength, sensation, and reflexes to detect any abnormalities.  Additional imaging may be required, including:

  • X-rays: to identify trauma, osteoarthritis, or early signs of a tumor or infection
  • MRI or CT scan: to look at the soft tissues around the spine (nerves, discs, ligaments, etc.)
  • Electromyogram (EMG) and nerve conduction studies: to look at electrical activity along the nerve to identify any damage

Treatments:

The course of treatment for radiculopathy will usually start out conservative, but more aggressive treatment may be needed when pain persists.

  • Medications
  • Weight loss (if necessary) to reduce pressure on problem areas
  • Physical therapy
  • Avoiding activity that causes strain on the neck or back
  • Chiropractic treatment
  • Epidural steroid injection
  • Surgery to remove the compression on the spine

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described below and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

References:

MedicineNet, https://www.medicinenet.com/radiculopathy/article.htm#what_is_radiculopathy
John Hopkins Medicine, https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disorders/acute_radiculopathies_134,11
WebMD, https://answers.webmd.com/answers
Heathline, https://www.healthline.com/health/radiculopathy#causes
Columbia Spine, http://columbiaspine.org/condition/radiculopathy/
Medical News Today, https://www.medicalnewstoday.com/articles/318465.php

Lump Sum Disability Benefit Rider

While, hopefully, your disability policy will provide sufficient income to meet your essential expenses if you have to file a claim, benefit amounts rarely provide monthly income that is comparable to what you earned while practicing.  Additionally, many policies have maximum benefit periods that expire at age 65 or 67, which means you will be without a monthly income for the remainder of your life if you haven’t established other financial resources.  As we’ve discussed in previous posts, one option to ensure continued financial stability is to purchase a policy that includes lifetime benefits rider.  Another option we are beginning to see offered with some policies is the lump sum disability rider benefit.

This rider is designed to provide a one-time lump sum payment at the end of the benefit period, much like being able to access a 401(k) or other retirement account upon reaching retirement age.  This lump sum can also help to offset expenses that may be more likely to arise later in life, like the costs of needed surgeries or other medical care.

While lifetime benefits work by paying a claimant a continuing monthly benefit after the normal expiration date of a policy, under this type of rider, the insurance company pays a one-time payment at the end of the policy’s benefit period.  The payout will typically be a certain percentage of the benefit payments the policyholder received prior to the end of the maximum benefit period under the policy. This calculation includes payments received both while on total disability and residual disability, over the life of the policy, whether continuous or not.

For example, say a claimant received a monthly benefit payment of $5,000 per month (or $60,000 per year) and remains on claim from age 48 to the end of the benefit period (age 65, for example) or 17 years.  If the lump sum benefit is equal to 35%, the claimant would receive a one-time payment of $357,000 (17 x $60,000 x .35).

It is also important to note that these riders typically require that a claimant receive a minimum threshold amount of benefits to qualify to receive the lump sum payment.  For example, the qualifying amount may be set at $60,000.  If the monthly benefit payment is $5,000 a month, the policyholder won’t be eligible for a lump sum payment unless he or she remains on claim for at least 12 months over the life of the policy.

Thus, with a lump sump benefit rider, the longer a policyholder stays on claim, the larger the lump sum payment will be.  It therefore stands to reason that insurance companies have an even stronger than normal incentive to get a claimant off claim.  As insurance companies often use aggressive tactics to investigate claims in order to find justification to terminate or deny claims in an attempt to save money, having a lump sum benefit rider could result in greater scrutiny of a policyholder’s claim, particularly before the qualifying amount is reached.  However, unlike lifetime benefit rider options (which typically require a policyholder to continue to submit proof of loss for life in order to continue receiving lifetime benefits), the insurance company’s ability to scrutinize a claim ends upon the payment of the lump sum under a lump sum benefit rider.

Thus, as with all policy provisions, there are pros and cons to keep in mind, and deciding whether the lump sum disability benefit rider is the right policy for you requires careful consideration of what you can afford in premiums, your age, other sources of income you and your household have, and your plans for retirement.

Lifetime Benefits, Part 2 – Graded Lifetime Benefits

In our last post we discussed how it can be difficult  to save for retirement if your only income is your monthly disability benefits.  One way to help ensure financial security into retirement age is to purchase a lifetime benefit option with an individual disability insurance policy.  While older policies often featured full monthly benefit payments for life, newer policies insert qualifiers that limit whether a claimant will actually receive the full benefit amount for his or her lifetime.  Our last post looked at the injury versus sickness limitation.  In this post, we will be taking a look at another provision that limits lifetime benefits:  the graded benefit rider.

Graded Lifetime Benefit Riders

Under this rider, claimants receive benefits for life, provided they are disabled prior to a specified age and remain continuously totally disabled.  However, the amount of the monthly benefit they receive varies based on how old the claimant is at the onset of his or her disability.

For example, a policy may have a benefit period that ends at age 65, with a graded lifetime benefit rider (sometimes called a “lifetime extension for total disability”) that will pay 100% of monthly benefits for life if the policyholder is disabled prior to age 46. However, if the policyholder becomes disabled after age 46, his or her lifetime benefits will only be a certain percentage of the monthly payment.

Below is a provision from an actual policy, illustrating how benefit amounts are calculated under this type of rider:

Using this chart as an example, if your benefit payments are $10,000 per month and you become totally disabled at age 46 (100% under the policy) your insurance company will continue to pay you $10,000/month after you turn 65 for the rest of your life. If you become totally disabled at age 55, the percentage of monthly indemnity payable would drop to 50% and your insurance company would pay you $5,000/month after you turn age 65.  If you don’t become totally disabled until age 64, the amount payable would only be 5% of your monthly benefit.  In other words, you would have a year or less of monthly payments of $10,000, followed by monthly payments of $500.

While a graded lifetime benefits rider is one way to ensure that you continue to receive disability income after your standard benefit period ends, you must keep in mind that these payments may not provide much income if you become disabled later on in life.

Further, in order to achieve lifetime benefits under this rider, you must remain totally disabled.  So, for example, if you return to work, were pushed off claim, or went into residual disability claim status, you lose the lifetime benefits.  And even if you are later able to reestablish total disability, the lifetime benefit will be a lower percentage of the monthly benefit, because you will have re-set your total disability date for purposes of calculating your monthly benefit under the rider.

Lifetime benefits offer a way for policyholders to continue to collect at least some income after the benefit period of their policy ends.  However, when choosing a policy, physicians and dentists must carefully consider their age at the time of purchase, premium amounts, and the policy language before buying a policy. Knowing how your policy’s lifetime benefits work is an important step in planning for your financial future.

In our next post we will look at another option individuals have to supplement their retirement income:  the lump sum benefit rider.

Lifetime Benefits, Part 1 – Injury v. Sickness Limitation

­­Having a disability policy is an important step in protecting your financial security and ensuring a monthly source of income if you are forced to step away from practicing and file a claim due to a disability.  However, as we’ve discussed before, your monthly benefits typically will not match the monthly income you were earning as a doctor, dollar for dollar.  As a result, you may not have any funds left over, after your monthly expenses, to save for retirement.  This can be problematic since many plans have a benefit period ending at age 65 or 67, but the average American life expectancy is around 79.[1]

There are a few options residents or doctors have when buying a policy that can help ensure financial stability past retirement age.  One option is selecting a policy with a lifetime benefit rider.  Older policies, from the 80’s and 90’s, were often drafted in policyholders’ favor and a lifetime benefit provision meant just that—full monthly benefits would be paid out until a claimant’s death.  Many newer policies still offer an option to purchase “lifetime benefits”, but there are additional qualifiers in the policy language that dictate the amount of the benefit the claimant will receive, or whether he or she will receive lifetime benefits at all.  In our next few posts, we will look at two common lifetime benefit limitations that are common in newer policies.  In this post we will examine the injury versus sickness limitation.

Injury v. Sickness Limitation

Under some policies, the nature of your disability (i.e. whether your disability is caused by an “injury” or by “sickness”) can determine whether your benefits will last a lifetime.  Here’s an example of such a provision, taken from an actual policy:

As you can see, under this policy’s language, you only receive lifetime benefits if your disability stems from an injury occurring before age 65.  Further, no matter how permanent a sickness is, the policyholder will not be eligible to receive lifetime benefits under this policy.

In some instances, it is very straightforward to determine when a disabling condition will be classified as an injury (e.g. the inability to walk after a car accident) or as a sickness (e.g. Parkinson’s disease).  But in other instances, the distinction between the two becomes less clear and, in many instances, litigation is required to resolve the issue.  If the date of an injury is not well-documented, or your limitations arguably have multiple causes, the insurance company will oftentimes elect to pay benefits under the sickness provision of your policy, so they don’t have to pay lifetime benefits.

This provision highlights the importance of carefully documenting and filing your claim from the outset, in order to prevent any ambiguity in the nature of a disabling condition.  It also highlights the importance of understanding the provision of your policy you are being paid under, so that you are not caught unawares when your benefits (which you thought were lifetime benefits) are cut off after years of receiving benefits.

In our next post we will discuss another provision that limits lifetime benefits—the graded lifetime benefit rider.

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[1] The World Bank, Life expectancy at birth, total (years), https://data.worldbank.org/indicator/SP.DYN.LE00.IN

The Importance of Regularly Reviewing Your Disability Policy

The new year is often a time for making resolutions and planning for the future.  This should include reviewing your financial situation, including assessing whether you will be adequately prepared in the event that you become disabled and have to stop practicing.  We recommend that you make a periodic review of your disability policies and evaluate:

  • What type of policy(ies) do I have?
  • Do I understand the terms and provisions of my policy(ies)?
  • How much coverage do I have?
  • Do I have enough coverage?
  • Do I qualify for any increase options?
  • Should I buy an additional policy(ies)?

Many physicians and dentists purchase their policies as residents or when they are first establishing their practice, and then file their policies away and don’t think about them again until the unexpected happens and they need to file a claim.  This is problematic, because financial needs and obligations change over time, and the income and standard of living for a resident is vastly different than that of a physician with a family 20 years down the road.

While insurance companies’ underwriting standards are typically structured in a way that prevents you from collecting the exact same amount of monthly income you were making pre-disability, your goal should be to get as close as possible.  In other words, if you are a dentist earning $20,000 a month and need to file a claim, you don’t want to have to end up relying on a disability policy with a monthly benefit of $5,000 as your primary source of income.

Often policies have future increase options that allow you to purchase additional coverage without changes to the terms of the existing policy.  Typically, these options will only be available during certain discrete time periods set forth in the policy, so it’s important to read your policy carefully to make sure you don’t miss out on the opportunity to take advantage of an increase option.

If your policy does not have increase options and you’ve outgrown the monthly benefit amount, you can also purchase another policy to increase the total coverage you would receive if you filed a claim.  However, if you’re going to be purchasing a new policy, you need to keep in mind that you must purchase a policy that compliments you’re existing coverage, and does not cancel out your other policy or policies.

For example, some policies contain provisions stating that a claimant cannot collect total disability benefits if he or she is working in another profession (a “no-work” provision).  Other policies require the policyholder to work in some other capacity, in order to collect total disability benefits (a “work” provision).  Thus, if you were to purchase a new policy with a “work” provision, and your old policy had a “no work” provision, one of the policies would be rendered useless (because it would be impossible to collect total disability benefits under both policies).

When purchasing a new policy, it’s also important to keep in mind that disability policies have become increasingly more complex, restrictive and less favorable to policyholders over time.  There is no longer a “standard” policy that every company sells—each policy will have it’s pros and cons, and it is therefore important to take your time to familiarize yourself with the policy at the point of sale, so that you know what you’re purchasing.  And if you didn’t pay close attention when you purchased the policy, or you can’t remember exactly what your policy says, you should review your policy to assess whether it still meets your needs and make sure that you have an accurate understanding of the scope of your coverage.

Are There Options Besides A Trial When My Claim is Denied?

Reducing the risk of having to fight for benefits requires understanding the terms of your 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 claim correctly the first time.

Although filing a successful 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 claim. If your 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 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 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 claims denied or terminated, with the insurance company refusing to reconsider their position. If your 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 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 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 policy and you release your right to collect under your policy and your insurer from any obligation to you.  The buyout amount will be your 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 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 benefits reinstated, as you would no longer have to deal with your insurer.  Your 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 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 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 an attorney, that can end in your retaining at least some of the benefits you stand to lose completely when an insurance company denies your claim.

Can A New Blood Test Objectively Prove Fibromyalgia?

As we’ve discussed in more detail in a previous post, fibromyalgia is a syndrome characterized by chronic, wide-spread muscle pain as well as fatigue, difficulty sleeping, depression or anxiety, muscle knots, cramping, or weakness, painful trigger points, and headaches.  Fibromyalgia can be difficult to diagnose, given the relative or subjective nature of most symptoms.  Symptoms can also mimic those of rheumatoid arthritis and other diseases, so often a diagnosis is established after other causes of symptoms are ruled out.  Doctors will examine a patient’s history, conduct a physical examination, as well as evaluate X-rays and blood work.  Doctors will also test patients for 18 tender points.  The American College of Rheumatology guidelines suggest that those with fibromyalgia have pain in at least 11 of these tender points.[1]

Although the majority of fibromyalgia cases are diagnosed chiefly by ruling out other conditions, many patients may now have access to a blood test that may diagnose the disease.  In 2012 a privately held biomedical company, EpicGenetics, released the FM/a® Test, which is an FDA-compliant blood test designed to diagnosis fibromyalgia.  The test identifies the presence of certain white blood cell abnormalities.[2] The use and accessibility of the test has been growing,  as Medicare and an increasing number of private insurance providers have begun covering the costs,[3] and the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) has also recently agreed to cover the cost of testing.[4]

The blood test works by analyzing protein molecules in the blood called chemokines and cytokines.  Founder and CEO of EpicGenetics, Bruce Gillis, MD, explains that those with fibromyalgia have a lower count of these protein molecules in their blood, leading to weaker immune systems.[5]  A diagnosis of fibromyalgia the traditional way can take, on average, more than two years.[6]  Many believe that FM/a® offers an objective and concrete diagnosis that allows sufferers to more quickly find adequate resources and treatment.

However, others argue that the test does not offer the diagnosis it promises.  Some argue that fibromyalgia is not a discrete medical condition but rather a “symptom cluster” or that the biomarkers the test identifies are also found in people with different illnesses, such rheumatoid arthritis.[7] As of this writing, major medical resource databases such as MedLine Plus, the CDC, and the Mayo Clinic continue to state that there is no lab test or definitive way to diagnose fibromyalgia.

As we’ve previously discussed, disability insurance policy holders can often face challenges with they go to file a claim based on disabilities, such as fibromyalgia, that are considered “subjective conditions.”  A test promising objective proof may remove some of these challenges. However, it remains to be seen how insurance companies and the medical community as a whole will agree on what constitutes objective proof of fibromyalgia, whether via this test or other medical advances down the road.

[1] 18 Points Used to Diagnose Fibromyalgia, Health, http://www.health.com/health/gallery/0,,20345635,00.html#where-does-it-hurt–1
[2] Businesswire, EpicGenetics with the Assistance of Leading Medical Centers, Expands Clinical Study of FM/a® Test to Diagnose Fibromyalgia, Identify Genetic Markers Unique to the Disorder and Explore Direct Treatment Approaches, Yahoo! Finance, Apr. 19, 2017, https://finance.yahoo.com/news/epicgenetics-assistance-leading-medical-centers-120000519.html
[3] Pat Anson, Fibromyalgia Blood Test Gets Insurance, Pain News Network, May 27, 2015, https://www.painnewsnetwork.org/stories/2015/5/27/fibromyalgia-blood-test-gets-insurance-coverage
[4] Emily Riemer, Mass General researcher investigating possible fibromyalgia vaccine, WCVB5, July 27, 2017, 6:05 p.m., http://www.wcvb.com/article/mass-general-researcher-investigating-possible-fibromyalgia-vaccine/10364683
[5] Anson, id.
[6] Getting a Diagnosis, Fibrocenter, http://www.fibrocenter.com/pain
[7] Anson, id.