Who gets to decide what treatment is best for you?
Of course, the answer is ultimately you (with the guidance of your treatment provider). At the same time, many disability policies require you to be receiving ongoing treatment for your disabling condition in order to remain eligible for benefits. Some newer policies we have seen even go so far as to state that you must receive care that is directed towards a “return to work” or “maximum medical improvement.”
These provisions can give rise to disputes with your insurer if you do not want to undergo a particular procedure, but your insurer maintains that you are not seeking appropriate treatment and/or that you are malingering (i.e. your symptoms are not as severe as you are reporting). For example, your insurer may use an in-house doctor to review your medical records and challenge your treating provider’s treatment recommendations, stating that a more invasive procedure (like surgery) would fix your condition and allow you to return to work.
This is a tactic that Unum tried to use in the recent case of Dewsnup v. Unum. Dewsnup was a trial attorney who had quadruple bypass surgery after suffering a heart attack. After the surgery, he had a constant burning pain across his chest at the incision site, which was exacerbated by stress and led to fatigue that eventually made it impossible for him to work.
Dewsnup was ultimately diagnosed with intercostal neuralgia. When a recommended diagnostic nerve block did not help, Dewsnup decided to not pursue a nerve ablation. His treating doctor supported this decision, as there were risks to the ablation procedure and the failed injection suggested that the ablation would likely not fix his pain. Dewsnup also began taking medication for the pain, but later stopped taking the medication when he determined that the potential risks and negative side effects of the medication outweighed any benefits.
In an effort to deny his claim, Unum hired several doctors to review Dewsnup’s medical records. The doctors noted that Dewsnup’s pain levels were subjectively reported, and concluded that he was not disabled, even though Dewsnup’s treating doctors all agreed that he was. Unum’s doctors based this decision, in part, on the fact that he had stopped his medication and was foregoing the ablation and additional treatment. Essentially, Unum argued that the pain must not be so bad, since he had decided not to have the nerve ablation and had stopped taking the medication.
Fortunately, in Dewsnup’s case, the court determined that that there was sufficient evidence that his pain was “severe enough to cause fatigue, hinder concentration, and prevent him from performing the mentally-demanding duties of a trial attorney.” The court also disapproved of Unum’s approach, noting that “[n]one of Unum’s reviewers examined Mr. Dewsnup in person” and that “[a]part from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence.” Ultimately, the court reversed Unum’s claim denial (but only after costly, time-consuming litigation).
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that the terms of your policy aren’t being applied correctly, or if your insurer is questioning your treatment decisions in an attempt to undermine your claim, an experienced disability insurance attorney can help you understand your policy and apply it to your particular situation.
 Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah).
We’ve discussed before how insurers often use surveillance in disability claims. Physicians’ claims and dentists’ claims, in particular, are often targeted due to the high benefit amounts the company can save by denying or terminating the claim. Accordingly, professionals filing claims should expect that they’ll be under surveillance at least once, and sometimes several times, throughout the course of their claim.
If the company is able to obtain surveillance footage, the company may overstate the significance of the footage in an effort to deny or terminate benefits. The case of Fleming v. Unum illustrates how insurers use surveillance as a tactic to improperly terminate benefits. Pamela Fleming worked a litigation attorney until she was in a serious car accident and suffered severe injuries to her neck and thoracic spine, leaving her unable to work. Fleming had own occupation policies that defined “disability” as the inability to do the material and substantial duties of her occupation.
After having paid her claim for over a decade, Unum hired a surveillance company to videotape Fleming. The surveillance video showed Fleming throwing away a bag of garbage, putting a cooler in her car, and then driving a significant distance. Unum told Fleming that the footage conflicted with her previously reported limitations and terminated her benefits.
When her claim was denied, Fleming sued Unum and the court ultimately reversed the claim denial. In doing so, the court determined that Unum had greatly overemphasized the significance of the surveillance footage. The court noted that while the video showed Fleming lifting a garbage bag, “[l]ifting the bag over her head was no feat of strength or indication of recovery” because it was clear from the surveillance footage itself that “the bag of trash contain[ed] empty plastic bottles.” The court then concluded that “[t]he fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney.”
Similarly, the court criticized Unum for taking the footage out of context, observing that the footage “shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days.” The Court then noted that “[b]oth coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support” and concluded, “[i]f anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment . . . . The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records” (emphasis added).
Luckily for Fleming, the judge in her case saw through Unum’s attempt to improperly terminate her claim. But, unfortunately, judges and juries can all too often put undue weight on surveillance footage, because it is easy to present out of context and is more interesting and attention-grabbing than other relevant evidence, such as medical records and doctors’ opinions. Consequently, it is likely that companies will continue to take this sort of footage out of context, in the hopes that claimants will give up and not challenge the denial, or give in and accept a low-ball settlement once their benefits are cut off.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly using surveillance, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.
 Fleming v. Unum, 2018 WL 6133859 (2018).
A disability insurance claim can be denied for a variety of reasons. Some reasons are legitimate, and some are not. This can be especially true for dentist and physician claims that can be targeted for denial simply because of the policies’ high benefit amounts and how much money is at stake.
Knowing the specific reason or reasons for a disability insurance claim denial is critical to deciding what your next step should be. Because of this, some states, including Arizona, have adopted laws that require insurers to provide you with timely information explaining the basis for a denial. In both Arizona and California, an insurer that denies a claim must provide a reasonable explanation for the denial based on the terms of the policy, the facts, or the applicable law. Some states’ laws also require that the notice of denial must be in writing, must reference any specific grounds for denial, and must explain how those grounds specifically apply to your claim. Failure to provide an explanation could lead to a finding that your insurer acted in bad faith.
When you receive the explanation of denial, chances are it may be confusing to understand. Even if an explanation is provided, it may still warrant a finding of bad faith if the explanation fails to clearly communicate the rationale behind a denial , or the denial was founded on an improper bases (e.g. a biased medical exam).
If you have already filed and your insurance company has wholly or partially denied your claim, there is often a short window of time in which to act if you wish to preserve your claim. If you have filed a claim, or you are facing a denial from your insurance company, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
 A.R.S. § 20-461(A)(15) (2018); Cal. Ins. Code § 790.03(h)(13) (2018).
 Cal. Code Regs. tit. 10, § 2695.7 (2018).
 See, e.g., the California case of du Mortier v. Mass. General Life Ins. Co., 805 F.Supp. 816, 823 (C.D. Cal. 1992).
Disability claims filed by professionals can be complex, particularly when the dentist or physician’s underlying occupation is a specialty specific field.
If the claim involves a discrete practice area, disability insurers may use that as an excuse to drag their feet when making a claims decision. For example, they may make repeated requests for employer questionnaires, financial information and/or vocational examinations, among other things. Then, as time goes on, the financial pressures of being left with no income build, prompting some doctors to consider a return to work even though it’s not safe for them to be practicing on patients. Other doctors with specialty-specific policies reason that they can return to work in a different field and expect to receive their benefits as a supplement to the new job, only to find that their insurer disagrees that they were, in fact, a specialist, and refuses to pay total disability benefits.
This is what happened to Joanne Ceimo, M.D., a former invasive cardiologist from Scottsdale, Arizona who practiced at Banner Boswell Medical Center in Sun City, Arizona. Dr. Ceimo had an own occupation policy and was practicing within her medically recognized specialty of invasive cardiology. In 1994, doctors diagnosed Dr. Ceimo with cervical degenerative disc disease, which made it increasingly difficult for her to perform surgeries and prevented her from performing on call duties. Eventually, she was forced to stop performing surgeries as well and instead began practicing general cardiology.
In her mind, Dr. Ceimo’s new job as a general cardiologist was substantially different than her prior job as an invasive cardiologist. However, Dr. Ceimo ultimately had to sue General American, along with Paul Revere and Provident (the other insurance companies administering her claim) for the benefits she was due under her policy. She filed her disability insurance claim in 1995 and, after a long, drawn-out claim investigation, was eventually denied benefits in 1998. Due to the long delay, Dr. Ceimo was forced to continue working as a general cardiologist to meet her expenses, even though it was bad for her health and working made her pain worse.
When they denied her claim, the companies asserted that Dr. Ceimo was not a specialty cardiologist because she had only spent six to ten hours on surgeries per week. The companies then stated that her occupation before her date of disability was that of a general cardiologist, and concluded she was not eligible for total disability benefits because she continued to practice in that capacity. In making this argument, the companies ignored the fact that Dr. Ceimo had practiced invasive cardiology from when she was licensed by the Arizona Medical Board in 1982 through the onset of her disability in 1995. The companies also failed to mention that their own medical records review classified Dr. Ceimo as an “invasive cardiologist.”
Dr. Ceimo and her lawyers filed a bad faith lawsuit in the District of Arizona against General American, Paul Revere and Provident. In addition to arguing that the companies improperly interpreted her specialty, Dr. Ceimo and her attorneys also asserted that the companies improperly relied on biased in-house medical consultants and internal company practices geared towards denying high-dollar physician claims like Dr. Ceimo’s. The case ultimately produced a large verdict in favor of Dr. Ceimo, with almost $6.7 million in consequential damages, but it took nearly a decade of fighting before she obtained the benefits she was due under her policy.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your company is improperly delaying a claims determination and/or targeting your claim for denial or termination, an experienced disability insurance attorney can help you assess your claim and determine what action, if any, needs to be taken.
 See Ceimo v. Gen. Am. Life Ins. Co., 2003 WL 25481095 (D. Ariz. Sept. 17, 2003).
Reducing the risk of having to fight for disability benefits requires understanding the terms of your disability insurance policy from the beginning, carefully and thoroughly filling out the application, and ensuring accuracy and consistency in your claim packet and subsequent filings. As the saying goes, the best defense is a good offense, and the best way to avoid litigation is to file the disability claim correctly the first time.
Although filing a successful disability claim is not easy, it is the ideal. Unfortunately, insurance companies have a strong incentive to increase their bottom lines and often they practice aggressive tactics in improper attempts to justify the denial or termination of even a wholly legitimate disability claim. If your disability claim has been terminated or denied, it can seem overwhelming or hopeless to try to reverse the decision. In the event of a denial or termination, many insureds know they can sue their disability insurer and go to trial. Yet, even if you are ultimately successful in a lawsuit, litigation can sometimes drag on for years. While a lawsuit is pending, you’ll not only have legal expenses, but will also not be receiving disability benefits (and likely not be in a position to work to offset your expenses, due to the nature of your disability or your policy’s language). There are, however, some alternative options that can be attractive to both parties that policyholders may not be aware of, namely mediation and lump sum settlements.
All too often we see legitimate disability claims denied or terminated, with the insurance company refusing to reconsider their position. If your disability claim is terminated, the company knows that it wields a lot of power over the denied individual, including the power of money, the power of time, the power of institutional knowledge, and the power to tolerate litigation. In other words, insurers calculate that spending money on even protracted litigation will end up being cheaper than continuing to pay disability benefits, and they know that many claimants will just give up and go away if they draw out court proceedings long enough.
While this might sound bleak, there can be alternatives to a full-fledged lawsuit that culminates in a trial (and potentially drawn-out appeals). One such method is mediation. Mediation is where the parties to a lawsuit meet with a neutral third party in an effort to settle the case.
For the most part, mediators are retired judges, or active or retired attorneys. The mediator reviews the case file and then meets with both parties, seeking to facilitate discussions between the parties and try to find common ground in order to reach an acceptable compromise. Because mediation is not binding, the mediator’s recommendation and any subsequent agreement between the parties is not final until the parties memorialize it by putting all the agreed upon terms in writing and signing the document.
Often the insurance company will offer to draft the agreement so they can have control over what the agreement says, and so it is important to stay engaged in the process even after the mediation has ended, in order to ensure that the parties’ agreement is accurately documented. The settlement agreement itself is a very important document, so you should be sure to take the time to carefully review it before signing, to be sure it encapsulates all the agreed upon terms.
It is also important to keep in mind that mediation typically does not result in a full restoration of disability benefits nor is not always successful. The non-binding nature of mediation means that if the insurance company low-balls and refuses to budge in its offer, the claimant may need to just walk away and resume litigation.
Lump Sum Settlement
Another way of avoiding trial is through negotiating a lump sum settlement. This typically occurs outside of the mediation setting, but sometimes requires the filing of a lawsuit before the insurance company is willing to come to the table. When this happens, your insurer agrees to buy out your disability insurance policy and you release your right to collect disability benefits under your policy and your insurer from any obligation to you. The buyout amount will be your disability insurance policy’s “present value” (i.e. the amount of money you could invest upon receipt, based on a determined interest rate, and end up with the same amount of money you would have received in disability benefits at the end of your policy), discounted by a percentage that is negotiated by the parties.
A buyout can be an attractive offer and can occur at any stage of the litigation process. A lump sum buyout could even be a preferable alternative to having disability benefits reinstated, as you would no longer have to deal with your insurer. Your disability benefit payments would cease being on hold pending the outcome of a trial and you could invest the lump sum in order to provide for your and your family’s future. In addition, unlike monthly disability benefits, the lump sum settlement you receive would be inheritable and available to be passed on to your heirs, should something happen to you.
There are, however, certain drawbacks to a lump sum buyout, including the fact that you and your disability insurers cannot accurately predict the future of the market with 100% certainty, so the calculations will only be a best estimate. If you are healthy and have lifetime benefits, you could also receive more money cumulatively over time if you were to stay on claim. So, while attractive, especially when faced with litigation, the pros and cons must be carefully weighted when considering lump sum buyouts during the litigation process.
We often see claimants who face the loss of their disability benefits simply give up and accept a denial, daunted by the thought of protracted litigation. While litigation may sometimes be the most advisable way to get benefits, and possibly punitive damages, there are other avenues to explore, advisably with the help of a disability insurance attorney, that can end in your retaining at least some of the disability benefits you stand to lose completely when an insurance company denies your disability claim.
At least one court thinks so. In Daie v. The Reed Grp., Ltd., the claimant was denied long term disability benefits under an ERISA plan. Instead of merely asking the court to reverse the denial of disability benefits (a result that can be difficult to achieve under ERISA), claimant filed a complaint in state court alleging intentional infliction of emotional distress.
The claimant asserted that the insurer “repeatedly engaged in extreme and outrageous conduct with the aim of forcing plaintiff to drop his claim and return to work.” Id. More specifically, the claimant alleged that the insurer had falsely claimed the claimant was “lying” about his disability and “exaggerating” his symptoms. Id. According to the claimant, the insurer had also urged claimant to take “experimental medications,” induced claimant to “increase his medications,” forced claimant “to undergo a litany of rigorous medical examinations without considering their results,” and pressured claimant “to engage in further medical testing that it knew would cause . . . pain, emotional distress and anxiety.” Id.
The insurer filed a motion to dismiss, arguing that ERISA preempted claimant from bringing the state law claim. The court denied the motion to dismiss for two reasons. First, the court determined that the claim was based on “harassing and oppressive conduct independent of the duties of administering an ERISA plan.” Id. Second, the court determined the insurer had a “duty not to engage in the alleged tortious conduct” that existed “independent of defendants’ duties under the ERISA plan.” Id.
The federal court then sent the case back to state court, where, as of the date of this post, the state court has not yet determined whether claimant should be awarded damages for emotional distress.
At this point, this ruling has only been adopted by the District Court, and not the Court of Appeals, so it is not binding upon other courts. However, it could potentially persuade other courts to recognize similar claims. It will be interesting to see how many other courts follow suit, and whether this ruling will ultimately be adopted by courts at the appellate level.
 No. C 15-03813 WHA, 2015 WL 6954915, at *1 (N.D. Cal. Nov. 10, 2015).
Apparently, the Unum employee suffered from carpal tunnel—due to all the typing that her job required—and also suffered a back injury in her home office. Naturally, the Unum employee saw a hand specialist for the carpal tunnel, and a back specialist for the back injury. After the Unum employee had surgery on her hand to treat the carpal tunnel, the Unum employee’s primary care physician placed her on work restrictions. However, the primary care physician did not send the work restrictions to Unum because she thought that the other doctors had already documented the restrictions.
Unfortunately for the Unum employee, the other doctors had not forwarded the restrictions to Unum. Instead of reaching out to the Unum employee’s doctors to see if the disability claim was legitimate, Unum simply denied the long term disability claim due to a lack of documentation. At that point, the primary care physician came forward and expressly told Unum that she supported the restrictions, but Unum still refused to pay any benefits.
 See http://www.lawyersandsettlements.com/articles/first_unum/interview-unum-lawsuit-insurance-29-20883.html#.VfhBwxFVikp.
A large part of our practice consists of helping physicians and dentists whose disability insurance claims have been denied or terminated. When our clients come to us, we carefully analyze their medical records, the claim file, and the law to craft a specific strategy for getting the disability insurer to reverse its adverse determination. Unfortunately, we sometimes find that in between receiving notice that their claim has been denied or terminated and getting in touch with our firm, doctors will inadvertently take actions that prejudice their disability claims. With that in mind, it’s important to review what to do and what not to do in the first few days after your claim is denied or terminated.
- In all likelihood, you will first find out that your insurer is denying or ending your disability benefits via a telephone call from the claims consultant who analyzed your claim. As we’ve explained before, the consultant will be taking detailed notes about anything you say during that call. Therefore, even if you are justifiably upset or angry, be very mindful of what you say. Anything you tell the consultant will certainly be written down and saved in your file.
- During the call with your consultant, make your own notes. You don’t have to ask a lot of questions at this stage, but you do want to make sure to record whatever information the consultant gives you.
- Following the phone call, you should receive a letter from the insurance company stating that it has denied your disability claim or discontinued your disability benefit payments. According to most state and federal law, the letter should have a detailed explanation of the evidence the company reviewed and why the insurer thinks that evidence shows you aren’t entitled to disability benefits. When you receive the letter, read through it carefully. Make notes on a separate document about any inaccuracies you identify.
- Make sure you keep a copy of the denial or termination letter as well as the envelope it came in. You should also make a note of the date on which you received the letter. The date the letter was actually mailed and received could be important to your legal rights in the future. Then, the best thing to do is to scan the documents electronically or make a photocopy for your file, just in case the original denial letter gets lost or damaged.
- Once you find out that your disability claim has been denied or terminated, you should contact a disability insurance attorney. Some doctors and dentists attempt to handle an appeal of their claim on their own, but we strongly suggest at least consulting with a law firm. Every insurance company has its own team of highly-trained claims analysts, in-house doctors, and specialized insurance lawyers to help it support the denial of your claim. Having your own counsel can level the playing field by making sure you know your rights under your policy and what leverage the applicable law provides you, and help you avoid the common traps that insurance companies lay for claimants on appeal.
- The lawyer you consult can be in your area, or it can be a firm with a national practice that’s physically located in another state. You may want to review these questions to ask potential attorneys before you decide who you would like to represent you.
- Whatever attorney you choose to contact, make sure you do so as soon as possible. In many circumstances, you will only have a limited amount of time to appeal the insurance company’s decision. Particularly in claims governed by the federal law ERISA, the clock starts ticking as soon as you find out your disability claim has been denied or terminated.
- It’s usually best to contact a disability insurance attorney before you respond to the denial letter, to avoid saying anything that could prejudice your appeal. For instance, if you have a disability insurance policy that is governed by ERISA, and you submit some additional information, the insurance company may not allow you to submit any additional information after your initial response.
- Before you meet with potential disability insurance lawyers, gather whatever documents you can to help them evaluate what’s going on with your claim. Our firm will always want to review the insurance policy or policies. (Here’s information on how to get a copy of your policy). We typically also like to see your relevant medical records and any correspondence between you and your insurance company. If you aren’t able to locate this information, it could cause delays in starting the appeal process.
- If you are a physician or dentist that is totally disabled, you should not try to go back to work just because your insurance company thinks you don’t qualify for disability benefits. Trying to practice when you aren’t in a physical or mental condition to do so could cause you to re-injure yourself or accidentally harm your patients. Of course, trying to work on patients after you’ve claimed that you are totally disabled can expose you to professional liability as well. Further, trying to return to work could impair your ability to collect your disability benefits upon appeal.
Over the last ten years, there has been an increasing movement away from paper records and toward Electronic Medical Records (EMR). This move has been accelerated by the federal government’s mandate that doctors who treat Medicare and Medicaid patients must have adopted and implemented EMR systems as of January 1, 2014.
There are many benefits to using EMR. They can facilitate patient care between referring doctors, improve data tracking over time, increase efficiency and reduce errors. However, EMR systems have drawbacks when they are used for purposes never intended, such as to document a disability claim.
Many EMR systems allow the doctor to input his findings for every major system in the human body, such as the cardiovascular, musculoskeletal, gastrointestinal, neurological and psychiatric systems. However, if the doctor does not put in something regarding one of the symptoms, the default setting on the EMR will report the system as being “within normal limits” or that the patient has “no complaints.” The concern with this from a disability perspective occurs when a patient sees his doctor for a condition unrelated to his disability.
For example, a patient with a history of degenerative disc disease could visit his doctor for an unrelated infection or illness. Since the doctor is conducting only a limited examination for purposes of treating the presenting illness, he may not input any information related to the patient’s disabling condition. The EMR will then generate an inaccurate record stating that the patient’s musculoskeletal system and neurological system are within normal limits.
Disability insurance carriers can then use these default settings to their own advantage to raise questions about the severity of the claimed disability, justify an independent medical examination or functional capacity evaluation, or support a claim termination. For patients who are receiving disability benefits, it is therefore important to know what their medical records look like and to effectively communicate with their physicians to ensure that their conditions and symptoms are accurately recorded on each visit.
What role should your insurance company play in determining your treatment options? In our article, “Can Your Disability Insurer Dictate the Terms of Your Care?” by Ed Comitz and Michael Vincent, we discussed how, depending on the terms of your disability insurance policy, insurers can dictate what care you should receive, and whether you can be forced to undergo surgery in order to continue to receive policy benefits.
When prescribing you a specific treatment or medication, your doctor usually has very specific goals in mind. First, they want to medically treat you in the best way possible. They want to provide you with the best means for curing or coping with your situation after considering the totality of your circumstances and your recovery goals. Second, they want to make you feel better and help you recover from your ailments if possible.
For example, if surgery isn’t an option for your consistently high levels of pain, your doctor may prescribe strong medication to give you the relief you need. They may effectively manage the pain you struggle, but the side effects may impede you from returning to work.
Unlike doctors, insurance companies have one goal in mind: to get you off of their claims list and not pay monthly claim benefits. They want you treated in a way that returns you to work in the short run and may not be as concerned about the long term side effects or repercussions of alternative treatment options.
One way they accomplish this is by having their doctor contact your doctor to discuss treatment alternatives. Such alternative methods include using less effective medications that would allow you to return to work. A strategy they employ is to point your doctor to studies like those outlined in articles like “Disability experts question long-term opioid use,” or “Reed Group Releases New Opioid Treatment Guidance in Disability Guidelines.”
What many people don’t realize is that the Reed Group, the company who released the “updated expert guidelines,” is a subsidiary of Guardian Life Insurance Company, parent company of Berkshire Life. This company has a substantial incentive to downplay the safety and effectiveness of drugs, like opioids, that are able to manage acute pain, but render patients unable to return to work because of medication side effects. These companies want to point your doctors to these guidelines to influence their bottom line by getting you back to work quickly.
The problem with this tactic is that these blanket guidelines do not take into account your pain, your needs, or your situation. Yes, the alternative options may get you back to work, but in the long run you may experience repercussions. Letting claims consultants, who aren’t medical professionals, or the insurance company’s doctors determine your care and treatment is a conflict of interest for insurance companies and is not always in your best interests.
A recent disability insurance case from the Southern District of California, Barbour v. Unum Life Insurance Company of America, 803 F. Supp. 2d 1135 (S.D. Cal. 2011), illustrates yet another way in which insurers sometimes improperly use surveillance to deny or terminate policyholders’ claims. In this instance, Unum (parent company of Paul Revere, Provident, and UnumProvident) actually based its decision to deny a claimant benefits on surveillance footage of the wrong person.
Patricia Barbour was insured under a group disability insurance plan through her job as a school principal. Ms. Barbour filed a claim under her policy due to “severe right quadrant abdominal pain—inflammation small intestines,” for which she had undergone two hernia surgeries, with serious complications. She and her physician explained to Unum that her condition restricted her from driving, walking or standing, and sitting for extended periods of time, and that she was totally disabled from performing hers or any other occupation. Ms. Barbour also reported that she used a cane, and that she needed her mother’s help for her daily activities.
As typically occurs, Ms. Barbour’s claims consultant at Unum retained a private investigator to perform three days of surveillance on Ms. Barbour.
Provident Loses the Battle Over Discovery of Employee Compensation and Bonus Information Tied to the Denial of Insurance Benefits.
In previous posts entitled “Why Is It So Hard To Collect On My Disability Insurance Policy?” and “Does Your Unum Claims Handler Have a Personal Financial Incentive to Deny or Terminate Your Disability Claim?”, we reviewed a leading reason behind insurance companies denying disability insurance claims: claims managers often receive incentives, including bonuses, depending on the amount of money they save the company. For the claims department, saving the company money is frequently achieved by denying the claims of existing customers who are receiving disability insurance benefits. This conflict of interest is a probable basis for denial or termination of many legitimate disability claims.
A recent discovery decision by the United States District Court, N.D. California in Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013) comes as a major win for those with legitimate disability claims. There, Doctor Dana Welle injured her left arm in a bike accident. After multiple surgeries, she was diagnosed with ulnar neuropathy and left medial epicondylitis. This condition gave her pain and weakness in her left arm that impacted her ability to safely care for her patients. After Provident Life Insurance (a Unum company) had paid almost three years of disability insurance benefits to Ms. Welle, the company denied her benefits.
In her suit against Provident, which claimed bad faith denial of her benefits, Dr. Welle alleged that Provident’s “incentive structure was based on performance, and performance may be measured, in terms of resolution of claims, including her own.” Dr. Welle requested Provident to produce “any and all documents that reflect, refer or relate to bonus awards, including but not limited to the performance rating and percent of bonus awarded” to claims managers and claim handlers.
Provident objected to the request because, as they argued, it was overly broad and sought to obtain information that was private, proprietary and confidential. The Court overruled Provident’s objections and allowed the discovery. The Court reasoned that the information she sought in her requests “speaks to whether her claim was improperly denied and whether Provident encourages bad faith practices.”
The Court further reasoned that Dr. Welle had shown compelling need for the documents that related to the bonuses of those involved in adjusting her disability insurance claim, and that the information was “highly relevant to her bad faith claim.” The Court disagreed with Provident’s concern with the request being overly broad because it only requested bonus and performance related information of specific individuals. The Court also disagreed with Provident’s defense that discovering the information would breach the employees’ privacy rights, or that the information was proprietary and confidential, because Dr. Welle had already stipulated to a confidentiality agreement and protective order that covered the entire proceeding.
Thus, the Court allowed discovery of the employees’ bonus and performance related compensation documents. Though this is not the end of Dr. Welle’s fight to receive her legitimate disability insurance benefits, it is a major step in helping her get the ammunition she needs to assure her of future benefits under the policy.
 Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013).
UPDATE: Since this story was originally posted in 2008, the insurance regulators of Maine and Massachusetts initiated targeted market conduct examinations of CIGNA’s disability claims handling practices. The concerns raised by Maine and Massachusetts prompted the insurance commissioners of Connecticut and Pennsylvania to also open market conduct examinations and for the California Insurance Commissioner to reopen his previous examination of CIGNA. In 2013, the examinations resulted in fines against the CIGNA companies, corrective actions being required in its handling of disability claims, and for CIGNA to reevaluate certain claims that were denied or terminated. Information on the CIGNA Multi-State Regulatory Settlement Agreement can be found here.
ABC News/Good Morning America‘s investigation by Chris Cuomo into CIGNA disability claim denials has uncovered some disturbing stories. In the video above, claimants describe some of the hardships they have been forced to endure due to denials of their claims or unreasonable delays in having their claims paid.
One breast cancer survivor, who eventually was paid on her claim with the assistance of a disability insurance attorney, describes her two-year ordeal with CIGNA as a “daily, eight-hour job just to fulfill the information that CIGNA was requesting.” The tactic of wearing down a disabled claimant with repeated requests for documentation that has already been provided multiple times — thereby deliberately delaying payment of the claim — is called “slow walking” by some in the industry. While CIGNA denies engaging in this practice, many claimants who are already emotionally and physically vulnerable due to their disability will eventually quit pursuing benefits to which they are entitled in this battle of attrition that is widespread in the disability insurance industry. In this situation, it is often necessary for a claimant to retain the services of an attorney, not only to take on legal issues with the insurance company but also to shoulder the burden of the excessive and repetitive requests for documentation.
Other claimants in Chris Cuomo’s GMA piece describe (a) three years of fighting CIGNA for their benefits, all the while sinking deeply into debt and losing everything; (b) being caught between a rock and a hard place when told by an employer that he could not return to work due to his disability, but simultaneously having CIGNA deny disability benefits; (c) purchasing insurance to protect herself and her family, only to have her business destroyed, savings depleted and fighting to keep her family home when benefits were denied or delayed.
Another of the claimants profiled, Ursula Guidry, a young wife and mother with advanced breast cancer, initially had her benefits paid by CIGNA, but after awhile, they terminated her benefits and told her she could return to work full-time. Eventually CIGNA settled the claim with her. She passed away three months later. As her husband says, it is tragic that her last year on earth was spent being in a panic over financial issues and fighting an unethical insurance company instead of enjoying as much time as possible with her husband and children.
CIGNA did not respond to GMA re any of the specific claimants profiled, but their Chief Medical Officer stated they pay 90% of disability claims filed and that the majority of their customers are satisfied.
Under Pennsylvania law, as affirmed by the Third Circuit Court of Appeals, insurance companies can legally void a disability insurance policy if the insured has made fraudulent misstatements about their past mental or medical history. This is known as “rescission” and is a common tactic insurance companies use to avoid paying claims. In Sadel v. Berkshire Life Insurance Company of America, 473 Fed.Appx. 152 (2012), pharmacist Michael Sadel (“Sadel”) owned two pharmacies in Philadelphia. In 2002, Sadel underwent treatment with Linda May, a clinical social worker, for abuse of prescription narcotics. Sadel continued treatment, in individual and group therapy sessions, through 2006. In 2005, Sadel purchased disability insurance from Berkshire Life Insurance Company of America (“Berkshire”), whose parent company is Guardian, but did not disclose his past drug use or treatment for various mental or emotional disorders to Berkshire when completing the disability insurance coverage application. This could have been due to an ambiguous question on the application form. For example, if the question had asked if Sadel had been or was under the care of a medical doctor, he may not have understood that this also includes care for mental or emotional disorders.
In January of 2007, Sadel lost several fingers on his left hand during a robbery at one of his pharmacies. When treated for the injury, Sadel admitted his past drug use to emergency room workers so that they would not administer drugs to him that would cause a relapse. In February of 2007, Sadel exercised an option to purchase a Future Increase Option policy with Berkshire, which increased his disability insurance coverage. Sadel returned to work at his two pharmacies, but stopped working after an incident at his pharmacy in June of 2007, in which a customer approached him from behind and said “stick ‘em up.” During the incident Sadel said his life flashed before his eyes and he realized he could no longer work at the pharmacy. Sadel put his pharmacies up for sale, and notified Berkshire, in August of 2007, of his intent to claim disability benefits under his Berkshire disability insurance policies.
After receiving Sadel’s notification, Berkshire sent Sadel several forms to fill out, and obtained Sadel’s emergency room medical records documenting the robbery incident and treatment. Berkshire also received a report and chart prepared by Linda May, where she indicated that she had treated Sadel for narcotics abuse from 2002 through the time he purchased the original disability insurance coverage with Berkshire. In June of 2008, Berkshire notified Sadel that they had found inconsistencies with his medical records and the insurance policies. Berkshire informed Sadel, in November of 2008, that they were still reviewing the validity of his policies.
Sadel filed suit against Berkshire in January of 2009, alleging bad faith and breach of contract, and sought money damage for the unpaid disability income benefits. Berkshire counterclaimed for rescission of his disability insurance policies, alleging that Sadel had made fraudulent statements on his disability insurance coverage applications. Berkshire was able to make this counterclaim because the disability insurance benefits contract specifically stated that the policy could be voided due to fraudulent misstatements during the application process. Berkshire was successful in District Court, and Sadel appealed to the Third Circuit.
Though Sadel tried to justify his application statements by arguing that he was doing well when he filled out the initial disability insurance application, and that his drug abuse was a small matter which he dealt with in a matter of weeks, Sadel did not prevail in his Berkshire disability claim. The Third Circuit Court upheld the Pennsylvania District Court’s ruling that Berkshire had not acted in bad faith. In fact, the Third Circuit agreed with the District Court finding that Sadel had “knowingly provided fraudulent misrepresentation on his disability insurance applications . . . and he [could not] establish bad faith on the grounds that Berkshire lacked a reasonable basis to deny him benefits.”
This Pennsylvania case is important because it shows that inaccurate or fraudulent statements on a long term disability insurance coverage application, though undiscovered at the time of purchasing disability insurance, will likely come to light when the insured tries claim disability insurance benefits under their policy. Thus, for the insured, when in doubt about what to disclose on long term disability insurance application forms, it is better to err on the side of caution and always disclose your medical history. Insurance purchasers should also keep a copy of the application, which is considered part of the disability insurance policy that will be delivered with the final executed policy to the inured. Furthermore, when filing an insurance claim it is important to have a disability insurance attorney review not just the policy, but the application as well, to see if there are potential problems to claiming the benefits of a disability insurance policy.
Question: Why do many doctors’ disability claims get denied, and how can a law firm help?
Answer: Doctors’ and dentists’ disability claims can be expensive for insurance companies to accept. The troubled economy and the rising number of disability claims filed by healthcare professionals have led to financial hardship. This strain on resources creates an incentive for insurance companies to deny medical professionals’ claims. Thus, many insurers closely scrutinize the terms of doctors’ and dentists’ policies in order to find ways to deny disability insurance benefits, as the long-term financial benefit to the insurance company is significant.
Our firm has years of experience in cases in which disability benefits have been rescinded based on alleged misrepresentation or non-disclosure in the original policy application. We also have a strong history of prosecuting cases in which benefits have been denied based on the insurance company’s insistence that a dentist’s or doctor’s “subjective claim” doesn’t provide objective evidence of disability.
Further information on our law firm’s services and what you can expect when filing a disability claim is available on our website at this link.