The Importance of Your Treating Physician’s Notes
Physicians filing a disability insurance claim often underestimate the complexity of the process. Unlike health insurance, which pays one-time reimbursements for services provided, disability insurance claims are ongoing and expensive. The disability insurer heavily scrutinizes each claim for disability benefits it receives, including looking at the records of treating physicians.
Insurers carefully examine every claim form and your treating physician’s notes for any information that can be used to deny the disability claim. It is important that these records are complete and descriptive in the insured’s diagnosis, symptoms, and functional limitations. Unfortunately the pressures of a modern medical practice mean that physicians spend less time treating patients and more time filling out paperwork. What should be detailed evaluations of a patient’s history and limitations often become abbreviated notes cobbled together from several doctors. As an article in the New York Times noted, “A doctor’s note turns into a cut-and-paste collage instead of an accurate and personalized narrative of illness; and documentation becomes an electronic and potentially dangerous version of the game ‘Telephone.’”
Insureds thus cannot rely upon merely being treated by their physician; they must take an active role in ensuring that their physician adequately documents their disability, its nature, and most importantly, the resulting functional limitations. Treating physicians’ notes often lack sufficient description of what the insured can and cannot do—and the insurer will be happy to fill in the missing information in its favor. Treating physicians need to use language such as “incapable of performing his occupation” as part of detailed narrative statements describing the insured’s condition. Insureds must work with their disability insurance attorney and treating physician to properly present their claim, and the foundation begins with a detailed treatment narrative.
The Insurer Who Spied on Me – ABC News Investigation
Good Morning America recently reported on The Hartford going too far in their surveillance of some people with disability insurance claims, then unfairly cutting off benefits based on the video surveillance.
Read the full article here: The Insurer Who Spied On Me
Disability Insurance Policies: Which type do you own?
The type of disability insurance policy you have can affect the disability benefits you receive and the legal rights to which you are entitled. Below is an overview of the basic types of disability insurance policies.
Individual Disability Insurance:
As the name suggests, individual disability insurance policies are purchased by individuals directly from the carrier and provide long-term disability benefits in the event of sickness or injury. Individual polices fall into two categories: “general” and “occupational.” A “general” disability policy insures against sickness or injury that precludes the insured from performing all work while an “occupational” policy provides relief if the insured cannot perform the material and substantial duties of his or her own occupation. Thus, an “occupational” policy will provide greater coverage to the insured, who will be entitled to benefits even if he or she is able to engage in another occupation. Individual policies usually provide coverage in set amounts, e.g., $5,000 per month, rather than as a percentage of the insured’s salary.
Group Disability Insurance:
Group disability insurance polices are made available to participants of organizations, such as members of the American Medical Association. Unlike most individual policies, group policies typically confer benefits calculated as a percentage of the insured’s base salary, usually from 50-75%. These policies may limit the maximum amount of disability benefits payable, e.g., no more than $5,000 per month, regardless of base salary. Further, group policies often reduce disability benefits when the insured receives income from other sources such as Social Security disability benefits or worker’s compensation.
Employer-Sponsored Disability Insurance:
Employer-sponsored disability insurance policies are typically the least expensive policies and are similar to the “group” policies described above, providing employees with disability insurance based on a percentage of their base salary as part of the employer’s overall benefits package. Unlike group policies, however, employer-sponsored policies are governed by the Employee Retirement Income Security Act of 1974 (ERISA), which has significantly affected the administration and litigation of disability insurance claims. Unfortunately, ERISA deprives insureds of significant rights to which they would normally be entitled under state law. These include the right to a trial by jury and the possibility of punitive damages where the carrier has acted unreasonably or maliciously.
Has My Disability Insurer Acted in Bad Faith Under Arizona Law?
Under Arizona insurance law, the relationship between a disability insurance company and its policyholder/insured is a special relationship giving rise to heightened duties not ordinarily found in other contractual agreements. Rawlings v. Apodaca, 151 Ariz. 149, 163, 726 P.2d 565, 579 (1986); Dodge v. Fidelity & Deposit Co., 161 Ariz. 344, 346-47, 778 P.2d 1240, 1242-43 (1989). Arizona courts further recognize that a disability insurance company’s duties to its insured are non-delegable and that an insurer remains liable for actions taken by a delegate (like reinsurers and third-party claim administrators) who take over disability claims and act in bad faith:
[A]n insurer who owes the legally imposed duty of good faith to its insureds cannot escape liability for a breach of that duty by delegating it to another, regardless of how the relationship of that third party is characterized. Clearly, an insurer may seek assistance by delegating performance of its duty of good faith to non-servants through whatever organizational arrangement it desires. In doing so, however, the insurer cannot give this delegate authority to deprive its insureds of the benefit of the insured’s bargain. If the insurer were allowed to delegate the duty itself, an injured insured would have no recourse for breach of the duty against either the insurer, from whom the duty is owed, or its delegate, with whom the insured has no contractual relationship. Such a result would render a cause of action for breach of the duty virtually meaningless. Thus, we hold that, although an insurer may delegate the performance of its duty of good faith to a non-servant, it remains liable for the actions taken by this delegate because the duty of good faith itself is non-delegable.
Walter v. Simmons, 169 Ariz. 229, 238, 818 P.2d 214, 223 (Ct. App. 1991) (citations omitted) (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. Mendoza, 2006 WL 44376, at *12 (D. Ariz. Jan. 5, 2006) (“Insurers cannot escape their duty of good faith and fair dealing by delegating tasks to third-parties . . . .”) (citing Walter).
To establish a claim for bad faith, the a dentist or physician must show: (1) that the insurer acted unreasonably in the investigation, evaluation or processing of his/her claim; and (2) that the insurer acted knowingly or with reckless disregard as to the reasonableness of its actions. Leavey v. Unum/Provident Corp., No. CV-02-2281-PHX-SMM, 2006 WL 1515999, at *3 (D. Ariz. May 26, 2006); Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 238, 995 P.2d 276, 280 (2000); Acosta v. Phoenix Indem. Ins. Co., 214 Ariz. 380, 153 P.3d 401, ¶ 13 (Ct. App. 2007). Intent can be inferred from the defendant’s conduct. Services Holding Co. v. Transamerica Occidental Life Ins. Co., 180 Ariz. 198, 207, 883 P.2d 435, 444 (Ct. App. 1994) (noting that “the intent requirement of the second element [of a bad faith claim] can be established by conduct”). Moreover, an insurer can be held liable in insurance bad faith for the distinct acts of misconduct discussed on our Homepage, regardless of whether the insured’s claim is even paid. As the Zilisch court held:
The carrier has an obligation to immediately conduct an adequate investigation, act reasonably in evaluating the claim, and act promptly in paying a legitimate claim. It should do nothing that jeopardizes the insured’s security under the policy. It should not force an insured to go through needless adversarial hoops to achieve its rights under the policy. It cannot lowball claims or delay claims hoping that the insured will settle for less. Equal consideration of the insured requires more than that.
196 Ariz. at 238, 995 P.2d at 280; see also Leavey, 2006 WL 1515999, at *5 (noting that “reasonable jurors could conclude that defendants acted unreasonably in their evaluation and processing of Plaintiff’s claim,” despite the fact that the insurer never missed a payment).
Disability insurance companies’ duties include the following:
To not impose requirements on the insured that are not contained in the policy.
To treat the insured fairly and honestly at all times.
To not try to gain an unfair advantage over the insured. To give as much consideration to the insured’s interests as its does to its own.
To make claims decisions without regard to profitability. To not attempt to influence the opinions of independent medical examiners.
To not destroy or alter documents to conceal evidence of claim handling.
To not lie about actions taken on a claim.
To act reasonably in handling the claim.
To not misrepresent facts or policy provisions to avoid paying benefits.
To reasonably interpret contract provisions.
To not take unreasonable legal positions.
Each of the foregoing duties remain the liability of the primary insurer and are non-delegable as noted above.
If you think that your Arizona disability claim has been denied in bad faith, a disability insurance attorney can help you determine what legal claims you might have against your insurer.
Too Sick to Work? They Disagree
In the February 10, 2010 edition of SmartMoney Magazine, Brad Reagan writes:
Once employees go on disability, critics say, insurers today are more likely to require hour-long chats on the phone, hound patients for medical updates and push them back to work as soon as possible—often clashing with doctors who think the workers need more recovery time. “These claims are now managed, whereas they used to just be monitored. It can be very intrusive,” says Terry Smith, a principal in Mercer’s health and benefits practice.
To be sure, the disability battle is complex . . . . In 2004 and 2005, insurer Unum Group agreed to pay $24 million in fines to various state regulators over its handling of disability claims. In addition, the company agreed to review previously denied claims between 1997 and 2004—and ultimately reversed 42% of them in the patient’s favor.
. . . In 2004 and 2005, insurer Unum Group agreed to pay $24 million in fines to various state regulators over its handling of disability claims. In addition, the company agreed to review previously denied claims between 1997 and 2004—and ultimately reversed 42% of them in the patient’s favor.
Ed Comitz – My Own Story
Living an active lifestyle has always been important to me. It was not until I suffered a severe neck and head injury that I wondered if I would ever be able to enjoy sports or be active again.
Within months of my injury, I began experiencing constant, agonizing pain in my neck and shoulder, lost manual dexterity and fine manipulation skills with my left hand, and had difficulty moving, all of which caused a precipitous decline in the quality of my life. I felt physically distressed – as if I were constantly being injured.
MRI’s revealed two large disc protrusions. From there, I embarked on a year-and-a-half journey of treatment options without success: sports medicine, physical therapy and rehabilitation programs, consults at the Mayo Clinic and throughout the country, surgical consults, multiple epidural injections (interlaminar and transforminal), facet injections, trigger point injections, massage, chiropractic, traction, Ibuprofen and muscles relaxers. Despite my unrelenting commitment to get better, my condition unfortunately progressed to the point where the entire left side of my body was enormously tense, including my hip, leg and foot. I started losing proprioception in my foot and ambulated with an irregular gait, and my functionality was becoming worse by the day.
This was enormously shocking. I then consulted with another neurosurgeon and had more MRIs, which now revealed possible spinal cord involvement. I was admitted to Barrow Neurological Institute, where I underwent a multi-level discectomy and fusion. I have spent over a year rehabilitating and the process has been self-revealing, always too slow, but with significant progress over time. I now enjoy skiing, playing tennis, hiking, biking, swimming and jogging in moderation. While I have improved exponentially since the surgery, I still have limitations and struggles, and know that my condition can be aggravated if I do not take very good care of myself.
Most of my clients are physicians and dentists, and many have conditions similar to mine. As an attorney, I can keep working – if I drop a pen or get a cramp in my side, I can take a break or stretch, then resume working. If I were a medical professional, though, I would not be able to sustain positioning for long periods of time, each and every day, and would be concerned about patient safety.
I am strongly committed to my clients and practice, am sympathetic to physical limitations and restrictions that others may not fully understand, and use my experience to provide my clients with the results they deserve. My firm provides representation to professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff and Yuma.
Solid Record With All Major Disability Insurance Carriers
Our Firm and its attorneys have resolved cases with all of the leading disability insurance companies and third-party administrators in the country, including, among many others: Berkshire, Boston Mutual, CIGNA, Disability Management Services (“DMS”), Disability Reinsurance Management Services (“DRMS”), Equitable, First Unum, Great-West Life and Annuity Insurance Company, Guardian, The Hartford, Integrated Disability Resources, Jefferson Pilot, Liberty Mutual, Lincoln Financial, Mass Mutual, Met Life, Monarch, New York Life, Northwestern Mutual Life, Paul Revere, Penn Mutual, Provident, Prudential, Reassure America Life Insurance Company, Reliance, Royal Maccabees, Standard, Swiss Re, and Unum (formerly UnumProvident). We have also litigated and resolved cases against third-party vendors of insurance companies, including Behavioral Medical Interventions (BMI) and PsyBar.
Planning for Possible Health Problems: How Much Disability Insurance Should You Have?
As Chris Clark writes in a DoctorPlanning.com article “Planning for Possible Health Problems: How Much Disability and Long-Term Care Insurance Should You Have?”, health problems are one of the most common reasons people retire before they intended. But knowing how much and which disability and long-term care coverages to purchase can be complicated. Disability attorney Ed Comitz provides some advice in Mr. Clark’s article:
Edward Comitz, an attorney who leads the health and disability insurance practice for a Phoenix law firm, recommends buying individual policies instead of the typically cheaper group ones, because employer-sponsored plans are subject to employment-law restrictions that include limits on jury awards if a claimant ends up in court fighting for benefits.
And don’t pay the premiums from the practice, he says, because an individual policy could be characterized as a group one if the practice is paying the bills.
A Disability Insurance Q-and-A
Phoenix and Tucson-area disability attorney Ed Comitz recently responded to some common disability insurance questions for the Pima County Medical Society’s January 2010 issue of Sombrero. He answers questions doctors and other healthcare professionals often ask, such as, “What is the difference between ‘own occupation’ and ‘any occupation’ in disability insurance?” and “Why do so many doctors’ claims get denied, and how can a law firm help?”
Ed Comitz Interviewed For
PHYSICIANS PRACTICE Magazine
Columnist for the Chicago Tribune and freelance writer Janet Kidd Stewart interviewed Ed Comitz regarding his advice for physicians when purchasing disability insurance policies. The interview focused on physician disability claims, issues with coverage, the types of physician policies available, and examples of situations where physicians have been denied coverage. Purchasing the right policy is the first step in risk avoidance. Ms. Kidd Stewart’s article, “Planning for Possible Health Problems – How Much Disability and Long-Term Care Insurance Should You Have?” appeared in the January 2010 issue of Physicians Practice magazine.
Disability Benefits Terminated Due to Facebook Photos
The Canadian Broadcasting Corporation has reported that Nathalie Blanchard, who had been on long-term disability leave from her job at IBM due to depression, had her benefit payments terminated after she posted photographs of herself on Facebook that depicted her vacationing, having fun at Chippendale’s and enjoying her birthday party. Her insurer, Manulife, confirms that it uses Facebook as a tool for investigating its insureds. Ms. Blanchard contends that her doctor advised her to engage in fun activities to combat depression. The story is a reminder to insureds to be aware of insurance company surveillance. The CBC’s full article can be read here: http://www.cbc.ca/news/canada/montreal/depressed-woman-loses-benefits-over-facebook-photos-1.861843
New York Times Exposes Biased and Incompetent “Independent Medical Examiners”
A New York Times article published March 31, 2009, exposes the biases and lack of competency of certain “independent medical examiners” used to deny disability claims. The article is available here.
Cigna Denies Breast Cancer Survivor Disability Benefits
A Good Morning America (GMA) episode has caused some commotion within the disability insurance industry. GMA recently aired the story of a breast cancer survivor, Susan Kristoff, who was wrongfully denied disability benefits by Cigna Group Insurance, her disability insurance company. Even though Susan was diagnosed with stage 4 metastatic breast cancer by her doctor, who also said she could no longer work, Cigna refused to honor Susan’s disability claim. The GMA story tells how Susan went from battling breast cancer to battling her disability insurance company for her disability benefits.
After the episode aired, GMA began receiving numerous e-mails from disabled people across the country that were also unfairly denied disability benefits by Cigna and other disability insurance companies. The stories are eye-opening. One disability insurance lawyer in the article said the numerous e-mails was more evidence of disability insurers’ bad faith in administering claims: “The insurance companies know if they deny and deny claims that many of the claimants will never pursue their claims.”
More details from the story can be found here: http://abcnews.go.com/GMA/story?id=5257491&page=1#.T_tOGfWmqZR
Ophthalmology Management:
Disability Insurance Roulette
Attorney Ed Comitz’s article, Disability Insurance Roulette: Can You Collect on Your Policy?, was published by nationally-regarded Ophthalmology Management. The article discusses difficulties physicians experience with collecting on their disability insurance, and how certain obstacles can be overcome.
California Insurance Commissioner Labels Unum
an “Outlaw” Insurer as the California Department of Insurance Fines Unum $8 Million
When the insurance commissioners of 48 states agreed to a $15 million multi-state settlement last year against Unum, California Insurance Commissioner John Garamendi rejected the settlement, stating that it did not go far enough to protect California insureds. This week, the California State Department of Insurance instead fined Unum $8 million, the largest settlement in the agency’s history, with Garamendi calling Unum an “outlaw company” that harmed consumers by denying their disability claims.
This company engaged in a strategy to increase its bottom line at the expense of its customers. — California Insurance Commissioner John Garamendi
State regulators determined that UnumProvident misinterpreted job classifications, improperly overruled doctors’ opinions and knowingly used incorrect insurance definitions to avoid payment of disability benefits owed to insureds.
While the multi-state settlement required Unum to reopen 215,000 claims and pay a fine of $15 million, the $8 million California settlement includes a third-party review by insurance experts, limits the discretion insurers have to interpret policy language and establishes a model policy that Unum and other disability insurers will be required to adhere to in California.
Federal Court Affidavit of Former Unum Employee
A sworn affidavit by a former UnumProvident employee in a 2004 case in the United States District Court for the District of Maine (Case No. 2:2004cv-00001) provides interesting insight into some of the tactics used by Unum. Daniel Donatelli’s affidavit appears below.
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Daniel Donatelli, Plaintiff vs. UNUMPROVIDENT CORP., Defendant
Civil No. 04-1-P-S
AFFIDAVIT OF DANIEL DONATELLI
NOW COMES Daniel Donatelli and hereby states as follows under oath:
- My name is Daniel Donatelli. I am 18 years of age or older and believe in the obligation of an oath. The facts stated below in this affidavit are based on my personal knowledge.
- I was hired by Unum as a Disability Benefit Specialist to process long term disability claims. Disability Benefit Specialists at Unum had authority to make decisions on claims.
- After Unum’s merger with Provident, I became a customer care specialist and later was transferred to the Cardiac Psych Unit. Customer Care Specialists at UnumProvident did not have authority to make decisions on claims including approval, denial, and settlement. Our role became primarily processing and not managing.
- I did not begin working in the Cancer Unit until after February 25, 2002.
- While working in the cancer unit, Dennis Hersom told me that I would not survive a performance management program regardless of any improvement that I made with my work performance. Therefore, I resigned.
- While working in the Cardiac Unit and the Cancer Unit, I had some ethical and moral concerns regarding claims not being paid properly due to the pressure to meet quotas for closing claims.
- While I was at Unum, Unum provided insurance policies for employee sponsored plans, union or employee organization sponsored plans, employer sponsored plans, church plans, government plans, and many individual disability policy contracts.
- There was at least one individual Customer Care Specialist in my Cardiac Psych Unit, as well as an individual in my Cancer Unit, that was responsible for handling claims under individual disability insurance policies issued by Unum.
- I understood that all of these policies were subject to the same claims handling process and procedures. When I expressed concern about how the claims were handled, I was expressing concern for all claims and not just those on my caseload.
- I personally handled processed claims under church plans (for example, priests) and government/school plans (for example, teachers).
- Advance pay and closure was a way of closing claims based on a hypothetical ramp up of hours that was established by a customer care specialist or a vocational rehabilitation consultant. It was also based on an opinion from a UnumProvident doctor who made a determination of what the claimant was capable of doing. I believe that the advance pay and closure procedure is illegal because it could result in a claimant being subjected to higher scrutiny by UnumProvident if the claimant reopened his or her claim for benefits after a period of advancement has lapsed. Because the claimant had no right of appeal, and the claimant was not notified in advance, the claimant would be subject to higher scrutiny thereby misleading the client into agreeing to take an advance pay and close. Continue reading “Federal Court Affidavit of Former Unum Employee”
Disability Insurance and the Doctor:
Will You Be Able to Collect?
Attorney Ed Comitz’s article,“Disability Insurance and the Doctor: Will You Be Able to Collect?”, was published in the May/June 2003 issue of AzMed, the publication of the Arizona Medical Association.
The article focuses on own-occupation policies marketed to physicians, the disability insurance claim process, key policy definitions, the hurdles experienced by disabled physicians (including mental health limitations/exclusions), reasons claims are denied, Arizona insurance law (including elements of bad faith and punitive damages for wrongful claim denials).
