Disability Insurance Claims:
Top 5 Trends of 2021 and Outlook for 2022

As leaders in the professional disability insurance industry, our disability insurance attorneys are committed to keeping dentists, physicians, other attorneys and executives apprised of industry, regulatory, and legislative changes that may impact their ability to collect benefits under “own occupation” disability insurance policies.

In this post, we will be sharing some of the disability claims management trends we have noticed in 2021, discussing some recent surveys of private disability insurers that may explain these trends, and providing our disability insurance outlook for 2022.

For a broader discussion of the history of the disability industry and a discussion of common bad faith tactics and new policy provisions to be aware of, please visit our homepage.

Disability Industry Trends of 2021

Over the course of 2021, there has been a noticeable uptick in claims relating to a variety of factors, including COVID-19’s impact on healthcare practices, sales and operations (particularly dental practices); an uncertain economy with higher unemployment and lower interest rates; and a significant increase in physicians and dentists filing disability insurance claims based on mental/nervous conditions.

Additionally, from the disability insurance industry’s perspective, there are fewer individuals purchasing own-occupation policies, and policyholders are often selecting lower monthly indemnities if they do purchase policies.

The professional disability insurance industry is also facing additional sales obstacles, including aging producers (with younger producers focusing more on asset management), an aging distribution model, nonengaged advisors, and lack of knowledge and training for agents on newer policies.

Disability Claim Trends of 2021

Professionals, such as physicians, dentists, attorneys and executives, have historically pushed through disabling conditions longer than they should—a phenomenon called presenteeism. In the wake of COVID, however, this has changed.

Some dentist practices, in particular, have suffered financial strain due to COVID and related fallout, and many dentists facing COVID shutdowns and disabling conditions have simply decided to file disability claims.  The same holds true for physicians.  Our disability law firm is also seeing more claims for mental/nervous conditions than ever before.

Due to the financial pressures noted above, there has been a noticeable uptick in how aggressive insurance companies are being when investigating and administering own occupation disability claims.

Even if your claim was initially accepted for payment, that it not the end of the process as most disability insurance companies have decidedly changed their orientation to “claim duration,” which means a quick recovery and return to work.  And companies are getting there through what they call “early intervention,” which means the development of information early in the claim, before the insured is represented, that will be helpful in securing a disability claim termination.

Additionally, starting in 2020, our law firm has also noticed that disabled physicians and dentists have started complaining more frequently that their purported “own-occupation” policies ended up not being what their agent described in terms of coverage/limitations.  In the past, agents were held liable for even negligent misrepresentations, but the newer policies now contain language that protects the insurance companies and their agents from liability in this context.

While there are now countless different levels of “own-occupation” policies, nonengaged and/or poorly trained advisors are not explaining the nuances of each policy type to their clients, who are unfortunately being left with inadequate coverage if they ever become disabled.

The 5 Most Common Disability Claim Management Tactics in 2021

In the past, we have seen that insurers under financial pressure have simply wrongfully denied claims, and this still holds true to some extent. However, we are also seeing insurers engaging in other, more creative tactics to reduce the amounts they are paying out.

More specifically, we have noticed that:

1. Disability insurers are conducting more rescission reviews. “Rescission” is a legal principle that allows insurers to void a policy and avoid payment if there were any misstatements made in the policy application—typically in the health questionnaire portion. If an insurer seeks to rescind a policy, they will typically offer to refund your premiums, but in return require you to give up your policy and your disability claim. This is a complex area, and the rules regarding rescission vary in different jurisdictions. If you believe your insurer is conducting a rescission review, you should contact a disability insurance attorney immediately.

2. Disability insurers are approving claims, but refusing to pay benefit increases that the policyholder applied for. This is a similar tactic to the one above, but slightly different. Instead of using rescission to void the whole policy, the insurer seeks to void one or more increases to the base benefit of the policy. So, for example, if your initial benefit was $2,000 and you were later approved for an additional $8,000 in benefit increases, the insurer would approve the claim, but only pay $2,000/month instead of $10,000/month.

3. Disability insurers are seeking to invoke complex provisions to reduce or avoid payment. As we’ve discussed in prior posts, over the last several years disability insurers have made their policies more detailed and complex. New disability policies can contain complex formulas for calculating benefit offsets or partial disability benefits, and these formulas generally are based on the policyholder’s loss of income. However, different companies define “income” different ways in their policies, and these definitions can be vague or overly-generic. As a result, it is not uncommon for a physician or dentist to have income sources that are difficult to categorize under the express terms of the policy. In the past, insurers were more inclined to work something reasonable out in these circumstances; however, lately, they have been more inclined to try to take advantage of these gray areas and construe them in their own favor, to reduce or avoid payment.

4. Disability insurers are revisiting and reinvestigating claims that have been paying for years and years. We have also seen an increase in insurers targeting policyholders who have been on claim for years—particularly mental health claims and claims based on subjective symptoms, such as pain or numbness. The most common approach here is using their in-house doctors to conduct a paper review of the records that results in “uncertainties” about the “ongoing nature” of the disability, or the “scope of limitations.” The insurer then invokes the exam provision of the policy and sends the insured to a doctor of its choosing, who looks for any basis to claim improvement and find that the policyholder is no longer disabled.

5. Delaying claim decisions due to pending information requests. As noted above, some insurers have reduced their personnel at the same time more claims are being filed. Consequently, we are seeing that many claims are being delayed, particularly if the policyholder is not submitting correct documentation at the beginning of the claim. Many people expect the insurer to tell them what information is necessary, but under current circumstances, this is a recipe for going months without any benefits. It is much better to gather everything that is needed and produce it at the outset, to speed up the process and keep your claim from being sent to the back of the queue due to pending document requests.

Out of all of the companies, right now Unum is the company that is standing out as the most aggressive. Unum has been sanctioned in the past for its bad faith conduct, and is currently the disability insurer that comes up the most in our disability case alerts each week.

In the past, Unum has been the insurer that is most willing to take legal risk to avoid payment during times of financial strain. Consequently, we consider Unum to be a bellwether, of sorts, to gauge of how the industry is doing. If Unum is denying more claims and acting more aggressively, it may mean that the other insurers will follow suit in short order.

September 30, 2020 Milliman Survey

Several recent surveys of the major disability insurers may reveal why we are seeing the above trends.

For example, Milliman, a Seattle-based actuarial consulting firm, recently released an annual survey of the U.S. individual disability income (IDI) insurance market for the last five calendar years. Milligan surveyed 15 of the largest private disability insurers, including Ameritas, Guardian, MassMutual, MetLife, Mutual of Omaha, Principal, Standard and Unum. At the time, these insurers accounted for about 90% of the IDI market.

The report is quite comprehensive, but we found the following findings to be the most noteworthy.

  • Overall, the new number of individual disability policies sold in the United States fell to 6.6% (to 270,000).
  • The report showed that new annualized premiums from new policy sales increased 0.4%, to $402 million.
  • Four companies issued over 40% of their new IDI annualized premium in 2019 to doctors and surgeons.
  • In terms of the products offered by 14 companies (either in the policies themselves or as riders), 11 of them offered pure own occupation policies; however, only 8 offered pure own occupation policies for doctors.
  • On average, 14 IDI companies ranked their satisfaction as 3.8 (out of 5) for profitability and 3.1 (out of 5) for sales results for 2020.
  • The insurers identified unfavorable trends in the IDI market, including several around COVID-19, such as uncertainty surrounding COVID-19 and the economy (including lower interest rates and unemployment), the impact on sales, pandemic operational difficulties, and expected increase in lapses due to COVID-19.
  • Other unfavorable trends identified by disability insurers included a 200% increase in claim notices resulting from COVID-19 and risk of disability due to potential exposure to COVID-19, low claim terminations, increasing prevalence in mental/nervous claims, and claim notices that have no premise of sickness or injury (rather claimed economic disability).
  • According to this survey, the long-term financial health of the IDI market also faces several obstacles, including an aging distribution with inadequate succession planning, aging producers (with younger producers focusing on asset management), an aging distribution model, nonengaged advisors, and lack of knowledge and lack of training for agents.

GenRe Report

GenRe, a Berkshire Hathaway reinsurance company, also recently released a report that looked at the 2020 Individual Disability market. While this study looked at sales trends, it also confirmed that disability insurance remains a multi-billion dollar industry.

This study looked at Non-Cancelable, Guaranteed Renewable, Buy-Sell, and Guaranteed Standard Issue product lines for 2019 and 2020.  Sixteen carriers (including Ameritas, Guardian, MassMutual, MetLife, Mutual of Omaha, Northwestern Mutual, Principal, Standard, and Unum) participated in the study. These 16 companies represent $5 billion of in-force premiums.

This study showed that the number of new policies sold by these insurers in 2020 fell 10.8% (to 245,851) and that premiums for the new policies fell about 7% (to $398.9 million).  The benefit amounts for new policies totaled $1.6 billion.

Insurers reported that COVID-19 was responsible for the drop in new sales—in part because producers struggled to close sales without being able to meet clients face to face.

Despite the drop in new sales, the number of insureds letting their in-force policies lapse decreased—likely due to the increased financial uncertainty from COVID. As a result, insurers still realized a net-increase from prior years to the total number of people covered by individual disability insurance by about 1.2% (3.1 million people). Premiums for these in-force policies increased 1.3%, to $5 billion. Benefit amounts for in-force policies totaled $19.6 billion.

Non-Cancelable policies, which are policies that must be kept in force with the same terms and premiums as long as the policyholder makes timely premium payments, represented $4.3 billion (85%) of total in-force premium.  Medical and 4A and above occupations accounted for 93% of non-cancelable new premium. Guaranteed Renewable, where the insurer has the ability to increase premiums, in-force premium was up by 3%, or to $701.3 million.

Outlook for 2022

Based on our recent experience and the surveys discussed above, it is clear that many of the major disability insurance companies are under financial strain right now. The volume of claims being filed appears to be going up, due to COVID, and the companies are not selling as many policies as they have in the past. Consequently, we expect that the disability claim trends we are seeing will continue into 2022.

If you feel that your insurer is delaying payment, or has wrongfully reduced your benefit, please feel free to contact one of our disability attorneys directly, for a free consultation.

Sources:

Allison Bell, COVID-19 Hangs Over Individual Disability Market: Milliman, Think Advisor, Nov. 30, 2021, https://www.thinkadvisor.com/2021/11/30/covid-19-hangs-over-individual-disability-market-milliman/

Roberta W. Beal, FSA, MAAA and Tasha S. Khan, FSA, MAAA, Milliman Report: 2020 Annual Survey of the U.S. Individual Disability Income Market, Sept. 2020

Allison Bell, More People Have Individual Disability Insurance: Gen Re, ThinkAdvisor, May 13, 2021, https://www.thinkadvisor.com/2021/05/13/more-people-have-individual-disability-insurance-gen-re/

Gen Re, U.S. Individual Disability Market Survey, Summary Report – 2020 Results, 2021



Long Term Side Effects of Chemotherapy – Part II

We previously wrote about how late effects of chemotherapy, that continue or occur after a cancer has gone into remission, may be the basis for a disability insurance claim.  In particular, one late effect of chemotherapy can be neuropathy, which can be especially detrimental to practicing dentists or physicians.  This condition is called chemotherapy-induced peripheral neuropathy (CIPN) and, although rare, can develop several years after treatment.  While in most cases CIPN will dissipate over time, in some rare cases it is permanent.

Symptoms:

Common symptoms of CIPN include:

  • Numbness, pins & needles in hands and feet
  • Pain or burning
  • Difficult picking up objects, buttoning clothing
  • Ringing in ears or loss of hearing
  • Vision changes
  • Sharp stabbing pains in hands and/or feet
  • Constipation/trouble urinating
  • Muscle weakness and/or cramps
  • Loss of balance or difficulty walking
  • Feeling heat and cold (more or less than normal)

Symptoms are usually symmetrical and start at the fingers and toes. At its worst, CIPN can cause more serious problems such as changes to blood pressure and heart rate, trouble breathing, paralysis or organ failure.

Treatment:

There is no treatment that can repair any nerve damage, rather treatments are designed to manage symptoms and improve function, and can include:

  • Pain medication
  • Topical medications
  • Physical or occupational therapy
  • Vitamins
  • Exercise
  • Electrical nerve stimulation

For individuals, such as dentists, who rely on fine motor skills and acute sensation in their hands to perform their jobs, CIPN can be a particularly devastating condition and may prevent a return to work, even after cancer is in remission.  If you have been experiencing CIPN and think that you may need to file a long-term disability insurance claim, 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

American Cancer Society
National Cancer Institute
Dana Farber Cancer Institute
Brown TJ, Sedhom R, Gupta A. Chemotherapy-Induced Peripheral Neuropathy. JAMA Oncol. 2019;5(5):750. doi:10.1001/jamaoncol.2018.6771

 

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Insurance Company Tactics:
Trivializing Job Duties

Does your insurance company understand your job duties? If not, how much does it matter?

If you have an “own occupation” disability policy, it could be the difference between a benefit approval and a benefit denial.

Why is My Insurer Trivializing My Job Duties?

Your job duties are a critical component of an “own occupation” disability claim. For this reason, insurers may seek to misclassify or over-simplify your job duties to avoid payment.

One such example is the case Joyce v. Life Insurance Company of North America (LINA).[1] Joyce was a garbage-collection supervisor, or route manager.  In 2016, Joyce was struck in the head by a tree branch during a storm. He suffered a concussion and several ongoing symptoms. These included cognitive dysfunction, headaches, visuospatial difficulties, visual problems, and frustration.

Joyce’s actual job included supervisory activities, interactions with workers, analyzing and solving problems and knowledge of equipment. However, LINA merely identified Joyce’s job as “laborer.” LINA then determined that Joyce could still perform “labor,” and relied on a paper file review of Joyce’s medical records to justify a claim denial.

The Outcome

Joyce took LINA to court, and the judge saw through LINA’s tactics. The judge recognized that LINA’s determination did not include the correct job description and noted that LINA had been selective in the records it chose to review. In this case, the court ordered LINA to reevaluate the claim, taking into account the proper job duties. However, it took a court order to ensure that LINA properly evaluated Joyce’s claim.

If you have filed a claim and feel like your insurance is misclassifying your job description and duties, 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 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] Joyce v. Life Insurance Company of North America, Civil Action No. 2:18-cv-1293, 2021 WL 493262 (W.D. Pa. Feb. 10, 2021)

 

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Long Term Side Effects of Chemotherapy – Part I

Cancer is a common reason that individuals may need to file a disability insurance claim.  However, once the cancer goes into remission, insurance companies may pressure a claimant to return to work—even if the insured has not yet returned to optimum health.

One reason that a return to work (or even to normal daily tasks) may be delayed or impossible is due to lasting side effects from chemotherapy. The aim of chemotherapy drugs is to kill fast-growing cells, like cancer cells.  However, because the drugs travel through the body, they can affect other, normal and healthy fast-growing cells. Cells most likely to be damaged by chemo are blood-forming cells in the bone marrow, hair follicles, and cells in the mouth, digestive tract, and reproductive system.  Some chemo drugs can also cause damage to the kidneys, heart, lungs, bladder and nervous system.

Side effects that take months or even years to go away are called late effects.  Sometimes these late effects can last a lifetime and chemo can also sometimes cause delayed effects, including a subsequent cancer that can show up years later.  Late effects of chemotherapy include:

  • Dental problems
  • Early menopause
  • Hearing loss
  • Heart problems
  • Increased risk of other cancers
  • Infertility
  • Loss of taste
  • Lung disease
  • Reduced lung capacity
  • Nerve damage
  • Osteoporosis
  • Bone loss and changes to the joints
  • Brain changes (including memory loss, slowed processing, movement problems, personality changes)
  • Eye problems (including cataracts and dry eye)

During cancer treatment, you will typically have frequent access to a treating provider who can provide other necessary paperwork to your insurance company during the course of a claim.  However, this may not necessarily be the case when it comes to side effects of chemotherapy after remission.  This can be true because many side effects don’t require constant medical monitoring and/or there is no specific course of treatment, or cure, available.

If you are experiencing late effects of chemotherapy and your insuring is challenging your ongoing disability claim, 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:

American Cancer Society
Mayo Clinic
National Cancer Institute
MD Anderson Cancer Center

 

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Ischemic and Hemorrhagic Strokes

Strokes are a leading cause of death in the United States as well as a leading cause of long-term disability. The majority of strokes (87%) are ischemic strokes.  An ischemic stroke occurs when blood flow through the artery that supplies blood to the brain becomes blocked (often by a blood clot).  A hemorrhagic stroke occurs when an artery in the brain leaks or ruptures.  The leaked blood puts pressure on brain cells, causing damage that may be irreversible.

Signs

Signs of stroke include the following:

  • Sudden numbness or weakness in the face, arm or leg (particularly on one side of the body)
  • Sudden confusion, difficulty speaking or understanding
  • Sudden vision trouble
  • Sudden trouble walking, loss of balance, lack of coordination or dizziness
  • Sudden severe headache with no underlying cause

Risk Factors

There are numerous risk factors for stroke, including:

  • High blood pressure
  • Heart disease
  • Abnormal heart rhythms
  • Cardiac structural abnormalities
  • Diabetes
  • History of transient ischemic attacks (often referred to as “mini-strokes”)
  • High red blood cell count
  • Lack of exercise
  • Obesity
  • Smoking
  • Excessive alcohol use
  • Use of illegal drugs
  • COVID-19 infection

Age, genetics, gender, race, and location may also play roles in who will have a stroke.  Having a stroke also increases your risk of having a subsequent stroke.  In fact, nearly 1 in 4 people who have strokes have had a previous one.

Another risk factor is stress, including work place stress.  Stress can cause inflammation and makes the heart work harder, blood pressure rise, and levels of sugar and fat in the bloodstream climb.  These factors can increase the likelihood that a blood clot could form and trigger a stroke.   Stress can also trigger many risk factors that can be associated with high risk for stroke, including eating poorly, smoking, alcohol abuse, and less time for exercise.

Complications

Complications of stroke include:

  • Loss of muscle movement or paralysis (usually on one side of the body)
  • Difficulty talking or swallowing
  • Memory loss or thinking difficulties
  • Emotional changes
  • Pain, numbness or other unusual sensations
  • Changes in behavior
  • Changes in ability to self-care

Claims based on stroke, or even the need to limit work because of being at an elevated risk for stroke, can be nuanced, especially if a stroke isn’t completely debilitating and/or it is hard to objectively verify the extent of the ongoing limitations.  If you’ve had a stroke and your insurer is challenging your disability claim and pushing you to return to work, 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

CDC
John Hopkins Medicine
Banner Health
Cleveland Clinic
Mayo Clinic

 

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Significant Uptake in Physician Mental Health Claims
in the Wake of COVID-19

Physicians, dentists and and other doctors are susceptible to mental illness, burnout, and stress, given the demanding nature of the field.  This susceptibility has only become more pronounced in the face of the COVID-19 pandemic.  According to MGIS, a national insurance program manager, claims for mental and nervous conditions ranked third among the top causes of long-term absences from work. Others in the top five for doctors include cancer, musculoskeletal conditions, injury and nervous system conditions (e.g., multiple sclerosis, Parkinson’s disease).  This was an 85.8 percent increase from claims filed in 2019.

Recent studies throughout the course of the pandemic back up what MGIS data is showing.  A Yale School of Public Health survey showed high rates of depression and PTSD, with nearly one quarter of doctors showing signs of probable PTSD.  A Washington Post – Kaiser Family Foundation poll found that three in ten doctors and other health care workers have considered leaving their profession, 50 percent are burned out, and six in ten say stress from the pandemic has harmed their mental health.

As these studies show, stress, burnout and other mental illnesses have become an even bigger problem in the workplace during COVID-19—often leading to the need to miss work and sometimes the need to file a professional disability insurance claim.  However, as you might imagine, mental health claims are often subject to heightened scrutiny by disability insurance companies and can be more difficult to prove up given their subjective nature.  If you are a physician, dentist or other doctor with mental health concerns relating to COVID-19 and are and thinking of filing a claim, please feel free to contact one of our attorneys directly.

Sources:

Mental and Nervous Long-Term Disability Claims for Healthcare Professionals Jumped Significantly in 2020, Cision PR Newswire, August 17, 2021, https://www.prnewswire.com/news-releases/mental-and-nervous-long-term-disability-claims-for-healthcare-professionals-jumped-significantly-in-2020-301357045.html

Matt Kristoffersen, Burnout, Alcohol, PTSD: Health Workers Are Suffering, Yale School of Medicine, February 17, 2021, https://medicine.yale.edu/news-article/burnout-alcohol-ptsd-health-workers-are-suffering/

William Wan, Burned out by the pandemic, 3 in 10 health-care workers consider leaving the profession, The Washington Post, April 22, 2021, https://www.washingtonpost.com/health/2021/04/22/health-workers-covid-quit/

 

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Coronary Artery Disease

Coronary artery disease (CAD), also called coronary heart disease or ischemic heart disease, is the most common type of heart disease in the United States.  CAD is the result of plaque building up on the wall of the arteries that supply blood to the heart.  This buildup can cause the arteries to narrow over time, partially or fully blocking the blood flow (atherosclerosis).

As the arteries narrow, some people may begin to experience chest pain (angina) or shortness of breath while others may have no symptoms at all. A completely blocked artery will cause a heart attack.

Symptoms

Symptoms of heart attack include:

  • Chest pain or discomfort
  • Weakness, light-headedness
  • Nausea
  • Pain or discomfort in the arms or shoulder
  • Shortness of breath
  • Fatigue
  • Pain in the neck or jaw
Risk Factors

Risk factors for coronary artery disease include:

  • High blood pressure
  • High blood cholesterol levels
  • Diabetes
  • Being overweight or obese
  • Physical inactivity
  • High stress
  • Unhealthy diet
  • Smoking
  • Family history
  • Age (risk increase with age)
  • Sex
Diagnosis

Several different tests can be used to diagnose CAD, including:

  • Electrocardiogram
  • Echocardiogram
  • Exercise stress test
  • Chest X-ray
  • Cardiac catherization
  • Coronary angiogram
  • Coronary artery calcium scan
  • CT scan
Treatment

Treatment for CAD can include:

  • Medications
  • Procedures to restore and improve blood flow (angioplasty and stent placement, coronary artery bypass surgery)
  • Lifestyle changes (including a health diet, regular exercise, weight loss, and reducing stress)

For some, avoiding serious complications, including heart failure, may require stepping away from practice, even with treatment. If you have been diagnosed with coronary artery disease and are thinking that you may need to file a disability insurance claim, 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

CDC

National Heart, Lung, and Blood Institute
American Heart Association
Mayo Clinic

 

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Have I Changed My Regular Occupation?

If you are a licensed dentist or physician and file a disability claim, will your insurance company recognize your occupation as a “dentist” or “physician”?  Not necessarily.

How is “Occupation” Determined?

Most disability policies look at what you are doing right before your disabling condition occurred (as opposed to your license or what you have done for the majority of your career) when it comes to defining your regular occupation. This can be problematic if you stop working, or change jobs or job duties prior to filing your claim.

One such example of this is the case of Hsu v. Northwestern Mutual Life.[1] Dr. Hsu, a physician specializing in interventional pain management, left his job to move to the west coast.  Before he resumed practicing in his new location, he began to experience symptoms of constant right elbow pain that was exacerbated by wrist extension or elbow flexion. He decided to have surgery and then returned to work on a trial basis at a new practice.

Unfortunately, the surgery did not prove successful. Dr. Hsu found himself unable to work and he filed a claim with Northwestern Mutual Life (NML). After reviewing his file, NML determined that Dr. Hsu did not have a “regular occupation” because he was not working when he became disabled. As a result, NML denied his total disability claim.

Do You Know How Your Policy Works?

It is not uncommon for us to see similar situations to Dr. Hsu’s, where a physician or dentist has taken an extended break (whether because of a disabling condition or for an unrelated reason) only to later realize they cannot return to work and needs to file a claim.  In fact, many policies have provisions that state if an insured is not working at the time of disability, their occupation will be considered that of a retired person.  Of course, it is much harder to prove up that you cannot do the normal tasks of a retired person versus not being able to perform the duties of a practicing physician or dentist.

Other mistakes include significantly modifying job duties (e.g. doing exams only instead of all facets of dentistry) or taking on a new or side job in an attempt to make up for lost income.  All these activities can significantly impact how your insurance company determines your occupation.

Oftentimes, dentists and physicians make this mistake because they assume that their policy only allows them to collect if they are severely injured or paralyzed and unable to work at all. However, many professionals have “own occupation” policies that protect them if they are unable to do their job, even on a part-time basis.

The Takeaway

In Dr. Hsu’s case, the Court indicated that whether or not Dr. Hsu had been a physician or had no regular occupation at the time of filing was debatable, and the case remains pending as of this writing. However, Dr. Hsu might have avoided the expense and stress of litigation if he had read his policy carefully,  complied with its requirements, and properly timed the filing of his claim.

If you have a disabling condition and are thinking about filing a claim, 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 your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Hsu v. Northwestern Mutual Life, C20-88 TSZ, 2021 WL 735374 (W.D. Wash. Feb. 5, 2021)

 

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Mental Health Issues in the Workplace

The Hartford, a provider of disability insurance, has released new research regarding mental health issues.  The study shows the prevalence of both mental illness in the workplace and a stigma that prevents those facing mental health challenges from accessing care.

According to the study, which polled both employers and employees, 70% of employers reported mental health challenges among their employees, with 72% saying that stigmas around mental health prevented care. Twenty-seven percent of employees said they struggle with depression or anxiety most days or a few times a week, which was up 20% from March 2020.

Further, according to the study, there is a disconnect in how employers perceive the mental health issues versus how employees do.  For example, while 80% of employers said their company culture has been more accepting of mental health challenges in the past year, only 59% of workers agree.  Similarly, 78% of employers said workers had flexibility in their schedule to get mental health help, but only 58% of workers agreed.

The study also highlighted the economic impact of untreated conditions in the workplace, with 31% of employers reporting that employee mental health strain is having a significant or severe financial impact on their company.  This is a 10-point increase from a March 2020 survey.  Despite this increase, 70% of employers and 62% of employees felt that the workplace will become less stigmatized as a result of the pandemic.

Depression, anxiety, and burnout can all be causes of missed work and, in some, can lead to the need to file a disability insurance claim. However, such cases can be notoriously hard to prove up.  If you have mental health concerns and are considering filing a claim, please feel free to contact one of our attorneys directly.

Source:

The Hartford Study: Majority of Employers Recognize Mental Health As A Significant Workplace Issue, Report Stigma Prevents Treatment, businesswire, https://www.businesswire.com/news/home/20210622005719/en/The-Hartford-Study-Majority-Of-Employers-Recognize-Employee-Mental-Health-As-A-Significant-Workplace-Issue-Report-Stigma-Prevents-Treatment

 

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Unum Sued for Not Paying Analysts Overtime

Unum has been sued by one of its former disability benefit specialists for allegedly requiring its employees to work over 40 hours per week without overtime pay.[1]

The Plaintiff, Ms. Loomis, has claimed that Unum violation of the Fair Labor and Standards Act (FLSA), alleging that Unum should have been paying her, and other similarly situated employees, overtime pay.  The FSLA requires that most employees in the U.S. be paid at least federal minimum wage for all hours worked and overtime pay for all hours worked over 40 hours in a workweek. However, there are some exceptions to this requirement, including for administrative employees.  This, in part, can include employees whose job includes work “of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” and “[t]he employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance”.[2]

Ms. Loomis’ argument, based on her and other former employees’ declarations, was that their primary job duty was to process disability insurance claims to comply with predetermined guidelines in a specified time frame and, regardless of their product area or level, “declarants had little authority to independently make decisions on claims and instead acted pursuant to policies, procedures, criterial and guidelines set forth in Defendant’s Claims Manual.”[3] Unum disagreed and argued that its analysts were administrative employees under the Act.

Despite Unum’s arguments, the Court ultimately allowed the suit to proceed and granted Ms. Loomis’ motion for conditional certification that employees (with job titles that included “Disability Benefit(s) Specialist”, “Disability Specialist”, Benefit(s) Specialist, Disability Claims Examiner”, “Disability Benefit(s) Claim Analyst, and “Life Event Specialist”) could be considered potential opt-in plaintiffs and should be notified as such.

[1] Loomis v. Unum, No. 1:20-CV-251, 2021 WL 1928545 (E.D. Tenn. May 13, 2021)

[2] U.S. Department of Labor, Wage and Hour Division, Fact Sheet #17C: Exception for Administrative Employees Under the Fair Labor Standards Act (FLSA).

[3] Loomis v. Unum

 

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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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Can My Disability Insurer Require Me to Have Surgery?

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?

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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