Can Your Disability Insurer Dictate The Terms of Your Care?

By Edward O. Comitz, Esq.
and Michael Vincent

Imagine that you are a surgeon who has submitted a disability insurance claim after failed cataract surgery left you with halos, starbursts, and even temporary blindness under bright lighting. While you are dedicated to your profession, you realize that continuing to operate on patients is putting them in danger. Your disability insurance company, however, will not pay your claim. It insists that you can keep performing surgeries, alleviating any occupational hazards by wearing sunglasses and using matte-finish instruments in the operating room. This scenario may sound absurd, but it is an actual example of some of the difficulties faced by many healthcare professionals seeking legitimate policy benefits. Fortunately, the surgeon in question had the common sense to cease performing surgeries rather than follow her insurance company’ssuggestions. Her decision did affect her financially as benefits were denied for almost two years, and only paid after litigation ensued.

Insurance company treatment mandates, ranging from bizarre to invasive, are commonplace and based on their interpretation of the terms of your policy. In some cases, the insurance company goes so far as to demand surgery, invading your privacy and leaving you with the choice of either undergoing an operation involuntarily, bearing all of the medical risks and financial costs yourself, or waiving your right to collect disability insurance benefits. The choice whether to undergo a potentially dangerous procedure or waive disability coverage often comes at a time when policyholders are the most vulnerable: physically disabled, emotionally drained, and financially insecure. The decision can be difficult, but understanding your rights and obligations beforehand can help alleviate much of the worry.

Whether or not insurers can legally condition payment of your disability insurance benefits upon you following their suggested treatments depends on the specific terms in your policy. The various policy types fall into three general categories: “regular care” policies, “appropriate care” policies, and “most appropriate care” policies.

The oldest disability insurance policies typically contain provisions conditioning benefits on being “under the regular care and attendance of a physician.” These “regular care” policies provide the most protection for insureds, as courts have repeatedly found that these provisions only create a duty for the insured to undergo regular monitoring by a physician to determine if the disability persists. Even if a proposed surgery is usually successful and very low risk, such as carpal tunnel release, an insurance company cannot force it upon you. Under a policy requiring only regular care, courts will not enforce any particular course of treatment, no matter how vehemently an insurance company objects.

The “appropriate care” policies used in more recent years are less straightforward. These types of disability policies purport to simply require “regular care,” but elsewhere in the policy “regular care” is redefined to require that the insured receive medical care “which is appropriate for the condition causing the disability.” During the initial stages of the claim process, you may find yourself butting heads with your insurance company as to whether your medical care is appropriate, even if your treating physician finds that it is. Perhaps you opted for conservative treatment and are experiencing some relief, or perhaps a particular surgery involves risks unique to your medical history. For whatever reason, many policyholders are uncomfortable with their insurance company’s treatment recommendations. In one case, a dentist developed a shoulder injury which left her in pain and unable to practice. Her insurer demanded surgery, a moderately risky solution but one that could potentially restore the shoulder to occupational usefulness. The dentist, on the other hand, had a family history of unusual complications due to anesthesia. For her, “simple” shoulder surgery could prove fatal. Needless to say, she wasn’t comfortable with undergoing surgery and opted for physical therapy instead. Her insurer’s continued demands, however, forced her to hire an attorney to protect her right to select her own medical care.

There may be several possible courses of treatment for some medical conditions, so it can be difficult to know when a particular course of treatment is considered “appropriate” under a disability insurance company’s standards. Most courts have found that appropriate care means such care as is necessary and causally related to the condition forming the basis of the disability claim. Any treatment that a reasonable patient would undergo after considering the opinions of medical professionals may be considered appropriate. However, at least one court has already agreed with a disability insurance company that in some circumstances, surgery may be the sole appropriate treatment under this policy type. Fortunately, courts in Arizona, as in other states, typically construe unclear or ambiguous policy language against the insurer and in favor of the policyholder. Thus, a court is likely to find that any discrepancies in the meaning of “appropriate care” will result in the policyholder’s claim being covered.

Many of the newest policies contain provisions requiring the insured to be “receiving the most appropriate treatment and care, which conforms with generally accepted medical standards, by a doctor whose specialty or experience is the most appropriate for the disabling condition.” These “most appropriate care” policies may seriously interfere with an insured’s personal autonomy, as there is logically only one course of treatment that a court can find is most appropriate for a particular condition. At least one court has already found that an insured, who was already determined to be totally disabled under Social Security, was not receiving the most appropriate care because she failed to consult with enough specialists regarding her medical conditions.

The most stringent of these “most appropriate care” policies have provisions stating that you may be required, at the option of the insurer and its medical staff, to undergo surgery to receive disability benefits. Should you have to file a claim, your insurer may point to this provision and demand that you receive surgery – at your own expense – if you hope to have a chance of obtaining any disability benefits. Because the plain language of the policy clearly states that the insurer may require surgery, courts are more likely to affirm this policy provision, finding that you contracted away certain rights at the point of sale. As a matter of personal autonomy, you do not have to undergo surgery, but if you don’t, you may not receive benefits under applicable contract law.

Although this last category of policies places a heavy burden upon insureds to demonstrate that their care is the appropriate course of treatment to undergo, meeting this burden is not impossible as insurance companies often suggest. For example, although a cervical fusion may be most appropriate for some individuals with herniated or degenerative discs, the dangers inherent in this procedure are such that continuing non-surgical treatment and cessation of aggravating work activities is actually the most appropriate care. One of the best ways to ensure that your insurance company understands why you have selected certain treatment as most appropriate for your condition is to have your treating physician carefully detail the recommended treatment and the reasons it has been selected.

Insurance companies make treatment recommendations to save money, recognizing that many insureds are unfamiliar with their legal rights and will simply acquiesce to the recommendation. In the insurance company’s best case scenario, the treatment is successful and you are no longer disabled, so there is no need to pay the claim. In its worst case scenario, you have undergone an unsuccessful treatment at your own expense, and your insurance company will have to pay the benefits it would have owed anyway. There is no risk to the insurance company; however, the policyholder’s risks are manifold and include the possibility that an expensive, potentially dangerous treatment will be unsuccessful.

Your insurer is supposed to protect you in times of disability, but you also need to protect yourself. Healthcare professionals should carefully read their policies and compare the policies of different insurers to find one that is fair. In reading policies, pay close attention to innocuouslooking phrases such as “regular care of a doctor,” as these terms are often assigned surprise definitions elsewhere in the policy. Ultimately, the fight over who has the right to control your body is one that you must win before it starts. Know your disability insurance policy’s provisions, and if you find yourself in a situation where you may need to file a claim, consider hiring an attorney beforehand.

Edward O. Comitz, Esq. heads the healthcare and disability insurance practice at the Scottsdale-based law firm, Comitz | Beethe. He can be reached at ecomitz@cobelaw.com, (480) 998-7800. For more information about disability insurance issues, please visit www.disabilitycounsel.net.

DISCLAIMER

The information in this article has been prepared for informational purposes only and does not constitute legal advice. Anyone reading this article should not act on any information contained therein without seeking professional counsel from an attorney. The authors and publisher shall not be responsible for any damages resulting from any error, inaccuracy, or omission contained in this publication.

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