AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent
Disability insurance attorney Edward O. Comitz and Michael Vincent had their article Can Your Disability Insurer Dictate the Terms of Your Care? published in the Winter edition of AzMedicine, the publication of the Arizona Medical Association. The article is excerpted below.
Can Your Disability Insurer Dictate the Terms of Your Care?
By Edward O. Comitz, Esq. and Michael Vincent
Imagine that you are a surgeon who has submitted a disability insurance claim after failed cataract surgery left you with halos, starbursts, and even temporary blindness under bright lighting. While you are dedicated to your profession, you realize that continuing to operate on patients puts them in danger. Your disability insurance company, however, will not pay your claim. It insists that you can keep performing surgeries, alleviating any occupational hazards by wearing sunglasses and using matte-finish instruments in the operating room. This scenario may sound absurd, but it is an actual example of some of the difficulties faced by many doctors seeking legitimate policy benefits. Fortunately, the surgeon in question had the common sense to cease performing surgeries rather than follow her insurer’s suggestions. Her decision did affect her financially, as benefits were denied for almost two years, and only paid after litigation ensued.
Insurance company treatment mandates are commonplace and based on their interpretation of the terms of your policy. In some cases, the insurance company goes so far as to demand surgery, invading your privacy and leaving you with the choice of either undergoing an operation involuntarily, bearing all of the medical risks and financial costs yourself, or waiving your right to collect disability insurance benefits. The decision can be difficult, but understanding your rights and obligations beforehand can help alleviate much of the worry.
Whether or not insurers can legally condition payment of your disability insurance benefits upon you following their suggested treatments depends on the specific terms in your policy. The various policy types fall into three general categories: “regular care” policies, “appropriate care” policies, and “most appropriate care” policies.
The oldest policies typically contain provisions conditioning benefits on being “under the regular care and attendance of a physician.” These “regular care” policies provide the most protection for insureds, as courts have repeatedly found that these provisions only create a duty for the insured to undergo regular monitoring by a physician to determine if the disability persists. Even if a proposed surgery is usually successful and very low risk, an insurance company cannot force it upon you. Under a policy requiring only regular care, courts will not enforce any particular course of treatment, no matter how vehemently an insurance company objects. Continue reading “AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent”
How to Get a Copy of Your Disability Insurance Policy
Many of the questions surrounding a disability insurance claim depend on the language in your policy. Thus, the first step to a successful disability claim is getting a copy of that policy. Though it is always important to keep a copy of your disability insurance policy and any related documents, sometimes policyholders forget to do so, they lose the document, or the papers become accidentally damaged.
The simplest way to get a copy of your policy is to call or send a letter to your insurance company directly. You can search for your disability insurer’s phone number and address on the Arizona Department of Insurance website. The insurer may require you to pay a minor fee, but they will send you a copy.
Once you receive your copy, check to make sure it is actually yours and that no pages are missing or damaged. If you have questions about the provisions in the disability insurance policy or filing a claim for benefits, you can bring your copy to a disability insurance attorney who can help interpret it and guide you through the disability claims process.
Working with Disability Claim Managers
– Know Your Rights and Be Vigilant
Even though disability insurance companies have a duty under Arizona law to give your interests equal consideration to their own, insurers rarely act for the policyholder’s benefit. Claims benefit managers are frequently taught how to approach disability claimants to get a desired result, usually a denial or termination of disability benefits. From our years of experience with the disability insurance industry, we have learned some of the tactics claims personnel use. The following is a list of strategies to beware of. Though not every disability claim manager engages in these practices, it is always a good idea for claimants to be vigilant in order to protect their rights under their policy.
- Treating claims like a unit of production. Disability insurance companies often don’t care to know how being disabled and filing for benefits affects you personally. Don’t expect that they will understand or be sympathetic to the personal toll the entire process takes on a claimant, especially a doctor or dentist who has spent years in study and practice to achieve professional success. To disability insurers, each claim is a unit of production being channeled towards an end goal.
- Misinterpreting policy provisions. Disability insurance claims managers are not lawyers, and just like most people, often have trouble properly interpreting complicated insurance policies. For example, claims personnel might inform an insured that her claim is an “any occupation” policy when in fact it is an “own occupation” policy.
- Claiming rights that don’t exist under the policy. Claims managers will also frequently indicate that the disability insurance company can make claimants do certain things or provide certain information that is not actually required under the individual policy. For instance, an insurer might tell a claimant he needs to complete a detailed daily activity report, when there is actually no such requirement to do so in his policy. Make sure you know what your policy does and does not actually allow.
- Acting like your friend. Employees of disability insurance companies often try to act like your friend or partner in the process, when they are actually channeling your disability claim towards denial or termination of benefits. Often, claims managers will call an insured for a friendly chat, all the while peppering the insured with seemingly innocuous questions meant to provide evidence for claim denial. Policyholders should understand the questions being asked, and not get distracted by the congeniality of the caller.
- Sending “field investigators” to talk about your claim. Another common practice in the disability insurance industry is to schedule an in-person interview in the claimant’s home with a “field investigator.” These interviewers will spend hours asking about your symptoms and activities in excruciating detail, taking copious notes and even asking to photograph you. What they may not make clear is that the field investigator has no authority over the disposition of your claim. Rather, he or she is a private investigator hired by your insurance company to gather evidence against your claim and provide a starting point for surveillance.
The best way to make sure that these claims management practices aren’t used to take advantage of you when making a claim for disability benefits is to enlist a disability insurance attorney who knows the tactics used and how to guard against them. Nevertheless, every insured should understand their insurance company’s approach to claims management and be cautious in their interactions with claims management personnel.
What is a Reservation of Rights?
When a disability insurance company is fighting a claim, it will often agree to pay benefits – but with a “reservation of rights.” What is a reservation of rights and how can it impact a legitimate disability claim?
When an insurer pays a disability claim under a reservation of rights, it is essentially providing a provisional payment. Though the insurance company may be sending you a check, it is not admitting that it actually has any liability under the policy. Instead, it is “reserving the right” to stop paying your disability claim if it can find evidence to deny it later. Once the company denies your disability claim, they can also demand you to repay them whatever proceeds they have distributed to you.
This practice is good for the insurance company, as it buys it extra time to investigate – and often later deny – a claim without putting it at risk of violating the laws against undue delay in payment. However, because the insurance company can still investigate the claim and then demand full repayment at any moment, the reservation of rights provides no peace of mind for the policyholder. Fortunately, a disability insurance attorney can protect you from this uncertainty by properly presenting your claim and thoroughly monitoring the insurance company’s actions to reach a beneficial result.
Surveillance of Disability Claimants: When Are Private Investigators Watching?
As we have discussed in the past, surveillance is a tool commonly used by disability insurance companies to analyze – and often deny – legitimate disability claims. When surveillance is taken out of context or misconstrued, it can lead to unfair disability denials.
All too often, disability insurance companies expect people with disabilities to stay at home, in bed. What they fail to realize is that most doctors actually encourage disabled claimants to try some activities of daily living, light physical therapy, or social interaction. Just because a disabled person can eat chips at a restaurant with family doesn’t mean he can perform all of the duties of his former occupation. Nevertheless, disability insurers often try to get any physical activity on camera and use it as proof that the claimant is not disabled.
Many people filing for private disability wonder when private investigators are watching them. After years of dealing with disability insurance detectives, we have recognized the five most popular times for surveillance of policyholders:
- During holidays. This is when policyholders are likely to be out of the house enjoying time with family and friends.
- On the claimant’s birthday. Just as on holidays, a disabled claimant is likely to push themselves to get out and enjoy the day.
- Over weekends. During weekends, insureds or more likely to attempt minor errands or go outside with family.
- Any time they have a chance of catching a claimant engaged in physical activity, based on information provided by the claimant on activity logs and in interviews. For example, if the claimant wrote on an activity log that he takes his dogs out in the morning, the private investigator will be there with a camera to document the insured walking in the yard.
- Near the end of fiscal quarters, when the insurance company is under pressure to save money by denying or terminating claims.
Don’t Toss the Policy: Important Documents for a Disability Insurance Claim
If you are a doctor, dentist, or other professional considering filing a long-term disability claim, there are some key disability insurance documents to collect and keep in order to properly understand and document your claim, including:
1. Your disability insurance policy
2. The insurance application
3. Notes or letters from meetings with the insurer’s sales agents
4. Notes of telephone conversations with your insurance company employees
5. Letters to and from your insurance company
6. Emails to and from your insurance company
7. Medical records
8. Billing records from your practice
9. A daily pain journal, if necessary
Make sure to keep all of your disability insurance papers and notes in an organized file, and if you have to file a claim, contact an experienced disability insurance attorney who can help you interpret your policy, present your claim, and communicate with your insurer.
Disability Insurance Bad Faith: Different States – Part 7 (Washington)
A disability insurance company may be subject to a lawsuit for bad faith when it wrongly denies a claim. There are differences from state to state in what constitutes insurer bad faith. In previous posts in this series, we outlined the standards of Arizona, California, Colorado, Nevada, New Mexico, and Texas. In today’s post, we outline the bad faith law of Washington.
Insurance companies who use unfair claim settlement practices can be found to have committed bad faith under Washington’s tort law or under the Washington Consumer Protection Act. According to Washington law, an insurance company’s violation of the consumer protection statute constitutes an automatic unfair trade practice violation, and also a breach of the duty of good faith and fair dealing. If a policyholder brings a claim under the Consumer Protection Act, he or she will have to show economic (monetary) damages, but if he or she brings a tort bad faith claim, the injury need not be economic and can include emotional distress or other personal injuries.
The Statutes: R.C.W. 48.01.030 and Wash. Admin. Code § 284-30-330
The Rules: Washington regulations define the following as unfair or deceptive practices for settlement of insurance claims:
- Misrepresenting pertinent facts or policy provisions.
- Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
- Refusing to pay claims without conducting a reasonable investigation.
- Failing to affirm or deny coverage within a reasonable time after fully completed proof of loss documentation has been submitted.
- Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.
- Compelling an individual disability claimant to initiate or submit to litigation, arbitration, or appraisal to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in such actions or proceedings.
- Attempting to settle a 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.
- Asserting to a disability insurance claimant that the company has a policy of appealing arbitration awards in favor of insureds for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration.
- Delaying the investigation or payment of claims by requiring a first party claimant or his or her physician to submit a preliminary claim report and then requiring subsequent submissions which contain substantially the same information.
- Failing to promptly settle claims, 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 promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.
- Failing to expeditiously honor drafts given in settlement of claims.
- Failing to adopt and implement reasonable standards for the processing and payment of claims after the obligation to pay has been established—normally within 15 business days after receipt by the insurer or its attorney of properly executed releases or other settlement documents.
- Negotiating or settling a claim directly with any claimant known to be represented by an attorney without the attorney’s knowledge and consent.
The Tort Law Standard: An insurance company’s actions can be considered bad faith if its breach of the insurance contract was unreasonable, frivolous, or unfounded.
Disability Insurance Bad Faith: Different States – Part 5 (New Mexico)
Over the past several days, we have been outlining the different standards that apply from state to state in determining whether a disability insurance company has acted in bad faith in wrongly denying a claim. Previous posts have outlined the standards for Arizona, California, Colorado, and Nevada. Today we look at the bad faith law of New Mexico.
New Mexico created a statute governing insurance company practices, called the Trade Practices and Frauds Act, in order to promote ethical settlement practices within the insurance industry. Anyone who has suffered damages as a result of a violation of that statute by a disability insurance company can bring an action to recover his or her damages. A policyholder can also bring a suit based on the same wrongful conduct under New Mexico’s tort law.
The Statute: N.M. Stat. § 59A-16-20
The Rules: Any and all of the following practices by an insurance company are defined as unfair and deceptive practices and are prohibited:
- Falsely representing pertinent facts or policy provisions relating to coverages at issue to insured.
- Failing to acknowledge and act reasonably promptly upon communications with policyholders.
- Failing to have reasonable standards in place for prompt disability claim processing and investigation.
- Failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted.
- Not attempting in good faith to come to prompt, fair and equitable settlements of claims in which the disability insurance company’s liability has become reasonably clear.
- Compelling insureds to institute a lawsuit to recover amounts due under their policy by offering substantially lower amounts than those ultimately recovered when the insureds have made claims for amounts reasonably close to the amounts they ultimately recover at trial.
- Attempting to settle a disability claim for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed ads accompanying or made part of a disability insurance application.
- Trying to settle claims on the basis of an application that was altered without the policyholder’s knowledge or consent.
- Delaying the investigation or payment of claims by requiring unnecessary, duplicative information.
- Failing to promptly provide an insured a reasonable explanation of the basis the insurance company relied on to deny a disability claim.
In our next blog post about Insurance Bad Faith, we will outline the standards that apply in the State of Texas.
Spy Cam Placed on Disabled Man’s Neighbor’s Property by Insurance Company
Dana Fredericks, who filed a disability claim at with Accident Fund Insurance Company of America due to his back problems, says that his insurer placed a spy camera on the private property of his neighbor in order to conduct surveillance on him. The outraged neighbor, Ron Guzanek, reports that private investigators pretended to be cable workers and cut a clearing in his hedgerow while installing the sizable camera. Guzanek, who says the camera was placed on his private property on a private road without his consent, notified the Oakland County Sheriff’s Department.
The spy camera—which had short-circuited and was billowing smoke—was removed by the fire department and remains in the custody of the Sheriff’s Department, despite the assertions of Accident Fund Insurance Company of America that the company and its private investigators had complied with all laws. The insurance company is conducting an internal review into the matter.
While not all insurance companies will go to illegal lengths in order to spy on their insureds, this story is a reminder to anyone with a disability claim to be aware that at any time your insurance company may be conducting surveillance upon your activities.
Local television coverage of the Addison Township, Michigan spy cam incident can be viewed here.
Disability Insurance Bad Faith: Different States – Part 3 (Colorado)
In this series of blog posts, we have been outlining the first-party insurance bad faith law of Arizona, California, and other states. Today’s post examines the bad faith law of Colorado.
Although the Colorado statute regarding unfair or deceptive acts or practices provides for state regulation of insurance companies and not for private lawsuits for damages, an insured can still bring a bad faith action against a disability insurer under Colorado tort law. Nevertheless, in determining whether an insurance company’s delay in paying benefits or its denial of disability benefits was reasonable, the court or jury can consider evidence that the insurer’s conduct violated the Unfair Claims Settlement Practices Act statute.
The Statute: Col. Rev. Stat. § 10-3-1104
The Rules: An insurance company must:
- Not misrepresent pertinent facts or policy provisions.
- Acknowledge or act reasonably promptly upon communications.
- Adopt and implement reasonable standards for the prompt investigation of claims.
- Conduct a reasonable investigation based upon all available information before refusing to pay a disability insurance claim.
- Affirm or deny coverage within a reasonable time.
- Attempt in good faith to effectuate prompt, fair, and equitable settlement of claims in which liability has become reasonably clear.
- Not compel insureds to institute litigation to recover amounts due under their policies by offering substantially less than the amounts ultimately recovered in legal actions brought by the insureds.
- Not attempt to settle a claim for less than the amount that a reasonable person would have believed he or she was entitled to based upon the insurer’s advertising or policy application materials.
- Not delay investigation or payment by requiring submission of multiple forms containing substantially the same information.
- Promptly provide a reasonable explanation of the basis in the policy or law for a claim denial or compromise settlement offer.
The Tort Law Standard: Disability insurance companies can be liable for first party bad faith if they act unreasonably and with knowledge of or reckless disregard of their unreasonableness.
In our next post, we will review the insurance bad faith standards for the State of Nevada.
Disability Insurance Bad Faith: Different States – Part 2 (California)
In this series of posts, we are outlining what constitutes insurer bad faith from state to state. Our previous post outlined Arizona’s standards, and today, we look at the bad faith law of California.
In California, the Unfair Trade Practices Act of the Insurance Code statute dealing with unfair claims settlement practices is merely a codification of its bad faith law. A policyholder can bring a suit in California against its disability insurance company under the tort law, but not under the statute itself.
The Statute: Cal. Ins. Code § 790.03(h)
The Rules:
An insurance company’s duties include the following:
- To investigate disability claims thoroughly.
- To not deny coverage based on unduly restrictive policy interpretations.
- To use standards it knows are improper to deny disability claims.
- To not unreasonably delay processing or paying claims.
- To give as much consideration to the insured’s interests as it does to its own.
An insurance company is not allowed to:
- Misrepresent pertinent facts or policy provisions.
- Fail to acknowledge or act reasonably promptly on communications about a disability insurance claim.
- Fail to adopt and implement reasonable standards for prompt claims investigation.
- Fail to make a decision on coverage within a reasonable time after a policyholder has submitted complete proof of loss.
- Tell claimants the company always appeals arbitration awards in favor of claimants to get them to accept lowball settlement offers.
- Not attempt to make prompt, fair, and equitable settlements in which it has become reasonably clear that the disability insurance company must pay a claim.
- Force an insured to litigate to recover under the policy by offering an unreasonable settlement.
- Delay investigation or payment of claims by requiring an insured to submit multiple forms containing the same data.
- Withhold a reasonable explanation of the basis relied on in the insurance policy for the denial of a disability claim or for the offer of a compromise settlement.
- Directly advise a disability claimant not to obtain the services of a lawyer.
- Deceive a claimant as to the statute of limitations that applies.
The Tort Law Standard: A disability insurer can be found to have acted in bad faith if it withholds benefits unreasonably and without proper cause, whether or not the insurance company had a conscious awareness of wrongdoing or intent to harm the policyholder.
Disability Insurance Bad Faith: Different States – Part 1 (Arizona)
When a disability insurance company wrongly denies a disability claim in Arizona, it can be subject to a suit for bad faith. What constitutes insurer bad faith varies from state to state. Over the next several days, we will be outlining the first-party insurance bad faith law of Arizona and nearby states.
In many states, an insurance company can be held liable for its wrongful conduct in two ways: (i) under the tort law of the state or (ii) under a state statute. Though tort law and the statute usually overlap somewhat, they are sometimes meant to create separate and distinct causes of action. The tort law makes the insurance company pay damages to a private policyholder, while a violation of the statutes can often lead to either a suit by a private policyholder or charges brought by the state.
Arizona Insurance Bad Faith Law
The Arizona Unfair Claim Settlement Practices Act was intended to give the state Department of Insurance, headquartered in Phoenix, Arizona, guidelines for determining whether an insurer’s procedures and practices occur with such frequency as to indicate an unacceptable general business practice. This statute does not allow an individual to bring a lawsuit based solely on its provisions.
However, dentists and physicians can bring an action under the state’s tort law. Under Arizona insurance law relating to disability claims, the core of the duty of good faith and fair dealing is that the insurer must act reasonably towards its insured, giving equal consideration in all matters to the insured’s interest.
The Statute: A.R.S. §20-461. Unfair claim settlement practices.
The Rules: An insurance company’s duties include the following:
- To act reasonably in handling the claim.
- To not misrepresent facts of policy provisions to avoid paying benefits.
- To reasonably interpret contract provisions.
- To not take unreasonable legal positions.
- To not impose requirements on the insured that are not contained in the policy.
- To properly investigate the claim.
- To treat the policyholder fairly and honestly at all times.
- To give as much consideration to the insured’s interests as it does to its own.
- To make claims decisions without regard to profitably.
- 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.
The Tort Law Standard: An insurer can be liable for bad faith if there is an absence of a reasonable basis for denying benefits of the policy and the disability insurance company had knowledge or a reckless disregard of the lack of a reasonable basis for denying the claim.
If you have concerns that your disability insurance claim has been denied in bad faith, an experienced Arizona disability can help you determine if you have a lawsuit to file against your insurer.
Disability Claim Investigation:
What Can My Insurer Do In Arizona?
What your disability insurance company can do when it is investigating an Arizona claim for disability benefits largely depends on your specific circumstances and the language in your policy. However, there are some common tactics that Arizona courts will often allow – and some they will not.
What the disability insurance company can do
- Audit your tax returns and billing records
- Review your medical files
- Use a private investigator to conduct video and photograph surveillance
- Look at your public Facebook profile and pictures
- Follow you on Twitter
- Order an Independent Medical Exam
- Have an insurance company doctor opine about your disability
- Ask for a Functional Capacity Evaluation
- Contact your treating physician
- Schedule face-to-face interviews with you
- Interview your family, friends, co-workers and employees
- Demand precise quantifications of your time spent in every professional activity pre- and post-disability
- Pay your claim under a reservation of rights
What the disability insurance company cannot do
- Impose requirements on you that are not in your policy
- Attempt to influence the opinions of independent medical examiners
- Misrepresent policy provisions
- Conduct abusive interviews
- Unfairly delay a decision on your claim
- Fail to conduct a timely, adequate investigation of your disability claim
- Destroy key documents
- Lie about actions taken on a claim
- Place their financial interests ahead of your contractual rights
- Force you to litigate by offering an unreasonably low lump-sum buyout
When it comes to claims investigation, disability insurance companies often skirt the limits of what they can legally do. If you think your insurer might be acting in bad faith, contact an experienced Arizona disability insurance attorney to protect your disability benefits.
How Can You Play by the Rules if You Don’t Know Them?
When filing a disability insurance claim, it’s critical that you consult with an experienced disability insurance attorney. While we have previously discussed the importance of understanding the specific definitions assigned to terms in a disability policy, the interpretation of a policy depends upon more than its internal definitions. State law may assign particular definitions or restrictions to ambiguous terms, or may invalidate certain types of clauses as against the state’s public policy. Insureds are often unaware of this substantive body of case law that shapes the interpretation of their policy—and ultimately determines their claim’s outcome. This means that a disability insurance policy’s benefits vary from state to state. An experienced disability insurance attorney is familiar with the laws of your state and how courts will interpret the language of your policy.
Two unrelated physician disability cases, one occurring in California and the other in Georgia, serve as an excellent example of how state laws vary. Both contained virtually identical facts as to the physician’s disability and the language of the insurance policies, yet the courts arrived at opposite outcomes. In each case, the physician indisputably suffers from carpal tunnel syndrome (CTS) that leaves him unable to practice medicine, with all parties agreeing that the CTS had developed over a career of repetitive hand motions.1 Each physician’s disability insurance policy provides for benefits lasting until age sixty-five for disability due to sickness, and lifetime benefits for disability due to injury.2 The question in both cases was: Is carpal tunnel syndrome a sickness or an injury? Both physicians’ policies defined “injury” as “accidental bodily injury occurring while this policy is in force.”3 However, the courts diverged as to whether carpal tunnel syndrome that had developed over a number of years was an “accidental bodily injury.”
The California court found that the physician had not suffered an “injury” under the policy because his carpal tunnel syndrome was not an “accidental bodily injury.”4 California case law has stated that an accidental bodily injury requires a sudden event causing an identifiable injury. In other words, California places the focus of “accidental” on the cause or means of the result, not on the result itself. Because the long development of the carpal tunnel syndrome did not manifest identifiable harm as it occurred, the U.S. District Court for the Central District of California, relying upon prior California court decisions, concluded that the physician had not experienced an accidental bodily injury under the policy. Therefore, the injury provision of the policy did not apply, and the California physician was entitled to his benefits under the sickness provision only until age sixty-five.
In Georgia, on the other hand, the Georgia Supreme Court decided that “accidental bodily injury” meant a bodily injury that was unexpected, but could have arisen from a voluntary act.5 Following prior Georgia court decisions, the court thus placed the focus of “accidental” on the result itself, not on its cause or means of the result6—the opposite of the California approach. It held that “an unexpected physical injury that disables the insured is covered as an ‘injury’ under this policy.”7 The court noted that, as here, a person could suffer a series of small traumas over an extended period that ultimately resulted in a bodily injury that was disabling, and such injuries were “accidental bodily injuries.”8 Applying this standard, the court held that the physician’s carpal tunnel syndrome was an accidental bodily injury under the policy. Therefore, the physician had experienced an “injury” within the policy’s terms, and the Georgia physician was entitled to his benefits under the injury provision for his lifetime.
The antipodal outcomes of these two cases illustrate the complexities and subtleties that occur when interpreting a disability insurance policy. Do you know how your state interprets your policy’s provisions? Insureds who are considering filing a claim on their policy should not attempt to navigate the insurer’s claims process, policy definitions, and the law on their own. An experienced attorney specializing in disability insurance law can ensure that insureds have an equal footing with their insurer should there be any legal disputes regarding a policy.
Our attorneys provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff, Sedona, Lake Havasu City, Prescott, and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.
Regulate Yourself: Physicians Underreport Impaired Colleagues
A study by the Journal of the American Medical Association suggests that patients must increasingly rely on their doctor’s honest assessment of his own health, rather than the supervision of his colleagues. Physicians are simply not reporting colleagues whose disability endangers patients.
Traditionally, the medical profession has relied on internal mechanisms to guarantee that patients’ needs are met. A number of ethical codes require a physician to report a colleague who is suffering any disability or impairment that leaves him unable to safely care for his patients. As Matthew K. Wynia, MD, Director of the AMA Institute for Ethics, noted in an interview with American Medical News, “[r]eporting incompetent or impaired colleagues is a clear-cut professional obligation.”
Unfortunately, physicians are not following through on that obligation, even when the disability causes an unquestionable risk to patients.
The most common explanation given for failing to report a colleague was the belief that “someone else was taking care of the problem.” Physicians may conclude that their colleague is already aware of the effect his disability could have on patients, and that he would take time off if he felt his condition merited it. They may even assume that he is already taking steps to file a disability claim. They may also be reluctant to intrude on a personal crisis, preferring to leave their colleague to his own social and financial safety nets, such as close friends, family, or disability insurance.
Perhaps more revealing is the fact that 8% of respondents “believed it could easily happen to them.” The thought of being deprived of one’s own occupation, livelihood, and income by the sudden onset of an impairment or disability is certainly troubling at best. Physicians may feel that, if they were disabled and could not safely continue working, their colleagues might doubt their personal fitness for the medical profession. Moreover, they may fear a loss of income or the intense scrutiny imposed by disability insurers and claims representatives. They cannot bring themselves to put a colleague—and perhaps a friend—in that position.
One solution is increased reliance on the physician’s own evaluation of his disability—he must remain cognizant of his own health, and recognize when it is appropriate to take disability leave. Combined with an ongoing reporting obligation, the result would be a higher standard of care and safety for patients.
While the medical profession has always been self-regulating, the regulation of self—the honest evaluation of one’s own disability and capacity for fulfilling the obligations of his own occupation—may become an invaluable means for guaranteeing patient safety. As Dr. Wynia points out, “It’s not just a matter of doctors peeping over each others shoulders.”
Presenteeism: A Chronic Condition Among Doctors
A new article in the Journal of the American Medical Association suggests that presenteeism—showing up to work with an illness, impairment, or disability that limits productivity—has reached epidemic proportions among doctors. The study, which surveyed residents at multiple hospitals, found that three out of five had continued working while sick. At one hospital, 100% of residents had done so. Half the residents noted that they simply didn’t have the time to see a doctor.
Presenteeism imposes productivity costs on any business, but in the practice of medicine, these costs can include a noticeable decline in the quality of care patients receive. A physician suffering from an illness or disability—or distracted by severe physical pain—can make serious mistakes in judgment, which in turn can have life-threatening consequences for the patient.
Moreover, the presentee habit can become life-long. Later in their careers, physicians may not seek medical care for chronic conditions, injuries, or disabilities, even when they are legitimately unable to work. They may attempt to continue even the most physically and mentally demanding duties, aggravating the injury and putting patients at risk, even when they hold a disability insurance policy that could provide a safety net for their personal and professional finances.
Finally, a change in medical culture may be in order. Doctors should feel comfortable seeking the medical care they need, or even filing a disability insurance claim when appropriate. Dr. Vineet Arora, Associate Professor of Medicine at University of Chicago and one of the study’s authors, argues that “Hospitals need to build systems and create a workplace culture that enables all caregivers, not just residents, to feel comfortable calling in sick. Their colleagues and their patients will thank them.”
Northwestern Mutual Offers Insight Into How Disability Insurers Interpret and Apply “Own Occupation Coverage”
Northwestern Mutual Life Insurance—a major provider of disability income insurance for physicians and dentists—has just launched a new website, the “Disability Income Insurance Knowledge Center,” which it claims will help policyholders understand the terms of their “own occupation” disability insurance coverage.
“Own occupation” policies are often marketed by disability insurers as allowing physicians and dentists to receive their full disability insurance benefit, while at the same time working in another occupation, as long as they can no longer practice medicine or dentistry. Some disability insurance policies further specify that the insured’s specialty will be considered his “occupation” for purposes of “own occupation” coverage. Under these disability policies, as they are frequently marketed, an insured could receive his full benefit, even if he is still working as a physician or dentist, as long as he is disabled from his former specialty.
As an example, a neurosurgeon who develops a hand tremor may still be a capable doctor, but he can no longer perform surgery. Since he can no longer perform the principal medical duty of neurosurgery (i.e., surgery), it would be logical to conclude that he would be disabled from his occupation as a neurosurgeon. However, Northwestern’s new website has an interactive “Fact or Fiction” quiz in which it offers its interpretation as to how these “own occupation” provisions should be interpreted. Northwestern’s conclusions are gross oversimplifications that fail to consider the nuances of a disability claim, and ignore differences in policy language and the manner in which the policies have been interpreted under Arizona law. These oversimplifications appear designed to dissuade individuals with legitimate disability claims from pursuing their remedies. Nevertheless, they offer a glimpse into how disability insurers often view an insured’s occupational duties. Some samples from the “quiz” include the following statements:
Statement: If I could not perform my principal medical duty, the one that’s my “bread and butter,” I’d be considered totally disabled under an “own occ” policy.
Northwestern Mutual: FICTION. “To be totally disabled under traditional ‘own occ’ disability income insurance definitions, you would have to be unable to do ALL of your principal duties.”
Depending on the terms of his “own occupation” policy, an Arizona physician or dentist may be totally disabled if he cannot perform any substantial part of his ordinary duties in his usual and customary manner. In one major case, an invasive cardiologist was no longer able to perform invasive procedures—a substantial part of her original duties—but continued work in non-invasive cardiology and geriatrics. The jury found her totally disabled under her “own occupation” policy and held that her insurer had denied her disability insurance claim in bad faith. It then awarded her $84.5 million.
This statement also reflects an important issue in interpreting these policies – while countless words and phrases are defined, the phrase “principal duties” is generally not defined. Taking advantage of this fact, insurers often attempt to transmute incidental duties, such as staff oversight or pre- and post-operative patient consultation, into principal duties, without any justification for doing so. If insurers were permitted to do this, as Northwestern suggests, it would render “own occupation” coverage illusory since, absent a catastrophic injury, the insurer would always be able to find that the insured could perform some duty of his prior occupation. Fortunately, Arizona courts do not permit insurers to classify all duties as “principal duties.” As one Arizona court noted “[f]ew specialty occupations could survive such piecemeal scrutiny. If separated into an hour-by-hour analysis, only asking the question whether these tasks are also performed in a more general setting, specialists who choose to continue to work in a more general practice after becoming disabled from their specialty could never qualify for total disability benefits, although the policy specifically allows for this.” Continue reading “Northwestern Mutual Offers Insight Into How Disability Insurers Interpret and Apply “Own Occupation Coverage””
Disabled Doctor Wins Fight Against Unum Life
On June 11, 2010, Salient News reported on a disabled doctor who prevailed against Unum in court to receive disability insurance benefits to which he was entitled. The attorney for the doctor discussed the tactics used by the insurance company:
Unum has shown a long-standing pattern of denying occupation specific policies focusing on denying high earning professionals such as doctors, lawyers, chiropractors and the like. Unum uses its own appeal process to unjustly prejudice and deny valid and deserving claims.
Why Is It So Hard to Collect on My Disability Insurance Policy?
Attorney Ed Comitz’s article, Why Is It So Hard to Collect on My Disability Insurance Policy? Avoiding Mistakes when Filing a Claim, was published by Whitehall Management in its May/June 2010 Newsletter magazine. The article explains why dentists and other healthcare professionals have such a difficult time collecting disability insurance benefits and advises against some common mistakes often made when filing a claim.
