An Inside Look at Insurer Surveillance
Insurers often spy on insureds in an attempt to “catch” them appearing non-disabled. Traditionally, insurers have hired private investigators to videotape insureds in their daily routines. More recently, disability insurers have begun to use Facebook and other social media as a one-way mirror for electronically peeping into an insured’s private life. Old-fashioned stakeouts and video surveillance are alive and well, however. Because it is so easy to misconstrue even a few seconds of video footage, all insureds need to be aware of the possibility for surveillance.
A recent article written by the insurance industry and aimed at insurers exposes the way insurers regard surveillance. Though the article cites a private investigator as saying that surveillance is the “unbiased documentation of a person’s activities,” the reality is anything but. Disability insurers will hire PIs to watch a claimant for days, and then purport that a single fifteen-second clip of the insured watering his outdoor plants, for example, is evidence of a fraudulent claim. They fail to understand the reality: Disability means unable to perform occupational duties, not absolute and perpetual helplessness. What does the insurer do with this video evidence? In their own words, “[impeach] the claimant, ultimately minimizing the value of his claim.”
Even if your insurer has obtained video surveillance, an experienced disability insurance attorney can place the video in its proper context—not just the five second clip that the insurer wants to show. Surveillance is another reason why it is important to consult with an attorney should you need to file a disability insurance claim.
How Specific is Your “Own Occupation”?
We have discussed many times the importance of an “own occupation” disability insurance policy. Such policies provide benefits if the insured is unable to perform the substantial and material duties of his own occupation, rather than requiring that the insured be unable to perform any occupation anywhere. But how specific is your own occupation?
John Simon, an environmental trial lawyer with a national practice, became disabled after an automobile accident. Pain in his legs made sitting, standing, and driving difficult. He had hand tremors, and pain medication caused a cognitive decline. He was diagnosed with regional pain syndrome and post-traumatic stress disorder. Yet Prudential Insurance only paid benefits for a year before terminating Simon, claiming that law was a sedentary profession and that there was no proof that he was incapable of performing his “occupation.”
As the District Court found in its decision, Simon “was no ordinary lawyer.” He was able to establish that his national environmental law practice required extensive travel by air and automobile, including carrying heavy files. Simon spent most of his time outside of the office developing a client base, litigating, lecturing on environmental law, and serving on a government commission.
Most of Simon’s practice was originating clients for the firm rather than performing extensive legal work on each case. During his disability period, his bonuses from the firm actually increased—from his fee sharing for bringing in new clients. Thus his bonuses reflected past rather than present efforts. Though the insurer pointed to Simon’s increasing compensation as evidence of his ability to practice law, it failed to investigate the nature of that compensation.
The court found that Prudential failed to consider the functional requirements of Simon’s particular work activities. It held that all of the factors weighed in favor of concluding that Prudential’s termination of benefits was arbitrary and capricious. John Simon had his disability benefits reinstated.
This case is an excellent example of how important it is to ensure that a disability claim is properly presented to the insurance company. All too often, disability insurers attempt to misclassify insureds’ occupations as to scope or type of duties. It may be necessary, as it was in this case, to litigate to force the insurer to recognize its obligations under the disability insurance policy. Thus, if you are filing a disability insurance claim, it is important to consult with an experienced disability insurance attorney.
A Case Study in Benefit Denial
We frequently emphasize how important it is to consult with a disability insurance law firm before filing a claim. But what about at the moment when you realize that you’re too sick to work? It is vitally important to consult with a disability insurance attorney specializing in disability law as soon as possible. A recent case in which the insured was denied disability benefits illustrates the importance of consulting with an attorney from the very beginning of your illness. There are often clauses in your disability policy which require up-front strategic planning to preserve your claim. In the below case study in benefit denial, the insured found himself possibly covered by two plans but ultimately unable to collect from either.
Paul McKay was employed beginning in 1999 as an attorney at U.S. Xpress, which provided a long-term disability plan to its employees. Prior to January 1, 2004, this plan was provided by Unum. On that date, U.S. Xpress switched disability insurance providers to Reliance. Insurance coverage was supposed to be uninterrupted with employees retaining continuous disability insurance, and in fact it was. But McKay fell between the cracks due to disparate language in the policies.
During his employment, McKay developed significant cervical spine problems, and he eventually underwent surgery in June 2003. Unfortunately between September through December 2003, his condition continued to worsen. At that point he had severe cervical and lumbar disc disease, was frequently absent, and his medication made mental concentration more difficult. His last day of work at the office was December 19, 2003. He intended to work from home during January 2004, but there was no evidence that he was able to do so. U.S. Xpress continued paying McKay his usual salary until January 16 and then fired him on January 19, 2004.
McKay filed a disability claim with Unum (the insurer prior to January 1, 2004) for disability benefits, contending that he was disabled under the policy. Unum denied the claim. The court affirmed the denial. The problem for McKay was that his Unum policy contained a clause requiring a 20% loss in monthly earnings as a qualifying condition for disability benefits. Unum successfully argued that through December 31, 2003, McKay had not had any loss of earnings as U.S. Xpress had in fact paid him his full salary into January 2004. McKay argued that he may have received his salary but he was incapable of earning it. The court followed the plain language of the policy and regardless of whether McKay earned his keep in December, found no loss and ruled that he was ineligible for benefits.
Reasonably enough, McKay rationalized that if Unum wouldn’t cover him, then he must be covered by Reliance (who took over on January 1). He filed a claim with Reliance, only to discover that Reliance’s policy had two important but often-overlooked requirements: To be eligible for insurance without the usual 60-day waiting period (which would have started coverage on March 1), McKay had to be “actively at work” as of January 1 and his disability had to begin on or after January 1. Reliance denied the claim, asserting that McKay wasn’t “actively at work” because he was not working full-time (at least 33 hours per week) as of January 1. Recall that McKay had attempted to establish his eligibility under Unum by arguing that he had suffered a loss in earnings in December because after December 19 he wasn’t actually earning—just receiving—his salary. McKay’s statements, which had been made in support of his Unum claim, were outrageously used by Reliance to deny him benefits under Reliance’s plan.
The injustice gets worse. As a second reason for denying the claim, Reliance argued that since McKay had asserted a December disability date to Unum, had left the office after December 19, and had since received Social Security disability benefits based on a December 2003 disability date, McKay’s disability began before January 1. Thus, he was ineligible for benefits under Reliance’s plan. The court agreed with Reliance’s reasoning.
On appeal, the Circuit Court affirmed the lower court’s rulings. The Court noted that “McKay argues that because U.S. Xpress maintained uninterrupted LTD insurance coverage during the time period in which he sustained his disability, he must be covered by one of the two policies. McKay’s argument, while somewhat logical, is incorrect. Whether he is covered by either Unum or Reliance, or both, turns on the terms of each policy.” (emphasis added). And so it ends. Paul McKay, who was always “covered” by long-term disability insurance, turned out to not be covered at all. He receives no benefits from either policy, thanks to a coincidence of timing. Each insurer used his statements to the other to deny coverage, leaving him in a no-win scenario.
What can be done differently? Paul McKay should have immediately consulted a disability insurance attorney as soon as he suspected that he might become too ill to work. The attorney could have examined the policies and the upcoming switch in coverage and worked with Paul to develop a strategy to preserve his claim, such as resigning in December and immediately applying for benefits. This case underscores the importance of coordinated planning with an experienced disability insurance attorney.
What Happens If Your Plan Description Doesn’t Match Your Policy’s Terms?
Many people aren’t used to reading insurance policies. With their legal clauses, insurer-defined terms, and dry content, understanding them can be a challenge for insureds. For these reasons, disability insurers provide plain English summaries of their disability policies, both for marketing purposes and as a guide to benefits. But what happens if you rely upon the plan description in filing a disability claim only to be told that the actual policy language precludes your claim? Your insurer wouldn’t be alone in exploiting a situation where your plan description doesn’t match your policy’s terms.
In the recent case of Weitzenkamp v. Unum Life Insurance Company, the Seventh Circuit Court of Appeals addressed such a discrepancy in a disability insurance policy and plan description. Susie Weitzenkamp was diagnosed with fibromyalgia, chronic pain, anxiety, and depression—all self-reported symptoms. Her summary plan description listed a twenty-four month restriction on disabilities due to mental illness and substance abuse. What the summary failed to mention, however, was that the policy also had a twenty-four month cap on benefits for disabilities primarily based on self-reported symptoms. Ms. Weitzenkamp suddenly found her benefits abruptly terminated.
On appeal, the Circuit Court noted that a summary plan description is intended to be a “capsule guide [to the plan] in simple language.” The relevant law required that the summary include “the plan’s requirements respecting eligibility for participation and benefits” and “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.” Because the summary failed to mention this important policy provision denying benefits for self-reported symptoms, it violated federal law. The court prohibited Unum from relying upon the policy provision in denying Ms. Weitzenkamp’s claim, reinstating her past benefits though still leaving her to prove her ongoing eligibility under the merits of the policy.
This case illustrates but a portion of the complexity in disability insurance cases. What can physicians do to protect themselves? It is important to thoroughly understand both your actual policy and the insurer’s marketing literature. Physicians should retain all insurer-provided materials from both before and after the purchase of their policy, and consult with an experienced disability insurance attorney should they need to file a claim.
Even Athletes Need Disability Insurance
Many physicians have long been aware of the need to buy disability insurance to protect their income from a disabling injury, but physicians are not the only group needing high-dollar insurance policies. Everyone is at risk of a disabling injury. According to statistics, one-third of all Americans between ages 35 and 65 will become disabled for more than ninety days. Athletes are no exception to the norm, though we usually don’t think of Tiger Woods or Alex Rodriguez as owning disability insurance. For the wealthiest athletes, who can earn a living off of endorsements or other business ventures, disability insurance is probably unnecessary. But for most, it is an often-overlooked yet vitally important safety net.
Consider the June 2003 motorcycle crash of Jay Williams, a promising 2002 NBA draftee who suddenly found himself with a mangled leg, hundreds of thousands of dollars in medical expenses, and, because of a certain motorcycle-riding clause in his contract, suddenly out of a salary. The Chicago Bulls charitably bought out Williams for $3 million, but eight years later, he remains unable to return to the game.
Professional athletes all too commonly fail to realize that disability insurance protects their income as much as it protects the income of a doctor or attorney. It’s no surprise that a recent article suggested disability insurance as one of the first things a new professional athlete should buy. Some prepare even before they turn pro: Shaquille O’Neal played at Louisiana State University while covered under a $2.7 million dollar policy. In fact, one of the NCAA’s lesser known programs is its group disability insurance through which exceptional student-athletes can purchase protection against disabling injuries or sickness. Each year, about 75 top athletes buy insurance through the NCAA program.
There are more similarities than differences between the NCAA’s disability insurance policy and physicians’ disability insurance policies. The NCAA caps its benefits at a maximum of $5 million for first-round NFL draft picks and men’s basketball players, a figure roughly equivalent to the lifetime earnings of many physicians (though the NCAA pays the entire benefit over a fixed 30-month period). And like physicians’ policies, the key question is what constitutes a disability? Continue reading “Even Athletes Need Disability Insurance”
Disability Insurer Unum Group Said to Have Been in Talks with Sun Life Financial
Bloomberg Businessweek reports that the nation’s largest disability insurance company, Unum Group, was in private talks earlier this year about a potential takeover by Sun Life Financial, Inc. Sun Life, Canada’s third-largest insurer, said in November 2009 that it wanted to expand its presence in the U.S. significantly with an acquisition.
A source for the Wall Street Journal said that the talks broke down in January, but Unum may still be open to approaches. The source also reported that Unum and Sun Life officials couldn’t agree on deal terms and governance.
Following the breakdown in the talks, Unum announced a $1 billion buyback of stock over 18 months.
Texas Insurance Commissioner Forbids Insurers’ Provisions that Allowed Them to Interpret Policies
The Texas Department of Insurance has adopted new rules that prohibit the inclusion of discretionary clauses in health, life, and disability insurance policies delivered in Texas. Discretionary clauses are contract provisions that provide insurers with sole discretion in deciding what, when, and if benefits are due under an insurance policy. The Office of Public Insurance asserted that these provisions alter the way courts review insurers’ decisions on appeal and make meaningful review of an insurer’s decision virtually impossible.
In prohibiting discretionary clauses, Texas Commissioner of Insurance Mike Geeslin wrote:
[d]iscretionary clauses are unjust, encourage misrepresentation, and are deceptive because they mislead consumers regarding the terms of coverage.
Discretionary clauses are present in nearly all employer-provided disability policies because they are allowed by The Employee Retirement Income Security Act of 1974 (“ERISA”).
Twenty-three states and the National Association of Insurance Commissioners have now adopted statutes, rules or policies prohibiting discretionary clauses. The new rules in Texas will take effect February 1, 2011 for some types of disability insurance and June 1, 2011 for all other forms of health, life, and disability insurance policies issued in Texas.
Patrick T. Stanley: Newest Member
We are delighted to announce that Patrick T. Stanley has been elected a Member.
Mr. Stanley is an experienced trial lawyer with a substantial background in state and federal courts, as well as arbitration proceedings. He has extensive experience in motion practice, appellate practice, jury and bench trial, arbitration and injunctive relief. He is particularly experienced in litigating first-party insurance bad faith, including disability insurance and professional liability coverage, and healthcare litigation.
In addition to his litigation background, Mr. Stanley also assists with the practice management needs of healthcare professionals. He provides consultation and representation in regulatory compliance matters, non-compete and anti-solicitation agreements, disability claim advice, employment contracts, personnel and human resources issues, employee disciplinary actions, independent contractor and managed care agreements, state licensure issues and collections.
Mr. Stanley is ranked “Excellent” by Avvo, which rates and profiles over 90% of licensed attorneys in the U.S. based on research, client reviews, lawyer disciplinary histories and peer endorsements. Mr. Stanley has been named a “Top Attorney” by Arizona Business Magazine(Healthcare) and Ranking Arizona (Commercial Litigation).
Mr. Stanley is admitted to practice in state court in Arizona and Florida, as well as the United States Court of Appeals for the Ninth Circuit and the United States District Court for the Districts of Arizona and the Southern and Northern Districts of Florida. He has also been admitted pro hac vice in United States District Courts in California and Alaska.
Mr. Stanley received his B.A. in History from the University of Kansas and earned his law degree, cum laude, from the University of Arizona. Since then, in addition to his busy practice, Mr. Stanley has authored or co-authored articles on a number of topics relating to both disability insurance and transportation law.
Are Non-Competition Agreements Enforceable or Not?
Disability attorney Ed Comitz recently had his article “Are Non-Competition Agreements Enforceable or Not?” published in the Winter 2010 edition of AzMedicine, the publication of the Arizona Medical Association for healthcare professionals.
Senate Finance Committee Hearing Held to Discuss Abuses in Long-Term Disability Insurance Industry
On September 28, 2010, the United States Senate Finance Committee held a full committee hearing titled, “Do Private Long-Term Disability Policies Provide the Protection They Promise?” At the hearing, the Finance Committee and expert witnesses discussed the sometimes abusive practices of insurance companies when handling legitimate long-term disability claims.
Senate Finance Committee Chairman Max Baucus, D-Mont., said LTD insurers use doctors with conflicts of interest to review claims. “Many of these doctors are employed either by the insurance company or by companies that do a lot of business with the insurance company,” Baucus said. “These arrangements make it far too easy for the doctors to deny claims, terminate claims, or reject appeals.”
It’s time for long-term disability insurance companies to clean up their act and treat people fairly. They have acted with impropriety for too long. We need to evaluate the laws that we have on the books and make sure that they are true to their original purpose – to protect people from abuse, and to guarantee that they can get the insurance funds to which they are entitled. Hard-working Americans with long-term disability insurance should not have to deal with corporate abuses if they suffer an injury that keeps them out of work. They are entitled to insurance payments. They should not face roadblock after roadblock to see that money, nor should they face unfair rescissions or payment terminations.
Baucus convened the hearing in response to recent media reports of unfair claim denials and terminations that threaten the livelihoods of those beneficiaries who are unable to work. Both Baucus and the expert witnesses cited instances of long procedural delays and the use of in-house doctors to avoid making claim payments.
Ronald Leebove, a rehabilitation counselor who appeared for the American Board of Forensic Counselors, Springfield, Mo., said private group long-term disability policies fail to provide the protection insurers promise. “There are many tricks and tactics used by the insurance companies to deny claims,” Leebove said.
Baucus stated his desire to work in conjunction with the Senate Commitee on Health, Education, Labor and Pensions to move toward a solution that gives beneficiaries the fair process and justice they deserve.
Video of the hearing and transcripts of testimony are available at: http://finance.senate.gov/hearings/hearing/?id=1c1bd578-5056-a032-5237-4dd9283e52ed
Regulate Yourself: Physicians Underreport Impaired Colleagues
A study by the Journal of the American Medical Association suggests that patients must increasingly rely on their doctor’s honest assessment of his own health, rather than the supervision of his colleagues. Physicians are simply not reporting colleagues whose disability endangers patients.
Traditionally, the medical profession has relied on internal mechanisms to guarantee that patients’ needs are met. A number of ethical codes require a physician to report a colleague who is suffering any disability or impairment that leaves him unable to safely care for his patients. As Matthew K. Wynia, MD, Director of the AMA Institute for Ethics, noted in an interview with American Medical News, “[r]eporting incompetent or impaired colleagues is a clear-cut professional obligation.”
Unfortunately, physicians are not following through on that obligation, even when the disability causes an unquestionable risk to patients.
The most common explanation given for failing to report a colleague was the belief that “someone else was taking care of the problem.” Physicians may conclude that their colleague is already aware of the effect his disability could have on patients, and that he would take time off if he felt his condition merited it. They may even assume that he is already taking steps to file a disability claim. They may also be reluctant to intrude on a personal crisis, preferring to leave their colleague to his own social and financial safety nets, such as close friends, family, or disability insurance.
Perhaps more revealing is the fact that 8% of respondents “believed it could easily happen to them.” The thought of being deprived of one’s own occupation, livelihood, and income by the sudden onset of an impairment or disability is certainly troubling at best. Physicians may feel that, if they were disabled and could not safely continue working, their colleagues might doubt their personal fitness for the medical profession. Moreover, they may fear a loss of income or the intense scrutiny imposed by disability insurers and claims representatives. They cannot bring themselves to put a colleague—and perhaps a friend—in that position.
One solution is increased reliance on the physician’s own evaluation of his disability—he must remain cognizant of his own health, and recognize when it is appropriate to take disability leave. Combined with an ongoing reporting obligation, the result would be a higher standard of care and safety for patients.
While the medical profession has always been self-regulating, the regulation of self—the honest evaluation of one’s own disability and capacity for fulfilling the obligations of his own occupation—may become an invaluable means for guaranteeing patient safety. As Dr. Wynia points out, “It’s not just a matter of doctors peeping over each others shoulders.”
Disability Insurance: Who Gets Denied?
Answer: Individuals with neck and back pain.
Musculoskeletal disorders make up 23 percent of new disability claims each year, says the Council for Disability Awareness, an insurance industry trade group. You can expect extra scrutiny if you file a claim for disability benefits, says Arizona disability insurance attorney Ed Comitz. The challenge with musculoskeletal claims is that there may be little objective evidence to verify the pain. Most insurers conduct surveillance on individuals with neck and back problems, attempting to portray them in the worst light notwithstanding the varying nature and severity of pain.
Claim Analytics, a provider of predictive modeling solutions to the insurance industry, published the results of its “2010 Long Term Disability Benchmarking Report.” The results show significantly varying results (a 22% difference) when it comes to dealing with claims,especially those based on back injuries. According to Claim Analytics, this reflects on the claim management practices employed by each carrier, and specifically how different carriers treat back pain.
The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #1)
If you are a medical or dental professional and are thinking that you may need to file a claim under your disability policy, you may be wondering “Do I need to hire an attorney to file a disability claim?”
Given the voluminous, complex language of modern policies and the amount of money at stake, failing to consult with a lawyer is one of the biggest mistakes professionals make when filing a disability claim. An experienced disability attorney can explain the significance of key policy terms, and work with you to present the best claim possible while avoiding the pitfalls we have identified in our previous posts on this topic.
Ed Comitz’s article, “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), discusses ten of the most significant mistakes to avoid. The excerpt below explains the importance of consulting with an attorney before filing a long-term disability claim:
MISTAKE NO. 1: Failing to Consult With a Disability Insurance Lawyer
Physicians who are considering filing a claim for disability insurance benefits are advised to meet with an attorney experienced in the area before submitting a claim for payment. Disability provisions vary greatly in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases. Accordingly, each insurance policy must be individually reviewed to determine whether a particular claim is covered and, if so, how that claim is best presented to ensure payment.
Action Step: Physicians should make a coordinated effort with the assistance of an attorney when interpreting their policy, presenting their claim, and providing subsequent information to their carrier.
Insurers have laid plenty of traps throughout the claims process. They will use private investigators, video surveillance, social media platforms, and similar tactics to harvest information and set up your claim for denial or termination. To learn more about these tactics and other mistakes to avoid, click here.
A Question of Ethics: When Is It Time to File a Disability Insurance Claim?
The physician considering a disability insurance claim is faced with a difficult decision: is it really time to look after her own health, or should she just keep working through the pain? An article by Richard Gunderman, a Professor at Indiana University’s School of Medicine, in American Medical News’ Ethics Forum argues that, while physicians should not be too preoccupied with their own health, they must also consider the safety of their patients: “As physicians, we bear a duty to recognize our own health-related limitations and take appropriate steps to safeguard those that depend on us.”
On the one hand, a physician’s disability or impairment may be so severe that she honestly doubts her ability to safely care for her patients. She may already be taking fewer shifts, seeking work accommodations, delegating tasks to her colleagues, and struggling to work around her disability. She may genuinely fear that when the pain is at its worst, her patients’ health is at risk.
On the other hand, the mere pursuit of a disability insurance claim can be grueling. Insurance carriers often resort to ruthless tactics to undermine a physician’s credibility and tear holes in legitimate evidence of disability just so they can deny the claim and save a dollar.
To complicate the matter, many physicians have loved ones who depend on their income. The potential for a prolonged disability insurance claim denial—and the resulting financial and emotional distress—can be frightening.
Gunderman suggests a solution: the physician should ask herself if she is still physically able to accomplish the selfless goals that drew her to the profession and commit herself completely to the patients and the community. “If we can position ourselves on the appropriate trajectory toward this higher end,” writes Gunderman, “the lesser goals, including the health of physicians, will find their proper orientation.”
And if the pain makes that impossible, it may be time to pursue a disability insurance claim. The decision may be evidence of deeper commitment to patient care: ”What might seem at first glance an admission of weakness,” says Gunderman, ”turns out to offer powerful testimony to the strength of a physician’s dedication to patients.”
The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #2)
Any medical or dental professional considering filing a claim or weighing long-term disability insurance policy options should be familiar with two key policy terms: “total disability” and “occupation.”
Misinterpreting the definitions of “total disability” and “occupation” and/or falling prey to other common pitfalls can lead to having your claim denied or your benefits terminated.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains the importance of understanding these crucial definitions in your policy:
MISTAKE NO. 2: Misunderstanding the Definitions of “Disability” and “Occupation”
Because there is no such thing as a “standard” disability insurance policy, the definitions of “disability” can significantly vary. Most physicians purchase “own-occupation” policies, which provide compensation following a disability that prevents the insured from performing the particular duties of his or her occupation. Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature. The central issue in many cases is the definition of “total disability,” which could variously mean that the insured cannot perform “all” or “every” duty of his or her occupation, or the “substantial and material duties” of his or her occupation.
Similarly, the term “occupation” may be specifically defined in the policy (e.g., “invasive cardiologist”) or may refer to the insured’s occupation immediately prior to the time that disability benefits are sought. In the latter situation, if the physician reduces his or her hours in the months preceding claim filing, the insurer may consider his or her occupation to be part-time rather than full-time. Similarly, the term “occupation” may be comprised not only of the duties of a physician’s specialty, but also of significant travel time, teaching engagements, or other areas in which the physician spends time or draws revenue. For example, “occupation” may be defined as “internist/professor/business owner,” in which case the physician may not be “totally disabled” if he or she can still teach or perform management functions.
Action Step: Physicians should read and fully understand their policy terms before filing a claim for benefits.
Even if you read how these terms are defined in your own policy, you may not realize the significance of the definitions if you do not have a full understanding of the claims process and/or you have never seen any other policies for comparison as a frame of reference. Being familiar with the several variations of “own occupation” policies being sold by insurers can help you determine whether you have a true own occupation policy.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #3)
When you file a claim, at some point you will have phone calls with the insurance company regarding your claim. Oftentimes these conversations will be recorded and incorporated into the insurance company’s claim file, but you likely will not receive a copy of the recording unless your claim is denied and you end up filing a lawsuit challenging the denial. And even if the conversation is not recorded, it likely that, following your call, the analyst will be making a note in the claim file summarizing what was said in the conversation.
Because of this, it’s important that you do the same, to ensure there is a complete and accurate record of your interactions with the insurance company. Keeping records of what was said in these phone calls and evading other common pitfalls can help protect your claim from denial and your benefits from termination.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains the importance of establishing a paper trail with your insurer:
MISTAKE NO. 3: Inadequate Documentation
When submitting a claim and speaking with their carrier, it is important that physicians take notes to assist them in remembering what was said in the event that their claim is denied. They should keep notes of all telephone conversations (including the date and time of the call, and what was said) and identify the person with whom they were speaking. Every conversation with the carrier should be confirmed in a letter sent by certified mail so that there are no misunderstandings. The “paper trail” may later be used as evidence to establish unreasonable treatment during the claim administration process.
Action Step: Starting with their first telephone call to their insurer, physicians should document in detail their conversations and meetings, and confirm everything in writing, sent by certified mail.
While you may have jotted down the occasional note when speaking with your disability insurer, you should now have a greater appreciation for the importance of establishing a record of what your insurer says and how they treat you. Detailed notes of conversations with your insurer can help shield valid claims from wrongful denial and even help prove bad faith conduct.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #4)
As part of your long-term disability insurance claim, your insurer may require you to attend an independent medical examination (IME), ostensibly to assess the validity of your filing. Many physicians, dentists, and other professionals (understandably) feel anxious and concerned about attending an IME set up by their insurer.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below notes policy language to watch for and covers several helpful steps to consider before, during, and after your IME:
MISTAKE NO. 4: Blindly Attending an Independent Medical Exam
After submitting their claim, physicians may be asked to submit to an “independent” medical examination by someone chosen and paid for by their insurer. They may also be asked to undergo exams by someone other than a physician. Before submitting to an independent medical exam or any other exam or evaluation, physicians must first ensure that their carrier has a right to conduct the exam per the policy language. For example, a neuropsychological exam is conducted over several days by a psychologist, not a physician, and insurers often use the subjective findings from such an exam to deny benefits. If the policy requires submitting only to “medical exams” or exams “conducted by a physician,” there is certainly an argument that a physician need not submit to neuropsychological testing. Further, physicians may wish to be accompanied by an attorney or other legal or medical representatives who can monitor the independent medical exam. Other considerations include receiving the examiner’s curriculum vitae in advance; limiting the scope of the exam to ensure that no diagnostic test that is painful, protracted, or intrusive will be performed; having the exam videotaped or audiotaped; and receiving a copy of all notes and materials generated.
Action Step: Because the “independent” medical exam is a tool used for denying benefits where possible, physicians should work with an attorney to ensure that their rights are protected during this process.
Reviewing your policy’s requirements and preparing to attend an independent medical examination can make the process less stressful and protect valid claims from wrongful denial.
An IME is often just one part of your insurer’s broader investigation of your claim. To learn more about other common pitfalls to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #5)
Many disability policies now contain provisions that limit coverage for mental conditions. However, each policy also contains specific definition of the types of conditions that are limited and/or excluded, and these definitions can vary greatly from policy to policy.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains why you should read your policy carefully, to ensure that limitation provisions in your policy are correctly applied to your particular situation:
MISTAKE NO. 5: Believing All Mental Conditions Are Excluded or Subject to Limitations
Most disability insurance contracts differentiate between mental and physical disabilities. Most recent policies cut off benefits for psychiatric conditions after two or three years. Insureds often blindly accept their carrier’s decision to deny or limit benefits based on these conditions without considering numerous relevant factors, including whether there are any physical aspects to the mental condition, whether the mental condition has a biological/organic cause, or whether another, covered condition was the legal cause of the disability. Without exploring these issues in detail, insureds often blindly accept that certain conditions are limited or excluded from coverage when in fact they are not.
Action Step: Physicians should understand their policy’s mental conditions limitation and work with counsel on submitting their claim in such a manner as to ensure payment of benefits.
If you have submitted, or are considering submitting a disability claim, based on a mental illness, be sure to carefully review your policy’s language and do not simply assume that all mental conditions are excluded. And if your insurance company relies on one of these limitation provisions to deny your claim or limit your benefit period, you should consult with a disability insurance attorney and assess whether the insurance company’s decision is proper under the terms of your policy.
To learn more about the tactics insurers use to deny claims and other mistakes to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #6)
If you are a physician, dentist, or other professional facing a disabling condition, you may be wondering when to tell your doctor that you’re thinking you may need to file a disability claim, and how to communicate it best. How and when you approach your doctor can have a significant impact on your claim, particularly if you have a slowly progressive condition, like an essential tremor or degenerative disc disease.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below discusses some important considerations to keep in mind when interacting with your doctors:
MISTAKE NO. 6: Engaging in Inadequate Communication with Treating Physician
Physicians should not discuss their claim or that they are considering filing for disability insurance benefit with their treatment provider until after they have had several visits. Physicians are often reluctant to support claims for benefits if they question the motivations behind the claims. A physician who has treated, without success, the physician making the claim will likely be more willing to cooperate. It is also important that the physician making the claim communicate his or her symptoms and limitations to the treating physician in an organized and detailed manner so that all relevant information is recorded in the medical records, which the insurer will ultimately request. When finally speaking to the treating physician about the claim, the physician should ensure that the treating physician understands the definition of “disability” under the insurance policy, so that he or she can accurately opine as to the inability of the physicians making the claim to work.
Action Step: Physicians should fully discuss their condition with their treating physician to ensure supportive medical records and, after several appointments, work with him or her on submitting the claim for “disability” as defined in the policy.
Your doctor plays significant role in documenting the health information your insurer will eventually obtain and review when investigating your claim. With that in mind, it is important to understand the relevant definitions in your disability policy, consider the nature of your symptoms and limitations, and carefully consider when to approach your treating physicians about your disability claim.
To learn more about the tactics insurers use to deny claims and other mistakes to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #7)
If you have never filed a long-term disability claim, you may not have given much thought to how to quantify job duties, but if you end up needing to file a claim, this is one of the first questions you’ll be asked on the disability claim forms. It is very important to be careful when filling out these portions of the claim forms, to prevent your insurer from taking advantage of imprecise responses and/or taking your responses out of context in order to deny or narrow the scope of your benefits.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below discusses some considerations to keep in mind when completing this section of your initial claim form:
MISTAKE NO. 7: Quantifying Time
Physicians should be wary of insurance companies asking them to compartmentalize in percentages what activities they were engaged in pre- and post-disability. To the extent that there is any crossover, companies will often deny benefits or provide benefits for merely a residual disability. It is important that physicians broadly describe their important duties—rather than their incidental duties—so that the insurer has a clear understanding of the thrust of their occupation. For example, in response to a question about principal duties and the percentage of time spent on each duty, an anesthesiologist may be better off stating “100% surgical anesthesia” rather than compartmentalizing each and every incidental task (e.g., patient intake, supervising nurses during surgery, postoperative visits) into discrete percentages. The reason is the insurer may erroneously consider an incidental task a “principal duty,” and therefore downgrade the amount of benefits. For example, where a physician has duties as a businessman (e.g., supervising staff, overseeing payroll), the insurer may argue that the disabled physician can still manage his or her practice and is therefore only partially disabled.
Action Step: Physicians should not quantify their time until after they fully understand the definitions of “principal duties,” “disability,” and “occupation” under their policy.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
