I’ve Been Paid Benefits For Years–
Why is My Insurer Asking for More Information?

If your disability insurer has reassigned your claim or is asking for more information than usual, your claim may be targeted for termination.

If you’ve been on claim for a while, it is easy to become complacent and forget that your disability insurer is constantly evaluating whether you remain entitled to benefits. However, if you do not take care to meet your ongoing proof of loss requirements, you may find yourself facing a claim termination the next time your insurer conducts a review.

Why Do Insurers Reassign and Revisit Claims?

Sometimes, insurers will conduct broad reviews of all ongoing disability claims for financial reasons, to see if they can save any money by denying claims that they are currently paying.

On an individual basis, claims may also be singled out for heightened review after an insurer does online or in-person surveillance, or if an insurer requests medical records and the most recent records are limited or vague. In this second instance, an insurer may challenge whether the policyholder has met the policy’s ongoing care requirements. Another common example that draws heightened attention to a claim is changing jobs or job duties during a claim.

My Insurer Wants to Conduct a Medical Exam–Is this a Bad Sign?

One example of this is the case of Jue v. Unum.[1] Dr. Jue, a dentist, was diagnosed with De Quervain’s Tenosynovitis. She became unable to work due to swelling and pain in her wrists and filed a claim under her Unum disability policy.

Unum approved the claim and, from 1998 to 2004, Dr. Jue submitted regular statements from herself and her physicians. These reports confirmed that her condition remained disabling.  Then, from 2004-2011, Unum only required annual claimant statements and monthly income statements.

Dr. Jue changed doctors in 2012, and Unum began asking for physician statements from the new doctor. Then, in 2015, Dr. Jue took on some additional work responsibilities and was compensated for time spent on computer training. At the time, she was practicing as a dentist part-time, and did not want Unum to count the computer training income when calculating her partial disability benefits. This prompted Unum to reassign her claim to its “validation unit.”

In addition to evaluating the new source of income, Unum’s validation unit revisited the underlying medical condition. It referred her file to a physician to conduct a paper review and then required Dr. Jue undergo an independent medical examination. Unum’s doctor told her that she needed to have surgery, Dr. Jue refused, and Unum terminated her benefits, after paying her for over a decade.

The Takeaway

This case highlights the importance of always having strong evidence to support your claim, even if your insurer is not asking for it as frequently. Most disability policies pay on a monthly basis. Consequently, insurers can (and do) conduct renewed investigations, often without warning. Even if your condition has not improved, you may still face a termination (or lawsuit) if you are not prepared to prove you qualify for ongoing benefits.

If your insurer has increased proof of loss requests and you fear your claim may be being targeted for denial, please feel free to contact one of our attorneys directly.

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 claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Jue v. Unum Group, Case No. 19-CV-08299-WHO, 2021 WL 427640 (N.D. Cal. Feb. 8, 2021).

 

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My Disability Company Told Me To Have Surgery–
Can They Do That?

Can my insurance company make me have surgery or dictate the terms of my treatment?

This is a common question, and a complex one. The answer depends on the terms of your policy and your disabling condition. Recently, insurers have become more aggressive in this area. The case of Jue v. Unum is one such example.[1] 

What if My Doctor Disagrees About Surgery?

Dr. Jue, a dentist, filed a claim in 1991 based on pain and swelling in both of her wrists, attributable to De Quervain’s Tenosynovitis.  Dr. Jue’s physicians indicated that surgery was an option in some cases but more conservative treatment was warranted.  Dr. Jue was reluctant to have surgery given her age and surgery risks.

Notably, Dr. Jue was on claim for many years before Unum brought up surgery, including a prolonged period from 2004-2011. Despite knowing that surgery was a potential option for De Quervian’s patients, Unum continued to pay benefits for a fifteen-year period.  In fact, one Unum representative even told Dr. Jue in a phone call that they could not force her to have surgery.  Yet, in 2017 Unum took the opposite position and told Dr. Jue that she had 90 days to schedule her surgery. If she did not, Unum told her that it would terminate her claim for failure to “obtain appropriate treatment for her condition.”

In response, Dr. Jue returned to one of her treating physicians, Dr. Hsu. Dr. Hsu opined that Dr. Jue had legitimate reason for concern, because no surgeon could guarantee that surgery would improve her condition. Dr. Hsu also stated that no surgeon could guarantee that surgery would not make her condition worse.  Unum then secured its own set of physician opinions who said that surgery was the next appropriate treatment, and terminated the claim in spite of Dr. Hsu’s opinion.

The Takeaway:

As of the date of this post, Dr. Jue’s case remains ongoing. However, her case shows that insurers are willing to make surgery a requirement for ongoing benefits. This does not necessarily mean the insurer is right, but it may mean that a lawsuit is necessary to resolve the question.

If your insurance company is pressuring you to have more invasive treatment than you are comfortable with, please feel free to contact one of our attorneys directly.

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 claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Jue v. Unum Group, Case No. 19-CV-08299-WHO, 2021 WL 427640 (N.D. Cal. Feb. 8, 2021).

 

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Disability Insurance: Do I Really Need It?
A Disability Insurance Attorney’s Perspective

Dentists have unique risk factors as part of their occupation that can make them susceptible to disabilities, including musculoskeletal injuries.  Often, the nature of these disabilities can present challenges if and when it comes time to file a claim with your disability insurer.

Attorney Derek Funk’s recent article in the Utah Dental Association’s publication, UDA Action, discusses the most common reasons dentist file for disability, things to be aware of both before and during the course of a claim, and how to know if you have a complex claim and may need to speak with a disability attorney.

Click here to read the full article.



The Importance of Keeping a
Copy of Your Policy: A Case Study

Do you have a copy of your disability policy?  And, if you think you do, do you know where it is?

Many professionals file their policies away and never look at them again until something happens and they may need to file a claim. By then, the policy has been misplaced or lost, leaving them in the dark and unable to verify  how their coverage works.

This can lead to costly coverage disputes with insurers, particularly if the policy in question is an older policy. Some older policies were underwritten by companies that no longer exist, or have since sold their disability business to other companies. As a result, questions can arise regarding the terms of an older policy, particularly if the company who issued the policy is not the same company administering the claim.

One such example of this is the case of Falcon v. Northwestern Mutual Life[1]Dr. Falcon was a plastic surgeon who filed a disability claim based on vision loss. Dr. Falcon believed that he was entitled to lifetime benefits because he had become disabled prior to age 65. However, he did not keep a copy of his policy.

In response, Northwestern Mutual claimed that the policy did not pay lifetime benefits unless the policyholder became disabled prior to age 60. Notably, Northwestern Mutual could not produce exact copies of policies either. However, they did have a record of basic information about the features of the policy and used that recreate the policy piecemeal. Unsurprisingly, the copy policies supported Northwestern Mutual’s position.

At present, this case is still pending.  It may require a trial to resolve, as neither side is able to definitively show they are right. However, if Dr. Falcon had simply kept a copy of his policy, the matter may have been resolved without the need for a lawsuit.

You can save yourself from this same headache by keeping a copy of your policy and knowing what it says.  If you have a question about the terms of your policy or feel that your insurer is misapplying the terms of your policy, please feel free to contact one of our attorneys directly.

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 claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Falcon v. The Northwestern Mutual Life. Ins. Co.,  Civil Action No. 19-404, 2020 WL 7027482 (W.D. Pa. Nov. 30, 2020).

 

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Insurance Company Tactics:
The Dual Occupation Defense

Dentists and physicians facing a disabling condition often look for other jobs to supplement income. Depending on the terms of the underlying policy, this can prompt insurers to raise a “dual occupation” defense.

One such example is the case of Lemons v. Principal[1]. Dr. Lemons was an OB/GYN who had also worked as a claims consultant for a health insurance company and as an addictions counselor. Dr. Lemons claimed disability based on a hand tremor, claiming that the tremor prevented him from safely practicing as an OB/GYN.

Principal denied Dr. Lemons’ claim, claiming his occupation under the terms of his policy encompassed all of the jobs he had been engaged in. Principal asserted that Dr. Lemons was not totally disabled because the tremor did not impact the ability to act as a consultant or work as a counselor. For his part, Lemons argued that his regular occupation was solely that of an OB/GYN.

The court determined that, under Alabama law, words must be given their common, everyday meaning and interpreted as a reasonable person in the insured’s position would interpret them.  Based on this, the court determined that the most natural reading of regular occupation was that “the term refers to an insured’s primary job or discipline.” The court further explained that it read the “regular occupation rider’s use of the singular ‘your regular occupation’ to mean that the policy contemplates that the insured has only one primary job.”

Lemons was successful, in part, because his regular occupation rider used the singular “your occupation.”  However, insurers have updated and changed their policies to make the definition of occupation more robust. Many companies have now replaced “occupation” with “occupation(s)” in an effort to preserve their ability to use a “dual occupation” defense to avoid payment.

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 claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Lemons v. Principal Life Ins. Co., Case No. 2:18-CV-01040-CLM, 2020 WL 6273741 (N.A. Ala. Oct. 26, 2020).

 

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What If Surgery Doesn’t Work?
An Overview

For certain conditions, surgery may be required if symptoms are severe. And surgery can be an effective treatment for many conditions. For example carpal tunnel syndrome. But what if surgery doesn’t work? If a dentist or physician hasn’t planned for this, it can be a challenging time.

There can be numerous reasons why surgery doesn’t work – including a botched procedure or waiting too long to have the surgery.  In the carpal tunnel example, symptoms can be due to something else or a co-morbid condition (e.g. cubital tunnel syndrome, arthritis, cervical radiculopathy).

With disability insurance claims, insurers will often recognize a recovery period for something like carpal tunnel surgery as a period of disability. However, they also have limits on how long that period can last (sometime called “durational guidelines”).

Once this recovery period is up, insurers often begin to push you to go back to work – even if you are not ready. For example, they may call your doctor and press for a firm “return to work” date. Or, they may request an Independent Medical Evaluation (IME).

It can be difficult to prove that a surgery didn’t work. Particularly if your ongoing symptoms are largely subjective in nature (for example pain or numbness). Without evidence of continued symptoms or a diagnosis of co-morbid conditions, a claim may be denied or terminated. Consequently, the fight to maintain benefits most often comes after surgery.

Each case individual case is different.  If you’ve had or are planning on surgery, and are concerned about its impact on your claim, please feel free to reach out to one of our attorneys directly.

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What is a Functional Capacity Examination (FCE)?
An Overview

Most policies now allow for insurance companies to request claimants undergo various examinations. One example is the Functional Capacity Evaluation, or FCE.

What is an FCE?

FCEs are usually conducted by a occupational or physical therapist. They generally last between 4-6 hours.  However, they can be spread out over multiple days.

You will have to complete intake paperwork.  The examiner may monitor you to see how long it takes for you to complete the paperwork.  Including whether it is difficult or painful for you to sit.

Once the FCE formally begins, it tests the following:

  • Your ability to lift, push, pull, and carry objects;
  • Your ability to reach, stoop, kneel, crouch, and crawl; and
  • Your ability to handle and manipulate small objects.

These tests evaluate your dexterity, coordination, and endurance. Further, they evaluate job-specific functions. The examiner should also be evaluating your pain levels during each test.

Once complete, the report will go to your insurance company. Then, your insurance company will evaluate it to determine if you are physically unable to perform duties of your occupation. A properly done FCE can help your claim. However, your insurance company may use them to try and deny your claim.

What Can I Do?

You can take certain steps to ensure the FCE doesn’t negatively impact your claim:

  • Request a copy of the report;
  • Be clear and precise about any pain you feel;
  • Do not exaggerate;
  • Document any pain or other symptoms you experience after testing is over; and
  • Follow-up with your own doctor about symptoms during and after the exam

An experienced disability insurance attorney can help you determine:

  • What type of evaluation was performed;
  • The methodology and criteria used; and
  • It’s accuracy in measuring your abilities.

Finally, if you have or are scheduled to have an FCE and have questions, please feel free to contact one of our attorneys directly.

 

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How Do Partial Disability Benefits Work?

Some disability policies allow for recovery of partial disability benefits if you are still able to work on a limited basis. In newer disability policies, this feature is typically added as a rider that you must choose to add to the base policy. If your policy does not have a partial disability or residual disability rider, it may only cover total disability.

What is the Difference Between Total Disability and Partial Disability?

Individual policies sold to physicians and dentists typically define “total disability” as the inability to perform the material and substantial duties of your occupation.

In contrast, partial disability benefits are designed to supplement your income if your ability to work is limited by a sickness or injury. After the elimination period has been satisfied, benefits are due for each month that you can prove both that you have (1) suffered a loss and (2) that the loss was due to sickness or injury. This second requirement is sometimes referred to as establishing a “demonstrated relationship” between the loss and the disability.

How Do I Collect Partial Benefits?

Most older disability policies require a threshold loss in income in order to qualify for partial benefits, typically around 15 to 20%. New policies can define loss in other ways, including losses in hours or losses in the ability to perform a certain percentage of your material duties.

When reviewing your policy, it is also important to pay attention to whether the requirements for collecting change over time. For example, many partial disability riders outline different rules for collecting during the first 6 or 12 months of disability, versus the remaining months of disability.

How Do I Know if I Have a Partial or Total Claim?

Because each policy defines partial disability differently, the first step is to locate the definitions for total disability and partial disability.

Once you know your policy’s requirements, the next step is evaluating factors such as the nature of your condition, the extent of your limitations, and whether you meet your policy’s loss thresholds. Another important consideration is whether you are putting your own health or patients’ health in jeopardy by continuing to practice.

In some instances—such as claims involving slowly progressive conditions like cervical radiculopathy or an essential tremor—it can be difficult to evaluate whether you are partially or totally disabled and/or whether a partial disability has progressed to the point where it is now totally disabling.

As each claim is different, there is no one-size fits all answer to this question, and whether you are partially or totally disabled will come down the particular facts of your disability claim and your particular policies’ requirements. If you have questions about your claim or potential claim, please feel free to contact our attorneys directly to set up a consult.

 

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What is an Independent Medical Examination (IME)?
An Overview

Your insurance company may ask you to undergo an Independent Medical Examination (IME).

Generally, a physician conducts the IME. Often, the company insists on picking the doctor. Broadly speaking, your insurer may request an IME if it does not agree with your doctors. Or if there is limited medical information in your file.

However, IMEs are not always truly “independent.” Often, insurance companies request IMEs in order to deny your claim. For example, the IME doctor’s primary income may come from these types of exams. Additionally, companies may unfairly use the same doctor over and over again in different claims.

What Can I Expect During an Independent Medical Examination?

  • Typically, the exam starts with an interview.
  • Often, the doctor starts with a general physical examination.
  • Next, the IME focuses on your disabling condition.
  • You may be asked to bend, lift or perform movements.
  • Throughout, the doctor looks for inconsistencies or signs of exaggeration.
  • After the exam, the doctor will prepare a report for your insurance company.

What Can I Do if I Have an IME?

First, review your policy to see if you are required to undergo an IME. Next, complete any intake forms in advance. At the exam:

  • Be cooperative and open;
  • Ask questions if you don’t understand something;
  • Discuss your symptoms fully and honestly; and
  • Connect your symptoms to your job duties.

If you are concerned about the company’s motives, talk with an attorney. A disability insurance attorney can help:

  • Determine what your policy actually requires;
  • Limit the test to certain parameters;
  • Verify the doctor’s credentials;
  • Record the exam;
  • Accompany you to the exam; and
  • Review the final report for accuracy.

I’ve you’ve been scheduled for an IME and have questions, please feel free to contact one of our attorneys directly.

 

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Insurance Company Tactics:
Conducting Multiple Paper Reviews

Insurance companies typically start their claim investigations by requesting forms and medical records from your treating provider(s). In order to deny a claim, they may go to great lengths to dismiss and ignore even the most supportive of records.  One way they do this is by using consultants to conduct paper-only reviews of the insured’s file.

One such example of this is Allen v. MetLife[1], where multiple consultants were used to try and undercut Linda Allen’s supportive physician’s statements and treatment records.  Allen, a highly educated professional, was exposed to toxic mold at her workplace and developed a myriad of symptoms/diagnoses as a result, including chronic rhinosinusitis, mold allergy, chronic fatigue disorder, neurocognitive disorder, vertigo, reactive airway disorder, depression, and anxiety disorder.

Although MetLife’s own doctor hired to examine Allen in-person concluded that her symptoms were “quite enough to limit her daily functioning”, MetLife denied her claim. In doing so, MetLife chose to place more weight on the multiple consulting physicians who only conducted paper reviews of Allen’s file. Alarmingly, one physician made several factual mistakes in his report (including errors in the names and types of medications Allen was taking) and another only reviewed a portion of Allen’s records.

Additionally, the Court noted that at least two of the reviewing doctors indicated a need for additional information. However, MetLife’s claim file revealed that MetLife did not share additional records received from Allen with its consulting doctors or ask its doctors to update their findings.

While the Court recognized “the importance of independent medical reviews” it also recognized the limitations of such reviews by doctors who did not examine a patient, going on to say “the mere fact that independent medical specialists were consulted does not automatically equate with a deliberate, reasoned process and substantial evidence.”

While the Court reversed MetLife’s wrongful denial and Allen was ultimately successful, it took litigation (which can often be costly and time consuming) to expose MetLife’s improper tactics and overturn MetLife’s denial of her legitimate claim.

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 insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Allen v. MetLife, No. 4:06-CV-175-H, 2008 WL 11429626 (E.D.N.C. March 31, 2008)

 

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Cigna Sells Group Disability
Businesses to New York Life

Cigna has now sold its group life, accident, and disability insurance business to New York Life in a $6.3 billion deal, initially announced in December 2019. The new business has been rebranded as New York Life Group Benefit Solutions.

This acquisition adds approximately 3,000 employees and over 9 million customers for New York Life, making it one of the top five insurers across group life, accident, and disability insurance.

Cigna will put the sales proceeds towards repayment of debt and share repurchase, and both companies will participate in a multi-year collaboration.

 

Sources:

Mallory Hackett, Cigna officially sells group life, accident and disability insurance business to New York Life, Healthcare Finance, Jan. 4, 2021

New York Life Completes Acquisition of Cigna’s Group Life and Disability Insurance Business, Businesswire, Dec. 31, 2020

Anusuya Lahiri, New York Life Snaps Up Group Life & Disability Insurance Business From Cigna For $6.3B, Nasdaq, Jan. 3, 2021

 

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Am I Under Surveillance?
An Overview

What Kind of Surveillance Do Insurance Companies Use?

If you’ve filed a claim for individual disability insurance, you will likely be under surveillance at least once.

Insurance companies use a variety of tactics to surveil claimants. For example:

  • Monitoring your online activities, including social media;
  • Stakeout operations and tailing;
  • Contacting friends or family members to try and gather information about you;
  • GPS and cell phone tracking;
  • Using drones or stingrays;
  • Pretexting;
  • Conducting an interview at your house; and
  • Using questions on claim forms to try and learn your schedule.

When Are Insurance Companies Watching?

Furthermore, there are certain times surveillance may occur more often.  For example:

  • During holidays;
  • On the claimant’s birthday;
  • Over weekends;
  • Near the end of fiscal quarters; and
  • Any time they have a chance to catch a claimant involved in physical activity (based on information provided by the claimant).

These are popular times because they are often scenarios where a claimant may push him or herself more than normal, especially in the context of physical activity. The point of this surveillance is to “catch” you doing activities that undercut your disability claim. Unfortunately, it is not uncommon for the insurance companies to take things out of context.

Using surveillance is not necessarily illegal. However, sometimes insurance companies cross boundaries. Understandably, it can be alarming to think about being under surveillance. And sometimes, repeated surveillance can mean your insurance company is targeting your claim for denial.

For this reason, it is important to be aware. An experienced disability insurance attorney can help if you feel your claim may be targeted for denial. Therefore, if you have questions, please feel free to contact one of our attorneys directly.

 

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Unum Announces Reinsurance Deal

In December 2020, Unum Group announced a reinsurance transaction with a subsidiary of Global Atlantic (Commonwealth Annuity and Life Insurance Company) in a coinsurance agreement. The closed block of business is backed by approximately $7.1 billion in reserves.  Unum will pay Global Atlantic a fee of around $376 million to reinsure about three quarters of the in-force policies in the closed block.

Global Atlantic’s primary focus is on selling life insurance and annuities, as well as reinsuring other businesses. Unum subsidiaries ceding individual disability business to Global Atlantic include Unum Life Insurance Company of America, Paul Revere Life Insurance Company, and Provident Life and Accident Insurance Company. Unum is also seeking permission from the original writers of some policies written by other companies to include them in the deal.

Around 95% of the affected policyholders are collecting benefits, while the remaining are not on claim.  Unum will continue to administer claims made under the policies.

Sources:

Allison Bell, Unum Picks Global Atlantic for $7.1B Reinsurance Deal, ThinkAdvisor, December 17, 2020.

Unum Press Release, Unum Group Announces Reinsurance Transaction with Global Atlantic on $7.1 Billion Closed Individual Disability Block, December 18, 2020.

 

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Can You File a Disability Claim for Hearing Loss?

According to the CDC and the National Institute for Occupational Safety and Health (NIOSH), hearing loss is the third most common physical condition among adults, with 24% of hearing difficulty among U.S. workers caused by occupational exposure.[1]

While one associates work-related hearing loss with careers like construction, studies have shown that the rates of hearing loss and tinnitus among dentists are double that of the general population, as a result of noise exposure from dental tools (such as high-speed handpieces).[2]  Unaided hearing loss has also been linked to increased depression, social isolation, and hospitalization. Further, it can result in reduced motor coordination, impaired cognition, learning, and memory.[3]

Like the two other most common disabling conditions experienced by dentists, musculoskeletal issues and vision loss, hearing loss and tinnitus are often slowly progressive and degenerative conditions—making it difficult to determine when and if symptoms have reached a level to prevent a dentist from safely practicing.

Hearing loss typically comes on gradually and, as it worsens, dentists may take steps to mitigate exacerbation of symptoms by either reducing the hours they work or avoiding doing procedures that exacerbate symptoms.  However, this can be problematic from a claims perspective because insurance companies will typically review dentists’ CDT codes to determine if they can argue that the dentist has modified his or her occupation.

If you are a dentist with a hearing condition that you feel may begin to compromise your ability to work, an experienced disability insurance attorney can help you evaluate whether you have a claim under your policy and guide you in preparing a transition plan so that, in the event you have to file a claim down the road, you are prepared and have not jeopardized your ability to collect.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

[1] Occupational Hearing Loss (OHL) Surveillance National Inst. for Occ. Safety and Health, last reviewed Dec. 9, 2019, https://www.cdc.gov/niosh/topics/ohl/default.html

[2] Ian D. Murray, BA, HIS, AHIP, IHS, Hearing Loss and Tinnitus Among Dentists, 73 The Hearing Journal, 10, January 2020, https://journals.lww.com/thehearingjournal/fulltext/2020/01000/hearing_loss_and_tinnitus_among_dentists.3.aspx

[3] Id.

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What is a COLA Rider?
An Overview

What is a COLA Rider?

Riders expand or limit coverage on a policy.  Usually, they are found at the back of a policy.

Adding riders can impact premium amounts. A Cost of Living Adjustment (COLA) rider is one of the more common riders added to disability insurance policies.

The cost of living typically goes up over time. Therefore, a COLA helps your benefits keep pace. Under most policies, the adjustment is made yearly.  The amount of the increase is calculated as a fixed percentage or based on the Consumer Price Index. However, insurers sometimes cap the overall increase in benefits.

COLAs are most beneficial to younger claimants. Younger claimants can be on claim for decades. Without a COLA, their benefit amount would become less effective over time.

Not All COLAs are the Same

COLAs are not the same across the board. Typically, COLAs kick in after a year of being on claim. However, sometimes there is a longer waiting period.

COLAs also can be limited in other ways. Sometimes, a cap is set on the amount of increases over the life of a claim. For example, increases may only be made for five years or to a certain age. A COLA rider may expire at age 65, even if your policy has lifetime benefits.

Some plans also set a maximum benefit amount. This means, if you reach this amount, a COLA will not be applied. This type of provision is typically found in employer-sponsored plans. Because of this, it is important to read your policy carefully. In some policies, limitations like maximum benefit amounts may be in a different part of the policy. So, even if you read the entire rider, you may not have a full understanding of your COLA.

If you are on claim, and have a question about how COLAs work, please feel free to contact one of our attorneys directly.

 

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Can I File a Disability Claim for
Breathing Problems Due To COVID-19?

While it may be some time before we fully understand COVID-19 and its long-term impact, experts have identified certain long-term complications from the virus, including breathing problems.

As COVID-19 is a respiratory disorder, it is no surprise that the lungs can be permanently damaged by the virus. Pneumonia associated with the disease can cause long-standing damage to the alveoli (tiny air sacs) in the lungs. Build-up of scar tissue can then lead to long-term breathing problems, including decreased lung function and decreased exercise capacity. Risks of this complication are highest among those with underlying conditions such as lung disease, hypertension, and obesity.[1]

Such disorders can be problematic for occupations that require mask-wearing, such as dentists and surgeons. Healthcare workers, including dentists, are also often most at risk for contracting COVID-19, due on their physical proximity to others and exposure to diseases[2].

In March of 2018, the CDC reported on a cluster of patients (dentists and dental workers) who were treated at a specialty clinic in Virginia for chronic, progressive lung disease, specifically idiopathic pulmonary fibrosis. The CDC said that occupational exposure was a possibility, stating “[d]ental personnel are exposed to infectious agents, chemicals, airborne particulates, ionizing radiation and other potentially hazardous materials. . .[i]nhalational exposures experienced by dentists likely increase their risk for certain work-related respiratory diseases.”[3]

Whether you can file a claim for COVID-19, a resulting complication, or a co-morbid condition depends on the terms of your policy and your unique circumstances. If you have questions about your particular situation, please feel free to contact one of our attorneys directly.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

[1] Mayo Clinic.

[2] Lazaro Gamio, The Workers Who Face the Greatest Coronavirus Risk, The New York Times, March 15, 2020.

[3] CDC reports ‘cluster’ of dental professionals diagnosed with lung disease, ADA News, March 13, 2018.

 

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Can I File a Disability Claim
Based on COVID-19?

Since the pandemic started, many physicians and dentists are wondering “can I file a disability claim for COVID-19?”

The answer is–it depends. Disability policies typically have elimination periods that must pass before benefits are payable for a certain condition. Often, the elimination periods are several months and would outlast the typical duration of COVID-19. However, there may be claims where this might not be the case, such as claims involving long-term complications from COVID-19. Or claims involving increased health risks due to underlying conditions.

Can I File for Long-Term Complications?

While we are still in the early stages of knowing how COVID-19 may affect people long-term, initial information indicates both that some individuals will have long-lasting COVID-19 symptoms and some will go on to develop complications as a result of the infection. Studies have shown that some symptoms can linger for weeks and months, including:

    • Fatigue
    • Racing heartbeat
    • Shortness of breath, achy joints
    • Foggy thinking
    • Persistent loss of sense of smell

Others may recover but end up with long-term complications from COVID-19. Experts believe that COVID-19 can result in the following:

    • Heart damage or disease
    • Lung damage or long-lasting breathing problems
    • Brain damage as a result of stroke or seizures, or an increased likelihood of developing Alzheimer’s or Parkinson’s disease
    • Blood clotting that can lead to heart, lung, legs, liver, or kidney problems, or cause hypertension
    • Widespread inflammation
    • Problems with mood and fatigue, including chronic fatigue syndrome

Can I File a Claim for COVID-19 and My Underlying Conditions?

Certain underlying conditions have been associated with more severe COVID-19 symptoms, including:

    • Chronic lung disease, such as COPD
    • Serious heart conditions
    • Obesity
    • Type II diabetes
    • Chronic kidney disease that requires dialysis
    • Conditions that make a patient immunocompromised (including cancer treatment, immune deficiencies, and bone marrow or organ transplant).

Whether you can file a claim for COVID-19, a resulting complication, or a co-morbid condition depends on the terms of your policy and your unique circumstances. If you have questions about your particular situation, please feel free to contact one of our attorneys directly.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

Sources:

Mayo Clinic

Centers for Disease Control

University of Maryland

American Association for the Advancement of Science

John Hopkins Medicine

 

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Disability Insurance Claims – COVID-19 Complications

COVID-19 has impacted several aspects of our lives, and many things are much more complicated now. Disability insurance claims are no exception, as COVID-19 has raised additional hurdles for policyholders filing “own occupation” claims. Some of the most common questions and concerns physicians and dentists are facing include:

How long will it take to get a decision during COVID-19?

Typically, insurers can take several months to issue a decision. With many companies operating with limited staff, claim decisions may now take even longer.

Now, more than ever, it is important to be proactive about your claim. Extensive delay may be unreasonable, even during the pandemic. But it is not always easy to determine how long is “too long” to wait.  An experienced disability attorney can help you determine if your disability insurer is unreasonably dragging its feet, or if any action needs to be taken to ensure a timely decision.

What if I can’t get in to see my doctor?

Many policies have care requirements that require you to be actively treating with a physician.  This can be difficult when many doctors’ offices are working on a limited basis. Delays are common, due to the backlog of patients needing to be seen. Certain legal rules allow for delay if it would be unreasonably difficult for you to produce evidence within a required time frame—but these can vary based on your policy and your jurisdiction.

What if I can’t get records or paperwork from my treating providers?

Insurance companies will typically ask for medical records and statements from your treating providers to support your disability.  Because many doctor’s offices are operating at limited capacity, this can also be difficult. Again, depending on your policy and the laws in your jurisdiction, you may be entitled to flexibility when responding to these requests.

Do I have to let my insurance company conduct a field interview or IME?

Insurers often conduct at least one field interview during the course of a claim. Similarly, insurance companies may ask an insured to attend an independent medical examination (IME). Understandably, during this time, insureds are reluctant to be in close proximity with a stranger. An experienced disability attorney can help you determine whether these sorts of requests are reasonable under the circumstances.

The best way to handle these situations depends on the specific terms of your policy and local laws. In some instances, what the insurance company is asking for may be unreasonable, and therefore unenforceable. If you have a question about how COVID-19 has impacted or may impact your claim, please feel free to contact one of our attorneys directly.

 

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Can I File a Claim for Anxiety/Depression/PTSD
Due to COVID-19?

In prior posts, we’ve discussed why physicians and dentists can be uniquely susceptible to burnout and mental health conditions such as anxietypanic disorder, depression, and PTSD. Now, in light of the COVID-19 epidemic, health experts are particularly concerned about physicians working in the intensive care unit, emergency room personnel, paramedics, and other frontline responders.

According to an article in Scientific American, experts believe that health care workers are presently at risk for developing high rates of anxiety, depression, substance use issues, acute stress and, eventually PTSD as a result of working on the front lines during the pandemic.

For example, one study of physicians and nurses in China at the height of the pandemic found that 50% of respondents reported symptoms of depression, 44% reported anxiety, and 34% reported insomnia.[1] Another study of data from the United Kingdom and U.S. showed that frontline health care workers had a nearly 12 times higher risk of testing positive for COVID-19 compared with those in the general community.  This rate was even higher for workers that didn’t have adequate access to PPE.[2]

Stress and emotional turmoil can also be related to caring for those most gravely ill with the disease, especially in light of the fact that many of these patients are dying without access to friends or family members. In situations where physicians normally would have turned to their families and friends for support, they are now fearful of passing the virus along to their loved ones, and many physicians are choosing to even live apart from their families and/or distance themselves from friends and colleagues outside of the hospital setting.

While the coronavirus and hospitalizations are abating in some parts of the country, frontline workers are also now facing new challenges.  In a New York Times article, Dr. Mark Rosenberg, the chairman of the emergency department at St. Joseph’s Health in Paterson, New Jersey, was quoted as saying “[a]s the pandemic intensity seems to fade, so does the adrenaline. What’s left are the emotions of dealing with the trauma and stress of the many patients we cared for.”[3]

For some, mental health conditions stemming from or exacerbated by COVID-19 can become persistent and long-lasting conditions.  If you have reached this point, you may be wondering if filing a disability insurance claim is an option for you.  If you have questions about whether you can file a claim under your disability policy, please feel free to contact one of our attorneys directly.

[1] Jillian Mock, Psychological Trauma Is the Next Crisis for Coronavirus Health Workers, Scientific American, June 1, 2020, https://www.scientificamerican.com/article/psychological-trauma-is-the-next-crisis-for-coronavirus-health-workers1/

[2] Katie Marquedant, Study Reveals the Risk of COVID-19 Infection Among Health Care Workers, Massachusetts General Hospital Press Release, May 5, 2020, https://www.massgeneral.org/news/coronavirus/study-reveals-risk-of-covid-19-infection-among-health-care-workers

[3] Jan Hoffman, ‘I can’t Turn My Brain Off’: PTSD and Burnout Threaten Medical Workers, The New York Times, May 16, 2020, https://www.nytimes.com/2020/05/16/health/coronavirus-ptsd-medical-workers.html

 

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Can I File Anonymously if I File a Disability Lawsuit?
A Case Study

When an insurance company denies a claim, the insured may have to resort to filing a lawsuit to collect their rightful benefits. Accordingly, insurance companies employ numerous tactics to deter insureds from filing lawsuits, especially those based on mental health claims like depression or anxiety.

One such example is the case of John Doe v. Berkshire Life Ins. Co.[1] where John Doe (formerly a high-powered CEO) sued his insurer, Guardian/Berkshire, for wrongfully denying his mental health claim.  When the CEO filed the claim, he sought to remain anonymous because: (1) the nature of his disability was mental health related (including PTSD) and highly-sensitive; (2) he feared he would be placing himself in danger by using his name because a former disgruntled employee had harassed him in the past; and (3) proceeding under his real name might exacerbate his PTSD symptoms. Guardian opposed the CEO’s motion, likely in the hopes of dissuading the CEO from pursuing his lawsuit.

Ultimately, the CEO’s motion was denied by the Court, as it determined the request did not meet the strict legal standard required to allow a party to proceed anonymously. Arguably, in this case, Guardian would have suffered little to no harm by allowing Doe to proceed anonymously; yet, they still chose to object.

Insurance companies have a history of wrongfully deterring individuals from challenging claim denials in similar cases, and they are unfortunately not above taking advantage of insureds who are financially, physically and/or emotionally vulnerable. Insurance companies often pull out all the stops when it comes to litigation because they have the advantage of time and financial resources on their side.  This can mean targeting those with mental health claims, especially those with strong reputations in their communities (including physicians and dentists), in the hopes that fear of public embarrassment may prompt them to drop the lawsuit, settle for less than they are owed, and/or allow an unfair denial to stand.

These can be challenging things to face—even for a CEO—especially if you are trying to take on the insurance company on your own. If you are concerned about how your insurance company has been treating you, or feel like your insurer is seeking to take advantage of your condition, an experienced disability attorney can help you evaluate the situation and what options are available to you.

[1] Doe v. Berkshire Life Ins. Co., Civil Action No. 20-CV-01033-PAB-NRN, 2020 WL 3429152 (D. Colo. June 23, 2020).

 

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