Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 2
If you are a doctor or dentist and you bought your individual disability insurance policy in the 1980s or 1990s, the medical care provision in your policy likely contains some variation of the following language:
“Physician’s Care means you are under the regular care and attendance of a physician.”
This type of care provision is probably the least stringent of all the care provisions. If your policy contains a “regular care” provision, courts have determined that you are under no obligation to minimize or mitigate your disability by undergoing medical treatment. In other words, you cannot be penalized for refusing to undergo surgery or other procedures—even if the procedure in question is minimally invasive and usually successful.
Let’s look at an actual case involving a “regular care” provision. In Heller v. Equitable Life Assurance Society, Dr. Stanley Heller was an invasive cardiologist suffering from carpal tunnel syndrome who declined to undergo corrective surgery on his left hand. Equitable Life refused to pay his disability benefits, insisting that the surgery was routine, low risk, and required by the “regular care” provision of Dr. Heller’s policy. The U.S. Court of Appeals disagreed, and determined that the “regular care” provision did not grant Equitable Life the right to scrutinize or direct Dr. Heller’s treatment. To the contrary, the Court held that “regular care” simply meant that Dr. Heller’s health must be monitored by a treatment provider on a regular basis.
Unfortunately, the Heller case didn’t stop insurance companies from looking for other ways to control policyholders’ care and threaten denial of benefits. For instance, some disability insurance providers argued that provisions requiring policyholders to “cooperate” with their insurer grants them the right to request that a policyholder undergo surgery. Remarkably, when insurers employ these tactics, they are interpreting the policy language in the broadest manner possible–even though they know that the laws in virtually every state require that insurance policies be construed narrowly against the insurer.
Why would insurance companies make these sorts of claims when it is likely that they would ultimately lose in court? Because insurance companies also know that even if their position is wrong, most insureds who are disabled and/or prohibited from working under their disability policy cannot handle the strain and burden of protracted litigation. They know that if they threaten to deny or terminate benefits, many insureds will seriously consider having surgery—if only to avoid the stress and expense of a lawsuit. Unfortunately, this can lead to insureds submitting to unwanted medical procedures, despite having no legal obligation to do so.
As time went on, and more and more courts began to hold that “regular care” simply meant that the insured must regularly visit his or her doctor, Unum, Great West, Guardian, and other insurers stopped issuing policies containing that language. Instead, insurers started to insert “appropriate care” standards into policies. In the next post, we will discuss this heightened standard and how insurers predictably used it as a vehicle to challenge the judgment of policyholders’ doctors, in a renewed effort to dictate their policyholders’ medical care.
 Casson v. Nationwide Ins. Co., 455 A.2d 361, 366-77 (Del. Super. 1982)
 North American Acc. Ins. Co. v. Henderson, 170 So. 528, 529-30 (Miss. 1937)
 Heller v. Equitable Life Assurance Society, 833 F.2d 1253 (7th Cir. 1987)
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 1
Imagine that you are a dentist suffering from cervical degenerative disc disease. You can no longer perform clinical work without experiencing excruciating pain. You have been going to physical therapy and taking muscle relaxers prescribed by your primary care doctor, and you feel that these conservative treatments are helping. Like most dentists, you probably have an “own occupation” disability insurance policy. You are certain that if you file your disability claim, your insurer will approve your claim and pay you the benefits you need to replace your lost income and cover the costs of the medical treatment that has provided you with relief from your pain and improved your quality of life.
You file your claim, submit the forms and paperwork requested by the insurer, and wait for a response. To your dismay, your insurer informs you that its in-house physician has determined that the treatment prescribed by your doctor was inadequate. Your insurer then tells you that you should have been receiving steroid injections into your cervical spine, and tells you that if you do not submit to this unwanted, invasive medical procedure, your claim could be denied under the “medical care” provision in your policy.
You were not aware that such a provision existed, but, sure enough, when you review your policy more carefully, you realize that there is a provision requiring you to receive “appropriate medical care” in order to collect disability benefits. You think that your insurer is going too far by dictating what procedures you should or should not be receiving, but you are afraid that if you don’t comply with their demands, you will lose your disability benefits, which you desperately need.
This is precisely the sort of scenario presented to Richard Van Gemert, an oral surgeon who lost the vision in his left eye due to a cataract and chronic inflammation. Dr. Van Gemert’s disability insurance policies required that he receive care by a physician which is “appropriate for the condition causing the disability.” After years of resisting pressure from his insurers to undergo surgery, Dr. Van Gemert finally capitulated. Once Dr. Van Gemert received the surgery, you might expect that his insurer would pay his claim without further complaint. Instead, Dr. Van Gemert’s insurer promptly sued him to recover the years of benefits it had paid to him since it first asserted that he was required to undergo the surgery.
Unfortunately, “appropriate care” provisions, like the provision in Dr. Van Gemert’s policy, are becoming more and more common. The language in such provisions has also evolved over time, and not for the better. In the 1980s and 1990s, the simple “regular care” standard was commonplace. In the late 1990s and into the 2000s, insurers began using the more restrictive “appropriate care” standard. And, if you were to purchase a policy today, you would find that many contain a very stringent “most appropriate care” standard.
These increasingly onerous standards have been carefully crafted to provide insurers with more leverage to dictate policyholders’ medical care. However, there are several reasons why your insurance company should not be the one making your medical decisions. To begin, if you undergo a surgical procedure, it is you—and not the insurance company—who is bearing both the physical risk and the financial cost of the procedure. Perhaps you have co-morbid conditions that would make an otherwise safe and routine surgical procedure extremely risky. Perhaps there are multiple treatment options that are reasonable under the circumstances. Perhaps you believe conservative treatment provides better relief for your condition than surgery would. These are decisions that you have a right to make about your own body, regardless of what your insurer may be telling you.
In the remaining posts in this series, we will be looking at the different types of care provisions in more detail, and how far insurance companies can go in dictating your care in exchange for the payment of your disability benefits. We will also provide you with useful information that you can use when choosing a policy or reviewing the policy you have in place. In the next post we will be discussing the “regular care” standard found in most policies issued in the 1980s and early 1990s.
 See Provident Life and Accident Insurance Co. v. Van Gemert, 262 F.Supp.2d 1047 (2003)
In Part 1 of this post, we listed some of the symptoms and potential causes of myelopathy. In Part 2, we will discuss some of the methods used to treat myelopathy.
Methods of Treating Myelopathy
- Avoidance of activities that cause pain;
- Using a brace to immobilize the neck;
- Physical therapy (primarily exercises to improve neck strength and flexibility);
- Various medication (including nonsteroidal anti-inflammatory drugs (NSAID), oral corticosteroids, muscle relaxants, anti-seizure medications, antidepressants, and prescription pain relievers);
- Epidural steroid injections (ESI);
- Narcotics, if pain is very severe;
- Surgical removal of bone spurs/herniated discs putting pressure on spinal cord;
- Surgical removal of portions of vertebrae in spine (to give the spinal cord more room); and
- Spinal fusion surgery.
Myelopathy can be severely debilitating, particularly for doctors and dentists. Obviously, any physician or dentist who is experiencing a loss of motor skills, numbness in hands and arms and/or high levels of chronic pain will not be able to effectively treat patients.
If you are experiencing any of these symptoms, you may want to ask your doctor to conduct tests to see if your spinal cord is being compressed. If you have myelopathy and the pain and numbness has progressed to the point where you can no longer treat patients effectively or safely, you should stop treating patients and consider filing a disability claim.
In previous posts, we have discussed a number of disabling conditions, such as Parkinson’s disease, essential tremors, carpal tunnel syndrome, and fibromyalgia. In this post, we are going to talk about another serious condition that can severely limit a physician or dentist’s ability to practice—myelopathy. In Part 1, we will discuss some of the causes and symptoms of myelopathy. In Part 2, we will discuss some of the methods used to treat myelopathy.
What is Myelopathy?
Myelopathy is an overarching term used to describe any neurologic deficit caused by compression of the spinal cord.
The onset of myelopathy can be rapid or it can develop slowly over a period of months. In most cases, myelopathy is progressive; however, the timing and progression of symptoms varies significantly from person to person.
What Causes Myelopathy?
There are several potential causes of myelopathy, including:
- Bone fractures or dislocations due to trauma/injury;
- Inflammatory diseases/autoimmune disorders (e.g. rheumatoid arthritis);
- Structural abnormalities (e.g. bone spurs, disc bulges, herniated discs, thickened ligaments);
- Vascular problems;
- Infections; and
- Degenerative changes due to aging.
Symptoms of Myelopathy
The symptoms of myelopathy will vary from case to case, because the nature and severity of the symptoms will depend on which level of the spine is being compressed—i.e. cervical (neck), thoracic (middle), or lumbar (lower)—and the extent of the compression.
Some of the symptoms of myelopathy include:
- Neck stiffness;
- Deep aching pain in one or both sides of neck, and possibly arms and shoulders;
- Grating or crackling sensation when moving neck;
- Stabbing pain in arm, elbow, wrist or arms;
- Dull ache/tingling/numbness/weakness in arms, hands, legs or feet;
- Position sense loss (i.e. the inability to know where your arms are without looking at them);
- Deterioration of fine motor skills (such as handwriting and the ability to button shirts);
- Lack of coordination, imbalance, heavy feeling in the legs, and difficulty walking;
- Clumsiness of hands and trouble grasping;
- Intermittent shooting pains in arms and legs (especially when bending head forward);
- Incontinence; and
- Paralysis (in extreme cases).
We’ve discussed the prevalence of depression and stress in physicians, but what about addiction? While physicians are just as likely as the general public to become dependent upon alcohol and illegal drugs, they are more likely to abuse prescription drugs. A survey of 55 physicians that were being monitored by their state physician health programs for problems relating to drug and alcohol abuse showed that 38 (69%) abused prescription drugs. While certainly concerning, this is not necessarily surprising, as physicians have far greater access to prescription drugs than the average person.
Compounding this issue is the stigma associated with substance abuse. Oftentimes, those who do not suffer from substance addiction believe that drugs and alcohol are something that people can quit easily, and that substance abuse can be solved by a quick trip to a rehab facility. But in many cases, substance abuse is more than mere recreational use of medications. In some cases, those who abuse prescription drugs may be trying to relieve stress or self-medicate chronic physical and/or emotional pain. In other cases, substance abuse may be a result of the phenomenon called “presenteeism”—doctors may be taking the medication simply because they believe it is the only way to continue working in spite of an illness, impairment, or disability.
How can medical professionals with substance addiction get help? One way is to seek confidential treatment to avoid the scrutiny of a medical board or coworkers. Confidential programs can be both outpatient and inpatient, with inpatient programs usually lasting around one to three months. After treatment, patients are able to continue recovering by completing 12–step programs, like Alcoholics Anonymous. However, this treatment option has similar relapse rates to the general public: nearly half of patients relapse in the first year.
A second road to recovery is physician health programs. These programs actively monitor patients after treatment for a period of five years by conducting drug testing, surveillance and behavioral assessments. This path may be difficult for physicians to come to term with after keeping their addiction hidden. However, going through the physician health programs boasts a much higher success rate of 78% (only 22% tested positive during the 5-year monitoring period), and roughly 70% of medical professionals who pursue this method of treatment are still working and retain their licenses.
If you, or a physician you know, struggles with substance dependency, we encourage you to seek out appropriate help. If you are a physician with a painful disability, you should not put your patients at risk by attempting to work through the pain or by seeking to dull the pain with self-medication. If you have disability insurance, you should contact an experienced disability insurance attorney. He or she will be able to guide you through the claims process and help you secure the benefits that you need without putting yourself or your patients at risk.
In past posts, we have looked at some conditions that are common in doctors and dentists—such as carpal tunnel syndrome and essential tremors—and discussed ways that these conditions can affect both your practice and your disability insurance claim. In this post, we will be discussing a few unique conditions that—while they may not be severe enough to cause you to file for disability benefits—can be particularly inconvenient for doctors and dentists.
Roughly 15% of people suffer from a condition that makes it difficult for them to differentiate between their left and their right. While this may be a mere annoyance for most people, it can be a significant problem for a doctor or a dentist.
One doctor tells the story of how he mistakenly ordered an x-ray for the wrong foot of a patient, and the radiologist insisted on performing the x-ray on the foot that the doctor had indicated even though it was very obvious which foot was injured. Due to the confusion, the patient ended up leaving the doctor’s care. In other, more extreme cases, “wrong-side surgery” has occurred due to left-right confusion.
Face-blindness, or prosopagnosia, is a cognitive disorder that affects people’s ability to identify faces and places. It is much less common than right-left confusion, occurring in only about 2.5% of people. Face-blindness also exists on a spectrum, with some people having mild prosopagnosia, while others are unable to pick out the faces of their spouses or children in a crowd.
While face-blindness doesn’t necessarily have a large effect on operations, it can negatively impact your relationships with patients. For instance, if patients are unaware that you suffer from face-blindness, they may be offended if you fail to recognize them outside the office setting. Fortunately, in most instances, prosopagnosics can use other characteristics, such as posture or voice, and contextual clues, such as location, to identify an unfamiliar face.
Like left-right confusion, dyslexia also affects approximately 15% of Americans. This condition affects the way that the brain processes language, both written and spoken. It is often referred to as a “reading disability,” but it can also affect writing, spelling, and speaking. Although there are various therapies designed to minimize the effects of dyslexia, in most cases dyslexia is a lifelong condition.
Many doctors with dyslexia do not reveal their condition for fear of stunting their professional growth or causing patients to lose trust. However, as one dyslexic doctor has observed, first-hand awareness of personal deficiencies can actually enhance patient trust, because it can make a physician more compassionate and understanding. Another dyslexic doctor considers her dyslexia to be a gift because it has made her a more creative problem solver and enhanced her ability to recognize patterns, which has proved very useful in her chosen field of radiology.
While these conditions may not be severe enough to support a disability insurance claim, they can change the way that you approach your practice and patients. It’s important to be aware of these conditions because even if you don’t have any of these conditions, a colleague or patient might. We encourage you to be cognizant and understanding of others’ disabilities, and to foster a culture of acceptance and accommodation in the medical field.
 See http://well.blogs.nytimes.com/2015/08/10/you-will-see-the-doctors-fallibility-now/?smid=tw-nytimeswell&seid=auto.
 For more info on face-blindness, see http://www.newyorker.com/magazine/2010/08/30/face-blind.
 See http://www.reuters.com/article/2015/02/26/us-dyslexic-physicians-idUSKBN0LU2E520150226.
In Part 1 of this post, we listed some of the symptoms and potential causes of fibromyalgia. In Part 2, we will discuss some proposed treatments for fibromyalgia.
Unfortunately, while there are a variety of ways to treat fibromyalgia, there is currently no cure for fibromyalgia. Some of the most prominent courses of treatment include:
- Exercise: Many fibromyalgia patients may be afraid to exercise because they think it will increase their pain. However, being active may help to alleviate pain because physical activity can increase endorphin levels that patients may be lacking. Exercise can also alleviate stress, anxiety and depression—common symptoms of fibromyalgia.
- Physical Therapy: Some physical therapists utilize exercises that help fibromyalgia patients relax tense muscles and move in ways that will not exacerbate pain levels. Physical therapy is often used as a precursor to exercise.
- Medication: Antidepressants are often prescribed to help with the depression, fatigue, and sleep issues associated with fibromyalgia. Medications that facilitate restful sleep may also help with the pain, by allowing patients the rest needed to recover. Other drugs, such as Lyrica, have been approved by the FDA to directly treat fibromyalgia pain. Remember, you should always consult with your doctor before taking any medication.
Fibromyalgia is a condition that varies from person to person, with people having both good and bad days. If you suffer from fibromyalgia, note what makes your pain worse or better, and try to avoid or continue those practices. As always, it is important to consult with your doctor to ensure that you are receiving appropriate treatment for the chronic pain caused by fibromyalgia.
If your fibromyalgia has progressed to the point where you can no longer practice, we encourage you to contact an experienced disability attorney before filing a disability claim. Disability claims involving fibromyalgia can be particularly difficult, due to the subjective nature of the condition, so it is important to have an experienced advocate at your side to help you navigate the claims process.
In this post, we are going to take a look at some of the symptoms and causes of a debilitating condition known as fibromyalgia.
Fibromyalgia is a syndrome that is characterized by chronic, widespread muscle pain. Other symptoms include:
- Trouble sleeping;
- Morning stiffness;
- Muscle knots, cramping, or weakness;
- Painful trigger points;
- Dry eyes;
- Concentration and memory problems, called “fibro fog”;
- Irritable bowel syndrome;
- Anxiety or depression; and
Fibromyalgia is difficult to diagnose, because most of the symptoms are relative or subjective. Notably, certain forms of arthritis may cause similar symptoms. However, persons with arthritis suffer from pain that is localized in joints. In contrast, persons with fibromyalgia suffer pain that is primarily felt in muscles, tendons, and ligaments.
Because fibromyalgia is difficult to diagnose (due to the subjective nature of its symptoms), there is no clear consensus as to the causes of fibromyalgia. Here are some of the theories that researchers have suggested:
Lower Levels of Serotonin and Endorphins
Serotonin is a neurotransmitter that is associated with calming and feelings of well-being and happiness. Endorphins are also associated with happiness and serve as painkillers. If someone has lower levels of serotonin and endorphins, they may be more susceptible to feeling pain, or may feel pain more intensely than someone with normal serotonin and endorphin levels.
Some researchers theorize that stress causes muscle “microtraumas,” which in turn leads to a cycle of pain and fatigue caused by an inability to rest due to the pain.
Gender and Biological Changes
Statistically speaking, women seem to be at greater risk for fibromyalgia. For this reason, some scientists have proposed that fibromyalgia pain may be connected to hormonal changes such as menopause.
Fibromyalgia could be due to a genetic tendency that is passed down and regulates the way one’s body processes pain. Although, as of yet, no particular “fibromyalgia gene” has been identified, several genes have been found to occur more often in people with fibromyalgia.
Accidents, injury, and illness involving the brain or spinal cord may contribute to fibromyalgia pain. Such trauma may alter the way neurotransmitters, such as serotonin, are produced, or it may lower an individual’s emotional threshold for pain.
In Part 1 of this post, we looked at the risk factors, symptoms, and treatment options associated with ET. In Part 2, we will discuss how having an essential tremor could potentially affect your total disability claim.
How do I file for total disability when I have ET?
For those with an “Own Occupation” policy, which means you are considered totally disabled if you can no longer work in your own profession, having ET would certainly qualify you for benefits if you are a medical professional.
Many physicians think that they can simply decrease the types of procedures they perform or amount of time spent at working as their ET becomes more disabling, but this is the wrong move to make. Changing your work responsibilities can alter your “occupation” under the terms of your disability policy. For example, if you forego performing medical procedures and merely manage your practice, the insurance company may claim that your occupation has changed from a physician to an office manager, and attempt to decrease or deny your benefits. Similarly, if you start to work part-time instead of full-time, and then file for disability, an insurance company will likely classify you as a part-time worker, and thus only give you part-time benefits.
Other physicians may decide to continue working in spite of their ET. This is also a mistake. Trying to work when you have ET places your patients at risk. If a patient did get injured and filed suit, his or her attorney would almost certainly assert that you should not have been working with patients and that you knew your ET could harm the patient.
The correct way to deal with insurance companies and your condition is to stop working as soon as it impinges on your ability to perform your occupation and file for disability insurance. Since, in many cases, the onset of ET is gradual, it is important to discuss you symptoms with your doctor so he or she can determine when your condition will progress to the point that it affects your work.
ET is a condition that can have an effect on actions as small as carrying a water glass or tying your shoes. It can also affect your occupation and the financial security that comes from having total disability insurance. We encourage you to speak with your doctor if you think you may be at risk for or have ET, and to contact a disability insurance attorney to help with the claims process if you are planning on filing for disability benefits.
Great-West Life & Annuity Insurance Company (“Great-West”) is the final disability insurance provider we will look at in our series profiling insurance companies that specifically market to physicians and dentists.
Great-West, which also goes by the registered mark of “Great-West Financial,” was incorporated in 1907, and traces its roots to a Canadian parent company that was incorporated in 1891. Due to the nature of the economy and other factors, many insurance companies have suffered substantial losses in the past few years, and Great-West is no exception. Great-West’s net income recently dropped from 238.1 million in 2012 to 128.7 million in 2013. Consequently, Great-West may be looking to substantially increase its profits by, for example, denying high paying disability claims.
Company: Great-West Life & Annuity Insurance Company.
Location: Greenwood Village, Colorado.
Associated Entities: Great-West Lifeco Inc.; Great-West Lifeco U.S. Inc.; Great-West Life Assurance Company; Great-West Life & Annuity Insurance Company of New York; Great-West Capital Management, LLC; Great-West Funds, Inc.; GWFS Equities, Inc.
Assets: $55.3 billion in 2013.
Notable Policy Features: Great-West is the insurance company that provides group disability insurance for the American Dental Association (ADA), so if you have a Great-West policy, your claim will probably be governed by the terms of the ADA’s group disability policy.
Great-West frequently sends out notices of updates and changes to the underlying contract between the ADA and Great-West, so there is a chance that you may end up with insurance coverage that you did not bargain for at the point of sale. Oftentimes these notices are full of legalese and insurance jargon, and may be difficult to understand. Nevertheless, it is important for you to promptly review any notices you receive, because they may impact your disability coverage in significant ways. If you receive such a notice and are unsure about what it means, an experienced attorney can explain how the changes outlined in the notice will impact your policy.
Additionally, if you have a Great-West policy, you should be aware that your policy may contain a very strict provision requiring you to obtain proper medical care for your condition. For this reason, if you are thinking about filing a disability claim with Great-West, you should make sure that your medical treatment is both well-documented and “appropriate” under the policy’s terms.
Claims Management Approach: How Great-West administers your claim will depend on the terms of the policy at the time you file your claim. Because the terms of the ADA’s group disability policy are renegotiated on a regular basis, the terms of your policy will likely change over time. Since your initial copy of the policy may no longer be accurate by the time you file your disability claim with Great-West, be sure to ask for a copy of the current version of your policy so that you know your rights under your policy.
These profiles are based on our opinions and experience. Additional source(s): Great-West Financial’s 2013 Annual Report; www.greatwest.com.
In our recent post, “Should Disability Insurance Companies Be Deciding What Kind of Care You Receive?” we explained that insurance companies will often contact your treatment providers directly without your consent, ambushing them with medical studies and demanding answers to a plethora of questions about your medical treatment in an effort to undermine your disability claim. In many instances, insurance companies will refuse to produce the medical reports their in-house doctors wrote about you, but still expect full access to your treatment providers and their reports.
If this happens to you, you may (justifiably) feel like the insurance company is going behind your back and unfairly manipulating the claims process. Your treatment providers may become upset because the insurance company is harassing them to respond to detailed questions without adequate time to understand the questions and/or provide thorough answers. You may even notice your doctors acting differently towards you after speaking with the insurance company. For example, your doctor might begin to avoid you when you ask him or her to provide you with documentation to support your claim.
How can you protect your treatment providers from being ambushed by insurance companies and protect your claim from being manipulated?