Edward O. Comitz and Michael F. Beethe Named Southwest Super Lawyers for 2018

Ed Comitz and Mike Beethe, the founding members of the firm, have both been named Southwest Super Lawyers for 2018.  This is the seventh consecutive year that Mr. Comitz and Mr. Beethe have been recognized by Super Lawyers for excellence in their fields, insurance coverage and real estate, respectively.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  Only 5% of attorneys in the Southwest receive this distinction. The selection process is comprised of independent research, peer nominations and peer evaluations.

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What to Do When Your Disability Insurance Claim Is Denied

A large part of our practice consists of helping physicians and dentists whose disability insurance claims have been denied or terminated.  When our clients come to us, we carefully analyze their medical records, the claim file, and the law to craft a specific strategy for getting the insurer to reverse its adverse determination.  Unfortunately, we sometimes find that in between receiving notice that their claim has been denied or terminated and getting in touch with our firm, doctors will inadvertently take actions that prejudice their claims.  With that in mind, it’s important to review what to do and what not to do in the first few days after your claim is denied or terminated.

  1. In all likelihood, you will first find out that your insurer is denying or ending your disability benefits via a telephone call from the claims consultant who analyzed your claim.  As we’ve explained before, the consultant will be taking detailed notes about anything you say during that call.  Therefore, even if you are justifiably upset or angry, be very mindful of what you say.  Anything you tell the consultant will certainly be written down and saved in your file.
  2. During the call with your consultant, make your own notes.  You don’t have to ask a lot of questions at this stage, but you do want to make sure to record whatever information the consultant gives you.
  3. Following the phone call, you should receive a letter from the insurance company stating that it has denied your claim or discontinued your benefit payments.  According to most state and federal law, the letter should have a detailed explanation of the evidence the company reviewed and why the insurer thinks that evidence shows you aren’t entitled to benefits.  When you receive the letter, read through it carefully.  Make notes on a separate document about any inaccuracies you identify.
  4. Make sure you keep a copy of the denial or termination letter as well as the envelope it came in.  You should also make a note of the date on which you received the letter.  The date the letter was actually mailed and received could be important to your legal rights in the future.  Then, the best thing to do is to scan the documents electronically or make a photocopy for your file, just in case the original denial letter gets lost or damaged.
  5. Once you find out that your claim has been denied or terminated, you should contact a disability insurance attorney.  Some doctors and dentists attempt to handle an appeal of their claim on their own, but we strongly suggest at least consulting with a law firm.  Every insurance  company has its own team of highly-trained claims analysts, in-house doctors, and specialized insurance lawyers to help it support the denial of your claim.  Having your own counsel can level the playing field by making sure you know your rights under your policy and what leverage the applicable law provides you, and help you avoid the common traps that insurance companies lay for claimants on appeal.
  6. The lawyer you consult can be in your area, or it can be a firm with a national practice that’s physically located in another state.  You may want to review these questions to ask potential attorneys before you decide who you would like to represent you.
  7. Whatever attorney you choose to contact, make sure you do so as soon as possible.  In many circumstances, you will only have a limited amount of time to appeal the insurance company’s decision.  Particularly in claims governed by the federal law ERISA, the clock starts ticking as soon as you find out your claim has been denied or terminated.
  8. It’s usually best to contact an attorney before you respond to the denial letter, to avoid saying anything that could prejudice your appeal.  For instance, if you have a policy that is governed by ERISA, and you submit some additional information, the insurance company may not allow you to submit any additional information after your initial response.
  9. Before you meet with potential disability insurance lawyers, gather whatever documents you can to help them evaluate what’s going on with your claim.  Our firm will always want to review the insurance policy or policies.  (Here’s information on how to get a copy of your policy). We typically also like to see your relevant medical records and any correspondence between you and your insurance company.  If you aren’t able to locate this information, it could cause delays in starting the appeal process.
  10. If you are a physician or dentist that is totally disabled, you should not try to go back to work just because your insurance company thinks you don’t qualify for benefits.  Trying to practice when you aren’t in a physical or mental condition to do so could cause you to re-injure yourself or accidentally harm your patients.  Of course, trying to work on patients after you’ve claimed that you are totally disabled can expose you to professional liability as well.  Further, trying to return to work could impair your ability to collect your benefits upon appeal.

Why Won’t My Doctor Help With My Disability Insurance Claim?

We frequently discuss how important it is for your treating doctor to support your disability insurance claim.  Oftentimes, though, doctors are reluctant to help with the process.  Understanding why your provider is hesitant to get involved can better equip you to enlist his or her support.

In our experience, these are the most common reasons why treatment providers decline to assist with disability insurance claims:

They don’t have time.  Doctors have extremely busy schedules.  Often, they’re concerned that they simply don’t have enough time to properly complete all of the insurance company’s required forms or to answer questions from your claims adjuster.

They are worried about the insurance company harassing them.  Many healthcare providers know how complex and combative disability insurance claims can be.  Sometimes, providers don’t want to get involved with a claim at all, because they’ve heard of (or experienced) claims personnel harassing treating doctors.  This can be a legitimate concern, as left unchecked, insurance companies will often bother treating doctors with repetitive requests for information, pushy phone calls, or by second-guessing the doctors’ treatment plan.

They are worried about doing something to hurt your claim.  On the other hand, many providers aren’t familiar with the private disability insurance claims process at all.  This sometimes makes providers hesitant to complete Attending Physician’s Statements or to discuss your claim with an adjuster for fear that they will inadvertently say something that prejudices you.

They don’t know the definition of disability in your policy.  Not every treatment provider is familiar with the type of own-occupation policy that many physicians, dentists, and other professionals purchase.  When some providers hear the word “disability,” they think of a state of total helplessness, or of the much more stringent Social Security definition of “disability.”  If a provider doesn’t know that your policy deems you “disabled” if your condition prevents you from performing the duties of your own job, he or she might think you don’t qualify for benefits.

Continue reading “Why Won’t My Doctor Help With My Disability Insurance Claim?”

Comitz Beethe Named #1 Healthcare Law Firm

Comitz | Beethe’s has been named Arizona’s #1 Healthcare Law Firm by Ranking Arizona: The Best of Arizona Business.

Ranking Arizona publishes the results of an annual poll of the Arizona business community. Residents are asked to share their opinions of the best products, services and people in the state, including who they would recommend doing business with.  Comitz | Beethe was selected as the state’s top healthcare law firm for its work representing physicians and dentists, including its handling of disability insurance claims for healthcare professionals.

The firm was also named as one of the top 5 Arizona law firms with 20 or fewer attorneys, the top 5 commercial litigation firms, and the top 10 real estate law firms.

Attorney Ed Comitz Interviewed by The Street re Disability Insurance

Scottsdale attorney Edward O. Comitz was recently consulted by the popular financial website The Street regarding his thoughts on whether it’s a good financial decision to purchase an individual disability insurance policy.   Based on the high premiums and his experience as an attorney who specializes in assisting sick or injured claimants with obtaining the individual disability insurance benefits to which they are entitled, Mr. Comitz advised that, with the exception of medical professionals such as dentists and surgeons – for whom even a minor injury can be career-ending – disability insurance is not a good investment unless you are also prepared to incur the costs of hiring an attorney if your claim is denied or terminated.

The full article can be read on The Street’s website here.

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.

Changes in DSM-5 Could Affect Some Disability Insurance Claims

More than a decade after work began on updating and revising the Diagnostic and Statistical Manual of Mental Disorders, DSM-5 replaced DSM-IV-TR in May 2013.  While some of the changes in diagnostic criteria for disabilities such as intellectual developmental and specific learning disorders or the addition of new diagnoses in DSM-5 for disorders such as hoarding and gender dysphoria are unlikely to affect the private disability insurance claim of a doctor or dentist, the changes in the criteria for diagnosing post-traumatic stress disorder or substance-related and addictive disorders and the addition of the diagnoses of social (pragmatic) communication disorder and mild neurocognitive disorder have potential implications in the context of private disability insurance claims.  Additionally, the elimination of the Global Assessment of Functioning (GAF) scale, widely used by insurance companies in determining the medical necessity of treatment, is likely to have an effect on some disability insurance claim determinations.

Some of the changes in DSM-5 are outlined below.

Social (Pragmatic) Communication Disorder:  This new diagnosis, which cannot be diagnosed unless autism spectrum disorder has been ruled out, is described by the American Psychiatric Association as pertaining to individuals “who have significant problems using verbal and nonverbal communications for social purposes, leading to impairments in their ability to effectively communicate, participate socially, maintain social relationships, or otherwise perform academically or occupationally. . . Symptoms must be present in early childhood even if they are not recognized until later. . .”

Substance-Related and Addictive Disorders:  The categories of substance abuse and substance dependence have been combined, and the criteria for a diagnosis have been strengthened.  Where DSM-IV required only one symptom for a diagnosis of substance abuse, DSM-5 requires 2-3 symptoms from a list of 11 potential symptoms.  Drug craving has been added to the list of symptoms and “problems with law enforcement” has been eliminated due to cultural differences in law enforcement internationally.

Post-Traumatic Stress Disorder:  There are a couple of significant changes in the diagnostic criteria for post-traumatic stress disorder (PTSD).  The requirement of DSM-IV that the person personally experience or witness the traumatic event has been eliminated and DSM-5 allows for a PTSD diagnosis when the person has learned that the traumatic event occurred to a close family member or friend, or experiences first-hand repeated or extreme exposure to aversive details of the traumatic event (from sources other than media, photos, television or movies, unless work-related).  Additionally, the requirement that the person experience “fear, helplessness or horror at the time of the traumatic event” has been deleted.

The criteria has also been changed to require “actual or threatened death, serious injury, or sexual violence.”  The previous manual also allowed for “a threat to the physical integrity of self or others” but did not specify sexual violence.

Mild Neurocognitive Disorder:  The American Psychiatric Association describes this new disorder in DSM-5 as “an opportunity for early detection and treatment of cognitive decline before patients’ deficits become more pronounced and progress to major neurocognitive disorder (dementia) or other debilitating conditions.”  The APA goes on to characterize the disorder as:

Mild neurocognitive disorder goes beyond normal issues of aging.  It describes a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence and perform activities of daily living.  To be diagnosed with this disorder, there must be changes that impact cognitive functioning.  These symptoms are usually observed by the individual, a close relative or other knowledgeable informant, such as a friend, colleague, or clinician, or they are detected through objective testing.

Global Assessment of Functioning (GAF) Scale:  The GAF scale of 1-100, which was a single global assessment combining separate assessments of symptom severity, danger to self or others, and ability to care for oneself and function socially, has been eliminated from DSM-5.  In the place of assigning a GAF number, separate assessments of severity and disability are recommended.  The World Health Organization Disability Assessment Schedule (WHODAS 2.0) was determined to be the best current measure of disability for routine clinical use by the DSM-5 Disability Study Group.

The changes in DSM-5 are, of course, far more complex and detailed than what we have outlined above, but if you are suffering from a mental disorder and thinking of filing a private disability insurance claim, we recommend that you coordinate with not only your psychiatrist but an attorney before filing your claim with your insurer.

More information related to DSM-5 is available at this link.

 

Does Your Unum Claims Handler Have a Personal Financial Incentive to Deny or Terminate Your Disability Claim?

The transcript of Unum Group’s May 23, 2013 Annual Shareholder Meeting provides some disturbing insight into what may motivate claims personnel at Unum to deny or terminate a legitimate disability claim.

Unum’s Chief Executive Officer, President and Director, Thomas R. Watjen reported to the shareholders that they had “overwhelmingly approved” an employee cash incentive system based on performance:

The fourth item of business is the approval of our annual incentive plan, which provides employees the opportunity to earn cash incentive awards based primarily on the company’s performance each year. Our company performs well, employees get treated well from a financial standpoint. Our company doesn’t perform well, employees don’t get treated as well. . . . So our shareholders see, as we as directors and managers see, how to run the company successfully by creating an incentive system based on performance. So that has been overwhelmingly approved.

Later in the meeting, Unum’s Chief Financial Officer, Richard P. McKenney, spoke about the performance of Unum’s “closed block of business,” which includes its individual disability policies issued prior to the mid-1990s–the type of policies that Unum no longer sells.

We do have our Closed Block business. These are policies which are written some time ago. We serve those customers equally as well. But the returns in these businesses are lower.

Taken together, the two statements paint a picture of claims personnel handling the closed block of business under pressure to improve the returns, or else they “won’t get treated as well” or receive as sweet an incentive bonus.

We often hear from claimants who are incredulous that their claims have been denied or terminated despite a mountain of evidence of their disability.  This may be one explanation, and having an attorney to advocate for you as a claimant can be essential when you have a financially-motivated adjuster reviewing your claim.

The full transcript of the Unum Annual Shareholder Meeting is available at Seeking Alpha.

Free iPhone App Identifies Objects for Blind and Visually Impaired Users

TapTapSee, a free app that can be used on an iPhone or iPad, is generating a positive buzz in the disability community.  For persons who are blind or have low vision, the app can identify objects within seconds by comparing a photo taken on the iPhone with a database of similar images, and then verbally telling the user what he or she has photographed.  Currency amounts, color of clothing, and food labels, for example, are all items that the app can identify.  User reviews indicate a high level of accuracy.

A demonstration of the app’s capabilities was posted by one user on YouTube:

Protecting Yourself in the IME Process: Get a Copy

This post is the last in our series on tips for undergoing disability insurance Independent Medical Examinations (“IME”).  Today’s topic is a step to take after the examination is over:

Get a copy.  After the exam, contact your insurer to ask for a copy of the IME report.  Most IME doctors have a copy of their report to the insurer within two weeks.  Your insurer may send a copy of the IME report to your own treating physician and ask for his or her comments on the exam.  In that case, the company will require you to request the IME report directly from your own physician.

When you get the report, review it and compare it against your notes and/or recollection.  If anything needs to be clarified, discuss it with your insurer or attorney.  If you received the copy of the IME report from your own physician, talk about it with him or her.  An inaccurate or misleading IME report can be dangerous to your claim, so it’s important to address any inconsistencies as best you can.

For more information on dealing with an IME, see our prior posts:

Protecting Yourself in the IME Process

Reviewing the Policy

Completing Intake Forms in Advance

Making Lists and Taking Notes

Bring a Friend

Protecting Yourself in the IME Process: Bring a Friend

We have talked about involving an attorney in the IME process, understanding what the insurance policy requires, completing intake forms, making lists, and taking notes.  Today in our series about tips for Independent Medical Examinations:

Bring a friend.  Taking notes is great, but having a witness present is best.  That way, you can focus on participating in the examination, and your witness can focus on observing and taking notes.  Moral support is an added benefit.

A friend, spouse or partner can be a good witness, especially if he or she is a medical professional.  If you have an attorney, he or she may also attend with you or send a representative from the law office.

Take note, however, that some insurance companies specifically state that witness are not allowed at IMEs.  Normally, this alleged requirement is stated in the letter the insurer sends you to confirm the examination.  If you have a disability insurance attorney involved, the attorney can review the letter, the policy and the law and determine whether or not a witness is allowed to attend.

Protecting Yourself in the IME Process: Make Lists and Take Notes

In our series of suggestions for handling an Independent Medical Examination (“IME”), we have already discussed getting an attorney involved, knowing the policy requirements, and completing the intake forms.  Here are today’s tips:

Make lists and bring them to the IME doctor.  Don’t be afraid to bring information with you to help answer questions from the IME doctor.  Some examples are a timeline of your symptoms—i.e., when they started, when they got worse, etc.—or a list of all your medications so you don’t accidentally forget one.  If you have photos or videos showing certain injuries or symptom flare-ups, consider bringing those along as well.

Take notes.  This will make sure that your recollection of the IME is recorded along with the doctor’s recollection.  Your notetaking should start when you arrive at the IME provider’s office, as your time in the waiting room is often part of the final IME report.

For instance, IME doctors will often report something like, “The patient sat for half an hour before my exam completing the paperwork without any apparent discomfort.”  If you take notes before the IME to memorialize how long you sat in the waiting room, if anyone was watching you fill out the paperwork, if you had to stand to stretch, etc., you will be able to show the insurance company whether the doctor’s statement is accurate.

If possible, take notes during the IME as well, so that you can remember exactly what testing was performed and what types of questions were asked.

When you leave the IME, take a few minutes to immediately jot down your impressions and any issues you think you need to follow up on with your insurer or attorney.

 

Protecting Yourself in the IME Process

As we have discussed before, disability insurance claimants are often asked to submit to “independent” medical examinations (“IME”) with a doctor chosen by the insurance company.

IMEs are a source of anxiety for many insureds, especially because they are often a first step towards termination of a claim.  Fortunately, there are some steps you can take to help ensure that you are treated fairly.

Over the next few days, we will outline some general tips on dealing with IMEs.  Keep in mind that these tips are no substitute for the advice of a disability insurance lawyer who knows the specifics of your situation.  Hence, today’s tip:

Get your attorney involved.  If you don’t have a lawyer to help you with your claim, now is a good time to seek some advice.  Oftentimes, insurance companies use IMEs to try to show that you aren’t entitled to disability benefits anymore.  A lawyer can help protect your rights during the IME process by, among other things, finding out what the policy requires (and doesn’t require) and discussing those requirements with your insurer.  If you aren’t sure how to find the right lawyer, consider our Questions to Ask When Choosing a Disability Insurance Attorney.

“Lives Worth Living” on PBS tonight – A Look at the History of the Disability Rights Movement

Tonight on PBS’s documentary series “Independent Lens,” the spotlight will be on the history of the Disability Rights Movement that led to the Americans with Disabilities Act (ADA). The film takes a look at the often horrifying and discriminatory practices that persons with disabilities were subjected to and the brave individuals who fought for change.

In addition to the trailer preview above, PBS describes the documentary as follows:

Lives Worth Living follows one man’s struggle to survive after a spinal cord injury and his role in the earliest days of the Disability Rights Movement.

Fred Fay’s life proves that one man can change the world, even though he has to lie flat on his back just to stay alive. Lives Worth Living looks at Fay’s struggle to survive after a spinal cord injury and the small group of dedicated activists who formed the Disability Rights Movement to drive the nation towards equal rights.

The late Fred Fay survived a devastating spinal cord injury when he was only 16, and turned his misfortune into a movement for equality. With a small group of dedicated activists, he spearheaded the disability rights movement and changed the face of American society.

Superstorm Sandy Shuts Down Offices of Unum

The Chattanooga Times Free Press reports that disability insurer Unum (based in Chattanooga, Tennessee) had to close key branches in Worcester, Massachusetts and Portland, Maine on Monday and possibly again today due to the impact of Superstorm Sandy.  Unum’s field offices in New York are closed today, and six other Unum field offices along the Eastern Seaboard from Washington, D.C. to Boston have also been closed due to the extreme weather conditions.

The closures may cause delays for insureds in receiving their disability checks or having their paperwork or claims processed while the insurers weather the storm.

Other disability insurers with bases in the areas affected by Superstorm Sandy include Massachusetts Mutual Insurance Company (MassMutual), Berkshire Life, Guardian Life, New York Life, and The Hartford.