What are “Material and Substantial Duties”? A Case Study
Most “own occupation” disability insurance policies will address “material and substantial duties” in their definitions of total and partial disability. The exact definition (and whether or not you need to be disabled from one or all material and substantial duties) will depend on the language of your specific policy. However, what is and is not a material and substantial duty is not always clear-cut.
One example of this is the case of Vossberg v. Northwestern Mutual.[1] Dr. Vossberg was a physiatrist with a speech disorder (diagnosed as dysarthria). Dr. Vossberg filed a claim for partial disability with Northwestern Mutual, claiming that he could no longer make medical records because he was required to use electronic transcription software at his long-time hospital employer.
Under Dr. Vossberg’s policy, he would be considered partially disabled if he was “unable to perform one or more but not all of the principal duties of his occupation.” In this instance, both parties agreed that one of Dr. Vossberg’s principal duties was to “make medical records that document his interaction with patients.”
In reviewing the case, the Court found that “using electronic transcription software is not required to be a physiatrist.” The Court found that Dr. Vossberg had not presented evidence that his hospital employer had required the use of transcription software and pointed to the fact that he was currently working in private practice where he made his records by dictating patient notes into a tape record and having a person transcribe them. Further, other employers that Dr. Vossberg considered applying to testified that there was no requirement for him to use electronic transcription software. Thus, the Court concluded that Dr. Vossberg was not partially disabled under the terms of his policy.
Often, policies will even go so far to say that what is and is not a material and substantial duty is not based on what is done for any one employer, but for the national economy as a whole. So, even if Dr. Vossberg’s employer had actually required him to use transcription software, he may still not be considered disabled, depending on the exact language in his policy.
This case highlights the importance of carefully reading and understanding the terms of your specific policy and how it addresses material and substantial duties. If you fee that you are unable to do the material and substantial duties of your occupation, and are considering filing a disability insurance claim, please feel free to reach out to 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 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] Vossberg v. Northwestern Mutual Life Ins. Co., No. 1:22-cv-00364-JRS-KMB, 2023 WL 167460 (S.D. Ind. Jan. 12, 2023).
Long COVID: A Case Study
Some people infected with COVID-19 may go on to experience long COVID, which can cause a wide range of health issues that can last anywhere from several weeks to even years. Symptoms vary widely and can include fatigue, respiratory and heart symptoms, neurological symptoms, fever, joint pain and/or muscle pain.
Those afflicted with long COVID may find themselves unable to work and needing to file a long-term disability claim. However, it can be difficult to prevail on these types of claims, as insurers will often try to get out of paying claims based on long COVID.
One such example is the case of Abrams v. Unum.[1] Here, plaintiff William Abrams was an appellate lawyer who was experiencing “brain fog, fatigue, decreased attention and concentration, and fevers” starting in April 2020. After Unum initially denied his claim, Abrams appealed and went to seven different medical doctors, three of whom diagnosed plaintiff with long COVID with the remaining four diagnosing him as having chronic fatigue syndrome (CFS).
Unum continued to deny his claim, stating that a mental status exam did not show the necessary cognitive deficits needed to confirm the diagnosis of CFS, and that he had not submitted enough proof that he suffered from long COVID. While the Court agreed that there may be a paucity of evidence to confirm a diagnosis of long COVID, they pointed to the fact that all of Abrams’s providers confirmed that he was indeed sick and unable to meet the demands of his prior occupation.
The Court explained that “[b]eing a trial lawyer is akin to writing, directing, producing, and starring in a play simultaneously. The work is mentally and physically grueling. A reviewer must take that complexity into account when reviewing a claim.” The record shows that prior to his illness, Abrams was an avid marathon runner and worked 12-hour days. However, after his illness commenced, his primary care doctor noted that Abrams would “not be able to put together 1-2 workdays or partial workdays in a given week.” The Court further noted that if Abrams could not follow movie plots, he “cannot be expected to plan out trial strategies for multiple, complex cases.”
While Abrams was ultimately successful with his claim, the matter required costly and time-consuming litigation before the matter was resolved in his favor. This case highlights the challenges those with long COVID face when trying to collect benefits, and the need for strong medical records and supportive physicians. If you are experiencing long COVID and feel that you might need to file a claim, please feel free to reach out to 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 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] Abrams v. Unum Life Ins. Co., C21-0980 TSC, 2022 WL 17960616 (W.D. Wash. Dec. 27, 2022).
Can Your Insurer Deny Benefits After Years of Paying Out Claims? A Case Study
You’ve been receiving benefits for years—can your insurance company just change its mind and decide to suddenly deny benefits? That’s what happened in the case of Roehr v. Sun Life.[1] Dr. Roehr was a practicing, board-certified anesthesiologist who began experiencing intermittent tremors in his hands and fingers in 2004. While he was initially concerned that he had Parkinson’s disease, due to a family history, subsequent examinations by neurologists indicated that it was not Parkinson’s disease, rather he was diagnosed as having “a tremor of unclear etiology.”
In October 2006, Dr. Roehr stopped practicing out of concern for patient safety and filed a claim under the “own occupation” provision of his Sun Life policy. While none of the neurologists Dr. Roehr had seen were able to give a specific diagnosis related to his tremors, he continued to receive follow up care from his primary care physician, and Sun Life paid benefits for the next ten years. This was the case even though his primary care physician’s records failed to sometimes note an observation of tremors (usually when the record was dealing with a separate medical issue). Over these ten years, Sun Life occasionally requested medical updates from Dr. Roehr’s primary care physician.
In 2017, Sun Life retained a neurologist to review Dr. Roehr’s claim. The neurologist confirmed that Dr. Roehr did not have Parkinson’s disease and questioned whether Dr. Roehr’s condition might not have improved, based on the available medical records. Sun Life subsequently terminated Dr. Roehr’s benefits and upheld this decision on appeal in 2018.
In its review, the court acknowledged that review of the case was complicated by the facts that Dr. Roehr’s tremors were unexplained, his physician had observed temporary improvement in his condition, and he had not completed neuropsychological or other testing that had been suggested early on by a neurologist. However, the court ultimately sided with Dr. Roehr, indicating that Sun Life had not conducted an assessment by a neurologist/movement disorder specialist, even though their reviewing neurologist had recommended it. Further, the court explained that “Sun Life relied on virtually the same medical records for a decade and has pointed to no information available to it that altered in some significant way its previous decision to pay benefits.”
While Dr. Roehr was successful, the case had to proceed to costly litigation in order for him to prevail. The case is an example of why it is important to have carefully detailed medical records that clearly document a disability and stands as an important reminder that insurance companies are often looking for ways to deny claims, even those they have been paying out for years.
If you are on claim and feel that your insurance company has begun questioning your claim, please feel free to reach out to one of our attorneys directly.
[1] Roehr v. Sun Life Assurance Co., No. 21-1559, 2021 WL 6109959 (8th Cir. Dec. 27, 2021)
Traveling for Treatment A Case Study
What if you have to travel for treatment? Can your insurance company use that to question if you really are disabled? That is exactly what happened in the case of Sherrell v. Sun Life.[1] Sherrell was a research coordinator who filed for disability with her insurer, Sun Life Assurance Company of Canada, based on anxiety, depression and agoraphobia.
Shortly after filing for disability, Sherrell began receiving electroconvulsive therapy (ECT). In order to participate in ECT, Sherrell traveled to Minneapolis to stay with her daughter while receiving treatment, as she would not be able to drive while receiving the ECT treatments.
Sun Life denied Sherrell’s claim, indicating that they did not believe she was unable to work. In part they based this decision on a medical review they sought out by a physician certified in psychiatry and neurology. As part of his review, this doctor indicated, in part, that it was “inconsistent” that Sherrell was able to travel to Minnesota despite her condition. The original report also incorrectly stated that Sherrell had traveled “back and forth” to Minnesota.
The Court found this argument to be less than persuasive, stating that it failed to see how someone traveling to get needed medical treatment suggests that she is able to perform the tasks of her job.
We’ve seen insurance companies often overemphasize travel or other non-work-related activities in their denial of claims. If you feel your insurance company has overstressed your activities, such as traveling for treatment, in assessing your claim, please feel free reach out to one of our attorneys directly.
[1] Sherrell v. Sun Life Assurance Co., No. 20 C 7519, 2022 WL 474206 (N.D. Ill. Feb. 16, 2022)
Multiple Disabling Conditions: A Case Study
It is not uncommon for individuals to have multiple disabling conditions that contributes to their need to file a claim. But will your insurance company take each diagnosis into consideration when determining eligibility for benefits?
One such case is that of Sorensen v. Hartford[1]. Ms. Sorensen sued Hartford after being denied long-term disability benefits. She suffered from a multitude of conditions, including (but not limited to) chronic fatigue syndrome, fibromyalgia, chronic pain and dysphasia, cervical and lumbar spine degenerative disc disease, Hashimoto’s thyroiditis, prediabetes, irritable bowel syndrome, rheumatoid arthritis, depression and anxiety. For these conditions she saw numerous medical professionals, many of whom had contact with Hartford during the claims process, whether via interviews or submitting an attending physician’s statement. The Social Security Administration awarded Ms. Sorensen disability benefits for multiple conditions, both physical and mental.
After having their own doctors review Ms. Sorensen’s medical records, Hartford determined that Ms. Sorensen met the definition of disability based on a mental illness and awarded benefits for 24 months (because her policy had a mental illness limitation on benefits). However, in their findings, these reviewing doctors concluded that any restrictions and limitations of her medical conditions would not prevent her from working in “any occupation”.
Upon review, the Court found that Hartford had erred in its denial for several reasons. In part, the Court criticized Hartford for not completing an in-person medical evaluation, especially given that many of Ms. Sorensen’s health conditions were not “susceptible to objective verification” (such as fibromyalgia). Further, a Hartford reviewing doctor cherry-picked medical records, looking at five office visits rather than the entire medical file, and was never given a copy of the SSA’s decision granting Ms. Sorensen Social Security benefits in order to distinguish his conclusions.
If you feel that your insurer is not fully considering your disabling medical conditions, please feel free to reach out to 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 insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Sorensen v. Hartford Life Ins. Co., No. 4:21-cv-00286, 2022 WL 2135811 (D. Idaho June 14, 2022).
Rescission: A Case Study
Recently we’ve seen that insurance companies are conducting more rescission reviews. Rescission is a legal principle where insurance companies can avoid payment and even void a policy if there were any misstatements made in a policy application. We typically see this happening when it comes to the health questionnaire portion of policies. Insurance companies may even sue a policyholder in order to rescind a policy, and seek attorney fees and costs.
One such example is the case of Principal v. Hill[1]. Principal sued Ms. Hill seeking to rescind her deceased husband’s life insurance policy, after Principal discovered that the husband had made material misrepresentations and omissions on his life insurance application within the policy’s two-year contestability period. As part of the application, Mr. Hill was required to submit a Statement of Health. According to Principal’s complaint, Mr. Hill did not disclose consultations with physicians, tests, treatments, medications, symptoms and medical conditions. The Statement of Health also contained language to the effect that, by signing it, the Hills were confirming that the answers “were complete and true to the best of my knowledge” and that “any false statements, omissions or material misrepresentations regarding age or health information could cause coverage, if issued, to be cancelled as never effective.” Principal asked the Court to rescind the policy as to amounts over the guaranteed issue amount of $20,000.00, stating that it had relied on these misrepresentations when it issued the policy.
In this instance, the policy was an ERISA policy, and ERISA law allows for the rescission of insurance contracts entered into under false representations of health. Here, the Court found in favor of Principal and rescinded the policy. The Court also awarded attorney fees and costs, as Principal had demonstrated that they achieved “some degree of success on the merits” of the case, including that they had shown a valid basis for rescission.
While this is a life insurance case, we often seen similar situations when it comes to disability insurance cases. More and more, insurers are going through policy applications with a fine-toothed comb, looking for any misrepresentations. They may even request medical records from decades earlier in an attempt to find discrepancies. The takeaway is that it is imperative to be careful and accurate when filling out applications, or you may find yourself without coverage when needing to file a claim. If your insurance company has mentioned rescission, it is important to speak with an experienced disability insurance attorney right away.
If you have questions regarding how rescission works, or fear your insurance company may be seeking to rescind your policy, please feel free to reach out to 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 insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Principal Life Ins. Co. v. Hill, No. C21-1716 MJP, 2022 WL 2718087 (W.D. Wash. July 13, 2022).
Feltington v. Hartford – Internal Guidelines
The internal working of insurance companies, especially when it comes time to adjudicate a claim or navigate an appeals process, can be a mystery—in fact some insurance companies can go to great lengths to actually hide their internal guidelines and procedures. One such example of that is the case of Feltington v. Hartford Life Insurance Company.[1]
In this matter, Feltington is suing Hartford based on their denial of her long-term disability benefits under a private-employed sponsored disability policy (an ERISA policy). The case is in its seventh year of litigation. One major area of contention was the production of Hartford’s internal procedures related to receiving post-appeal information.
Hartford eventually released a heavily redacted portion of its claims manual, discussing its process for receiving additional information/issues submitted after an appeal decision. The excerpts indicated that it was Hartford’s policy to uphold the appeal decision by issuing a letter explaining that the administrative remedies had been exhausted.
The Court added, “[i]n elevating the Hartford Life’s closing of the record to the level of the sacrosanct, the Company misses a fundamental feature of human nature: we all make mistakes.”
Even further, the excerpts of the policy also explained that all post-decision information received is to be sealed in a specially-marked envelope which “should not be re-disclosed.” The purpose of this appears to be to exclude any additional information from the administrative record, and thus make it unavailable to insureds, their counsel, and the courts.
This court case shows just how far insurance companies, specifically Hartford, will go to stand by its denial determination. If you are engaged in litigation with your insurer, feel free to reach out to one of our attorneys directly.
[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Feltington v. Hartford – Delay Tactics
When claims denials end up going to litigation, they can be both costly and time consuming to both sides involved. One example is the case of Feltington v. Hartford Life Insurance Company.[1] Lisa Feltington, a quality assurance coordinator, filed a claim with her disability insurance carrier, Hartford Life Insurance Company. These benefits were terminated and eventually she filed a lawsuit against Hartford.
The lawsuit has now entered its seventh year of litigation, with over 100 entries on the docket and a 1,000-page administrative record. This drawn-out lawsuit has drawn consternation from the judge, who harshly criticized counsel, saying “[t]he result has been a mind-numbing elevation of for over substance which had devolved into a conflagration that all but extinguished the search for truth.”
Arguments included whether a magistrate judge could rule on certain motions, including a motion to expand the administrative record. At issue was a Functional Capacity Examination (FCE) that was performed on Ms. Feltington on May 16, 2014. According to Hartford the document was unsigned and they stated the author was anonymous. According to Hartford, they attempted to contact Best Physical Therapy Associates and then ultimately concluded that the FCE was less than objective.
Despite these statements, a letter from a Susan Greenberg was written explaining that she was the one who had performed the FCE and explained that she had returned the call of Dr. Small from Hartford. Years later in litigation, the judge ruled that “the Greenburg letter, which clarifies these seemingly critical concerns (and was ignored by Hartford) must be considered in connection with this matter.”
Further, arguments in the case arose regarding the disclosure of a small portion of Hartford’s claims manual—including multiple rounds of discovery and court orders. Hartford began its effort to avoid discovery outside the administrative record in 2015. After being ordered to do so by the judge, Hartford released an initially heavily redacted portion of its claims manual in April 2016. This excerpt remains central to the case, and was discussed in length in the judge’s recent 2022 ruling.
As stated above, the judge in this matter harshly criticized Hartford for its delay tactics in this case; however, these long delay tactics by insurance companies’ counsel are not uncommon. Insurance companies have greater financial resources and time than insureds, and use this to their advantage when a lawsuit arises. This case highlights the importance of filing strong claims from the outset, to avoid lengthy litigation later down the road.
If your insurance company is employing delay tactics, please feel free to reach out to one of our attorneys directly.
[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Litigation Against Insurers: Attorney Fees
Sometimes, when an insurer denies or terminates a case, it become necessary to sue the insurance company in an effort to recover benefits. These lawsuits can become time-consuming and costly quickly. This begs the question – can you recover attorney fees and costs if you are ultimately successful in your lawsuit? The answer is, it depends.
One illustrative case is that of Sutton v. MetLife[1]. Sutton filed for disability with his insurer, MetLife, when he became disabled due to severe back pain. He filed in 2018 and MetLife initially began paying benefits; however, they terminated his claim about a year later after consulting with a physician. After an appeal was unsuccessful, Sutton sued MetLife. The parties ultimately reached a settlement agreement, with MetLife paying the full value of the disputed benefits.
After this, Sutton requested an award for his attorneys’ fees and costs. In its decision, the Court explained that they may award reasonable fees and costs to any party who has achieved some degree of success on the merits.
In this case, MetLife did not dispute this fact. However, the parties did dispute the amount of the fees Sutton’s attorneys were eligible for. MetLife had several arguments against paying the full amount of attorneys’ fees, to include contesting what attorney time should count, alleging that Sutton’s attorneys engaged in duplicative billing as well as “block billing”, and asserting that Sutton’s attorneys should have accepted MetLife’s offer to pay a discounted award.
The Court did not find these arguments persuasive, and awarded $102,179.00 in fees and $828.40 in costs.
If you are considering litigation against your insurer for denial of benefits, please feel free to reach out to 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 about litigation against your insurer, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Sutton v. MetLIfe Ins. Co., No. 2:20-cv-00698-KJM-CKD, 2022 WL 2177123 (E.D. Cal. June 16, 2022).
Principal Uses Limitation Provision to Deny Disability Benefits
Certain conditions can be hard to prove up, or even diagnose, and insurers, such as Principal, will key in on this and may seek to deny, or at least limit, benefits. This can be true of Principal, even when policy language does not explicitly request objective medical evidence.
One such case is that of Gilbert v. Principal[1]. Sharon Gilbert, a biostatistician, ceased working in 2018 and filed a disability insurance claim with Principal, based on a diagnosis of Lyme disease from 2016. Gilbert’s associated symptoms included fatigue, headaches, chills, chest pain, joint pain, numbness and nausea. She also indicated that she was seeing a psychologist once a month due to her difficulty in managing her symptoms.
Gilbert’s policy had a 24-month limitation on benefits for mental health conditions and “Special Conditions”, which included headaches, chronic fatigue syndrome, fibromyalgia and musculoskeletal and connective tissue disorders. Principal ultimately determined that Gilbert was suffering from a Special Condition, namely Somatic Symptom Disorder (SSD) and therefore was only eligible for 24 months of benefits.
Principal conducted multiple independent medical examinations (IMEs) and had various physicians do medical records reviews in order to challenge the Lyme disease diagnosis. Their main argument was that the diagnosis did not fit the CDC guidelines. They also pointed to the fact that several of Gilbert’s own physicians questioned the diagnosis of Lyme disease. The Court decided in favor of Principal. While Gilbert had other conditions outside of SSD, Principal and the Court found they did not rise to the level of disability.
Despite records and statements from the provider treating her extensively for Lyme disease, and a favorable Social Security determination, Gilbert was unsuccessful in her case. This case highlights the importance being aware of any limitation provisions in your policy.
If you feel your insurer is trying to apply a limitation provision to your claim for benefits, please feel free to contact one of our attorneys directly.
[1] Gilbert v. Principal Life Ins. Co., Civil Action No. TDC-21-0128, 2022 WL 3369537 (D. Md. Aug. 16, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Proof of Loss Requirements: A Case Study
As part of the disability insurance claim process, your insurer will ask for various categories of proof of loss to support your disability claim. What happens if you fail to provide all of the requested information? In all likelihood, your claim will be denied.
This was the case in Lipsky v. Principal.[1] Lipsky, a licensed insurance agent, filed a claim for residual disability with his insurer, Principal. In reply, Principal asked for evidence demonstrating Proof of Loss, including claim forms, proof of loss of prior earnings, proof of current earnings, medical records and attendance at a interview with a Principal agent. In response, Lipsky submitted one of the claim forms, but none of the additional requested information. Principal went on to deny the claim and uphold its denial when Lipsky did not produce the remainder of the request.
Lipksy, for his part, claimed that had submitted enough evidence to establish his eligibility for residual disability. He also argued that Principal, under Nevada law, could not request specific form documentation. The Court found that Principal was within its rights to request specific information to establish proof of loss and that Lipsky had not provided sufficient information to make a claim under the policy.
The case highlights the importance of carefully reviewing your policy and all communication from your insurer to determine what evidence is required to establish a claim for benefits. An experienced disability insurance attorney can help you determine whether what your insurer is asking for is allowed under the terms of your policy.
If you feel that your claim has been targeted for not meeting proof of loss requirements, please feel free to contact one of our attorneys directly.
[1] Lipsky v. Principal Life Ins. Co., 2:05-CV-0967-RCJ-LRL, 2007 WL 9728677 (D. Nev. March 22, 2007).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Statements in Policy Applications: A Case Study
Insurers, such as Principal, may go to great lengths to rescind a policy.
Rescission is a legal principal where insurers can void a policy if there were any misstatements in a policy application. We typically see rescission claims based on the health questionnaire portion of an application, but rescission is not per se limited to misstatements regarding health status.
One such example is that of Nichols v. Principal.[1] Dr. Nichols, a dentist, purchased a policy from a broker she met while still in dental school. She completed the application in the broker’s office, including a telephone interview with Principal to complete the portion of her application regarding her current and past health history. The policy was issued and delivered to a field office contact, who delivered the policy to the broker. The broker’s office then obtained her signature on Part D of the Application (Agreement/Acknowledgement of Delivery). Part D included a statement verifying that Nichols had read all the questions and answers obtained during the telephone application interview.
Nichols was subsequently injured in a rock-climbing accident and filed a disability claim. Principal rescinded Nichols’s policy, stating that she had made misstatements in her medical history and that there was misinformation on her application. Nichols contested Principal’s claim, and also claimed that she had not received a copy of her application with the policy (as required under Oregon statute).
More specifically, Principal claimed that the policy did contain the application, and the broker claimed that the bound policy received from Principal had been mailed to Nichols. Nichols argued that she should be granted summary judgment, but the court determined there were issues of fact and set the case for trial.
This case highlights the importance of carefully reviewing all answers on your application for disability insurance carefully for accuracy, especially if this information was obtained and recorded via an interview with an insurer.
If your insurer has threatened to rescind your policy, please feel free to reach out to one of our attorneys directly.
[1] Nichols v. Principal Life Ins. Co., 3:19-cv-01047-BR, 2020 WL 3318000 (D. Or. June 18, 2020).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Great-West Denies Doctor with Kidney-Failure Due to Late Filing
As part of the Great-West ADA group disability policy, a disabled dentist whose disability claim has been denied may file a lawsuit against Great-West, but only after exhausting Great-West’s appeals process and receiving a final adverse claim decision on appeal.
Unfortunately, it’s often difficult for a dentist untrained in law or insurance to determine when Great-West’s “final decision” has been made; and, importantly, if a lawsuit is not thereafter timely filed within Great-West’s own proclaimed statute of limitations (which may be shorter than limitations periods under state law), the aggrieved dentist risks having his lawsuit thrown out as untimely. In other words, Great-West can avoid paying a legitimate disability claim based on a contractual technicality.
This is what happened in the case of Parsley v. Great-West.[1] Dr. Parsley was a dentist with end-stage kidney failure who filed a disability claim with Great-West. After Great-West denied his claim for benefits, Dr. Parsley filed an appeal, which Great-West denied on March 1, 2014. Dr. Parsley went on to correspond with Great-West, filing what he thought were additional, supplemental appeals—all of which were denied, with the last denial occurring on April 15, 2019.
Dr. Parsley then filed a lawsuit, hoping to collect benefits for his obviously disabling condition; however, he was unable to do so, and his lawsuit was thrown out by the court.
The Great-West policy states that no legal action may be started “more than three years after the date of the Company’s final decision on the appeal.” At issue in Dr. Parsley’s case was whether Great-West’s final decision on appeal was in March 2014 or in April 2019.
Great-West argued that the final denial was in March 2014, and indicated that all of its subsequent replies to “claimed” follow-up appeals referred back to the “initial appeal denial,” which was Great-West’s final decision. Therefore, despite the fact that Dr. Parsley believed he was acting in good faith, and Great-West was actually corresponding with him about the merits of his claim each time he wrote to the carrier, the Court ultimately found that Great-West’s “final” decision was in March 2014.
This case shows the importance of understanding the terms of your disability policy, including how, when and where a lawsuit must be filed, what limitations periods apply to the lawsuit, and what constitutes a final appeal and decision. All too often disability insureds believe they are acting in good faith, supplying relevant information and trying to work things out, all the while their insurance company is lulling them into not following the rules of their contact.
An experienced disability insurance attorney, representing you from the outset of your claim, and who understands the particulars of your policy, can make sure that you take timely action so that you do not jeopardize your right to collect benefits.
If you have received a denial of your benefits and are considering appealing or filing a lawsuit, please feel free to reach out to one of our attorneys directly, before you unwittingly compromise your benefits.
[1] Parsley v. Great-West Life & Annuity Ins. Co., No. 22-60800-CIV-SINGHAL, 2002 WL 2341166 (S.D. Fla. June 29, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Unum Study Shows Prevalence of Mental Health Concerns in the Workplace
A recent research study conducted by Unum[1] shows that over half of U.S. workers felt mentally unwell in the last year. Experts indicated that health concerns and workplace pressures during the COVID-19 pandemic caused widespread mental health concerns that are expected to carry into the future.
Forty-two percent of the surveyed employees indicated that they needed to take time off work to deal with their mental health; however, almost one-third of workers reported lack of promotion of mental health resources or offerings by employers. In fact, 70% of employees suggested that there was room for improvement for their employers to reduce the stigma of mental health. According to the study, when employees do seek help, 42% do so only in a crisis, versus seeking support proactively.
As we’ve written before, physicians and dentists can be uniquely susceptible to mental health conditions such as anxiety, depression, and panic disorders, as well as suffering from burnout. These types of claims can be notoriously difficult to prove up, especially given the often subjective nature of symptoms.
Further, even if a doctor is able to file a successful mental health claim, many policies include mental and nervous limitations, which put a cap on the length of time you are able to receive benefits (typically about 24 months).
If you are a professional considering filing a disability claim based on mental health conditions, feel free to reach out to 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] Over half of U.S. workers continue to feel mentally unwell and require time away from work, Unum, June 29, 2022.
Will A Social Security Award Help My Disability Insurance Claim?
Will being approved for Social Security Disability Insurance help your disability insurance claim? Not necessarily, as the case of Bakos v. Unum[1] shows. The case also highlights the importance of timeliness in filing.
Bakos was initially awarded disability benefits in December 2014, but Unum later told her she no longer met the Plan’s disability definition as of April 14, 2015. Bakos appealed the decision and Unum upheld its termination on June 27, 2016.
Bakos also filed for Social Security Disability (SSDI) and, after an appeals process, was awarded full benefits on March 2, 2020. Bakos then requested that Unum re-open the denial of her claim. Unum declined to do so and Bakos filed suit. However, Unum challenged the suit as being time-barred because her Plan had a three-year limitation period, which required Bakos to initiate an action challenging the denial on or before that date (in this case August 6, 2018).
The Court ultimately found for Unum, even though Bakos argued that she had never been notified of the three-year statute of limitations. In part, the Court found that Bakos had not been diligent in investigating issues relevant to her claim, for example by requesting a copy of her Plan.
The Court also concluded even though Bakos believed her SSDI appeal decision vital to her appeal, she “points to no contractual provision showing why her SSDI result would have any material bearing on the timeliness of her Plan appeal.”
In the end, even though Bakos had an argument that she was disabled because of her SSDI award, Unum found a way to ignore this favorable finding. The case illustrates how insurance companies will look for any means possible to deny a claim, regardless of whether there is bona fide evidence of disability. An experienced disability insurance attorney can help navigate important requirements that may arise when a claim has been denied.
If you claim has been denied and you are wondering about next steps, please feel free to reach out to one of our attorneys directly.
[1] Bakos v. Unum Life Ins. Co., CV 121-058, 2022 WL 791922 (S.D. Ga. March 14, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Am I Working In My Specialty? A Case Study
Specialty-specific disability insurance policies allow you to collect benefits if you are no longer able to perform the duties of your specialty occupation (even if you are working in another medical or dental field). We often get asked – will I be able to collect on my specialty-specific policy? Will my insurer fairly determine my specialty?
One illustrative case is that of Pak v. Guardian[1]. Dr. Pak, an anesthesiologist, sued Guardian after he was denied total disability benefits. Dr. Pak argued that his specialty was that of a pediatric anesthesiologist and that he was unable to perform the material and substantial duties of his occupation due to migraines and the accompanying symptoms. Guardian pointed to the policy’s plural definition of occupation and asserted a “dual-occupation defense”, arguing that Dr. Pak had two occupations—anesthesiology and pediatric anesthesiology—and that he would only be totally disabled if he was disabled from both occupations. In making this determination, in part, Guardian looked to Dr. Pak’s CPT codes.
Guardian argued, and the Court agreed, that just because Dr. Pak had a certification in pediatric anesthesiology, he had not necessarily limited himself to that occupation. The Court explained, “the provision does not state that a claimant’s specialty is automatically deemed their occupation. Viewing the provision in its entirety, it focuses on whether the claimant was restricted to that specialty.”
While Guardian’s analysis indicated that Dr. Pak’s CPT codes indicated that 93% of his pre-disability time and revenue was derived from general anesthesiology procedures, Dr. Pak argued that the CPT codes did not give the whole picture of his duties. The Court determined that how much time Dr. Pak spent performing the work of a pediatric anesthesiologist (and what that work entailed) was a question best left to the jury.
This case highlights how difficult it can be to collect total disability benefits under a specialty-specific policy, even if you are board certified in a recognized specialty. If you have a specialty-specific policy and are considering filing a disability insurance claim, please feel free to reach out to one of our attorneys directly.
[1] Pak v. Guardian Life Ins. Co., No. 21-cv-05032-WHO, 2022 WL 410947 (N.D. Cal. Feb. 10, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
Myasthenia Gravis
Myasthenia gravis is a chronic autoimmune, neuromuscular disease that leads to weakness and rapid fatigue in any of the muscles under voluntary control. It is caused by a breakdown in the communication between the nerves and muscles. Specifically, antibodies block, destroy, or alter the receptors for the neurotransmitter acetylcholine at the neuromuscular junction, preventing the muscle from contracting.
Myasthenia gravis is not hereditary or contagious. It is more common in women younger than 40 and men older than 60.
Symptoms
Muscle weakness with myasthenia gravis worsens with periods of activity and improves after periods of rest. While it can affect any of the muscles that are controlled voluntarily, certain muscle group are more commonly affected than other. Common symptoms include:
- Weakness of the eye muscle (ocular myasthenia)
- Drooping of eyelid(s) (ptosis)
- Blurred or double vision (diplopia)
- Difficulty swallowing
- Shortness of breath
- Impaired speech (dysarthria)
- Weakness in the arms, hands, fingers, legs, and neck
A myasthenic crisis can occur when the muscles that control breathing become weak to the point where a ventilator is required to assist with breathing. About 15 to 20 percent of people with myasthenia gravis will experience at least one myasthenic crisis.
Diagnosis
- Neurological examination
- Blood analysis (to look for the presence of abnormal antibodies)
- Repetitive nerve stimulation
- Single-fiber electromyography (EMG)
- CT scan or MRI (to look for a tumor or abnormality on the thymus)
- Pulmonary function tests
Treatment
While there is no cure for myasthenia gravis, a variety of treatment is available to help manage the symptoms.
Since the thymus gland controls immune function and may be associated with myasthenia gravis, one course of treatment is a thymectomy, with about 50% of individuals who undergo this procedure experiencing remissions. Other treatments include:
- Medications (cholinesterase inhibitors, corticosteroids, immunosuppressants)
- Intravenous therapy (plasmapheresis, intravenous immunoglobulin, monoclonal antibody)
Because myasthenia gravis can improve with rest, and can go into periods of remission, it can be difficult to prove up to an insurance company even if it has impacted your ability to practice to the point you need to file a claim. If you have been diagnosed with myasthenia gravis and feel you may no longer be able to safely practice, please feel free to reach out to 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
National Institute of Neurological Disorders and Stroke
Myasthenia Gravis Foundation of America
Mayo Clinic
Limited Conditions Provisions: A Case Study
Musculoskeletal conditions, including back pain, of all different types can be debilitating and seriously impede your ability to practice. However, newer disability policies may exclude or limit recovery for conditions such as carpal tunnel syndrome, arthritis, and diseases or disorders of the cervical, thoracic, or lumbosacral back and its surrounding soft tissue, or sprains or strains of joints or muscles. If your policy contains this type of exclusion, your benefits may be limited to a shorter payout. For example, 24 months, instead of to age 65 or lifetime benefits.
One such example of this situation is the case of Zall v. Standard.[1] Dr. Zall was the co-owner of a dental practice when he began experiencing pain and numbness in his neck and in his thumb, and two fingers in his right hand. Symptoms of neck pain and numbness began in 2011 and he was evaluated by an orthopedic surgeon and an MRI showed disc herniation at C5-C6 that was contributing to severe foraminal narrowing. In 2013 the same doctor found Dr. Zall’s symptoms consistent with a herniated disc and intermittent radiculopathy. Dr. Zall shortly thereafter filed a claim with his insurer, Standard.
In Dr. Zall’s case, his policy contained an “other limited conditions” exclusion that limited recovery for musculoskeletal conditions. Benefits could only be secured if the claim was based on a herniated disc or radiculopathy verifiable with tests (EMGs and MRIs). Standard initially approved Dr. Zall’s claim; however, upon later review Standard determined that the “other limited conditions” exclusion did apply, and stopped paying benefits.
Standard argued that later medical records did not establish that Dr. Zall’s symptoms were any longer attributable to either radiculopathy or a herniated disc. They based this decision on reviews by opinions of four board-certified physicians they had had review the file. The Court agreed with Standard, indicating that it was neither arbitrary or capricious for Standard to conclude that Dr. Zall’s disability was caused or contributed something else, such as carpal tunnel syndrome or degenerative disc disease.
If you are wondering whether your policy has an “other limited conditions” provision, and how it might affect your claim, please feel free to reach out to one of our attorneys directly.
[1] Zall v. Standard Ins. Co., 21-CV-19-slc, 2021 WL 6112638 (W.D. Wisc. Dec. 27, 2021).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
2020 Benchmark Trends
A recent study published by the Integrated Benefits Institute entitled “2020 Benchmarking Trends”[1] looks at trends in the short-term and long-term disability market. The dataset included thirteen carriers and TPAs (third party administrators), 10.6 million claims, more than 100,000 employer policies and nearly 1,000 SIC (Standard Industrial Code) codes.
When it comes to long-term disability, the most prevalent conditions leading up to filing a claim is diseases of the musculoskeletal system and connective tissues (accounting for almost 27% of new 2020 LTD claims), followed by neoplasms and diseases of the nervous system.
The study further found that across all U.S. employers, new LTD claims year over year rose by approximately 30 percent (from 8.3 cases per 1,000 in 2019 to 11.3 cases per 1,000 in 2020). Employees classified as Service Industry employees continued to be the highest contributor to new claims in the benchmarking data. However, the service sector experienced a reduction in claims. The study posits that this could be due to the fact that during the COVID pandemic these workers were classified as essential and subject to worker separations due to quarantines, shutdowns, revenue reductions and social distancing mandates, in addition to a general fear of being out in crowds/public.
COVID-19 also effected the results of the benchmark study. In large part this was due to late CDC guidance on coding, inconsistent condition coding, and irregularly categorized coding. Specific potential COVID-19 related conditions falling into a specific ICD 10 chapter (diagnosis code range Z00-Z99) included ill-defined and unknown cause of mortality, and general symptoms and signs. This chapter had an increase in claim count (2,000) a substantial percentage increase (60%) and accounted for 2% of new claims. The study surmises that this is where many COVID-10 related cases fall.
[1] Joseph Aller, DHA, MBA, CPA, 2020 Benchmarking Trends, Integrated Business Institute, January 2022.
Legal v. Factual Disability: A Case Study
Disability insurance insurers often make the distinction between factual and legal disability when evaluating professional’s disability claims.
Factual disability refers to the inability to practice caused by an injury or illness that prevents an individual from practicing in their occupation. Legal disability refers to circumstances where an individual is not legally permitted to continue to practice. One example of this would be the suspension of a professional license.
Most policies exclude coverage in situations involving the revocation or loss of a license to practice. But what happens if you are both legally and factually disabled—would you still be able to collect on your policy?
One case that examined this very scenario is that of Pogue v. Principal.[1] In his claim for disability benefits with Principal, Dr. Pogue, a physician, indicated that he suffered a nervous breakdown on November 9, 2012 as well as anxiety, and a few other medical issues that prevented him from continuing to practice medicine.
Principal denied Dr. Pogue’s claim, stating that the policy specifically excluded “benefit for any Injury or Sickness which in whole or in part is caused by, contributed to by, or which results from the suspension, revocation, or surrender of [an insured’s] professional or occupational license or certification.” Principal asserted Dr. Pogue was legally, not factually, disabled because the Tennessee Board of Medical Examiners had suspended Dr. Pogue’s medical license in November 2012.
In its denial letter, Principal acknowledged that Dr. Pogue had documented medical concerns prior to his license suspension, but claimed that it was not until he knew there was an ongoing investigation (that went on to result in the suspension of his medical license) that he actually stopped working. Dr. Pogue attempted to argue that his license suspension was a voluntary surrender that he agreed to as part of his treatment plan, instead of a cause or contributing factor to his mental condition. However, the Court ultimately sided with Principal.
This case emphasizes the importance of knowing when you are unable to practice due to a physical or mental disability, and not pushing yourself past the point where it is unsafe to practice. If you feel you might need to file a disability claim, please feel free to contact our attorneys directly to set up a consult.
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Pogue v. Principal Life Ins. Co., No. 3:14-CV-599-CHB, 2021 WL 3354605 (W.D. Ky. Aug. 2, 2021)
