DOL Proposes Changes to ERISA
In prior posts, we have noted that employer-sponsored disability plans are generally governed by ERISA. We have also discussed some of the challenges claimants may face when filing a disability claim under ERISA.
Recently, the Department of Labor (DOL) proposed some new regulations that could make filing a disability claim under ERISA more claimant-friendly. If finalized, the regulations will change several aspects of the claims process under ERISA. Some of the most notable changes are as follows:
- Insurers will have to hire medical experts based solely upon professional qualifications (as opposed to hiring an expert because the expert is known for supporting disability denials of benefits).
- At both the initial claim stage and the appeal stage, insurers will have to provide a detailed explanation for their denial, including their bases for disagreeing with the claimant’s treating physician, the Social Security Administration, and/or other insurers who are paying benefits under other policies the claimant may have.
- Insurers will have to include the internal rules/guidelines/protocols/standards used to deny the disability claim, or expressly state that such criteria do not exist.
- Insurers will have to notify claimants at the initial claim phase that the claimant is entitled to receive and review a copy of their claim file (right now, insurers only have to do this at the appeal stage).
- During the appeal stage, insurers must automatically provide claimants with any new information that was not considered at the initial claim stage so that the claimants can review and respond to the new information.
- If an insurer violates the new rules (and it is not a minor violation) claimants can file suit immediately and the court must review the dispute de novo (i.e. without giving special deference to the insurer’s claim decision).
Some of these rules have already been established by case law, but as of right now, they are not uniformly applied across the country. If the DOL moves forward and finalizes the regulations, disability insurers and plan administrators will have to uniformly comply with these new rules when administrating ERISA claims.
Are Insurance Companies Discriminating Against Mental Health Claims?
In previous posts, we have noted that disability policies often limit the disability benefits available for claimants who suffer from mental health disorders. For example, many policies limit recovery under a mental health disability claim to a 2 or 3 year period. In contrast, most disability insurance policies provide benefits for physical disability claims to age 65, and some policies even provide lifetime benefits for physical disability claims.
Recently, Representative Ruth Balser has introduced a bill in the Massachusetts state house that would prohibit insurance companies from treating behavioral health claims differently from physical impairment claims. According to Representative Balser, offering shorter benefit periods to claimants with mental health disorders is discrimination.
Supporters of the bill contend that the way that disability insurers currently handle mental health is based on stigmas and ignores available treatments options. Supporters of the bill also argue that the bill will reduce government costs because individuals with mental health issues will no longer need to rely on Social Security or government welfare programs.
The insurance industry’s response is that requiring insurance companies to provide more coverage will cost businesses money because it will limit available options when buying insurance and force them to buy coverage that they do not want. The insurance companies also argue that the bill will actually result more people relying on government programs because they will not be able to afford the increased levels of coverage.
At the moment, the bill is still being considered in committee, so it has not yet become law. However, if the bill is ultimately passed, it could significantly alter the way insurance companies treat mental health disability claims, particularly if other states pass similar laws.
For more information, see http://www.milforddailynews.com/article/20151016/NEWS/151017038.
Unum Denies Its Own Employee Disability Benefits
In previous posts, we have discussed how Unum is notorious for wrongfully denying disability claims. Recently, Unum refused to pay its own employee disability benefits.[1]
Apparently, the Unum employee suffered from carpal tunnel—due to all the typing that her job required—and also suffered a back injury in her home office. Naturally, the Unum employee saw a hand specialist for the carpal tunnel, and a back specialist for the back injury. After the Unum employee had surgery on her hand to treat the carpal tunnel, the Unum employee’s primary care physician placed her on work restrictions. However, the primary care physician did not send the work restrictions to Unum because she thought that the other doctors had already documented the restrictions.
Unfortunately for the Unum employee, the other doctors had not forwarded the restrictions to Unum. Instead of reaching out to the Unum employee’s doctors to see if the disability claim was legitimate, Unum simply denied the long term disability claim due to a lack of documentation. At that point, the primary care physician came forward and expressly told Unum that she supported the restrictions, but Unum still refused to pay any benefits.
[1] See http://www.lawyersandsettlements.com/articles/first_unum/interview-unum-lawsuit-insurance-29-20883.html#.VfhBwxFVikp.
Could Your Tech Be Hurting You?: Facebook
It seems that in recent years, everything is becoming digital. You can do any number of things from your smartphone or computer that had to be accomplished with face time, or personal interactions, in the past. Everything from buying groceries to dating can be done online, and the disability insurance claims process is no exception. This week, we’re starting a series that takes a look at three ways that the modern age has changed how you and your disability insurance company can approach your claims.
First, we’re going to start with a form of social media that almost everyone has: Facebook. It may be a great way to share photos and keep in touch with old friends, but Facebook could be hurting your insurance claim in a way that perhaps you weren’t aware of.
We have written at length on ways that insurance companies can use surveillance to often unfairly deny people their benefits. From stakeouts to tailing to GPS tracking, insurance companies have been known to do some pretty unsavory things in the name of saving money. With the rise of different forms of social media, this gives insurance companies another tool to monitor you and your activities in the hope that you do something that would allow them to deny your claim.
We have also discussed how posting pictures or statuses on Facebook can lead to insurance companies denying claims because it appears that you are leading an active lifestyle, but you probably didn’t know that even a deactivated account can be brought up in litigation. In the case of a Mr. Brannon Crowe, he was ordered to bring up 4,000 pages of his entire Facebook page–one that was deactivated four days after the order.
While Mr. Crowe may not have been trying to hide anything, and most people aren’t, the message is still important. Not only is it crucial to keep your social media accounts free from any information that an insurance company can misconstrue to claim you aren’t disabled, but if you are really concerned about surveillance, deactivating won’t do the trick. Since deleting your Facebook results in a loss of all the networks and relationships that you have built over the years, we certainly aren’t saying that you should delete it and swear off of social media. We simply advise that you are careful about what you post, and if you have any questions about what this could be, feel free to comment or email us!
Unum is Making Some Changes, But Are They Good For Your Plan?
In previous posts, we have discussed how courts and juries have reprimanded Unum and its various subsidiaries for wrongfully denying disability claims. Now, Unum is once again making the headlines—this time for making significant changes to its leadership at the highest levels of the company.
What’s changing?
Essentially, Unum is undertaking a widespread overhaul of its upper management. Marco Forato is now the senior vice president for global growth strategy, Steve Mitchell is the new chief financial officer, and Steve Zabel is the new president of the U.S. closed block operations. Additionally, Vicki Gordan has been promoted to senior vice president and chief internal auditor, and Matt Royal is now the chief risk officer for Unum.
While any change of leadership can have substantial ramifications, those insured by Unum should take particular note that Unum has appointed a new “president of the U.S. closed block operations.” “Closed block” refers to Unum’s discontinued product lines, which, according to Unum’s 2014 Annual Report, include long-term care and older individual disability policies. If you are a physician or dentist with a Unum policy, your policy is probably part of Unum’s “closed block” operations.
Unum’s new president of “closed block” operations will likely face a challenging task because any losses suffered from paying out Unum’s old disability policies cannot be offset by new business. Additionally, such “closed block” operations are a relatively new phenomenon in the insurance industry, so there is a very small reserve of historical data for Unum to draw upon.
What does this mean?
Generally speaking, a company does not make such extensive changes without expecting results. Consequently, it is likely that several, if not all, of Unum’s newly appointed leaders will be under substantial pressure to perform. Because fresh leaders often want to leave their own mark on their industry, insureds should pay close attention to any new changes in policy announced by Unum during this transitional period.
More specifically, insureds with older individual disability policies with Unum should be aware that Unum will likely be looking for new, creative ways to deny their claims. If you have such a policy and you feel that Unum has arbitrarily changed your policy’s terms and/or wrongfully denied your disability claim, you should consult with an experienced disability insurance attorney to ensure that Unum’s leadership is not improperly exceeding the scope of their newly acquired authority.
Arthritis and Its Many Forms: How It Affects Dental Professionals
The number one cause of disability in America is arthritis, which afflicts over 50 million people. With a U.S. population of 320 million this means that 1 person in every 6 has arthritis. These large numbers could be due to the fact that there are over 100 different types of arthritis ranging from lupus to gout. In this post, we will look to focus on the three most prevalent types of arthritis: osteoarthritis, rheumatoid arthritis and psoriatic arthritis. We will also discuss how they can affect your practice as a dentist, and how to approach a disability insurance claim for arthritis.
The Basics: Symptoms, Causes & Treatment
Osteoarthritis (OA) is the arthritis that arises simply from the overuse of joints, and for this reason it is known as “wear and tear” arthritis. Symptoms include pain, swelling and stiffness in the joints after either overuse or long periods of inactivity. It is most commonly developed as people naturally age and their bodies reflect that age, but can also be found in professions with repetitive movements, such as dentistry.
Since OA is due to aging or the effects of repetitive motion, OA is often progressive. It is the most common form of arthritis, and treatment can range from added exercise and weight loss (where the main cause of the OA is obesity), to taking various pain relievers, and even surgery.
Rheumatoid arthritis (RA), on the other hand, is an autoimmune disease, and is three times more common in women than it is in men. The body’s immune system mistakenly attacks joints, which leads to inflammation that causes further damage. While the symptoms are similar to OA in that there is joint pain and swelling, rheumatoid arthritis also can bring about fevers, fatigue, and weight loss. The joint pain you may be experiencing is often symmetrical, meaning both sides of the body are affected, in RA.
Unfortunately, the causes of RA aren’t fully understood. Symptoms can start and stop, occasionally going into remission, but RA is usually progressive. Risk factors for RA include family history of the disease, smoking, periodontal disease, and microbes in the bowels. There is no cure for RA, and it is treated somewhat similarly to OA in that pain medication, increased exercise, and surgery can be used to try to alleviate symptoms.
Continue reading “Arthritis and Its Many Forms: How It Affects Dental Professionals”
Wearable Fitness Trackers and Disability Insurance Litigation: How Your Fitbit Could Help or Hurt Your Claim
Recently, courts have been exploring the use of data from wearable fitness trackers in litigation. Devices like the FitBit, Jawbone UP, and Nike Fuelband have the capability to track all kinds of fitness-related data, such as steps taken, heart rate, temperature, calories burned, and sleep patterns. In cases where someone’s physical abilities are at issue, as is often the case with disability insurance claims, this data can be valuable. But who is this data most valuable to–the claimant or the insurance company? And is that value outweighed by a claimant’s right to privacy? These are questions yet to be fully addressed.
Benefits and Drawbacks. For claimants, data from a wearable fitness tracker could be a great way to show how a disability has caused a cessation or downward trend in activity. Providing the data to an insurance company may give a better picture, over a longer period of time, than any single doctor’s visit or Independent Medical Examination.
On the other hand, providing wearable fitness tracker data to an insurance company could hurt a claim in several ways. First, if your disability isn’t the type that would prevent you from walking (such as a hand injury, vision problems, orthopedic injuries where movement is part of physical therapy, etc.), step counts could be irrelevant. Nevertheless, data showing a high step count can give an insurance claims adjuster or a jury the erroneous impression that you are very physically active and thus not “disabled.”
Second, for claimants that haven’t accurately described their limitations to the insurance company, the tracker’s data can be presented as objective evidence that the claimants weren’t telling the truth. For instance, if a claimant wrote on a claim form that he “never” walks for more than 10 minutes at a time, then he has a very unusual day where he had to walk for 30 minutes, the insurance company could use the fitness tracker data to argue that the claimant is a liar. (In such a scenario, the claimant should have told the insurer that he “rarely” walks more than 10 minutes, or that he tries to avoid doing so, as opposed to saying he “never” does).
Third, inaccurate data could lead the insurer to make inaccurate conclusions. Wearable fitness trackers aren’t perfect. Step trackers tend to log movements other than walking as steps, such as when the wearer raises her arms up and down. Heart rate monitors will track increases in heart rate that are the result of mental or emotional stress in the exact same way they track increases caused by physical exertion. There is also the possibility of human error that affects the accuracy of the data. For example, if you forget to turn your device into “sleep” mode, it can’t track how restless your sleep is.
When Data Can Be Required. An insured may or may not want to provide fitness tracking data to an insurance company voluntarily, but if the insurance company requests it, does the claimant have to comply? The answer is less than clear.
In the claim context (when no litigation has ensued), the insurance company can only impose requirements covered in the policy. Of course, policies don’t explicitly state that a claimant has to provide fitness tracker data–at least not yet. However, an insurance company could argue that policy clauses requiring you to “cooperate” with the claims investigation or provide “proof of loss satisfactory to us” include a requirement to produce this type of data. In those instances, it’s best to have an attorney evaluate the request to see if it is, in fact, required under the policy.
If a lawsuit has been filed, the insurance company may have more leeway when it comes to requesting wearable fitness tracker data. While it is doubtful that an insurer could force a claimant to wear a tracker if he or she isn’t already, it’s easy to imagine a case where an insurer requests existing data from a device that a claimant already uses.
In federal courts, where most disability insurance cases are litigated, the insurance company can ask for any information that is relevant, or reasonably calculated to lead to the discovery of information that is relevant, to the claims or defenses in the case. The only exceptions are for things like privileged information (such as communications with your attorney) or requests that cause undue annoyance, embarrassment, oppression, or burden.
For data stored online, insurers could subpoena the data directly from the device manufacturer. Fortunately, some fitness tracker manufacturers have already publicly stated that they will resist such subpoenas to the extent possible. Insurance company lawyers are more likely to request that data from the claimant directly, in which case it becomes very important for the claimant’s attorney to evaluate whether that request is allowed under court rules.
What Is A Discretionary Clause?
Discretionary clauses grant your insurance company substantial discretionary authority to interpret your disability insurance policy and determine your eligibility for disability benefits. If your disability policy contains a discretionary clause and your insurance company denies your claim, courts will generally be reluctant to overturn the denial.
Here is an example of a discretionary clause taken from a Unum policy:
DISCRETIONARY ACTS
The Plan, acting through the Plan Administrator, delegates to Unum and its affiliate Unum Group discretionary authority to make benefit determinations under the Plan. Unum and Unum Group may act directly or through their employees and agents or further delegate their authority through contracts, letters or other documentation or procedures to other affiliates, persons or entities. Benefit determinations include determining eligibility for benefits and the amount of any benefits, resolving factual disputes, and interpreting and enforcing the provisions of the Plan. All benefit determinations must be reasonable and based on the terms of the Plan and the facts and circumstances of each claim.
It is easy to see why discretionary clauses are “highly prized” by disability insurance companies.[1] Such clauses not only grant your insurance company the authority to interpret the provisions of your disability policy, but also the authority to resolve factual disputes. The practical consequences of this are obvious: any close calls regarding ambiguous policy language or the seriousness of your disability will be resolved in the insurance company’s favor.
Discretionary clauses also make overturning a denial of disability benefits much more difficult. If your disability insurance policy has a discretionary clause, the court can generally only overturn your denial if you prove that the denial was an “abuse of discretion” because it was “illogical, implausible, or without support in . . . the record.”[2] In contrast, if your disability policy does not contain a discretionary clause, the court generally conducts a “de novo,” or independent, review of your claim.[3] In some cases involving discretionary clauses, courts that would normally be willing to overturn a denial under de novo review have been compelled to uphold the denial under the more exacting abuse of discretion standard.[4]
Not surprisingly, because the “abuse of discretion” is a high legal standard, the inclusion of discretionary clauses in disability policies dramatically reduces policyholders’ chances of successfully challenging a denial of benefits. A 2004 study found that only 28% of lawsuits to overturn denials of benefits were successful if the policy included a discretionary clause.[5] In contrast, policyholders won 68% of similar cases involving policies that did not have discretionary clauses.[6]
Insurance companies’ abuse of discretionary clauses has led several states to outlaw them.[7] You should avoid disability policies which include discretionary clauses. If you already have a disability policy which includes one, talk to your insurance agent about finding a new policy.
[1] See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 384 (2002).
[2] Saloma v. Honda Long Term Disability Plan, 642 F.3d 666, 667 (9th Cir. 2011).
[3] Id. at 673.
[4] See, e.g., Curtis v. Kansas City Life Ins. Co., 2011 WL 901992 (W.D. Ky. 2011).
[5] Brent Brehm and Corinne Chandler, California’s Ban on Discretionary Clauses in Disability and Life Insurance Policies, Advocate: Journal of Consumer Attorneys Associations for Southern California, June 2013.
[6] Id.
[7]The states that have outlawed discretionary clauses are: California, Colorado, Hawaii, Illinois, Indiana, Kentucky, Maryland, Maine, Michigan, Montana, New Hampshire, New Jersey, New York, Oregon, South Dakota, Texas, Utah, Vermont, and Wyoming. See American Health Insurance Plan’s (AHIP) “Limitations on the Use of Discretionary Clauses: Summary of State Laws,” available at www.ahip.org.
What is an Incontestability Clause? An Arizona Case Study
What is an incontestability clause? An incontestability clause protects you against being denied coverage because of a preexisting condition.
This clause precludes insurance carriers from inquiring into the representations dentists, physicians, and other professionals made on the policy application if the two-year incontestable period has lapsed. In essence, the clause gives insurers a two-year time limit to review policy applications. If the insurance company makes no inquiry in those two years, they lose the ability to rescind the policy based on a preexisting condition.
For example in the case of Robison v. Brotherhood of R. R. Trainmen Ins. Dept.,[1] the plaintiff had been treated for tuberculosis prior to the effective date of the policy. Three years after obtaining the policy he became disabled from tuberculosis. When the insurance company tried to deny the insured’s claim, the Arizona Supreme Court ruled from its bench in Phoenix that the incontestable clause of the contract precluded the insurance company from inquiring about the insured’s health prior to the effective date of the policy.[2]
Second, this clause protects you against an insurance company’s attempt to deny a claim for disability insurance benefits based on a representation you made that is not material. For instance, when filling out the application for the insurance policy, you might write down the wrong year that you had some minor knee surgery. An insurance company cannot use such a miniscule and immaterial mistake to deny you coverage when your claim is for debilitating arthritis in your hands which doesn’t allow you to practice properly in your field of medicine.
Third, this clause protects an insured that is completely truthful when filling out the policy paperwork. In Paul Revere Life Ins. Co. v. Haas the court upheld a policy which limited “coverage to sicknesses that ‘first manifest’ themselves after the policy has been issued.”[3] This means that if you have a condition before the insurer issued the policy, but you don’t become aware of it until after the policy has become effective, the condition should be covered.
It is important to remember that and incontestable clause usually includes a caveat: it does not protect an insured that knowingly or fraudulently misrepresents information during the application process. The Haas court stated that the language of the incontestable clause “does not protect insureds who make fraudulent misrepresentations in their applications. Rather, the language is intended to protect those insureds who are unaware of their diseases.”[4] The insurance company in Haas (Paul Revere, a subsidiary of Unum) was allowed to deny coverage of the insured’s eye condition when the insured knew about and had been treated for the disease well before the start of the policy. The court believed that the legislature did not intend for the mandatory incontestable clause to be “an invitation for fraudulent applications for disability insurance.”[5] The preexisting eye condition was deemed to be a fraudulent misrepresentation, and the insurance company denied its coverage. We also discussed this topic in a previous post entitled “Medical History Misstatements On A Disability Insurance Application Can Void The Policy In The Future.”
The outcomes of the cases based on incontestable clauses show how important it is to be truthful throughout the insurance claim process. The more accurate you are about your health condition, the fewer coverage problems you may have down the road.
If you have questions about your policy’s incontestability provisions, an experienced Arizona disability insurance attorney can help talk you through how they work, and how that could impact your disability insurance claim.
[1] Robison v. Brotherhood of R. R. Trainmen Ins. Dept., 73 Ariz. 352, 241 P.2d 791 (1952), opinion modified on reh’g on other grounds, 74 Ariz. 44, 243 P.2d 472 (1952).
[2] Id.
[3] Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 210, 644 A.2d 1098, 1108 (1994).
[4] Id.
Guardian Life Insurance Offers Student Loan Protection Program
Guardian Life Insurance Company of America, parent company of Berkshire Life Insurance Company of America, recently launched a new program offering medical and dental professionals insurance for student loans in the event of total disability. This program, which can pay up to $2,000 per month in student loan payments is available to those with advanced degrees – including those in the dental and medical industries – and to new and future practitioners for whom this kind of protection can seem quite appealing. Understanding that most graduates will begin practicing with an increasingly heavy debt load, Guardian represented the program as a simple preventative solution – but will this “win-win” policy be there when you need it?
Statistically speaking, 1 in 4 people will suffer a long-term disability during his or her career, and claimants are responsible for proving disability prior to receiving benefits. Because insurance companies are notorious for employing a number of tactics to “disprove” a disability and avoid paying claims (including subjecting claimants to “independent” medical exams, conducting video surveillance, and otherwise causing undue delays), it is critical that you understand your policy before you buy. As Guardian Life Insurance states, only those who are deemed totally disabled will benefit from this new student loan insurance policy. We expect that claims under these policies will be highly scrutinized, just as they would be with a traditional disability insurance claim. Those considering purchasing disability insurance or filing a disability claim should consult with an attorney to ensure they are prepared with the best possible policy in the event of a disability.
Disability Insurance Q&A: How Should Doctors Approach Their Treating Physicians About a Disability Claim?
Question: How should doctors approach their treating physicians about a disability claim?
Answer: Your treating physician’s support can often be critical to getting your claim approved. A hurried, uninterested physician may not have time to devote to your claim. In addition, fully discussing your condition with a professional, compassionate treating physician will help ensure supportive medical records. When to discuss your potential claim with a physician is an important timing issue. Also, when the time comes to speak to the treating physician about the claim, a disabled dentist or doctor 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 doctor or dentist to work.
Some of our previous blog posts on this important issue are available here and here.
Pima County Medical Society Publishes Ed Comitz and Karla Thompson’s Article Re Surveillance in Disability Insurance Claims
The January 2013 edition of Sombrero, the publication of the Pima County Medical Society, features an article by disability insurance attorneys Edward O. Comitz and Karla Baker Thompson. The article, “Surveillance Misuse in Claims Investigations,” reviews some of the ways in which evolving technology has led to overly intrusive surveillance of claimants by insurance companies.
Among the surveillance techniques being utilized are stakeout operations, tailing (sometimes using a “decoy” investigator), pretexting (obtaining your personal information under false pretenses), and GPS and cell phone tracking. For example, some private investigators use a stingray, which is a cell phone tracking device that operates as a miniature cellular tower from inside of the PI’s vehicle. The device enables an investigator to connect to a claimant’s cell phone, even when it’s not in use, and, after taking measurements of the phone’s signal strength, triangulate its location. Since most people tend to carry their cell phones at all times, the device then allows the investigator to track the insured’s movements remotely.
The law surrounding some of these intrusive surveillance techniques, which have been made possible by modern technology, is not yet settled, and it is important that anyone on claim with their disability insurance carrier remain vigilant to the possibility of surveillance at all times, regardless of whether a human being is conducting the surveillance. Long gone are the days when surveillance was only conducted by someone with a camera sitting in a car outside an insured’s home.
Insurance Bad Faith: Private Investigators and Their Surveillance Practices
Insurance companies often will hire a private investigator to aid in terminating disability insurance claims. Ostensibly, the purpose of a private investigator is to expose dishonest individuals of fraudulent disability insurance claims. A private investigator may even advertise as a “Disability Insurance Fraud Specialist.” All too often, however, insurance companies and their investigators are not seeking to expose fraud, but to manufacture it. They produce “evidence” only to aid in denying disability insurance claims—even wholly legitimate ones. They do so because there is a strong financial incentive to deny disability insurance claims.
Our firm has dealt with these insurance companies and their private investigators time and again. We know how they operate and how to prepare our clients. We have developed a short list of basic information about private investigators so you can know what to expect:
- When are they watching? In a previous post, we noted the five most popular times for disability surveillance: (1) holidays, (2) birthdays, (3) weekends, (4) activities claimant listed in insurance company’s activity log; and (5) near the end of fiscal quarters.
- Who are they? Typically, private investigators are just as the name indicates – private people from private companies. Disability insurance companies contract with these private companies to conduct surveillance on disability claimants.
- What are their surveillance methods? Particular tactics will vary depending upon the private investigator, the disability insurance company and the disability claimant. However, many methods are common across the board. Basically, the private investigator will inconspicuously follow a disabled claimant with a video-capturing device as the disabled claimant undergoes day-to-day activities. If the private investigator has difficulty locating the disabled claimant, the investigator may use different tactics, such as pretexting, stake-outs or tracking devices, to locate and track the claimant. Our last blog post describes these other tactics in detail.
Private Investigator Surveillance Methods and Terms
Private investigators use a variety of tactics to produce evidence that may be used to deny your disability insurance claim. Below is a list of different private investigator surveillance methods and terms.
Disability Surveillance – refers to the monitoring, recording and documenting of activities or behavior of another. In the disability context, this surveillance is called sub rosa surveillance. Sub rosa, a Latin phrase which translated means “under the rose,” denotes the secretive and clandestine nature of private investigator actions.
Disability Stake outs – according to Shannon Detective Service, Inc.—a private investigation company whose client list includes Arizona Counties Insurance Pool, CNA Commercial Insurance, Danielson Insurance, Farmers Insurance, Federated Mutual Insurance Company, Hartford Insurance, Insurance Company of the West, Liberty Mutual Insurance, Nationwide Insurance, Progressive Insurance, Seabright Insurance Company, Sedgwick Claims Service, Travelers Insurance and Westfield Insurance—this is a stationary surveillance method by which a private investigator documents and records a claimant’s activities. The hallmark feature of a stake out is that the private investigator does not move or follow the disabled claimant. In a typical stake out operation the private investigator may station in front of your home or office and record you as you come and go. The goal of the stake out is to produce evidence that will enable the insurance company to deny your disability insurance claim. An ABC News story shows how an insurance company successfully denied a doctor’s disability claim with evidence produced during a stake out.
Disability Pretexting – the Federal Trade Commission (FTC) defines pretexting as “the practice of getting your personal information under false pretenses.” Private investigators are engaging in illegal conduct when they use pretexting to obtain your personal information from a financial institution. See 15 U.S.C. § 6801, et seq.
Here’s an example of how this works: someone pretends to be you and calls your bank. The person claims to have forgotten your checkbook, account number, social security number or other sensitive information. He then tries to get this information from the bank. Such conduct constitutes pretexting and violates federal law. Id.
Although private investigators claim to use only “appropriate” pretexting methods, methods which are not illegal per se, these are the same techniques which are used to facilitate identity theft and consumer fraud. Check out the FTC website for more information about pretexting and how you can protect yourself.
Disability Tracking Devices and GPS – this area of the law is still evolving. In a recent Supreme Court case, United States v. Jones, the Court held that attaching a GPS device to a vehicle constitutes a “search” under the Fourth Amendment; therefore, law enforcement officials need a warrant before installing the device. 132 S. Ct. 945, 949 (2012). Although the Court did not address the attachment of GPS devices in the private investigation context, its decision largely turned on the physical trespass involved in attaching a GPS device to another person’s vehicle. Id. The Court stated:
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
Id. Therefore, this ruling may be used to argue against private investigator installations of GPS devices since such installation would also constitute a physical trespass. Private investigation companies, such as Shannon Detective Services, Inc. (SDS), are now looking how to bypass the physical trespass issue altogether through implementation of other technologies that do not require physical attachment. Here are two examples of other technologies cited from the SDS website:
- Disability stingrays (a device that can triangulate a cell phone signal to locate a user) will become popular in the future as a way to skirt around the new GPS laws for law enforcement.
- Disability ping of cell phones (by accessing a user’s cell phone GPS chip) will also fill the gap created by GPS legislation since the FCC has mandated GPS chips to be installed in all new cell phones by 2018.
Unum Plays Semantic Games in Denying Benefits for a “Heart Attack”
We have previously blogged that even Unum’s U.K. CEO agrees that Unum’s policies contain confusing language. Recently, Unum took advantage of its unclear disability policy language — in this case, a policy containing the layman’s term “heart attack” — to deny benefits to the widower of a policyholder who had died, in medical terms, of “atheroscopic coronary artery disease.”
Annette Frie’s disability insurance policy from Unum stated that a $30,000.00 benefit would be paid to her spouse if she were to die from a “heart attack.” However, because “heart attack” is not a medical term likely to be used on a death certificate, her husband Jim Frie suspects Unum deliberately used that term on its policy in order to deny claims by splitting semantic hairs.
When Mr. Frie submitted his claim, Unum sent him a letter offering its condolences but denying the claim on the basis that it “didn’t meet the definition of the specified illness covered by the policy.” The medical examiner who had signed Mrs. Frie’s death certificate then sent two letters to Unum explaining that Mrs. Frie’s coronary artery disease had caused the heart attack. In response, Unum denied the claim two more times.
The Minnesota State Commerce Department subsequently opened an investigation, but when Mr. Frie became impatient with the pace of the state’s investigation, he contacted FOX-9 investigators. Within 24 hours of being contacted by the news station about their investigation to expose this “fist-pounding outrage,” Unum called Mr. Frie with the news that the decision had been made to pay the claim.
Even commonly-used words and phrases can take on unexpected meanings within the context of a disability insurance policy, so it is important to consult an experienced disability insurance attorney to interpret the policy language when filing a claim.
Even Unum CEO Admits Their Insurance Policy Language Is Confusing
As we have blogged many times, even seemingly straightforward terms like “total disability” or “appropriate medical treatment” in your disability insurance policy may have different meanings in the context of a disability insurance claim than they do in everyday English. In a video posted on YouTube, Jack McGarry, CEO, Unum UK, is surprisingly candid in addressing how their insurance policy language is confusing.
Insurance is so confusing, in large part because we’ve made it that way, the insurance companies. We use acronyms instead of words, we use lingo instead of language. We’ve made it easy for us to communicate with each other, but we’ve made it very, very difficult for consumers to understand what we’re saying, and we need to change that.
[Consumers] are confused by our products, they don’t understand the choices, they don’t understand the coverage, and one of the reasons they don’t understand it is because the language we use to describe it, they find it confusing, and a little scary, so we’re partnering with Plain English to help simplify the language we use to describe what we do so everybody can understand it.
While Unum is apparently taking steps to clarify the language in its policies in the United Kingdom, it is of little help to American insureds who purchased policies written in language that is, in the words of Unum’s UK CEO, ”very, very difficult for consumers to understand.” The help of an experienced disability insurance attorney to interpret the language of your policy can be critical in ensuring you receive the benefits to which you are entitled.
AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent
Disability insurance attorney Edward O. Comitz and Michael Vincent had their article Can Your Disability Insurer Dictate the Terms of Your Care? published in the Winter edition of AzMedicine, the publication of the Arizona Medical Association. The article is excerpted below.
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 puts 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 doctors seeking legitimate policy benefits. Fortunately, the surgeon in question had the common sense to cease performing surgeries rather than follow her insurer’s suggestions. Her decision did affect her financially, as benefits were denied for almost two years, and only paid after litigation ensued.
Insurance company treatment mandates 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 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 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, 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. Continue reading “AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent”
How to Get a Copy of Your Disability Insurance Policy
Many of the questions surrounding a disability insurance claim depend on the language in your policy. Thus, the first step to a successful disability claim is getting a copy of that policy. Though it is always important to keep a copy of your disability insurance policy and any related documents, sometimes policyholders forget to do so, they lose the document, or the papers become accidentally damaged.
The simplest way to get a copy of your policy is to call or send a letter to your insurance company directly. You can search for your disability insurer’s phone number and address on the Arizona Department of Insurance website. The insurer may require you to pay a minor fee, but they will send you a copy.
Once you receive your copy, check to make sure it is actually yours and that no pages are missing or damaged. If you have questions about the provisions in the disability insurance policy or filing a claim for benefits, you can bring your copy to a disability insurance attorney who can help interpret it and guide you through the disability claims process.
What is a Reservation of Rights?
When a disability insurance company is fighting a claim, it will often agree to pay benefits – but with a “reservation of rights.” What is a reservation of rights and how can it impact a legitimate disability claim?
When an insurer pays a disability claim under a reservation of rights, it is essentially providing a provisional payment. Though the insurance company may be sending you a check, it is not admitting that it actually has any liability under the policy. Instead, it is “reserving the right” to stop paying your disability claim if it can find evidence to deny it later. Once the company denies your disability claim, they can also demand you to repay them whatever proceeds they have distributed to you.
This practice is good for the insurance company, as it buys it extra time to investigate – and often later deny – a claim without putting it at risk of violating the laws against undue delay in payment. However, because the insurance company can still investigate the claim and then demand full repayment at any moment, the reservation of rights provides no peace of mind for the policyholder. Fortunately, a disability insurance attorney can protect you from this uncertainty by properly presenting your claim and thoroughly monitoring the insurance company’s actions to reach a beneficial result.
Surveillance of Disability Claimants: When Are Private Investigators Watching?
As we have discussed in the past, surveillance is a tool commonly used by disability insurance companies to analyze – and often deny – legitimate disability claims. When surveillance is taken out of context or misconstrued, it can lead to unfair disability denials.
All too often, disability insurance companies expect people with disabilities to stay at home, in bed. What they fail to realize is that most doctors actually encourage disabled claimants to try some activities of daily living, light physical therapy, or social interaction. Just because a disabled person can eat chips at a restaurant with family doesn’t mean he can perform all of the duties of his former occupation. Nevertheless, disability insurers often try to get any physical activity on camera and use it as proof that the claimant is not disabled.
Many people filing for private disability wonder when private investigators are watching them. After years of dealing with disability insurance detectives, we have recognized the five most popular times for surveillance of policyholders:
- During holidays. This is when policyholders are likely to be out of the house enjoying time with family and friends.
- On the claimant’s birthday. Just as on holidays, a disabled claimant is likely to push themselves to get out and enjoy the day.
- Over weekends. During weekends, insureds or more likely to attempt minor errands or go outside with family.
- Any time they have a chance of catching a claimant engaged in physical activity, based on information provided by the claimant on activity logs and in interviews. For example, if the claimant wrote on an activity log that he takes his dogs out in the morning, the private investigator will be there with a camera to document the insured walking in the yard.
- Near the end of fiscal quarters, when the insurance company is under pressure to save money by denying or terminating claims.
