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.
Essential Tremors (ET): Part 1
We’ve done a profile on how Parkinson’s disease can affect physicians and dentists, but did you know that essential tremors are eight times more common than Parkinson’s disease? A hand tremor is one of the last things a physician or dentist wants. Not only can it affect daily life, but working with patients safely becomes increasingly difficult.
In this post, we will list some of the risk factors and common symptoms associated with essential tremors and take a look at what can be done to perhaps alleviate symptoms.
What is an essential tremor and what are the symptoms?
An essential tremor (ET) is a neurological disorder that causes rhythmic shaking of part of the body—most often the hands, head, or voice.
The primary symptoms of ET are involuntary shaking, voice fluctuations, nodding head, balance problems, and tremors that get worse during periods of emotional stress, fatigue, caffeine use, and/or purposeful movement. ET is a progressive disorder than can become worse over time.
What is the difference between Parkinson’s and ET?
Many people believe that Parkinson’s and ET are the same thing. However, there are some subtle differences between the two conditions, including:
- Timing: ET usually occurs when you are in motion, while Parkinson’s is most noticeable when you are at rest.
- Related Conditions: ET generally does not cause other health problems, but Parkinson’s has been connected to poor posture, a shuffling gait, and slow movement.
- Parts of Body Affected: ET is most common in the hands, head, and voice. Parkinson’s most often starts in your hands and may also affect the legs and chin.
What are the causes and how do you know if you are at risk?
ET appears to be a genetic disorder, because approximately 50% of people with ET have a particular genetic mutation. However, scientists are not sure what causes ET in people who do not have the genetic mutation. Researchers have found that changes in specific areas of the brain may contribute to development of the condition, but such studies are inconclusive.
Because the other causes of ET are unknown, the primary way to determine whether you have a high risk of developing essential tremors is to check your family history. Due to the fact that the mutation is an autosomal dominant disorder, if one of your parents has ET, you have a 50% chance of developing the disorder. Another risk factor is age—people over 40 are more likely to have an ET.
Is there a cure for ET or a way to prevent it?
Unfortunately, is currently not a cure for ET. However, now that scientists have found a genetic link, further research could potentially discover ways to prevent ET.
How can I alleviate my symptoms?
Since emotional stress is one of the things that can aggravate ET, look for ways to relieve your stress. Other methods of alleviating ET include decreasing your coffee and caffeine intake and making sure that you get an adequate amount of sleep each night. Certain medications may also can help with ET, although it is important to speak with your doctor before starting any sort of treatment. Finally, surgery may be an option in some cases, although surgery certainly is not without its risks. Surgery for ET generally involves the implantation of a DBS, or a Deep Brain Stimulator. The DBS is a small device that delivers targeted electrical stimulation to the brain in an effort to reduce the frequency of tremors.
In addition to the foregoing methods of alleviating ET symptoms, there are other things that you can do to make living with ET easier, such as using a travel mug or straw for drinks, using heavier utensils for eating, wearing clothes that don’t have difficult buttons or laces, and saving your most difficult tasks for days when your tremor is least pronounced.
“Working Through Pain:
How Chronic Conditions Affect Dentists”
Dentists are particularly at risk for disability due to the strenuous nature of their job. Dentists are also some of the most likely to keep working through the pain–even if they shouldn’t be. Our new article in Dentaltown Magazine explores how working through chronic pain can affect dentists in their personal and professional lives. Read the full article at Dentaltown today.
“Working Through Pain: How Chronic Conditions Affect Dentists”
Are Longer Hours Hindering Your Ability to Work?
Long hours at work are typical of doctors: there is no break in people getting sick or having physical issues. But what does working long hours do physically and mentally to doctors, and how can this affect your practice? The term “overwork” refers to the increasing risk that a worker will experience symptoms of fatigue and work stress, which can undermine productivity rates. We’re going to be taking a look at some of the statistics involved with professionals working long hours and then discuss how this can not only hinder productivity in your practice, but can also affect your body and, in some cases, how soon you need to file a disability insurance claim.
Longer Hours
There numbers regarding the average work week for Americans, especially professionals such as doctors, show that most people expect to work extended hours. This is associated with the trend of “presenteeism” among doctors and dentists, which we have spent some time dissecting. In fact, many professionals now view the traditional 40-hour work week as a “part-time” job, and state that working those hours show laziness or a lack of desire to get ahead.
- In 2006, American families worked an average of 11 hours more per week than they did in 1979.
- 85.8% of males and 66.5% of women are working 40 or more hours per week. ((See American Average Work Hours at 20Something Finance))
- 37.9% of professional men worked over 50 hours a week between 2006 and 2008, which is an increase from 34%.
- The number of professional women working over 50 hours increased even more drastically, from 6.1% to 14.4% in the same time period. ((See Top-Level Professionals View 40-Hour Work Week as Part-Time at The Huffington Post))
- 52% of top income earners in America report working “extreme jobs,” which are those that require more than 60 hours a week. ((See Success Comes at a Steeper Price at ABC News))
Effects of Overwork ((See The Effects of Working Time on Productivity and Firm Performance))
Studies have shown that working longer hours leads to a decrease in productivity per hour. Any doctor that has worked more than 10 hours a day, as they often do, can attest that the 9th hour is much more difficult to get through than the first. The evidence shows that longer working hours have a negative effect on worker health due to fatigue and work stress, all of which further decrease labor productivity.
Workers with long hours are at a greater risk of health issues. For instance, those who perform repetitive tasks have an even greater chance of cumulative trauma disorder, such as carpal tunnel syndrome. This shouldn’t be shocking to medical professionals, as many of the disabilities that they suffer come from repetitive use injuries. An interesting way to think of the way your hours affect your work is to think of your body using a minimum amount of energy for posture and immunity, which has a great effect on back and neck pain. If you draw too much on this energy for work, your posture and immunity will suffer.
As another example, working extended hours can have a negative effect on mental health. We have also discussed how medical professionals are more susceptible to mental illness. Studies have shown that working long hours leads to increased stress, which can contribute to the already stressful situations doctors face every day.
What Does This Mean for You?
One positive finding regarding hours worked and productivity is that those who have the flexibility to schedule their own hours are not only happier but more productive. Even more striking is the fact that even if workers had to put in overtime, if they chose this overtime themselves instead of being asked to do it by a supervisor, they were much more productive and less fatigued.
This is certainly good news for those medical professionals that own their own business and are able to schedule their time as they see fit. However, doctors such as residents or those working within another professional’s practice may feel pressured to take on more hours, and are also constrained by other doctors’ schedules. For these reasons, it’s important for the medical and dental community as a whole to take a better approach regarding long hours. While we certainly don’t presume to know what is most appropriate in terms of streamlining care and administration, it certainly seems logical that doctors be encouraged to work fewer hours or have more freedom in scheduling the hours that they are going to work.
Let us know what you think about working long hours and whether you have schedule flexibility in the comments!
Physicians and Dentists With Parkinson’s Disease:
The Condition, Its Occupational Impact and Disability
Introduction
Among the most devastating degenerative medical conditions is Parkinson’s disease, which currently affects 6.3 million people worldwide. While certain genetic conditions and environmental triggers may increase susceptibility to the disease, it is impossible to accurately predict who will develop it.
For healthcare professionals (physicians and dentists) diagnosed with Parkinson’s disease, the disease can be career-ending as symptoms become more severe. This post will provide a brief overview of Parkinson’s disease; explain the limitations the condition may create and how this could impact a professional career; and provide a solid base of information for anyone struggling with the prospect or process of filing a disability insurance claim.
Background
Every year, there are approximately 60,000 new diagnoses of Parkinson’s disease, a condition affecting the nervous system, motor control, and brain chemistry. Recent improvements in treatments, including exciting therapies involving “reprogramming” skin cells to behave like stem cells, act as small steps toward a solution, but there is currently no cure for Parkinson’s disease. Sufferers often go undiagnosed for many years, and because of the progressive nature of the illness, it can cause a slow deterioration in ability to function normally in day-to-day life.
Disease Progression
After the initial diagnosis and into early stages of Parkinson’s disease, symptoms may seem manageable and typically include fatigue, tremors, joint pain, and anxiousness.
As the disorder progresses, it is common to experience stiffness, lack of coordination, and slower movement. Everyday tasks such as getting dressed, shaving, writing, and brushing teeth can become strained, and there is a high susceptibility to falls and related injuries due to disturbed sense of balance.
Once Parkinson’s disease reaches advanced stages, affected individuals sometimes lose the ability to walk, speak, and properly care for themselves. Since Parkinson’s disease is a disorder of the nervous system, it can result in chemical changes within the brain, causing individuals to experience symptoms involving disruption of mental clarity, altered judgment, anxiety, or depression. In effort to control challenging symptoms, sufferers often go through the frustrating experience of experimenting with new medications, which can also produce unpleasant side effects.
Medical Professionals Diagnosed with Parkinson’s Disease
It is understandably difficult to grasp the frustrating new limitations that go along with Parkinson’s disease, as symptoms sometimes come and go, progressing gradually over time. Doctors who have been diagnosed with the illness may be tempted to continue practicing as usual, despite their worsening symptoms. Unfortunately, the reality is that the slightest side effect, such as tremor or delayed reaction time could potentially have life-altering consequences for practitioners or their patients. Should a doctor be sued for medical malpractice post-diagnosis, a jury could be convinced that the doctor should not have been practicing due to the nature of the illness, regardless of whether or not it was a factor in the incident. The dichotomy between lifelong work ethic and patient safety is what makes Parkinson’s disease so devastating to physicians and dentists – considering the amount of time, energy, and money invested into a professional career, there is a reasonable hesitancy to take a step back.
When to File a Disability Insurance Claim
Early Parkinson’s disease symptoms mimic other more common ailments, often causing the condition to go undiagnosed for lengthy periods of time; furthering the problem, no one test is able to confirm a diagnosis of Parkinson’s disease. Individuals undergoing the diagnosis process frequently experience a trial-and-error scenario, and symptom improvement with specific medications is often the litmus test for whether or not a person truly has the disease. These factors make it very difficult to determine when a disability insurance claim should be filed – when filed too soon, there may not be substantive proof of disability, but waiting too long could leave a practitioner exposed to liability.
A common mistake for sufferers of Parkinson’s disease is the attempt to modify work schedules and regular work duties with the progression of symptoms. Despite the fact that these measures are taken to avoid the risk of injury to the affected doctors or to their patients, the impact of this decision on future disability claims is substantial. A practitioner will typically perform fewer procedures, take on more management duties, and scale back hours over a period of time until working is no longer an option. The modification of one’s scope of practice and work hours can make it extraordinarily difficult, if not impossible, to collect future disability benefits, as insurance companies define a practitioner’s occupation (and ability to receive benefits) based on the work done at the time he or she becomes totally disabled. In short, this means that as one modifies his or her duties and hours, he or she is modifying both position and capability in the eyes of a disability insurance company to something less than that of a full time clinical practitioner. Keeping this in mind, it is best to explore the possibility of filing a total disability insurance claim as soon as possible after diagnosis, and it is prudent to speak with an attorney who is well-versed in filing disability claims.
Summary
Parkinson’s disease has had a personal impact on the lives of our staff, and we are no strangers to how difficult it can be to deal with long-term medical issues. Perhaps the most important step in accepting and understanding Parkinson’s disease is taking the time to get the help you need. Seek the support of family, friends, and professionals to help you cope with the changes ahead.
Additionally, understand that knowledge is power. Parkinson’s disease can have a major impact on finances, relationships, work, time, and various other aspects of daily life. Educating yourself about the future and what to expect, including when to file a disability insurance claim, will help you to feel more prepared and able to face challenges as they arise.
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 for College Athletes
In a recent article, written in the wake of NCAA basketball player Kevin Ware’s traumatic leg fracture, The Atlantic explores whether college athletes should purchase disability insurance.
Like doctors and dentists, whose physical health can be crucial to performing their job duties, many professional athletes purchase disability insurance. By doing so, they attempt to protect their income from sickness or injury that interferes with their work.
For college athletes, disability insurance is intended to protect potential, future income that they expect to earn once drafted to professional sports teams. Because the term of the policies is so short – ordinarily just one to two years – and the potential benefits so high – often millions – these disability policies can be extremely expensive. The article discusses athletes and their families that paid upwards of $40,000 in premiums over one or two years.
As the article explains, though, this type of disability insurance is rarely collected. Though these athletes’ disability insurance policies are unique, the difficulty of collecting may sound familiar to many other types of professionals facing disability insurance claims:
[T]hese policies, meant to hedge against risk, are risky in themselves: None of these student-athletes is likely to ever collect a dime, even if they are hurt. These guarantees cover “permanent total disability,” meaning only policyholders who are never able set foot on a field or court again—not simply those who suffer injuries that may reduce their earning potential—can file a claim.
Read the full article here: The $5 Million Question: Should College Athletes Buy Disability Insurance?
Nearly 1 in 5 Americans Have a Disability
Almost one in five people in the United States have a disability, according to the new U.S. Census Report Bureau that was just released today. The disability report was released to coincide with the 22nd Anniversary of the Americans with Disability Act, which is tomorrow. Here is some of the highlights from the disability report cited from the U.S. Census Bureau’s disability news release:
- 56.7 million people, 19 percent of the U.S. population, had a disability in 2010. And more than half of these disabilities were reported as severe.
- People in the oldest age group — 80 and older — were about eight times more likely to have a disability as those in the youngest group — younger than 15 (71 percent compared with 8 percent). The probability of having a severe disability is only one in 20 for those 15 to 24 while it is one in four for those 65 to 69
- About 8.1 million people had difficulty seeing, including 2.0 million who were blind or unable to see.
- About 7.6 million people experienced difficulty hearing, including 1.1 million whose difficulty was severe. About 5.6 million used a hearing aid.
- Roughly 30.6 million had difficulty walking or climbing stairs, or used a wheelchair, cane, crutches or walker.
- About 19.9 million people had difficulty lifting and grasping. This includes, for instance, trouble lifting an object like a bag of groceries, or grasping a glass or a pencil.
- Difficulty with at least one activity of daily living was cited by 9.4 million noninstitutionalized adults. These activities included getting around inside the home, bathing, dressing and eating. Of these people, 5 million needed the assistance of others to perform such an activity.
- About 15.5 million adults had difficulties with one or more instrumental activities of daily living. These activities included doing housework, using the phone and preparing meals. Of these, nearly 12 million required assistance.
- Approximately 2.4 million had Alzheimer’s disease, senility or dementia.
- Being frequently depressed or anxious such that it interfered with ordinary activities was reported by 7.0 million adults.
- Adults age 21 to 64 with disabilities had median monthly earnings of $1,961 compared with $2,724 for those with no disability.
- Overall, the uninsured rates for adults 15 to 64 were not statistically different by disability status: 21.0 percent for people with severe disabilities, 21.3 percent for those with nonsevere disabilities and 21.9 percent for those with no disability.
To read the disability news release, click here.
Get it in Writing: Why Verbal Communications with Your Disability Insurance Company Can Be Dangerous
We often advise doctors and dentists facing a disability insurance claim to handle communications with their insurance company via mail rather than on the telephone. There are several reasons why written letters are better than verbal communication. For example:
• Claims handlers are trained to ask loaded questions. While the questions they ask may seem routine or mundane to the policyholder, the answers they elicit can have serious consequences that can help the insurance company deny a legitimate disability claim. For example, a claims administrator might call and ask what you have been doing that day. If you answer that you went out to pick up a prescription, the claims administrator can misconstrue your response as proof that you are not disabled from your occupation. No matter how short or how unavoidable your errand may have been, the insurance company can argue that if you are able to leave the house and perform limited activities, you can still perform your job. If the same question is posed in a letter, you can take the time to carefully consider the question and its consequences, preferably having a disability insurance lawyer help you to answer in a way that won’t be misconstrued.
• Telephone conversations may not be documented accurately. When a claims handler calls a policyholder to discuss his or her disability benefits, the handler will normally write a memo of what was said during the call for the claim file. These memos are used as evidence for disability benefit determinations, and potentially for later litigation. The primary problem is that the memos are written by the claims handler for the benefit of the insurance company, so whether intentionally or not, they are one-sided and biased towards the company’s interests. Another problem occurs when the claims handler doesn’t write a call memo at all; important conversations can be lost entirely. On the other hand, if a policyholder exchanges letters with the insurance company (and keeps copies), the insured can document his or her side of the story without worrying that something will be lost or misreported.
• Insurance companies use jargon that can be hard to understand. As Unum’s UK CEO has admitted, insurance companies use language that is indecipherable to most policyholders. If a claims handler calls you to talk about an elimination period, reservation of rights, ERISA, or the own-occupation definition of disability, you may not be able to completely process what he or she is telling you on the spot. This can cause you to miss important details or inadvertently waive important rights. If the same information comes to you in writing, however, you have time to research the terms and/or get advice from a disability insurance attorney.
For these reasons and more, it is crucial to get communications with your disability insurance company in writing. At the very least, a person filing for disability insurance benefits should take detailed notes of every conversation with an insurance company representative.
Timing Is Everything: When to Discuss Your Potential Claim with a Physician
When it comes to disability insurance, your treating physician’s support can be critical to getting your legitimate disability claim approved. If your doctor can’t provide adequate documentation of your condition or is reluctant to get involved, there is a much higher chance that your claim will be denied. However, fully discussing your condition with a professional, compassionate treating physician will help ensure supportive medical records. When you are involved in a disability insurance claim, it is important to understand how to approach your treating doctor so that he or she can help you.
When to discuss your potential claim with a physician is an important timing issue. Instead of trying to enlist your doctor’s help at the very first visit, you should wait to talk to your treating physician until after he or she knows you and your condition well enough to opine accurately as to your ability to work. It is vital that you develop a relationship of trust and confidence with your doctor before inviting him or her to assist you in your claim. Physicians are often reluctant to support claims for disability insurance benefits if they question the motivations behind the claims. A physician who has treated, without success, the policyholder making a legitimate disability claim will be more willing to cooperate with the extensive process.
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”
Disability Insurance Bad Faith: Different States – Part 4 (Nevada)
Having outlined the tort law and statutes covering an insurers wrongful claim denial in the states of Arizona, California, and Colorado, we now take a look at the bad faith law of Nevada.
In Nevada, a disability insurance policyholder can bring a lawsuit for bad faith under tort law, or may bring a claim based on the Unfair Claim Practices statute, which was enacted as part of a comprehensive plan to regulate insurance practice in Nevada.
A policyholder can only sue for bad faith under tort law if his or her claim has been denied, but can bring suit under the Unfair Claim Practices statute whether or not the disability insurance claim is denied.
The Statute: Nev. Rev. Stat. § 686A.310
The Rules: Engaging in any of the following activities is considered to be an unfair practice for disability insurers:
- Misrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to any coverage at issue.
- Failing to acknowledge and act reasonably promptly upon communications with respect to disability claims.
- Failing to adopt and implement reasonable standards for the prompt investigation and processing of disability insurance claims.
- Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the policyholder.
- Failing to effectuate prompt, fair and equitable settlements of claims in which liability of the insurer has become reasonably clear.
- Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered.
- Attempting to settle a disability claim for less than the amount to which a reasonable person would have believed he or she was entitled by reference to written or printed advertising material accompanying or made part of an application.
- Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured, or the representative, agent or broker of the insured.
- Failing, upon payment of a claim, to inform insureds of the coverage under which payment is made.
- Making known to claimants a practice of the insurance company of appealing from arbitration awards in favor of claimants for the purpose of compelling them to accept settlements or compromises less than the amount that was awarded in arbitration.
- Delaying the investigation or payment of claims by requiring a claimant or his or her doctor to submit a preliminary claim report, and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information.
- Failing to settle claims promptly, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
- Failing to provide a prompt, reasonable explanation of the basis for the denial or settlement offer.
- Advising a claimant not seek a disability insurance attorney.
- Misleading an insured or claimant concerning any applicable statute of limitations.
The Tort Law Standard: An insurer fails to act in good faith and breaches the covenant of good faith and fair dealing when it refuses without proper cause to compensate an insured for a loss covered by the policy.
An Inside Look at Insurer Surveillance
Insurers often spy on insureds in an attempt to “catch” them appearing non-disabled. Traditionally, insurers have hired private investigators to videotape insureds in their daily routines. More recently, disability insurers have begun to use Facebook and other social media as a one-way mirror for electronically peeping into an insured’s private life. Old-fashioned stakeouts and video surveillance are alive and well, however. Because it is so easy to misconstrue even a few seconds of video footage, all insureds need to be aware of the possibility for surveillance.
A recent article written by the insurance industry and aimed at insurers exposes the way insurers regard surveillance. Though the article cites a private investigator as saying that surveillance is the “unbiased documentation of a person’s activities,” the reality is anything but. Disability insurers will hire PIs to watch a claimant for days, and then purport that a single fifteen-second clip of the insured watering his outdoor plants, for example, is evidence of a fraudulent claim. They fail to understand the reality: Disability means unable to perform occupational duties, not absolute and perpetual helplessness. What does the insurer do with this video evidence? In their own words, “[impeach] the claimant, ultimately minimizing the value of his claim.”
Even if your insurer has obtained video surveillance, an experienced disability insurance attorney can place the video in its proper context—not just the five second clip that the insurer wants to show. Surveillance is another reason why it is important to consult with an attorney should you need to file a disability insurance claim.
How Specific is Your “Own Occupation”?
We have discussed many times the importance of an “own occupation” disability insurance policy. Such policies provide benefits if the insured is unable to perform the substantial and material duties of his own occupation, rather than requiring that the insured be unable to perform any occupation anywhere. But how specific is your own occupation?
John Simon, an environmental trial lawyer with a national practice, became disabled after an automobile accident. Pain in his legs made sitting, standing, and driving difficult. He had hand tremors, and pain medication caused a cognitive decline. He was diagnosed with regional pain syndrome and post-traumatic stress disorder. Yet Prudential Insurance only paid benefits for a year before terminating Simon, claiming that law was a sedentary profession and that there was no proof that he was incapable of performing his “occupation.”
As the District Court found in its decision, Simon “was no ordinary lawyer.” He was able to establish that his national environmental law practice required extensive travel by air and automobile, including carrying heavy files. Simon spent most of his time outside of the office developing a client base, litigating, lecturing on environmental law, and serving on a government commission.
Most of Simon’s practice was originating clients for the firm rather than performing extensive legal work on each case. During his disability period, his bonuses from the firm actually increased—from his fee sharing for bringing in new clients. Thus his bonuses reflected past rather than present efforts. Though the insurer pointed to Simon’s increasing compensation as evidence of his ability to practice law, it failed to investigate the nature of that compensation.
The court found that Prudential failed to consider the functional requirements of Simon’s particular work activities. It held that all of the factors weighed in favor of concluding that Prudential’s termination of benefits was arbitrary and capricious. John Simon had his disability benefits reinstated.
This case is an excellent example of how important it is to ensure that a disability claim is properly presented to the insurance company. All too often, disability insurers attempt to misclassify insureds’ occupations as to scope or type of duties. It may be necessary, as it was in this case, to litigate to force the insurer to recognize its obligations under the disability insurance policy. Thus, if you are filing a disability insurance claim, it is important to consult with an experienced disability insurance attorney.
