Build Your Own Insurance: What to Look for in a Policy
Recently, insurers have started to allow consumers to build and personalize their own disability insurance policies online. For instance, Guardian recently announced the launch of its online insurance quoting tool. According to Guardian, the tool “educates clients on the costs for various options based on age and occupation, demonstrates how adding or removing certain options affects pricing, and shows how to create the plan that best matches their individual needs.”[1]
If this “build your own insurance” concept catches on, consumers may have much more control over the terms of their policies than they have had in the past. Accordingly, in this post we are going to talk about things to look for in a policy, and some things to avoid in a disability insurance policy.
Things to Look for in a Policy
Generally speaking, here are a few things that you will want to look for when selecting a disability insurance policy:
- Make sure that the disability policy is a true “own occupation” policy.
- Make sure that the disability policy provides for lifetime benefits.
- If possible, add a specialty rider that clearly defines your own occupation as your specialty.
- Try and find a disability policy with a COLA (cost of living adjustment) provision. This provision will increase your potential disability benefits by adjusting for inflation as time passes.
- Make sure that you get the highest benefit amount you can afford. Remember, if you’re unable to practice, your monthly disability payments may be your only source of income.
Things to Avoid in a Policy
Generally speaking, here are a few things that you should avoid when selecting a disability insurance policy:
- “No Work” provisions that only provide disability benefits if you are unable to perform the material and substantial duties of your own occupation and you are not working in any other occupation.
- Substance abuse exclusions.
- Provisions requiring you to apply for Social Security benefits.
Remember, purchasing disability insurance is no different than any other significant purchase. Be sure to take your time and obtain quotes from multiple insurance companies before making a final decision.
For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.
[1] See http://www.businesswire.com/news/home/20151028005074/en/Guardian-Empowers-Consumers-Build-Disability-Insurance-Coverage.
Case Study: Can You Sue Your Insurer For Emotional Distress?
At least one court thinks so. In Daie v. The Reed Grp., Ltd.[1], the claimant was denied long term disability benefits under an ERISA plan. Instead of merely asking the court to reverse the denial of disability benefits (a result that can be difficult to achieve under ERISA), claimant filed a complaint in state court alleging intentional infliction of emotional distress.
The claimant asserted that the insurer “repeatedly engaged in extreme and outrageous conduct with the aim of forcing plaintiff to drop his claim and return to work.” Id. More specifically, the claimant alleged that the insurer had falsely claimed the claimant was “lying” about his disability and “exaggerating” his symptoms. Id. According to the claimant, the insurer had also urged claimant to take “experimental medications,” induced claimant to “increase his medications,” forced claimant “to undergo a litany of rigorous medical examinations without considering their results,” and pressured claimant “to engage in further medical testing that it knew would cause . . . pain, emotional distress and anxiety.” Id.
The insurer filed a motion to dismiss, arguing that ERISA preempted claimant from bringing the state law claim. The court denied the motion to dismiss for two reasons. First, the court determined that the claim was based on “harassing and oppressive conduct independent of the duties of administering an ERISA plan.” Id. Second, the court determined the insurer had a “duty not to engage in the alleged tortious conduct” that existed “independent of defendants’ duties under the ERISA plan.” Id.
The federal court then sent the case back to state court, where, as of the date of this post, the state court has not yet determined whether claimant should be awarded damages for emotional distress.
At this point, this ruling has only been adopted by the District Court, and not the Court of Appeals, so it is not binding upon other courts. However, it could potentially persuade other courts to recognize similar claims. It will be interesting to see how many other courts follow suit, and whether this ruling will ultimately be adopted by courts at the appellate level.
[1] No. C 15-03813 WHA, 2015 WL 6954915, at *1 (N.D. Cal. Nov. 10, 2015).
The Reality of Addiction: Physicians Are Susceptible Too
We’ve discussed the prevalence of depression and stress in physicians, but what about addiction? While physicians are just as likely as the general public to become dependent upon alcohol and illegal drugs, they are more likely to abuse prescription drugs. A survey of 55 physicians that were being monitored by their state physician health programs for problems relating to drug and alcohol abuse showed that 38 (69%) abused prescription drugs. While certainly concerning, this is not necessarily surprising, as physicians have far greater access to prescription drugs than the average person.
Compounding this issue is the stigma associated with substance abuse. Oftentimes, those who do not suffer from substance addiction believe that drugs and alcohol are something that people can quit easily, and that substance abuse can be solved by a quick trip to a rehab facility. But in many cases, substance abuse is more than mere recreational use of medications. In some cases, those who abuse prescription drugs may be trying to relieve stress or self-medicate chronic physical and/or emotional pain. In other cases, substance abuse may be a result of the phenomenon called “presenteeism”—doctors may be taking the medication simply because they believe it is the only way to continue working in spite of an illness, impairment, or disability.
How can medical professionals with substance addiction get help? One way is to seek confidential treatment to avoid the scrutiny of a medical board or coworkers. Confidential programs can be both outpatient and inpatient, with inpatient programs usually lasting around one to three months. After treatment, patients are able to continue recovering by completing 12–step programs, like Alcoholics Anonymous. However, this treatment option has similar relapse rates to the general public: nearly half of patients relapse in the first year.
A second road to recovery is physician health programs. These programs actively monitor patients after treatment for a period of five years by conducting drug testing, surveillance and behavioral assessments. This path may be difficult for physicians to come to term with after keeping their addiction hidden. However, going through the physician health programs boasts a much higher success rate of 78% (only 22% tested positive during the 5-year monitoring period), and roughly 70% of medical professionals who pursue this method of treatment are still working and retain their licenses.
If you, or a physician you know, struggles with substance dependency, we encourage you to seek out appropriate help. If you are a physician with a painful disability, you should not put your patients at risk by attempting to work through the pain or by seeking to dull the pain with self-medication. If you have disability insurance, you should contact an experienced disability insurance attorney. He or she will be able to guide you through the claims process and help you secure the benefits that you need without putting yourself or your patients at risk.
REFERENCES:
http://www.medscape.com/viewarticle/819223_3.
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.
Fibromyalgia: Part 2
In Part 1 of this post, we listed some of the symptoms and potential causes of fibromyalgia. In Part 2, we will discuss some proposed treatments for fibromyalgia.
Treatment
Unfortunately, while there are a variety of ways to treat fibromyalgia, there is currently no cure for fibromyalgia. Some of the most prominent courses of treatment include:
- Exercise: Many fibromyalgia patients may be afraid to exercise because they think it will increase their pain. However, being active may help to alleviate pain because physical activity can increase endorphin levels that patients may be lacking. Exercise can also alleviate stress, anxiety and depression—common symptoms of fibromyalgia.
- Physical Therapy: Some physical therapists utilize exercises that help fibromyalgia patients relax tense muscles and move in ways that will not exacerbate pain levels. Physical therapy is often used as a precursor to exercise.
- Medication: Antidepressants are often prescribed to help with the depression, fatigue, and sleep issues associated with fibromyalgia. Medications that facilitate restful sleep may also help with the pain, by allowing patients the rest needed to recover. Other drugs, such as Lyrica, have been approved by the FDA to directly treat fibromyalgia pain. Remember, you should always consult with your doctor before taking any medication.
Conclusion
Fibromyalgia is a condition that varies from person to person, with people having both good and bad days. If you suffer from fibromyalgia, note what makes your pain worse or better, and try to avoid or continue those practices. As always, it is important to consult with your doctor to ensure that you are receiving appropriate treatment for the chronic pain caused by fibromyalgia.
If your fibromyalgia has progressed to the point where you can no longer practice, we encourage you to contact an experienced disability attorney before filing a disability claim. Disability claims involving fibromyalgia can be particularly difficult, due to the subjective nature of the condition, so it is important to have an experienced advocate at your side to help you navigate the claims process.
Fibromyalgia: Part 1
In this post, we are going to take a look at some of the symptoms and causes of a debilitating condition known as fibromyalgia.
Symptoms
Fibromyalgia is a syndrome that is characterized by chronic, widespread muscle pain. Other symptoms include:
- Fatigue;
- Trouble sleeping;
- Morning stiffness;
- Muscle knots, cramping, or weakness;
- Painful trigger points;
- Dry eyes;
- Concentration and memory problems, called “fibro fog”;
- Irritable bowel syndrome;
- Anxiety or depression; and
- Headaches.
Fibromyalgia is difficult to diagnose, because most of the symptoms are relative or subjective. Notably, certain forms of arthritis may cause similar symptoms. However, persons with arthritis suffer from pain that is localized in joints. In contrast, persons with fibromyalgia suffer pain that is primarily felt in muscles, tendons, and ligaments.
Potential Causes
Because fibromyalgia is difficult to diagnose (due to the subjective nature of its symptoms), there is no clear consensus as to the causes of fibromyalgia. Here are some of the theories that researchers have suggested:
Lower Levels of Serotonin and Endorphins
Serotonin is a neurotransmitter that is associated with calming and feelings of well-being and happiness. Endorphins are also associated with happiness and serve as painkillers. If someone has lower levels of serotonin and endorphins, they may be more susceptible to feeling pain, or may feel pain more intensely than someone with normal serotonin and endorphin levels.
Stress
Some researchers theorize that stress causes muscle “microtraumas,” which in turn leads to a cycle of pain and fatigue caused by an inability to rest due to the pain.
Gender and Biological Changes
Statistically speaking, women seem to be at greater risk for fibromyalgia. For this reason, some scientists have proposed that fibromyalgia pain may be connected to hormonal changes such as menopause.
Heredity/Genes
Fibromyalgia could be due to a genetic tendency that is passed down and regulates the way one’s body processes pain. Although, as of yet, no particular “fibromyalgia gene” has been identified, several genes have been found to occur more often in people with fibromyalgia.
Trauma
Accidents, injury, and illness involving the brain or spinal cord may contribute to fibromyalgia pain. Such trauma may alter the way neurotransmitters, such as serotonin, are produced, or it may lower an individual’s emotional threshold for pain.
Essential Tremors (ET): Part 2
In Part 1 of this post, we looked at the risk factors, symptoms, and treatment options associated with ET. In Part 2, we will discuss how having an essential tremor could potentially affect your total disability claim.
How do I file for total disability when I have ET?
For those with an “Own Occupation” policy, which means you are considered totally disabled if you can no longer work in your own profession, having ET would certainly qualify you for disability benefits if you are a medical professional.
Many physicians think that they can simply decrease the types of procedures they perform or amount of time spent at working as their ET becomes more disabling, but this is the wrong move to make. Changing your work responsibilities can alter your “occupation” under the terms of your disability policy. For example, if you forego performing medical procedures and merely manage your practice, the insurance company may claim that your occupation has changed from a physician to an office manager, and attempt to decrease or deny your disability benefits. Similarly, if you start to work part-time instead of full-time, and then file for disability, an insurance company will likely classify you as a part-time worker, and thus only give you part-time benefits.
Other physicians may decide to continue working in spite of their ET. This is also a mistake. Trying to work when you have ET places your patients at risk. If a patient did get injured and filed suit, his or her attorney would almost certainly assert that you should not have been working with patients and that you knew your ET could harm the patient.
The correct way to deal with insurance companies and your condition is to stop working as soon as it impinges on your ability to perform your occupation and file for disability insurance. Since, in many cases, the onset of ET is gradual, it is important to discuss you symptoms with your doctor so he or she can determine when your condition will progress to the point that it affects your work.
Conclusion
ET is a condition that can have an effect on actions as small as carrying a water glass or tying your shoes. It can also affect your occupation and the financial security that comes from having total disability insurance. We encourage you to speak with your doctor if you think you may be at risk for or have ET, and to contact a disability insurance attorney to help with the claims process if you are planning on filing for disability benefits.
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.
