In previous posts we’ve talked about mental health limitation provisions. In this post, we are going to discuss a similar type of provision: subjective symptom limitation provisions.
What are Subjective Symptom Conditions?
Insurance companies typically invoke these types of provisions when a claimant describes a disability or condition based upon self-reported symptoms, without producing objective medical evidence to back up the reported symptoms. This can occur in situations where there is no standard accepted medical test to confirm a diagnosis, or when tests do not return any confirming or conclusive results, or when a claimant has not properly developed his or her medical records and/or simply neglected to have objective testing done.
We most often see these types of limitations in ERISA policies, but they are becoming more and more common in individual policies. An example from an actual policy defines subjective symptoms as follows:
Some examples of conditions an insurance company might contend are encompassed by this provision include:
- Chronic Fatigue Syndrome
- Sleep Apnea
- Carpal Tunnel Syndrome
- Myofascial Pain Syndrome
- Lyme Disease
- Orthopedic Conditions
- Temporal Lobe Phenomenon
- Irritable Bowel Syndrome
- Osteopathic and Rheumatoid Arthritis
- Generalized Pain
- Epstein-Barr Syndrome
- Valley Fever
Insurers also use these limitation provisions to argue that other conditions should be limited, even when there is some objective evidence. For example, a dentist suffering from a musculoskeletal condition might report to his or her doctor that he or she is experiencing neck pain, or lower back pain. The doctor might order an MRI, which might show that the dentist has some issues in his or her cervical or lumbar spine, but even with the MRI imaging, it can sometimes be difficult to pinpoint the precise cause of the symptoms that are being reported. Insurers know this and target these types of claims because, under a broad reading of the policy provision, they involve subjective reports of pain and the physical source of the pain cannot always be conclusively verified using tests.
Why is this provision important to know about?
These limitations typically cap benefits that will be paid out, generally at 12 to 24 months. After this mark has been reached, no additional benefits will be issued even if your symptoms continue and you cannot return to work. In other words, a policy you thought would last for the maximum benefit period can end up being good for as little as a year.
Insurance companies want to avoid paying out claims and often construct policies in a manner that allows them to restrict or deny coverage. This can include hiding limitations at the end of a policy or in a vaguely worded provision. It is not enough to simply look at a policy’s schedule page, because a limitation provision may actually be much broader limitation than you might think when you read “mental/nervous limitation” in your policy summary. Subjective condition limitation provisions are often combined with mental health and substance abuse limitation provisions, so it is easy for a policy holder to skip over this sort of provision when scanning through his or her policy, assuming that it only applies to mental health disorders or alcohol/addiction issues.
When invoking these limitations, the insurance company is not denying that a claimant has an illness or even that it prevents a policyholder from working. Rather, the insurance company is seeking to take advantage of the limits of medical science and/or lack of agreement in the medical community regarding finding and establishing guidelines regarding conditions like the examples listed above. They then use the subjective condition provision to cast doubt on a claim and complicate the claim procedure. Often, they will use multiple in-house physicians to contradict a claimant’s own physician and medical records.
Fighting an insurance company’s decision to classify a condition as subject to this provision can be a costly and long process, and can turn into an expensive war of attrition that can often end in litigation. For these reasons, these types of claims must be handled with care from the start and require the assistance of a supportive doctor to properly document and treat the condition.
When purchasing a policy, it is important to watch out for subjective symptom condition limitation provisions. Always be sure to read your policy or potential policy carefully so that you understand the scope of the your protection.
In previous posts, we’ve discussed how insurance companies typically place caps on how much coverage a policyholder can receive. For physicians and dentists, this typically results in monthly disability benefit amounts that are lower (and sometimes much lower) than the monthly income you would bring in if you were still able to practice.
In some cases, policyholders are able to supplement their income by working in another field, but this is only possible if your policy allows you to work in another occupation. Alternatively, your policy could contain a “no work” provision, which would foreclose this as an option. And some newer policies even require you to be working in order to collect benefits, so you don’t have a choice–you must find another job if you want to receive your disability benefits each month.
If you are not able to work in another occupation, due to the nature of your disabling condition and/or the contractual terms of your policy, you may be placed in a position where you must either cut expenses, find another source of income, or both. If you find yourself in this unenviable position, or you are planning ahead and contemplating what you might do in this sort of situation, you will want to keep in mind that some policies–particularly employer-sponsored plans–can contain offset provisions, which allow the insurance company to reduce your monthly benefit if you receive additional income from certain enumerated sources.
What Types of “Other Income” Can Be Offset?
There are many types of income that your insurer might include in an offset provision. Some examples include:
- Social Security benefits;
- Pension plans;
- Sick leave or a salary continuation plan of an employer;
- Income from other disability insurance policies;
- Retirement benefits funded by an employer;
- Workers’ compensation;
- Partnership or shareholder distributions; or
- Amounts paid because of loss of earning capacity through settlement, judgment, or arbitration.
The list above is by no means exhaustive and, again, you should carefully review your policy for its specific list of offsets.
What are Overpayment Provisions?
If your policy contains an offset provision, it will also likely contain an overpayment provision. In most instances, if your policy contains an offset provision, your insurer will be able collect information about your income from other sources prior to issuing the benefit, and calculate the amount due accordingly. However, in some cases this is not possible.
For example, say you applied for Social Security disability benefits. In some cases, it can take several years before a Social Security determination is made. Then, at that point, if your claim was approved, you would receive a lump sum of benefits covering the time period from the date of disability you reported to the date your claim was approved.
This is where the overpayment provision kicks in. If your policy has an overpayment provision, upon learning of the lump sum payment from Social Security, your insurer could potentially require you to pay the entire lump sum of benefits back to your insurance company (depending on the terms of your policy). This is because the lump sum payment represents several monthly payments you would have received over the relevant time frame. If your insurer paid the full monthly disability benefit for those months and your policy has an offset provision, your insurer will likely ask for the Social Security benefits as payment for the amounts that should have been offset each month over that time period.
What Happens if You Cannot Pay Back the Overpayment in a Lump Sum?
If you are not in a position to pay back an overpayment in a lump sum, your insurer will seek to collect the overpayment amount in other ways. One way is reducing and/or withholding future benefits until the full amount of the overpayment has been recouped by the insurer. Your insurer may also work out a payment plan with you, initiate collection efforts against you and/or file suit to recover the overpayment.
Offset and overpayment provisions can be particularly devastating if you are caught unaware and find yourself with considerably less income than expected, or an obligation to repay a large sum to your insurer. When selecting a policy, you should try and avoid these types of provisions if at all possible. If you already have a policy, you should read it carefully, so that you are fully aware of any offsets that could occur and any overpayments that you could potentially be responsible for under the terms of your policy
In our previous post, we looked at how important it is for residents to have a plan to protect themselves financially in the unfortunate event they become disabled. In this post we will address some critical terms to look for when comparing potential policies.
Perhaps the most important provision in your policy is the definition of “Total Disability.” For physicians, dentists, and other highly specialized professionals who have invested both years and hundreds of thousands of dollars in their careers, a policy that defines “Total Disability” in terms of your inability to perform the specific duties of your “own occupation” (as opposed to “any occupation”) is critical. If your policy defines “Total Disability” as being unable to work in “any occupation,” it will be much more difficult to establish that you are entitled to benefits, in the event you suffer from a disabling condition.
In addition to knowing and understanding your policy’s definition of “total disability,” it is also crucial to know how working in another profession is treated by your policy. For instance, if you happened to be an oral surgeon with an essential tremor, you may no longer be able to operate safely on patients, but you may still be able (and want) to teach. Alternatively, if you happened to be a physician who did not take steps to increase your disability coverage to match your increases in earnings, working in another capacity may be the only way to maintain your lifestyle in the event of disability. Consequently, it is also important to know if your policy will allow you to work in another capacity and still collect benefits. Along those lines, here are a few other provisions you will want to watch out for:
No Work Provisions
These provisions mandate that you cannot work in another field and still receive benefits. This can be problematic if you do not have sufficient disability coverage to meet all of your financial needs.
These types of provisions require you to work in another occupation. This, of course, can make it impossible to collect on your benefits if your disability prevents you from working.
In our next post we will look at how you can select a plan that grows with you over time, as both your financial obligations and income change.
As a medical resident who is just starting out, you have likely heard about disability insurance, but you may not know a lot about what it is, and why it is important. In this series of posts, we will be discussing a few things that every medical resident should know about disability insurance.
In this post we will look at the likelihood of disability, and discuss how you can begin to protect yourself now and in the future. In subsequent posts we’ll address some of the key provisions to look for in a disability insurance policy, ways to make sure your policy meets current and future expenses, and ways to increase your disability benefits over time, as both your earning potential and financial obligations expand.
Likelihood of Disability
As a resident, you are beginning what will hopefully be a long and successful career as a physician. The possibility of suffering either a short or long-term disability is probably the last thing on your mind, especially if you are still young and healthy. However, the American Medical Association (AMA) reports that 60% of surveyed physicians have a colleague who has sustained a disability accident or injury. A Social Security Administration report shows that it is significantly more likely that a worker born in 1996 will become disabled during his or her career than die, and just over 1 in 4 of today’s twenty-year-olds will become disabled before they retire.
Protection Against Disability
The majority of young doctors under 40 are married, have children, are homeowners, and 75% report that they are their family’s primary breadwinner. Young doctors also face substantial student loan debt, totaling around $166,750, on average. With a resident’s salary averaging just $50,000 a year, it can be tempting to put off adding the additional expense of an insurance premium. However, with most young doctors having less than $50,000 in an emergency fund , it’s never too early to start planning to protect your family and provide for care in the unfortunate event you can no longer practice.
While many residents and doctors choose to take part in disability plans offered by their employers, these plans will often not provide adequate coverage, and any benefits you do receive will likely be taxable. In contrast, an individual plan provides coverage that is yours as you move from your residency and through (potentially) many different employers. Individual plans also typically allow you to adjust your coverage as your income potential grows. However, not all individual policies are created equal and it is important to carefully choose a policy.
In our next post, we’ll examine some key provisions to be aware of when shopping for an individual disability insurance policy.
 Robert Nagler Miller, Residents: Your disability insurance coverage may fall short, AMA Wire, April 4, 2017, https://wire.ama-assn.org/life-career/residents-your-disability-insurance-coverage-may-fall-short
 Johanna Maleh and Tiffany Bosley, Disability and Death Probability Tables for Insured Workers Born in 1996, Social Security Administration, Office of the Chief Actuary, Actuarial Note, No. 2016.6, October 2016.
 You, disabled? What are your chances?, The Council for Disability Awareness, 2015, http://www.disabilitycanhappen.org/chances_disability/
 2015 Report on U.S. Physicians’ Financial Preparedness, Young Physicians Segment, American Medical Association Insurance, https://www.amainsure.com/reports/2015-young-physician-report/index.html?page=5
 Kathy Kristof, $1 million mistake: Becoming a doctor, CBS Money Watch, Sept. 10, 2013, http://www.cbsnews.com/news/1-million-mistake-becoming-a-doctor/
 2015 Report, Supra.
 Miller, Supra.
 2015 Report, Supra
New and Unique Policy Riders
In this series of posts we are discussing policy riders, the add-ons to your basic disability insurance policy that provide additional terms or benefits in exchange for higher premiums. In part one, we walked through the basics of policy riders and evaluated the commonly-purchased COLA rider. In part two, we analyzed two benefit-based riders that enable you to increase your monthly benefits without the hassle of going through the hassle of the full underwriting process. In the parts three and four, we looked at important provisions that sometimes appear as policy terms and sometimes appear as riders, depending on the insurer.
In this final post, we’re going to take a look at some of the more recent and unique riders appearing in modern individual disability insurance policies.
Return of Premium Rider
This rider entitles you to receive a refund of all monthly premiums in the event you do not become disabled before the expiration of the policy term. For example, assume you purchased an individual disability insurance policy right of out dental school at age 28 with this rider and an annual premium of $5,500.00 per year. At age 65, if you have not become disabled under the terms of your policy, the insurer has to cut you a check for $203,500.00 (37 years x $5,500.00).
Initially this may seem like a very attractive option. At first glance, it appears that your insurance is essentially free if you don’t become disabled. However, the right to recover your premiums has significant costs.
First, this rider usually comes with a hefty premium increase, and the opportunity cost of using those additional funds on a rider with no guaranteed return may be difficult to justify. Sticking with the example above, if the rider costs an additional $1,000.00 per year and you chose to instead put that money in an investment portfolio with an 8% return, at age 65 your portfolio would be worth $203,070.32 – and that money is yours whether you become disabled or not.
Second, return-of-premium riders are often an all-or-nothing proposition: either you become disabled and collect benefits, or you get your premiums back. If you become disabled, you essentially overpaid for the same benefits you would have received without the rider – the extra money paid each month for the rider simply vanishes. Considering the fact that a majority of dentists will suffer from a musculoskeletal condition at some point in their career, this is not a small risk.
Some insurance companies offer return-of-premium riders that will still pay back part of your premiums even if you received disability benefits. However, the terms are typically even less favorable. With this version of the rider, any disability benefits paid to you during the term of your policy will be deducted from your premium return. Additionally, you will typically only receive a percentage of remaining balance (between 50% and 80%) rather than the full amount. Under these terms, if you receive disability benefits for any significant amount of time it will likely diminish most of the value of the rider.
Though the return of premium rider may initially seem enticing, its benefits are often far outweighed by its costs. Before purchasing this rider, consider meeting with a financial professional to determine if there is a more productive use of your money.
Student Loan Coverage Rider
Student loan debt in the United States has exploded over the last decade. Americans now owe approximately $1.3 trillion in student loan debt. Medical students and dental students are graduating with hundreds of thousands of dollars in debt, and in the event of a disability, the only debtors entitled to discharge of their federal student loans are those who meet the Social Security Administration’s stringent standard of “total and permanent disability.” To make matters worse, student loans cannot be discharged in bankruptcy.
Some disability insurance companies are creating policy riders specifically to address this growing crisis. For example, Guardian’s Student Loan Protection Rider allows an individual to insure their student loans for up to $2,000.00 per month on top of his or her disability benefits. With this rider, you can choose between a 10- and 15-year term, and no loan documentation is required until a claim is filed. As with your disability benefits, your insurance company must determine that you are totally disabled in order to be eligible for the benefits of this rider.
Doctors, dentists, and other professionals graduating with six-figure student loan debt should consider purchasing a rider of this nature to ensure that in the event of a disability their monthly benefits are not significantly eroded by their ongoing obligation to repay student debt.
Public figures, celebrities, models, and spokespeople occupy a unique place in the workforce: they are the only individuals in the economy for whom their likeness is the source of their livelihood. Disability insurance companies that insure high-income celebrities and entertainers often offer a disfigurement rider that will pay benefits to the insured if they are disfigured, even if they are not disabled. For many public figures disfigurement may completely deprive them of their ability to secure work, and have the same practical effect as total disability in many other fields.
Loss of Value Rider
Professional athletes also have a very unique place in the economy. Like most employees, their value is typically directly related to their performance. However, the demands on their bodies are so high that even a small decrease in performance brought on by an injury (or following recovery from an injury) can have a significant impact on their earning potential. Professional athletes often purchase this rider as a safety net to protect themselves from the loss of value they could potentially face due to a major but non-career-ending injury right before the expiration of a contract and free agency. More recently, elite college prospects are purchasing this rider to protect their value in an upcoming professional draft. If a major injury causes a college prospect to be drafted in a later round for less money, the rider is designed to fill the salary gap between their projected draft position and their actual draft position.
In recent years, the number of policy riders available for purchase with individual disability insurance policies has risen substantially as insurers create products to fit the unique needs of policyholders. Some riders are more beneficial than others, and some are simply not suited for certain individuals. Before you purchase any rider, look carefully at the fine print and make sure that it fits your financial needs.
Provisions Appearing As Policy Terms or As Riders (1 of 2)
In this series of posts we are discussing policy riders, the add-ons to your basic disability insurance policy that provide additional terms or benefits in exchange for higher premiums. In part one, we walked through the basics of policy riders and evaluated the commonly-purchased COLA rider. In part two, we analyzed two benefit-based riders that enable you to increase your monthly benefits without the hassle of applying for additional coverage.
All of the provisions we’ve discussed so far are typically purchased as policy riders, and are rarely included in the basic terms of your policy. In the next two posts, however, we will evaluate provisions that may appear as policy terms or as riders, depending on the insurer. Whether an additional provision is included in your policy or must be attached as a rider, additional benefits typically come with a higher premium. Some of these provisions can have a significant effect on your rights and benefits in the event of a disability, and identifying where and how they may fit into your policy is critical to ensuring you are fully protected.
Partial/Residual Disability Benefits
Partial disability benefits, also referred to as residual disability benefits, pay a percentage of the maximum benefit amount in the event that the policyholder’s medical condition prevents him or her from performing some, but not all, of the duties of his or her occupation on a full-time basis. At first, this may appear to be an attractive option for a dentist suffering from a lumbar disc herniation, for example, who wishes to keep working to the degree he is able while receiving a portion of his disability benefits.
The most important benefit of a residual disability claim is that it allows you to preserve your pre-disability occupational definition while collecting a portion of your monthly disability benefits. If you have an own occupation policy, preserving your pre-disability occupational definition is vital to ensuring that any future total disability claim is accepted and fully paid down the road.
However, there are also some drawbacks to partial disability claims. For example, most insurers calculate monthly benefits for a partial disability claim using a formula that takes into account your prior monthly income, your current monthly income, and the maximum benefit amount under your policy. However, calculating these figures can be tricky for doctors and dentists who are often paid a percentage of their production. If your insurer measures your prior and current monthly income based on the overall profit of your clinic, your personal drop in production may not be fully taken into account and your partial disability benefits may end up being significantly less than your actual lost income.
Furthermore, the maximum benefit period for a partial disability claim is typically shorter than a total disability claim. As a result, your insurer has an incentive to continue characterizing your medical condition as a partial disability even if you become totally disabled. In doing so, they may run out the clock paying only a percentage of your benefits for 60 months or until age 65 instead of paying full benefits potentially for life. With these incentives, it is unsurprising that insurers approve relatively few total disability claims that begin as partial disability claims – even if the policyholder stops working completely. For more information on how insurers assess potential disability claims, see this article.
Some insurers include a partial/residual disability provision in the terms of their standard disability insurance policy, while others offer it as a policy rider. To determine if residual disability benefits are part of your standard policy, check the “Definitions” section of your policy to see if “Partial Disability” or “Residual Disability” is a defined term. If it is, check the section of your policy titled “Benefits” or “Monthly Income Benefits” – if this section contains provisions describing the payment of residual disability benefits, they are included in the standard terms of your policy.
If residual or partial disability is not defined in your policy, the provision is only available as a policy rider. If residual disability benefits are not included in the terms of your policy, consider the pros and cons outlined above before purchasing residual coverage as a policy rider. The advantages of residual disability benefits may not justify the additional cost associated with the rider in your particular case.
Waiver of Premium
This provision allows you to forego paying your policy premiums while you are receiving disability benefits, freeing up a substantial portion of your monthly income you would otherwise be paying back to the insurance company. This provision usually includes a waiting period – typically ninety days – before it kicks in. Once the waiver takes effect, however, it can significantly ease the financial burden created by a disabling condition, saving you hundreds of dollars every month.
A premium waiver is a standard term in most modern-day disability insurance policies. The provision is typically found toward the end of the “Benefits” section of your policy, under the subheading “Waiver of Premium.” If your policy does not include this provision, you may consider purchasing it as a rider.
As you read through your policy, look carefully to determine which of the provisions discussed above appear in your disability insurance policy. Not only will this help you fully understand your rights under your policy, it will help you determine if additional riders are necessary to fully protect your financial security in the event of a disability. In our next post, we will look at two more provisions that may appear either as riders or as policy terms.
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 4
Care Dictation Provisions
Throughout this series of posts we’ve addressed the increasingly restrictive medical care provisions in disability insurance policies. In Part 1, we discussed the evolution of the care standard and its effect on an insured’s ability to collect benefits and control their own medical treatment. In Part 2 we looked at the “regular care” standard, which places no obligation on the insured to undergo any unwanted medical treatment. In Part 3 we looked at the “appropriate care” and “most appropriate care” standards, which require much more vigilance on the part of policyholders, because they must be prepared at any time to establish that the treatment they are receiving is justified under the circumstances. In this final post, we are going to look at the most aggressive and intrusive language that has been adopted by insurance companies in an effort to dictate the care of their policyholders.
Here is an example of a very strict care provision, taken from a Great West policy:
Regular Care of a Physician means personal care and treatment by a qualified Physician, which under prevailing medical standards is appropriate to the condition causing Total Disability or Residual Disability. This care and treatment must be at such intervals as will tend to lead to a cure, alleviation, or minimization of the condition(s) causing Total Disability or Residual Disability and which will lead to the Member’s return to the substantial and material duties of his own profession or occupation or maximum medical improvement with appropriate maintenance care.
Clearly, this provision was designed with one goal in mind: to give the insurer nearly unlimited power to scrutinize a policyholder’s course of treatment, including the ability to insist that any given procedure is necessary to cure or minimize the disability and maximize medical improvement. It is easy to see how an insurer might invoke this provision to assert its control over the medical decision making of their policyholder and use the leverage of benefit termination and claims denial to dictate their treatment.
Imagine that you are a surgeon with a herniated disc in your cervical spine, and that your policy contains the provision cited above. Your insurer insists that a fusion of the surrounding vertebra is the procedure most likely to alleviate your disability. Your doctor disagrees, recommending a more conservative course of treatment, such as physical therapy, modified activity and medication, such as muscle relaxants. Your doctor also warns you that if you have the surgery, you will experience reduced mobility and risk adjacent segment degeneration. However, your disability benefits are your only source of income. Fearing a claim denial, you agree to the procedure despite your doctor’s concerns. This results in a no-lose scenario for the insurer.
The best case scenario, from your insurer’s perspective, is that the surgery (for which you bore all the risk both physically and financially) is successful and you are no longer disabled. At worst, the procedure fails and the insurer merely has to pay the benefits it was obligated to pay to you in the first place. For you, however, an unsuccessful procedure can mean exacerbation of your condition, increased pain, and prolonged suffering. It is therefore vital that you understand your rights under your policy.
Insurers are risk-averse by nature, and disability insurance is no different. Modern disability insurance policies, and particularly the medical care provisions, are designed to minimize the financial risk to the insurer. Insurers place an enormous burden on claimants to prove that their course of treatment meets the rigorous standards in their policy. Though stringent policy language can make it significantly more difficult to obtain the benefits you are entitled to, it does not strip you of your right to make your own medical decisions.
In order to preserve your medical autonomy in the disability claims process, you must become familiar with the details of your policy before filing a claim. Understanding the terms of your policy—including the care provision in your policy—is critical to successfully navigating a disability claim. You need to be familiar with your policy’s care requirements from the outset, so that you can communicate effectively with your physician to develop a plan of treatment that you are comfortable with and that comports with the terms of your policy.
Even if you have a basic understanding of your rights under you policy, it can be daunting to deal with an insurer that is aggressively seeking to dictate your medical care. In some cases, you may be forced to go to court to assert your right to make your own medical decisions—particularly if your policy contains one of the more recent, hyper-restrictive care provisions like the Great West provision above. Insurers know this, and they also know that most claimants are in no position to engage in a protracted court battle over whether they are receiving appropriate care. However, simply submitting to the medical mandates of your insurer to avoid the stresses and costs associated with litigation can have drastic consequences, depending on the nature of the medical care you are being asked to submit to. If you should find yourself in this difficult position, you should contact an experienced disability insurance attorney. He or she will be able to inform you of your rights under your policy and help you make an informed decision.
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 1
Imagine that you are a dentist suffering from cervical degenerative disc disease. You can no longer perform clinical work without experiencing excruciating pain. You have been going to physical therapy and taking muscle relaxers prescribed by your primary care doctor, and you feel that these conservative treatments are helping. Like most dentists, you probably have an “own occupation” disability insurance policy. You are certain that if you file your disability claim, your insurer will approve your claim and pay you the benefits you need to replace your lost income and cover the costs of the medical treatment that has provided you with relief from your pain and improved your quality of life.
You file your claim, submit the forms and paperwork requested by the insurer, and wait for a response. To your dismay, your insurer informs you that its in-house physician has determined that the treatment prescribed by your doctor was inadequate. Your insurer then tells you that you should have been receiving steroid injections into your cervical spine, and tells you that if you do not submit to this unwanted, invasive medical procedure, your claim could be denied under the “medical care” provision in your policy.
You were not aware that such a provision existed, but, sure enough, when you review your policy more carefully, you realize that there is a provision requiring you to receive “appropriate medical care” in order to collect disability benefits. You think that your insurer is going too far by dictating what procedures you should or should not be receiving, but you are afraid that if you don’t comply with their demands, you will lose your disability benefits, which you desperately need.
This is precisely the sort of scenario presented to Richard Van Gemert, an oral surgeon who lost the vision in his left eye due to a cataract and chronic inflammation. Dr. Van Gemert’s disability insurance policies required that he receive care by a physician which is “appropriate for the condition causing the disability.” After years of resisting pressure from his insurers to undergo surgery, Dr. Van Gemert finally capitulated. Once Dr. Van Gemert received the surgery, you might expect that his insurer would pay his claim without further complaint. Instead, Dr. Van Gemert’s insurer promptly sued him to recover the years of benefits it had paid to him since it first asserted that he was required to undergo the surgery.
Unfortunately, “appropriate care” provisions, like the provision in Dr. Van Gemert’s policy, are becoming more and more common. The language in such provisions has also evolved over time, and not for the better. In the 1980s and 1990s, the simple “regular care” standard was commonplace. In the late 1990s and into the 2000s, insurers began using the more restrictive “appropriate care” standard. And, if you were to purchase a policy today, you would find that many contain a very stringent “most appropriate care” standard.
These increasingly onerous standards have been carefully crafted to provide insurers with more leverage to dictate policyholders’ medical care. However, there are several reasons why your insurance company should not be the one making your medical decisions. To begin, if you undergo a surgical procedure, it is you—and not the insurance company—who is bearing both the physical risk and the financial cost of the procedure. Perhaps you have co-morbid conditions that would make an otherwise safe and routine surgical procedure extremely risky. Perhaps there are multiple treatment options that are reasonable under the circumstances. Perhaps you believe conservative treatment provides better relief for your condition than surgery would. These are decisions that you have a right to make about your own body, regardless of what your insurer may be telling you.
In the remaining posts in this series, we will be looking at the different types of care provisions in more detail, and how far insurance companies can go in dictating your care in exchange for the payment of your disability benefits. We will also provide you with useful information that you can use when choosing a policy or reviewing the policy you have in place. In the next post we will be discussing the “regular care” standard found in most policies issued in the 1980s and early 1990s.
 See Provident Life and Accident Insurance Co. v. Van Gemert, 262 F.Supp.2d 1047 (2003)
Recently, insurers have started to allow consumers to build and personalize their own insurance policies online. For instance, Guardian recently announced the launch of its online insurance quoting tool. According to Guardian, the tool “educates clients on the costs for various options based on age and occupation, demonstrates how adding or removing certain options affects pricing, and shows how to create the plan that best matches their individual needs.”
If this “build your own insurance” concept catches on, consumers may have much more control over the terms of their policies than they have had in the past. Accordingly, in this post we are going to talk about things to look for in a policy, and some things to avoid in a policy.
Things to Look for in a Policy
Generally speaking, here are a few things that you will want to look for when selecting a policy:
- Make sure that the policy is a true “own occupation” policy.
- Make sure that the policy provides for lifetime benefits.
- If possible, add a specialty rider that clearly defines your own occupation as your specialty.
- Try and find a policy with a COLA (cost of living adjustment) provision. This provision will increase your potential benefits by adjusting for inflation as time passes.
- Make sure that you get the highest benefit amount you can afford. Remember, if you’re unable to practice, your monthly disability payments may be your only source of income.
Things to Avoid in a Policy
Generally speaking, here are a few things that you should avoid when selecting a policy:
- “No Work” provisions that only provide benefits if you are unable to perform the material and substantial duties of your own occupation and you are not working in any other occupation.
- Substance abuse exclusions.
- Provisions requiring you to apply for Social Security benefits.
Remember, purchasing disability insurance is no different than any other significant purchase. Be sure to take your time and obtain quotes from multiple insurance companies before making a final decision.
For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.
 See http://www.businesswire.com/news/home/20151028005074/en/Guardian-Empowers-Consumers-Build-Disability-Insurance-Coverage.
In previous posts, we have discussed how courts and juries have reprimanded Unum and its various subsidiaries for wrongfully denying disability claims. Now, Unum is once again making the headlines—this time for making significant changes to its leadership at the highest levels of the company.
Essentially, Unum is undertaking a widespread overhaul of its upper management. Marco Forato is now the senior vice president for global growth strategy, Steve Mitchell is the new chief financial officer, and Steve Zabel is the new president of the U.S. closed block operations. Additionally, Vicki Gordan has been promoted to senior vice president and chief internal auditor, and Matt Royal is now the chief risk officer for Unum.
While any change of leadership can have substantial ramifications, those insured by Unum should take particular note that Unum has appointed a new “president of the U.S. closed block operations.” “Closed block” refers to Unum’s discontinued product lines, which, according to Unum’s 2014 Annual Report, include long-term care and older individual disability policies. If you are a physician or dentist with a Unum policy, your policy is probably part of Unum’s “closed block” operations.
Unum’s new president of “closed block” operations will likely face a challenging task because any losses suffered from paying out Unum’s old disability policies cannot be offset by new business. Additionally, such “closed block” operations are a relatively new phenomenon in the insurance industry, so there is a very small reserve of historical data for Unum to draw upon.
What does this mean?
Generally speaking, a company does not make such extensive changes without expecting results. Consequently, it is likely that several, if not all, of Unum’s newly appointed leaders will be under substantial pressure to perform. Because fresh leaders often want to leave their own mark on their industry, insureds should pay close attention to any new changes in policy announced by Unum during this transitional period.
More specifically, insureds with older individual disability policies with Unum should be aware that Unum will likely be looking for new, creative ways to deny their claims. If you have such a policy and you feel that Unum has arbitrarily changed your policy’s terms and/or wrongfully denied your disability claim, you should consult with an experienced disability insurance attorney to ensure that Unum’s leadership is not improperly exceeding the scope of their newly acquired authority.
When reading your disability insurance policy you may come across a clause entitled “Incontestable.” An example of an incontestable clause from Berkshire (a subsidiary of Guardian Life Insurance Company) is as follows:
This clause is required by statute, and it protects you in a couple of ways.
First, it protects you against being denied coverage because of a preexisting condition. This clause precludes insurance carriers from inquiring into the representations you made on the policy application if the two-year incontestable period has lapsed. In essence, the clause gives insurers a two-year time limit to review policy applications. If the insurance company makes no inquiry in those two years, they lose the ability to rescind the policy based on the accuracy of your representations in the policy application’s paperwork.
For example in the case of Robison v. Brotherhood of R. R. Trainmen Ins. Dept., the plaintiff had been treated for tuberculosis prior to the effective date of the policy. Three years after obtaining the policy he became disabled from tuberculosis. When the insurance company tried to deny the insured’s claim, the Arizona Supreme Court ruled that the incontestable clause of the contract precluded the insurance company from inquiring about the insured’s health prior to the effective date of the policy.
Second, this clause protects you against an insurance company’s attempt to deny a claim based on a representation you made that is not material. For instance, when filling out the application for the insurance policy, you might write down the wrong year that you had some minor knee surgery. An insurance company cannot use such a miniscule and immaterial mistake to deny you coverage when your claim is for debilitating arthritis in your hands which doesn’t allow you to practice properly in your field of medicine.
Third, this clause protects an insured that is completely truthful when filling out the policy paperwork. In Paul Revere Life Ins. Co. v. Haas the court upheld a policy which limited “coverage to sicknesses that ‘first manifest’ themselves after the policy has been issued.” This means that if you have a condition before the insurer issued the policy, but you don’t become aware of it until after the policy has become effective, the condition should be covered.
It is important to remember that and incontestable clause usually includes a caveat: it does not protect an insured that knowingly or fraudulently misrepresents information during the application process. The Haas court stated that the language of the incontestable clause “does not protect insureds who make fraudulent misrepresentations in their applications. Rather, the language is intended to protect those insureds who are unaware of their diseases.” The insurance company in Haas (Paul Revere, a subsidiary of Unum) was allowed to deny coverage of the insured’s eye condition when the insured knew about and had been treated for the disease well before the start of the policy. The court believed that the legislature did not intend for the mandatory incontestable clause to be “an invitation for fraudulent applications for disability insurance.” The preexisting eye condition was deemed to be a fraudulent misrepresentation, and the insurance company denied its coverage. We also discussed this topic in a previous post entitled “Medical History Misstatements On A Disability Insurance Application Can Void The Policy In The Future.”
The outcomes of the cases based on incontestable clauses show how important it is to be truthful throughout the insurance claim process. The more accurate you are about your health condition, the fewer coverage problems you may have down the road.
 Robison v. Brotherhood of R. R. Trainmen Ins. Dept., 73 Ariz. 352, 241 P.2d 791 (1952), opinion modified on reh’g on other grounds, 74 Ariz. 44, 243 P.2d 472 (1952).
 Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 210, 644 A.2d 1098, 1108 (1994).
You have finally come to the realization that working through the pain and limitations of your disability is no longer in your best interests. Continuing to work is not an option for you, so you have decided to make a long term disability insurance claim. How long do you have to file your claim? Does it have to be on the day that you become disabled, or can it happen couple months down the road? The answer to that question is: it depends.
Insurance companies will try and exploit every option available to deny a claim for disability insurance benefits. One method they utilize is to put strict requirements on how and when an insured must give notice to the company of their disability and what that notice must contain.
The first place to start looking to determine your insurance company’s requirements is the insurance policy itself. Look through the policy index or headings for a section similar to “Notice of Claim.” This section lets you know how much time is available to file a disability claim with the company.
The following are a couple of examples from different companies of what these sections look like. MassMutual’s notice of claim section:
Berkshire’s notice of claim section:
Unum’s notice of claim section: