Can My Insurer Claim Overpayment of Benefits After Years of Paying?
A Case Study

If an insurance company decides that they have overpaid a claim, policy language often allows them to recoup this benefit amount from an insured. In some instances, the insurer may assert that an overpayment has gone on for multiple years, and the amount in question can be quite significant. This can present a financial hardship for the insured and it may require costly litigation to determine if the overpayment claim is legitimate.

One such case is that of Raymond v. Unum[1]. In this matter, pharmacist Dr. Raymond became disabled after being diagnosed with multiple sclerosis and she filed a claim with Unum. Initially, Unum approved her claim for Total Disability, and later for Residual Disability when she returned to work as a pharmacist in a limited capacity.

Dr. Raymond’s policy also contained a Social Insurance Supplemental Income (SIS) benefit that provided an additional $500 per month upon receipt of “satisfactory” proof that the insured applied for social security benefits.  Unum initially paid the SIS benefit, but after asking repeatedly for written proof that Dr. Raymond had applied for SSDI without receiving a response, Unum stopped paying the extra $500 per month. However, Unum did not notify Dr. Raymond of this determination in writing.

For her part, Dr. Raymond did not realize that her benefit was cut off for 10 years, as she received her benefit via direct deposit and had not noticed the lowered benefit amount.

When a dispute over the benefit amount gave rise to a lawsuit, Unum learned that Dr. Raymond had also misstated both the time she spent working, her job duties, and her income on her proof of loss claim forms. After evaluating this new information, Unum issued a re-determination that Dr. Raymond had not been eligible for any benefits (residual or total) under her Policy for 2014-2019, and determined that they had overpaid her $225,578.91.

In its opinion, the Court repeatedly noted that it found Unum’s behavior odd in that it continued paying benefits for such a long time, despite Dr. Raymond’s failure to submit requested documentation. Nevertheless, they determined that Dr. Raymond had also engaged in misconduct, found her arguments that the overpayment was arbitrary and capricious unpersuasive, and ultimately found in Unum’s favor.

This case illustrates the importance of not only being mindful of your policy’s offset provisions, but also being mindful to clearly disclose all income and employment status to your insurer. Otherwise, you may be on the hook for substantial amounts, even if your insurance company did not preemptively warn you of this.

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] Raymond v. Unum Grp., No. CV 20-00352-BAJ-EWD, 2023 WL 2543944, at *7 (M.D. La. Mar. 16, 2023).

 

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How is Prior Income Calculated in a Partial Disability Claim?

Our last post looked at whether a partial disability claim may make sense for a dentist to file. We touched on the fact that prior monthly income is a key component in determining what your benefit amount will be.

Different rules apply when it comes to determining prior monthly income. Each policy will be different, and the rules can shift depending on how long you are on claim. Sometimes, prior income is determined by looking back at previous tax years. For example, the policy might state that:

Pre-disability earnings means the sum of your highest Annual Earning for any two full tax years within the three full tax years preceding the date your Disability began, divided by 24.

In other instances, the insurance company will only look at income for a certain time frame (e.g., the past 12 or 24 months). See, e.g.:

“Prior Monthly Income” means the insured Member’s average “Monthly Income” during the greater of either the 12 or 24 consecutive month period which ends on the last day of the month immediately preceding the first day of Total Disability and/or Residual Disability for which claim is made.

Most insurance companies use the dental practice’s profit and loss statements to determine the monthly profit/loss, then factor in the dentist’s ownership percentage, and finally add any compensation (e.g. W-2 wages) that the dentist received that month to determine monthly income.

This can be complicated, however, because not every dentist keeps profit/loss statements, and if they do have profit/loss numbers they may be broken down annually or quarterly as opposed to monthly. Oftentimes, this results in a need for the numbers to be averaged-out, which can make the calculations less precise and, in some cases, less favorable to the dentist.

This also comes up with dentists filing claims under business overhead expense (BOE) policies, which pay replacement income to cover the dental practice’s monthly expenses during periods of disability.

Accordingly, it is best to keep your practice’s records on a monthly basis, because disability benefits are calculated using month-to-month numbers. An experienced disability insurance attorney can help ensure that your insurance company is correctly calculating your prior monthly income, as well as your monthly loss of income, which we will cover in our next post.

 

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Overpayment and Offsets
A Case Study

Insurers seek to save money in a variety of ways, including denying or terminating a claim. In addition, we’ve been seeing insurers claiming overpayment of benefits and attempting to claw back previously paid out benefits.

Many policies include provisions about overpayment of claims, indicating that the company has the right to seek overpaid benefits, usually in the form of requesting a lump sum repayment or by reducing the amount of future benefits until the alleged overpayment is returned. As you can imagine, this can place an incredible amount of financial stress on an insured, who may be relying on their benefits as a primary source of income after disability.

One such illustrative case is that of Johnson v. Life Insurance Company of America (LINA)[1].  In this case, Johnson, an account executive, became disabled after a motor vehicle left him with extensive damage to his cervical spine. After a spinal surgery on March 27, 2020, he was unable to return to work and filed a claim with LINA on April 6, 2020.

Johnson and LINA initially disputed how his Covered Earnings should be calculated, with the Court ultimate finding in LINA’s favor, resulting in a lower benefit amount for Johnson.

Secondly, LINA applied offsets to Johnson’s monthly benefits because Johnson received Social Security benefits, as well as disability benefits from the Ohio Bureau of Workers’ Compensation (which LINA determined were “other income benefits” under the policy terms). In addition, Johnson received a lump sum bodily injury settlement in connection with the auto accident which resulted in his disability.  LINA claimed that it was entitled to the offset the settlement monies.  Johnson argued that because the settlement was for pain and suffering and not lost wages, LINA was not entitled to this money because the plan language indicated that offsets were permitted only for “loss of earnings or earning capacity.”

On appeal, LINA recognized that the offset regarding the settlement should not apply, and removed the monthly offset it had attached to future benefits. However, LINA indicated that they would not return what they had already collected/withheld because of what they deemed overpayment in relation to the other offsets (Social Security and Workers Comp payments). The Court found that this was consistent with the plan language and found for LINA again.

This case highlights the importance of recognizing how offsets are treated under a plan, and how an insurance company may be able to recoup any of these offsets. If you are not mindful of the offsets in your policy, you can end up in protracted litigation and/or without sufficient funds to repay money owed to the insurance company. At the same time, insurers can be overly aggressive when it comes to these offset provisions. So, if your insurer is asserting an offset, it is a good idea at least speak with an experienced disability attorney to confirm whether it is a legitimate offset.

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] Johnson v. Life Ins. Co. of N. Am., No. 2:22-CV-933, 2023 WL 5951769 (S.D. Ohio Sept. 13, 2023).

 

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What is Partial Disability?
Should I File for Partial Disability or Total Disability?

In some instances, a disabling condition may prevent a dentist from working as much as they used to. For example, fatigue associated with an autoimmune disease like Guillain-Barre syndrome may prevent a dentist from practicing full-time, although they find they can still do certain procedures with rest in between work days.

In this instance, a dentist would not be able to file a “total disability” claim under most disability policies; however, they may be able to file a partial disability claim.

The exact definition of partial disability will vary from policy to policy (as will the definition of total disability) but typically it is defined as the ability to do some but not all of the material and substantial duties of your occupation, and/or the ability to do all the material and substantial duties of your occupation, but for less time than you have performed them in the past.

If you determine a partial disability claim is the right path for you, your insurance company will then look to establish what your prior income was and what you are currently earning, which will be used to determine what your loss of income is, and the percentage of benefits that you are eligible for. We will get into more detail regarding these calculations in a subsequent post; however, it bears mentioning that for dentists, this can be complicated.

For example, a practice owner may experience a drop in production, but not necessarily see a drop in income. There are some policies that may take this into account, such as the group policy offered by the ADA (which defines partial disability based upon a dentist’s personal production numbers instead of overall income numbers). Other policies may look at other factors during a limited initial period (e.g. 6 or 12 months), such as whether the dentist has sustained a “loss of duties” or a “loss of time.”

Insurance companies want to save money by paying out less on a claim, and often pressure dentists to keep working and file partial disability claims instead of filing for total disability. While in some instances partial disability makes sense, it is always a decision that needs to be weighed in light of safety to both yourself and patients regarding whether it is safe to keep practicing, even in a limited capacity.

 

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Peripheral Neuropathy

What is Peripheral Neuropathy?

Peripheral nerves are the nerves located outside the brain and spinal cord. Peripheral neuropathy occurs when these nerves are damaged. There are more than 100 types of peripheral neuropathy, which can be broken down into four main categories:

Motor Neuropathy: damage to the nerves that control muscles and movement

Sensory Neuropathy: damage to the sensory nerves that transmit sensations, including pain and touch

Automatic Nerve Neuropathy: damage to the nerves that control functions such as breathing and heartbeat

Combination Neuropathies: two or more of the above neuropathies, with the most common being motor-sensory

When only one nerve is affected, it is called mononeuropathy. Two or more nerves affected in different areas are called multiple mononeuropathy. If it affects many nerves, it’s called polyneuropathy—this is the most common type of peripheral neuropathy.

What are the Symptoms of Peripheral Neuropathy?

Symptoms will vary based on the type of neuropathy and the part of the body affected. Symptoms can range from numbness or tingling in an isolated part of the body, to burning pain or even paralysis.

In motor neuropathy, symptoms can include:

  • Muscle weakness and paralysis
  • Muscle atrophy
  • Uncontrolled muscle movements

In sensory neuropathy, symptoms can include:

  • Pain
  • Loss of balance and/or coordination
  • Tingling
  • Numbness

In automatic neuropathy, symptoms can include:

  • Sweating too much or not enough
  • Changes in blood pressure
  • Bowel or bladder problems

What Causes Peripheral Neuropathy?

  • Diabetes and metabolic syndrome
  • Autoimmune diseases
  • Infections
  • Injuries
  • Trauma
  • Surgery
  • Tumors
  • Bone marrow disorders
  • Inherited conditions
  • Vitamin and nutrition deficiencies
  • Alcohol use disorder
  • Medications
  • Toxins

How is Peripheral Neuropathy Diagnosed?

Initially, a full medical history and neurological exam will usually be performed, along with a variety of tests, including:

  • Blood tests
  • Imaging tests such as CT or MRI scans
  • Nerve function tests such as electromyography (EMG)
  • Nerve biopsy
  • Skin biopsy

What is the Treatment for Peripheral Neuropathy?

Typically, peripheral neuropathy can’t be cured, but there are a variety of treatments aimed at preventing it from getting worse, such as:

  • Mobility aids such as braces, walkers, canes, orthotics
  • Medications – including pain relievers, anti-seizure medications, antidepressants, and topical treatments
  • Spinal cord stimulation
  • Physical therapy
  • Surgery – which can reconnect cut nerves and relieve pain due to trapped nerves

Peripheral neuropathy can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with peripheral neuropathy and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources

Mayo Clinic

Cleveland Clinic

Johns Hopkins

 

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Benign Paroxysmal Positional Vertigo

What is Benign Paroxysmal Positional Vertigo (BPPV)?

Vertigo is the sensation of motion or spinning that is often described as dizziness. One of the most common forms of vertigo is Benign Paroxysmal Positional Vertigo (BPPV); about 20% of people who are evaluated for dizziness will be diagnosed with BPPV.

BPPV is a condition of the inner ear and it causes brief episodes of dizziness, which can be mild to intense and are usually triggered by specific changes in the head’s position.

While BPPV can affect anyone, it is most common in older adults.

What are the Symptoms of BPPV?

Symptoms include:

  • Vertigo (sense that you or your surroundings are spinning/moving)
  • Dizziness
  • Lightheadedness
  • Nausea
  • Unsteadiness or loss of balance
  • Vomiting
  • Nystagmus (rapid, involuntary eye movements)

Symptoms often come and go, and commonly last under a minute. Episodes can disappear for a period of time and then recur. While the activities that trigger BPPV can vary for everyone, symptoms are normally brought on by a change in head position.

In rare cases, symptoms can last for years. However, in most cases, without treatment, there will be a lessening of symptoms over a few days to weeks, with the condition sometimes spontaneously resolving itself.

What Causes BPPV?

In BPPV, tiny calcium crystals (otoconia) dislodge from their normal location in the inner ear. When the crystals become detached, they can flow in the fluid-filled spaces of the inner ear, including the semicircular canals, which sense the rotation of the head. The otoconia will cause problems when a person changes his or her head position (e.g., when looking up or down or when going from lying to seated). When the otoconia then move to the lowest part of the canal, the balance (eight cranial) nerve will be stimulated, leading to vertigo and nystagmus.

In many cases there is no known underlying cause for BPPV, which is called idiopathic BPPV.

In other causes, BPPV can be associated with:

  • A minor to severe blow to the head
  • Disorders of the inner ear
  • Damage that occurs during ear surgery
  • Long periods of keeping the head in the same position (for example, during strict bed rest or when in a dentist chair)
  • Certain strenuous activities (such as biking over rough terrain or participating in high intensity aerobics)
  • Migraines

How is BPPV Diagnosed?

Generally, a doctor will do a series of tests to look for the cause of vertigo, usually by having the patient do a series of eye and head movements. Additional testing, such as electronystagmography (ENG), videonystagmography (VNG), and MRIs may be used to look for causes of vertigo.

What is the Treatment for BPPV?

One treatment is canalith repositioning. The goal of the procedure is to move particles from the fluid-filled semicircular canals of the inner ear into the vestibule that houses one of the otolith organs, where the particles don’t cause trouble and are reabsorbed. This procedure normally works after one to two treatments.

If canalith repositioning doesn’t work, a surgery procedure may be used. During surgery, a bone plug is used to block a portion of the inner ear that is causing the vertigo. This bone plug prevents the semicircular canal from being able to respond to particle movements, or head movements generally. The success rate for this type of surgery is about 90%.

Other techniques that can be utilized to cope with the dizziness associated with BPPV include:

  • Taking caution and being aware of the risk of losing balance
  • Avoiding movements (e.g., looking up) that trigger symptoms
  • Walking with a cane when at risk of falling

BPPV can recur even with successful treatment, which is the case for about half the people who experience it. While it isn’t typically considered a serious condition, it can increase the chance of serious falls.

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

Sources

Mayo Clinic

John Hopkins

Cleveland Clinic

 

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Will My Insurer Take Into Account My Subjective Symptoms?
A Case Study

For many conditions common among dentists and physicians, there are symptoms that are subjective in nature and cannot always be proven up with an objective test. One example of this are pain levels—which, of course, can affect whether or not an individual is able to perform the substantial and material duties of his or her occupation. But will your insurance company take into account your reported symptoms when deciding whether to approve benefits? The answer is – not always.

One example of this is the case of Pifer v. Lincoln[1]. The Plaintiff, Rebecca Pifer, worked as a dental analyst for an insurance company when she was diagnosed with Ehlers Danlos Syndrome, with associated osteoarthritis involving the cervical spine, right shoulder, hands, and feet, as well as a right shoulder rotator cuff tear in 2011. Pifer filed a disability insurance claim, which Lincoln approved in 2012. They continued to pay her benefits from 2012 – 2020. In 2021, Lincoln terminated the claim after conducting surveillance, an interview with Pifer, and a functional capacity evaluation (FCE).

Pifer appealed this decision and submitted records from her treating physicians and physical therapy records, which indicated that, overall, her symptoms were worsening. Her physicians submitted APS forms confirming she was “permanently disabled.” Pifer also submitted a self-logged symptom journal. Despite this evidence, Lincoln upheld its denial and Pifer filed a lawsuit. In regards to the pain journal, Lincoln argued that the pain journal was subjective and “crafted for the specific purpose of supporting [Plaintiff’s] claim.” The Court, however, found that Lincoln had erred in not considering the journal—especially in not providing it to their reviewing physician.

While the pain journal was not the only evidence that supported Pifer’s limitations and her inability to return to work (including treatment records, statements from her physicians, and physical therapy records) that Lincoln or its experts did not adequately consider, it was a component. The Court explained that “[w]hile the Policy grants Defendant discretion in evaluating Plaintiff’s medical records, it does not permit Defendant to ignore a claimant’s subjective evaluation of her symptoms, particularly pain.”

Because they had failed to adequately consider all the evidence available to them, and because they could not demonstrate “any evidence that Plaintiff’s condition improved in a manner that warranted a reversal” of their decision to approve benefits for years, Pifer’s case was remanded back to Lincoln.

Pain journals can be important tools in documenting symptoms and severity, both in terms of reporting to your treating provider as well as to an insurance company. For example, your insurer may conduct an interview with you, where they specifically ask questions about your symptoms and their impact.

However, as the above case shows, insurance companies may try to discredit or ignore subjective reports of symptoms. If you feel your insurance company is ignoring evidence in support of your 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] Pifer v. Lincoln Life Assurance Co. of Bos., No. 1:22-CV-186, 2023 WL 5208111 (M.D.N.C. Aug. 14, 2023)

 

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Crohn’s Disease

What is Crohn’s Disease?

Crohn’s disease is a type of inflammatory bowel disease (IBD). Crohn’s disease causes inflammation of the tissues in the digestive tract. This inflammation can involve different areas of the digestive tract, but most commonly occurs in the small intestine, but can spread into the deeper layers of the bowel.

There are different types of Crohn’s disease, depending on where inflammation occurs in the digestive tract:

  • Ileocolitis – where inflammation occurs in the small intestine and part of the large intestine, or colon. This is the most common type of the disease.
  • Ileitis – where inflammation and swelling develop in the small intestine (ileum).
  • Gastroduodenal – where the inflammation and irritation develop in the stomach and the top of the small intestine (duodenum).
  • Jejunoileitis – where there are patchy areas of inflammation in the upper half of the small intestine (jejunum).
  • Crohn’s (Granulomatous) Colitis – where only the colon (large intestine) is affected.

It is estimated that half a million Americas have Crohn’s disease.

What are the Symptoms of Crohn’s Disease?

Symptoms of Crohn’s disease include:

  • Abdominal pain and cramping
  • Severe diarrhea
  • Fatigue
  • Fever
  • Bloody stools
  • Mouth sores
  • Weight loss and reduced appetite

In severe cases of the disease, symptoms may develop outside of the intestinal tract, including

  • Inflammation of joints, eyes, and skin
  • Inflammation of the liver or bile ducts
  • Anemia
  • Kidney stones
  • Delayed growth or sexual development (in children)

Symptoms can range from mild to severe and will usually (but not always) develop gradually. Some individuals may have periods of time where they are in remission.

Crohn’s disease can be painful and debilitating, and in some instances may result in life-threatening complications.  Examples of complications from the disease include:

  • Bowel obstruction
  • Ulcers
  • Fistulas
  • Anal fissure
  • Rectal bleeding
  • Malnutrition
  • Colon cancer
  • Skin disorders (hidradenitis suppurativa)
  • Blood clots

What Causes Crohn’s Disease?

The exact causes of Crohn’s disease are unknown. Factors such as the immune system/autoimmune disease and heredity are thought to play a role in its development.

There are also several risk factors that play a role in the development or worsening of Crohn’s disease, including:

  • Age – most individuals who develop Crohn’s disease do so before they’re 30 years old.
  • Ethnicity – Caucasians tend to have the highest risk, particularly those of Eastern European Jewish descent; however, the incidence of Crohn’s disease is on the rise in other ethnic groups.
  • Family history – Up to 1 in 5 individuals with Crohn’s disease will have a family member with the disease as well.
  • Smoking
  • NSAIDs – these medications don’t cause the disease, but can lead to inflammation of the bowel, which make’s Crohn’s disease worse.

How is Crohn’s Disease Diagnosed?

There is no single test to diagnose Crohn’s disease, and a doctor will usually rule out other possible causes of symptoms first. Tests used to check for changes in the digestive track include:

  • Blood work
  • Stool studies
  • Colonoscopy
  • CT scan
  • MRI
  • Capsule endoscopy
  • Balloon-assisted enteroscopy

What is the Treatment for Crohn’s Disease?

There is no current cure for Crohn’s disease, and how effective any given treatment will be will vary from person to person. For some, periods of remission may be possible. Common treatments for Crohn’s disease include:

  • Anti-inflammatory drugs, including corticosteroids
  • Immune system suppressors
  • Biologics
  • Antibiotics
  • Anti-diarrheal medication
  • Pain relievers
  • Vitamins and supplements
  • Nutrition therapy

For nearly half of those with Crohn’s disease, at least one surgery will be required. During surgery, the damaged portion of the digestive tract is removed and healthy sections are reconnected. Surgery can also be used to close fistulas and drain abscesses. Surgery won’t cure Crohn’s disease and the disease often recurs.

Crohn’s disease can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with Crohn’s disease and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources

Mayo Clinic

John Hopkins

Cleveland Clinic

Crohn’s & Colitis Foundation

 

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The Importance of Treating Providers:
A Case Study

We’ve talked before about how critical it can be to have a supportive treating provider on board when filing a disability insurance claim. This includes making sure your doctor knows what the definition of “disability” means under the terms of your policy, so that he or she can accurately opine on your ability to work in your specific profession.

Even if your doctor has provided a claim form (attending physician statement) in support of your claim, an insurance company or their reviewing doctors may still reach out in an attempt to get your treating physician to say you can work, or provide a firm return to work date that they can then use to deny or terminate your benefits.

One example of this is the case of Easter v. Hartford.[1] In this instance, the plaintiff, Audrey Easter, was a social worker who found herself needing to file a total disability claim with her insurer, Hartford. The underlying physically disabling conditions were chronic fatigue syndrome, obstructive sleep apnea, and hypersomnia. In support of her claim, Ms. Easter submitted an APS from both a Certified Physician’s Assistant (PA-C), Megan Jones, and an Advanced Practice Registered Nurse (APRN), Megan Sandy.

After reviewing the APS forms, Hartford sent a form letter to Easter’s APRN (Jones) asking for clarification on the level of activity Easter was able to perform.  In response, Jones indicated that Easter was capable of performing sedentary and light activity. Hartford then arranged to speak by telephone to Jones, who stated that she was not aware that Ms. Easter had been out of work for as long as she had been and expressed that she would have thought Ms. Easter would have improved. Hartford subsequently denied Ms. Easter’s claim, alleging that her occupation was a sedentary one and that she was therefore able to perform the physical demands of her occupation.

Ms. Easter appealed Hartford’s decision. As part of its investigation during the appeal, Hartford referred the file to an outside vendor for an independent physician peer review.  The reviewing physician, a Dr. Blavias, reached out to Ms. Easter’s providers again in peer-to-peer calls.  Jones indicated that Ms. Easter’s symptoms appeared to be out of proportion to her degree of sleep apnea. While Sandy stood by her diagnosis of chronic fatigue syndrome, she also indicated that Ms. Easter’s sleep disorders and other medical issues did not seem adequate to explain the reported symptoms.  Hartford upheld their denial on appeal and Ms. Easter subsequently filed a lawsuit.

In this instance, the Court sided with Hartford, indicating that Hartford had provided a detailed rationale for its decision and that their decision was supported by evidence—including the conversations that Dr. Blavias had with Ms. Easter’s treating providers, and Jones’s response on the form letter.

This case illustrates the importance of having a supportive physician who understands the nature of your disability, and how it affects your ability to work, on board when filing a disability insurance claim. If you have questions about how your insurance company is investigating your 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] Easter v. Hartford Life & Accident Ins. Co., No. 21-4106, 2023 WL 3994383 (10th Cir. June 14, 2023)

 

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Brachial Plexus Injuries

What is a Brachial Plexus Injury?

The branchial plexus is a network of five nerves that sends signals from the spinal cord to the shoulder, arm, and hand. A brachial plexus injury occurs when the nerves are stretched, compressed, or ripped apart or torn away from the spinal cord. More specifically, the types of brachial plexus injuries include:

  • Brachial plexus neuropraxia (stretch) – where the nerves are stretched to the point that injury occurs
  • Brachial plexus rupture – where the nerve tears either partially or completely
  • Brachial plexus neuroma – where scar tissue forms on the nerve
  • Brachial neuritis – a rare progressive disorder of the nerves, also called Parsonage Turner syndrome
  • Brachial plexus avulsion – where the root of the nerve is completely separated from the spinal cord

What are the Symptoms of a Brachial Plexus Injury?

Symptoms can vary greatly, based on the location and severity of the injury. In most cases, only one arm will be affected.

For less severe, minor injuries (often called stingers or burners) symptoms can include:

  • Numbness and weakness in the arm
  • An electric shock-like or burning sensation that shoots down the arm

For the most part, these symptoms last only a few seconds to minutes, but in some cases, the symptoms may last for days or longer.

For more severe injuries (those that severely hurt or tear or rupture the nerves), symptoms can include:

  • Severe pain
  • Weakness or inability to use certain muscles in the shoulder, arm, or hand
  • Total lack of movement and feeling in the shoulder, arm, and hand
  • An arm that hangs limply

Many brachial plexus injuries heal with time, leaving little lasting damage. However, some injuries cause temporary or permanent complications, which can include:

  • Pain resulting from nerve damage, which may become chronic
  • Stiff joints
  • Muscle atrophy
  • Numbness
  • Permanent disability, including muscle weakness or paralysis

Some brachial plexus injuries can result in a disorder called Horner’s syndrome. In this syndrome, certain nerves in the sympathetic nervous system are damage, leading to drooping eyelid, an overly constricted pupil, and decreased facial sweating on one side of the face.

What Causes Brachial Plexus Injuries?

Damage to the upper nerves of the brachial plexus occurs when the shoulder is forced down while the neck stretches up and away from the shoulder. Damage to the lower nerves of the brachial plexus occurs when the arm is forced above the head. Injuries such as these can happen in numerous ways, including:

  • Trauma, such as automobile accidents or serious falls
  • Contact sports
  • Tumors and cancer treatments
  • Difficult births

How are Brachial Plexus Injuries Diagnosed?

Physicians will often turn to certain tests to diagnose brachial plexus injuries, including:

  • X-rays
  • EMG (electromyography)
  • Nerve conduction studies
  • MRI
  • CT scans

What is the Treatment for a Brachial Plexus Injury?

Treatment will vary based on severity, type/location of the injury, any other conditions, and the length of time that has passed since the injury. Nerves that have only been stretched may not need further treatment and may recover on their own. Other treatments include:

  • Physical therapy
  • Occupational therapy
  • Corticosteroid creams or injections
  • Medications for pain management
  • Surgery

There are several types of surgery that may be used when treating brachial plexus injuries, including:

  • Muscle transfer
  • Nerve transfer
  • Nerve graft
  • Neurolysis

It can take up to three years for pain from the most severe cases to resolve. Providers may also use a surgical procedure to interrupt pain signals coming from the damaged part of the spinal cord.

A brachial plexus injury can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with a brachial plexus injury and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources

Mayo Clinic

John Hopkins

National Institute of Health

Cleveland Clinic



The Importance of Understanding Policy Definitions:
A Case Study

 We’ve discussed before the importance of timelines and reading your policy carefully. This holds true when looking at whether you will be eligible to receive lifetime benefits should you become disabled.

One example of this is the case of Shields v. Provident Life and Accident Ins. Co.[1] (Unum). Dr. Shields was a gastroenterologist who developed health issues including headaches, cervical spine pain, numbness, and spinal stenosis. She became partially disabled on June 1, 2017 and then totally disabled on October 9, 2017. Because Dr. Shields reached age 60 on June 4, 2017, Unum found that she was only eligible for benefits until age 65 (versus lifetime benefits) because she had become totally disabled after she reached the policy-defined age of 60.

“Age”, under the policy, was defined as “the ending date of the policy term in which you attain that age.”  Part of what was at issue in this case was what the “policy term” was.  Unum argued that it was August 31, 2017, because Dr. Shields paid her premiums on a quarterly basis. Dr. Shields argued that the end-date of the policy was actually December 1, 2017, making her 59 at the time of disability and eligible for lifetime benefits, because she understood “renewal premium” to mean the renewal term of the policy schedule (which was 12 months).  At issue here were of several different terms in the policy, including not just “age”, but “policy term”, “renewal premium”, “renewal term” and “premium term”.

As part of the case, Dr. Shields deposed several Unum employees, who actually gave conflicting testimonies that showed the policy was ambiguous when it came to determining Dr. Shield’s age at the time she became totally disabled. In its decision, the court explained that, under Arizona law, ambiguities in an insurance contract will be construed against the insurer, and they found in favor of Dr. Shields.

This case highlights the importance of carefully reading your policy. If you have questions about the timeline of 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 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] Shields v. Provident Life & Accident Ins. Co., No. 1 CA-CV 22-0057, 2022 WL 17164180 (Ariz. Ct. App. Nov. 22, 2022)

 

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Rotator Cuff Injuries

What is a Rotator Cuff Injury?

The rotator cuff is a group of tendons and muscles that surround the shoulder joint. The rotator cuff keeps the head of the upper arm bone firmly in the socket of the shoulder.

Rotator cuff injuries can be the result of a sudden event, or gradual wear and tear over time. They are common and the likelihood of a rotator cuff injury increases with age. A rotator cuff may tear partially or fully. In partial thickness tears, the tendon is not completely severed from the shoulder. With a full-thickness tear, the tendon separates completely from the bone and there is a hole or rip in the tendon.

What are the Symptoms of Rotator Cuff Injuries?

While some rotator cuff injuries don’t cause pain, other injuries may result the following symptoms:

  • Pain that is experienced as a dull ache deep in the shoulder
  • Recurrent pain, exacerbated with certain activities
  • Disturbed sleep
  • Difficulty doing certain activities, such as combing hair or reaching behind the back
  • Arm weakness
  • Limited ability to move the arm
  • Grating or cracking sounds during movement of the arm

What Causes Rotator Cuff Injuries?

Rotator cuff injuries are usually caused by the progressive wear and tear of the tendon tissue over time. Overuse, such as repetitive overhead activity or prolonged bouts of heavy lifting (common in certain occupations) can damage or irritate the tendon, and may result in earlier onset of injury. Degenerative tears can also be caused by bone spurs and decreased blood flow. In other instances, the rotator cuff can be injured in a single incident, such as in a fall.

Risk factors include:

  • Age – rotator cuff injuries are most common in those over 60
  • Occupation – jobs that require repeated overhead reaching may damage the rotator cuff over time
  • Sports
  • Family history

How are Rotator Cuff Injuries Diagnosed?

Rotator cuff injuries are diagnosed with a variety of techniques, including:

  • Physical exams
  • X-rays – to rule out other potential causes for pain (e.g. bone spurs or arthritis)
  • Ultrasound – to assess the structure of the shoulder during movement, and provide a comparison between the affected and health shoulder
  • MRI – to provide detailed images of the structures of the shoulder

What is the Treatment for a Rotator Cuff Injury?

Without proper treatment, a rotator cuff injury could lead to weakness or loss of motion of the shoulder joint. Treatment includes:

  • Lifestyle changes such as taking over-the-counter pain medications, icing, and limiting overhead activity and other painful movements
  • Physical therapy (both as an initial treatment and after a surgery)
  • Ultrasound therapy
  • Injections (which provide temporary relief, but can also weaken the tendon and reduce the chance of success of shoulder surgery)
  • Surgery

There are several different types of surgeries that may be used to repair rotator cuff injuries, such as:

  • Arthroscopic tendon repair
  • Open tendon repair
  • Tendon transfer
  • Shoulder replacement

A rotator cuff injury can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with a rotator cuff injury and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources

Mayo Clinic

John Hopkins

Cleveland Clinic

 

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Study Shows Impact of long COVID on Physicians

A recent study by the British Medical Association (BMA) looked at physicians with long COVID and found that nearly one in five were no longer able to work, and fewer than one in three was working full-time. Further, nearly half of the responding physicians said they had lost income as a result of long COVID.[1]

The British doctors reported their symptoms included fatigue, headaches, muscle pain, nerve damage, joint pain, and ongoing respiratory pain, with a majority (54%) acquiring COVID during the first wave of the pandemic. Of these, 77% believed they had contracted the disease while at work.[2]

Similar employment trends for those with long COVID have been seen in the United States. In a study published by the JAMA Network Open, of 15,308 adults surveyed between February 2021 and March 2022 with test-confirmed COVID-19, those with long COVID (also called post-COVID-19 condition, or PCC) were less likely to be employed full-time and more likely to be unemployed. Of those reporting long-COVID, 45.9% reported either brain fog or impaired memory. [3]

A recent New York Times article reported that, according to one study published by New York’s largest workers’ compensation insurer, 71% of people classified as experiencing long COVID either required ongoing medical treatment or were unable to work for six months or longer. Eighteen percent of long COVID patients had not returned to work more than a year after contracting COVID (and more than three fourths of these individuals were under the age of 60).[4]

For physicians, dentists, and other professionals suffering from long COVID, the impact on their career and livelihood can be significant, and they may need to file a disability insurance claim. These types of claims have unique challenges and are often contested by insurance companies. As we’ve written about before, long COVID claims need the support of treating physician(s) and strong medical records —especially given that there is no one definitive, objective test for long COVID, and the duration of long COVID can vary greatly.

If you’ve been diagnosed with long COVID and feel you may need to file a disability insurance claim, please feel free to reach out to one of our attorneys directly.

[1] Adele Waters, Long covid: nearly half of doctors affected can no longer work full time, finds survey, BMJ 2023;382:p1529.

[2] Id.

[3] Roy H. Peerlis, MD, MSc, et. al, Association of Post-COVID-19 Condition Symptoms and Employment Status, JAMA Netw Open. 2023;6(2):e2256152.

[4] Pam Belluck, Long Covid Is Keeping Significant Numbers of People Out of Work, Study Finds, The New York Times (Jan. 24, 2003).

 

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Sciatica

What is Sciatica?

The sciatic nerve, the largest nerve in the body, travels from the lower back through the hips and buttocks, and down each leg. Sciatica (also called lumbar radiculopathy) refers to pain that travels along the path of the sciatic nerve. It is most common in individuals between the ages of 30 and 50 years old.

What are the Symptoms of Sciatica?

Sciatica pain can occur almost anywhere along the nerve pathway. However, it is especially likely to follow from the low back to the buttocks and the back of a thigh or calf. It typically only affects one side of the body. Pain intensity and severity can vary—anywhere from a mild ache to a burning, sharp pain. For some, the pain will feel like an electric shock or jolt. Numbness and weakness are also present in more severe cases.

Since sciatica is caused by pressure on the spine, complications can develop if the pressure is not relieved, including:

  • Increased pain
  • Herniated or slipped disc
  • Loss of feeling or weakness in the affected leg
  • Loss of bowel or bladder function
  • Permanent nerve damage

What Causes Sciatica?

Sciatica is most likely to occur when a herniated disc or an overgrowth of bone (bone spurs) puts pressure on the sciatic nerve, which leads to pain, inflammation and often times numbness in the affected leg. Other conditions that can cause sciatica include:

In some cases, diseases, including diabetes, can damage the sciatic nerve. In rare instances, a tumor can be the cause of pressure on the nerve.

Risk factors include:

  • Age
  • Obesity
  • Occupation (including those that require twisting the back, such as in dentistry)
  • Prolonged sitting
  • Nerve disorders

How is Sciatica Diagnosed?

Initially, a doctor will likely perform a physical exam to look for activities that worsen sciatica pain (walking on toes or heels, rising from a squatting position, or lifting the legs while lying down). Other tests can be used to diagnose sciatica including:

  • MRIs – these can show herniated discs and pinched nerves
  • X-rays – these can show an overgrowth of bone that could be pressing on a nerve
  • CT scan
  • EMG (electromyography) – to determine how severe a nerve root injury is

What is the Treatment for Sciatica?

Mild sciatic pain can improve with self-care measures such as ice or heat, stretching, and over-the-counter pain medications. In fact, most people with sciatica get better on their own. However, sometimes additional treatment becomes necessary and can include:

  • Anti-inflammatories
  • Corticosteroids
  • Antidepressants
  • Anti-seizure medications
  • Opioids
  • Physical therapy
  • Chiropractic care
  • Acupuncture
  • Steroid injections

In some instances, when these treatments don’t work, and the sciatica is causing severe weakness, pain, and/or loss of bowel or bladder control, surgery will be an option. During surgery, the bone spur or a portion of the herniated disc pressing on the nerve will be removed.

While it’s not always possible to prevent sciatica, certain measures can be taken to protect the back, including exercising regularly, keeping good posture when sitting, and using the body correctly (e.g., lifting with the legs instead of the back).

Sciatica can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with sciatica and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources

Mayo Clinic

John Hopkins

Cleveland Clinic

 

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Epstein-Barr Virus

What is the Epstein-Barr Virus?

Epstein-Barr virus (EBV) is also known as herpesvirus 4 and is a member of the herpes virus family. It is contagious and easily spreads through saliva, as well as other bodily fluids. While most people get infected with EBV (about 95%) at some point of their lives, some have no symptoms while others will go on to develop other illnesses (such as infections mononucleosis).

In a EBV infection, the virus attaches to white blood cells (lymphocyte B cells). When this happens, the cells become unable to fight infection properly, triggering symptoms.

What are the Symptoms of an Epstein-Barr Infection?

Symptoms can include:

  • Fatigue
  • Sore and inflamed throat
  • Swollen lymph nodes in the neck
  • Rash
  • Fever
  • Swollen liver
  • Enlarged spleen

While in most adults symptoms get better in two to four weeks, some may feel fatigued for many weeks or even months. In addition, once infected, the EBV will stay latent in the body and in some cases the virus may re-activate. Those with weakened immune systems, are more likely to develop symptoms if EBV re-activates. Stress and menopause and/or hormone changes can also cause the virus to re-activate.

How is Epstein-Barr Diagnosed?

Because EBV infections have symptoms that are similar to other illnesses, it can be challenging to diagnosis, but it can be confirmed with a blood test that detects antibodies.

What is the Treatment for Epstein-Barr Virus?

While there is no specific treatment for EBV there are ways to relieve symptoms, including:

  • Staying hydrated
  • Getting rest
  • Taking medications (OTC) for pain and fever

What are Complications of Epstein-Barr Virus?

While the Epstein-Barr virus is most commonly associated with mononucleosis, there are other conditions that may be triggered by the Epstein-Barr virus, including:

  • Viral meningitis
  • Encephalitis
  • Optic neuritis
  • Transverse myelitis
  • Facial nerve palsies
  • Guillain-Barre syndrome
  • Acute cerebellar ataxia
  • Hemiplegia
  • Burkitt lymphoma (white blood cell cancer)
  • Nasopharyngeal cancer (cancer of the nose and throat)

A recent study out of Stanford also EBV is also a trigger for multiple sclerosis.

EBV and any associated illnesses can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with EBV or a related condition, and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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:

Centers for Disease Control and Prevention
Cleveland Clinic
Banner Health
Stanford

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Mental Health Resources offered by Insurers May Be Used to Terminate Benefits

Deciding when, or if, it is safe to return to work after filing a disability insurance claim can be difficult and nuanced, including for mental health claims. Insurance companies, of course, have an incentive to push claimants back to work, so they may place pressure on an insured to do so.

Recently, MetLife announced that it was partnering with Lyra, a provider of workforce mental health services, to provide employees with access to mental health services as part of their recovery when they file a disability claim.

According to a recent news release, the collaboration will connect eligible individuals to Lyra’s providers at the beginning of their claim. The same release indicated that the partnership would provide claimants with more “comprehensive well-being services” during leave, “while also helping employers with the administrative tasks associated with disability claims and mental health resources.”

Depending on the circumstances, this may be helpful and beneficial for individuals facing mental health challenges. However, in our experience, mental health providers connected to a disability insurer can sometimes push for a “return to work” date before the individual is actually ready to do so. Accordingly, it is important to be mindful of ongoing limitations and communicate them effectively throughout the process.

This is important in every mental health claim, but even more so if you are working with a provider that is connected to the disability insurance company. For physicians and dentists filing disability claims, returning to work prematurely can not only be bad for their own mental health, but can also put patients at risk. If you feel that a provider or the disability insurance company are not accurately documenting or considering your limitations, it is a good idea to at least consult with a disability insurance attorney to ensure that your claim is handled fairly.

MetLife and Lyra Health Expand Access to Workforce Mental Health Solutions, Business Wire, June 14, 2023, https://finance.yahoo.com/news/metlife-lyra-health-expand-access-120000267.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAGIragDWvkC4OZlVEAoxh4wEOUspIJauIqPRA2zqzmS2Lr8KXNTggfTilfJ6iUSCGBNnY1YXsMbE9CDPeP6-tGCO7GzGy4BsIl04FE9QxIFlGiObS6yh62gvcdsbl69XomDSPNW5BtJi21BfOurMn6Ty8rlaIHRIF0FmimAj2Y0S

 

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Defining Occupation:
A Case Study

When you file an individual disability insurance claim, one of the first things the insurance company will do is define your occupation, and its job duties. They’ll often look at CDT/CPT codes and financial statements in order to try to determine your job duties. In many instances, insurance companies will seek to define your occupation as broadly as possible.

One such example of this is the case of Minzter v. Providence Life Ins. Co.[1] (Unum). Dr. Minzter, a board-certified ophthalmologist, filed a total disability insurance claim in 2019, based on significant ulnar atrophy of his left hand. According to Dr. Minzter, since 1992 his practice has been focused primarily on pediatric ophthalmology, including ophthalmic surgery (many of his parties suffered from amblyopia or strabismus, which often require surgery). In fact, when he purchased his policy from Unum in 1993, Dr. Minzter indicated that his “occupation” and “exact duties” were “ophthalmic surgeon” on his policy application.

However, in evaluating his claim, Unum deemed Dr. Minzter’s occupation to be that of an ophthalmologist, and stated that his records, including CPT codes, showed that surgery had been only a limited amount of his practice, and pointed to Dr. Minzter’s answers on his Physician Questionnaire that indicated he spend only 5% of his time in the operating room. Unum argued that Dr. Minzter was still performing other duties of an ophthalmologist, except for surgery. Dr. Minzter countered that the practice of eye surgery required a significant amount of time outside of the operating room—including assessing whether patients may need surgery.

Additionally, Unum pointed to the fact that there is no recognized subspecialty of surgery in ophthalmology. Dr. Minzter argued that even if Unum chose to consider him an ophthalmologist rather than an ophthalmic surgeon, he should still be entitled to total disability of because ophthalmology is a surgical specialty.

Because of its evaluation of Dr. Minzter’s occupation, including a review by a vocational rehabilitation consultant, Unum determined that Dr. Minzter was not totally disabled. The Court agreed with Unum, deciding that Dr. Minzter could perform all but one of the substantial and material duties of his occupation, and therefore wasn’t totally disabled. The lawsuit did not address whether Dr. Minzter might be entitled to residual disability benefits, but the Court indicated that it appeared that Dr. Minzter’s claim fell within the purview of that provision.

The takeaway from this case is that insurers (and Courts) will look to what your job duties are at the time of filing a disability claim, not what they were (or what your job title was) at the time you filled out the application for a policy.

If you have questions about whether your occupation is being correctly defined by your insurance company, 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] Minzter v. Provident Life and Accident Ins. Co., No. CV215595MASJBD, 2023 WL 4108850 (D.N.J. June 21, 2023)

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Statute of Limitations:
A Case Study

As we’ve written about before, whether a disability is caused by sickness or injury can be critical in determining the duration of benefits that will be paid out under a disability insurance policy. Another component to this calculation is knowing when to sue, if your insurance company decides to classify a disabling condition as sickness versus injury.

One such example is that of Bennett v. Ohio National Life Assurance Corp[1]. Dr. Mark Bennett, an oral and maxillofacial surgeon, was injured when he was thrown from a horse in 2006, where he sustained injuries to his left shoulder and collarbone. He subsequently underwent surgery; however, he had ongoing numbness and tingling in his left hand. He was able to continue working for a while by changing operating techniques and using different tools. However, despite these changes and treatment (medications and physical therapy), he eventually developed chronic pain in his left hand. He cut down on his patient load, but then had to quit working entirely in 2014.  He filed a claim with Ohio National, stating that he was unable to work as an oral surgeon because of the physical issues he developed as a result of his 2006 accident.

Ohio National approved his benefits, but noted that it would continue to evaluate whether the cause of the disability was due to sickness or injury. In this case, the distinction was important.  Because he was over 55 at the age of filing, he would only be eligible to receive benefits up to age 65 if his condition was caused by sickness. However, if it was caused by injury, he would be eligible for lifetime benefits.

Eventually, on June 8, 2015, Ohio National notified Dr. Bennett that they had determined that his disability was caused by sickness, specifically degenerative disc disease, which was causing compression of nerve roots (leading to the tingling and numbness in his left hand). The letter indicated that benefits would terminate when Dr. Bennett reached age 65.

In September 2018, Dr. Bennett’s benefits stopped. Dr. Bennett sued for breach of contract and breach of the implied covenant of good faith and fair dealing in August 2019. Under the law, Dr. Bennett had four years to file a breach of contact claim and two years to file a claim for breach of implied covenant of good faith and fair dealing. Ohio National argued that the statute of limitations had passed. In other words, they alleged that Dr. Bennett had had waited too long after their initial determination (in 2015) that his disability was caused by sickness to bring a lawsuit. Dr. Bennett argued that the clock did not start running until the date his benefits stopped (in 2018).

The Court reviewed both sides’ arguments and decided in favor of Dr. Bennett. Whether Dr. Bennett is eligible for lifetime benefits remains pending before the Court at the time of this writing.

This case highlights the importance of understanding the terms and requirements of your individual policy.  If you have questions about whether your disabling condition is being handled as an illness versus an injury, 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] Bennett v. Ohio Nat’l Life Assurance Corp., No. A166049, 2023 WL 4069794 (Cal. Ct. App. June 20, 2023)

 

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Autoimmune Diseases

What are Autoimmune Diseases?

A normal immune system protects the body from disease and infection. With an autoimmune disease, the body’s immune system begins attacking its own organs, tissues, and cells. There are over 100 known autoimmune diseases and they can affect nearly every organ in the body, as well as many tissues. Below are common autoimmune diseases based on the area of the body they affect:

Muscles and Joints:

Digestive Tract:

  • Celiac disease
  • Crohn’s disease
  • Ulcerative colitis

Skin:

  • Dermatomyositis
  • Psoriasis

Endocrine System:

  • Hashimoto’s
  • Graves’ disease

Nervous System:

Other:

Autoimmune disorders are more common in women than men, and about 1 in 15 people have an autoimmune disease.

What are the Symptoms of Autoimmune Diseases?

Symptoms will vary based on what part of the body is impacted, but common symptoms include pain, fatigue, dizziness, headaches, nausea, malaise, and rashes.

What Causes Autoimmune Diseases?

The exact cause of autoimmune diseases is unknown, but factors include:

  • Genetics
  • Certain medications
  • Having one autoimmune disease already
  • Exposure to toxins
  • Infections
  • Gender (78% of people who have autoimmune diseases are women)
  • Obesity
  • Smoking

How are Autoimmune Diseases Diagnosed?

Autoimmune disorders often have symptoms that are similar to other diseases, or with each other, so diagnosis can be difficult. Treating providers will generally look at symptoms and health history, and may perform blood tests to look for markers that are associated with certain autoimmune diseases. Tests that may be run include:

  • Antinuclear antibody test (ANA)
  • Complete blood count (CBC)
  • Erythrocyte sedimentation rate (ESR)
  • C-reactive protein (CRP)
  • Comprehensive metabolic panel
  • Urinalysis

What is the Treatment for Autoimmune Diseases?

Autoimmune disorders do not have a cure, so the focus of treatment is on managing symptoms. Types of treatment include:

  • Anti-inflammatory medications
  • Pain killers
  • Plasma injections
  • Corticosteroids
  • Depression and anxiety medications
  • Insulin injections
  • Medications to treat rashes
  • Intravenous immune globulin
  • Immunosuppressive medications
  • Physical therapy

Autoimmune diseases can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with an autoimmune disease and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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:

Cleveland Clinic

Mount Sinai

National Institute of Health

 

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Mental vs. Physical Condition Claims:
A Case Study

In some instances, it may not be clear whether symptoms are caused by a physical or mental disability. This distinction can be important because many policies have a mental and nervous limitation, which means that benefits for mental conditions will only be paid out for a limited amount of time (typically 24 months). It’s not surprising that insurance companies may try to argue that a condition is a mental health one, even if treating providers say otherwise, in an attempt to limit the amount of benefits they have to pay out.

One such case is that of Radle v. Unum.[1] In this instance, Radle tripped and hit his head while running, which resulted in dizziness, difficulty focusing, headaches, a “buzzed” feeling, and sensitivity to noise and light.  A few days after the fall, he went to the ER where he was diagnosed with post-concussive syndrome. A few months later, he was admitted to the hospital after another symptomatic episode. Here, he was diagnosed with a conversion disorder, which is defined as a mental condition where a patient shows psychological stress in physical ways.  A few days later, he returned for a second opinion and was again diagnosed with conversion disorder.

However, subsequently, over the course of several years, he engaged in treatment with little to no result (including physical therapy and speech therapy). Because of his progressing symptoms, Radle’s three treating providers re-diagnosed him with delayed post-concussive syndrome. In support of their diagnoses, his providers pointed to the fact that he had an EEG positive for left temporal slowing (which would suggest a brain injury), had testing which showed a visual disability, and had a cyst located near his cerebellum.

Unum’s reviewing physicians, however, disregarded these reports form treating providers and continued to claim that his condition was subject to the mental and nervous limitation of the policy, and as a result, Radle was only entitled to 24 months of benefits.

In response, Radle underwent additional assessments including an independent medical examination (IME) and a Neuropsychological Evaluation, which both concluded that his symptoms were not psychologically based. However, Unum did not accept this evidence, and also claimed that his symptoms did not prevent him from working.

The case remains pending as of this writing, but it illustrates how insurance companies may seek to classify certain conditions as mental health conditions, in order to limit the benefit amount they will have to pay out.  If you are worried about how your insurer is classifying your disabling condition and have questions, 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] Radle v. Unum Life Ins. Co. of Am., No. 4:21CV1039 HEA, 2023 WL 2474509 (E.D. Mo. Mar. 13, 2023)

 

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