Thoracic Outlet Syndrome

In previous posts, we’ve discussed chronic pain, including how chronic conditions can affect dentists.  Dentists in particular are susceptible to these conditions, as they are constantly required to employ sustained grips on instruments while holding awkward, unnatural positions during dental procedures.  As a result, dentists are prone to developing disorders that cause muscle pain, weakness, and numbness, including thoracic outlet syndrome.  In this post we will examine the symptoms, causes, diagnosis, and treatment of thoracic outlet syndrome.

Overview

Thoracic outlet syndrome (TOS) is a group of disorders that occur when blood vessels or nerves in the space between the collarbone and the first rib (thoracic outlet) are compressed. This can result in pain in the shoulder, neck, and arm, as well as numbness in the fingers.

There are different types of TOS, including:

  • Neurogenic (neurological) thoracic outlet syndrome: This form of TOS is characterized by compression of the brachial plexus (a network of nerves that come from the spinal cord and control muscle movements and sensation in the shoulder, arm, and hand).
  • Vascular thoracic outlet syndrome: This form of TOS occurs when one or more of the veins (venous thoracic outlet syndrome) or arteries (arterial thoracic outlet syndrome) under the clavicle are compressed.

Symptoms

TOS symptoms vary, depending on where the compression occurs. When nerves are compressed, symptoms of neurogenic TOS include:

  • Muscle wasting in the fleshy base of the thumb (Gilliatt-Sumner hand)
  • Numbness or tingling in the fingers or arm
  • Muscle pain or aches in the neck, shoulder, or hand
  • Weakened grip

Symptoms of vascular TOS include:

  • Bluish discoloration of the hand or lack of color (pallor) in the hands/fingers due to impaired circulation
  • Arm pain and swelling
  • Blood clot in veins or arteries in the upper area of the body
  • Weak or no pulse in the arm
  • Cold fingers, hands, or arms
  • Numbness or tingling in the fingers
  • Weakness of arm or neck
  • Throbbing lump near the collarbone

Causes

TOS is caused by the compression of the nerves or blood vessels in the thoracic outlet, just below the clavicle. The cause of compression can include:

  • Anatomical defects, such as an extra rib or an abnormally tight fibrous band connecting the spine to the rib
  • Poor posture, dropping shoulders, or holding the head in a forward position
  • Trauma, such as a car accident
  • Repetitive activity in the upper extremities
  • Pressure on the joints from obesity or carrying a large amount of weight
  • Pregnancy
  • Heredity

Diagnosis

Diagnosing TOS can be difficult, as symptoms can vary greatly and are often subjective.  It is not uncommon for TOS to be misdiagnosed as other conditions, such as carpal tunnel syndrome or cubital tunnel syndrome.  To diagnose TOS, a physician will perform a medical history review and physical examination. The examination will include an evaluation of the thoracic outlet, pulses, range of motion, and coloration in the arm, hand, or fingers.

Provocation tests are often used to rule our other causes of symptoms, and include the Roos Stress Test (also known as the elevated arm stress test), Adsons Test, Wright Test, and Eden Test. In these tests, a physician will ask the patient to move the arms, neck, or shoulder in various positions. Certain maneuvers can produce symptoms and blood vessel “pinching,” resulting in a loss of pulse.

A physician may also require additional screening to confirm the diagnosis of TOS, including:

  • X-rays: to reveal an extra rib or to rule out other conditions in the neck or spine that may be causing symptoms
  • CT Scan: to identify the location of the blood vessel compression
  • MRI: to determine the location and cause of the blood vessel compression or to reveal any congenital defects causing symptoms (such as an extra rib or an abnormally tight fibrous band connecting the spine to the rib)
  • EMG: to evaluate electrical activity of the muscles and identify any nerve damage
  • Nerve Conduction Study: to test and measure the nerves’ ability to send impulses to muscles in different areas of the body and to reveal nerve damage
  • Ultrasound: to see if the individual has vascular TOS or other vascular problems
  • Arteriography and venography: to look at blood flow and see if there is a compressed vein/artery or a blood clot

Treatment

Treatment of TOS can usually be successful with conservative measures. These treatments include:

  • Physical therapy
  • Anti-inflammatory medications, pain medication, or muscle relaxants
  • Clot-dissolving medication

More severe cases of TOS may require surgery, called thoracic outlet decompression.  This may include removing muscles or the first rib in order to spare injury to the affected nerve and blood vessels from ongoing compression. The surgeon may then repair or replace any damaged blood vessels. Vascular TOS is more likely to require surgery to resolve the symptoms.

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.

References:

Mayo Clinic, www.mayoclinic.org
Medicine Net, www.medicinenet.com
Cleveland Clinic, www.clevelandclinic.org
Science Direct, www.sciencedirect.com
National Organization for Rare Disorders, www.rarediseases.org
Physiopedia, www.physio-pedia.com
John Hopkins Medicine, www.hopkinsmedicine.org

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The Challenges Faced By
Professionals Filing Mental Health Claims

With mental and substance abuse disorders being the leading cause of disability worldwide[1], insurance companies are very keyed into how they can save money on mental health claims. As we’ve discussed before, many policies, especially newer ones, contain mental health disorder and substance abuse limitations that expressly limit the amount of benefits the policyholder can receive (typically to 12 or 24 months), and some even contain exclusions that prevent policyholders from collecting benefits at for mental health conditions alltogether.

Even if your policy doesn’t contain these limitations, insurance companies subject mental health claims to close scrutiny, and some insurance companies have even established specialized departments that exclusively handle mental health claims.  These departments are made up of claims consultants who have additional, specialized training, vocational consultants, and in-house psychologists and psychiatrists. The primary goal of these departments is often closing claims by returning claimants to the work force.

While many professionals are able to return to work in their prior occupation after receiving mental health treatment, that is not always the best option for everyone. For some professionals—for example, the dentist with anxiety or the emergency room doctor with PTSD—even the thought of being forced to return to work can send them into a downward spiral, and undo any progress that they have previously made in therapy.

Oftentimes, the first thing that the insurer’s mental-health team will do is contact your providers and challenge the appropriateness of your treatment and/or push for a return-to-work timeline. If you’re treatment provider has never dealt with an insurance company before, he or she may feel pressure to push for unrealistic goals and/or exaggerate progress, which can in turn interfere with treatment and/or lead to a strained patient-therapist relationship. Consequently, it is important to find a treatment provider who will stand up to your insurer and provide a fair and realistic account of your progress. If an insurer is being particularly aggressive, it can also be helpful to have a disability insurance attorney step in and rein-in the scope of the insurance company’s investigation to an appropriate level.

 

Those suffering from a mental health disorder can find resources for immediate help at mentalhealth.gov.

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[1] 10 Facts on Mental Health, World Health Organization, http://www.who.int/features/factfiles/mental_health/mental_health_facts/en/index1.html.



How the Disability Claims Process Works, in a Nutshell

People often ask us “what is the claims process like?” and/or “what should I expect if I file a disability claim?” Obviously, each claim is unique, and how your particular claim will play out largely depends upon a wide range of factors, including your profession, your particular insurance company, the nature of your condition, when your policies were issued, and what the key definitions in your policy say, among other things. However, there are some basic aspects of the process that you should be aware of if you are considering filing a disability claim or wondering how the disability claims process works.

Obtaining the Claim Forms

The process for obtaining claim forms varies from company to company. Some companies provide forms online, and other companies require you to call in to request the claim forms. Recently, we have noted that several companies are starting to conduct information-gathering, recorded interviews when you call in for claim forms.

If you are not aware that this could be a possibility, you can end up being caught off-guard without a clear understanding of what your policies say or what the company can and cannot ask for when investigating your claim. Because of this, we advise that professionals at least speak with an experienced disability attorney before requesting claim forms so that, at a minimum, they understand how the process works before they make a call that can initiate a recorded interview.

Completing the Claim Forms

Typically, the initial packet of claim forms will contain several different forms, including paperwork that you must fill out, paperwork for your treating doctor, and oftentimes paperwork that must be completed by your employer. As the claim progresses, the company will require additional paperwork, which at the outset of a claim typically consists of a monthly progress report that must be completed by you and a monthly attending physician’s statement from your doctor.

Records Requests

After you submit the initial claim forms, your insurer will likely send a follow-up letter requesting additional records and documents. For professionals, this usually includes financial documents (such as tax returns), production codes, profit and loss statements, employment agreements, and practice sale documents, if applicable, among other things. Whether these requests are appropriate depends on the terms of your policy and nature of your claim (for example, whether you are filing a total disability claim, as opposed to a partial disability claim).

Interviews

In addition to the initial phone interview, the company may hire a field examiner to interview you in-person. This interview typically takes place at your attorney’s office, or at your home if you are not represented by an attorney. The company may also seek to interview your former co-workers and/or employers about your prior job duties, and may seek to interview your friends or family members about the impact your condition has had on your day-to-day life. Whether these types of interviews are appropriate depends on the particular issues at play in your claim.

Examinations

Almost every disability policy contains a provision that allows the company to have you examined as part of the claims investigation. However, different policies allow for different types of examinations. Some policies (typically older policies) only expressly provide for “physical” or “medical” examinations, while newer policies typically provide for a host of different types of exams, including mental exams, vocational evaluations, rehabilitation evaluations, functional capacity evaluations, and/or neuropsychological testing, in addition to physical exams. Again, whether an exam is appropriate depends on the particular facts of your case.

Surveillance

Many companies conduct surveillance at some point during the claim. This can include a review of your online presence (social media accounts, public record searches, etc.).

Elimination Period

Most disability policies require you to satisfy the policy’s elimination period before any benefits are due. Each policy will have a specific procedure for satisfying the elimination period, but in most instances you can only satisfy the elimination during periods of disability. So, put differently, even if your claim is approved at the outset, there will still be a period of time (e.g. 3 months) that you must be disabled before any benefits are due. This is important to keep in mind because many claimants expect to receive benefits right off the bat and don’t realize that, even in the ideal scenario where a claim is approved right away, it will be several months before they receive the first benefit payment.

This is not an exhaustive list of everything that can happen in the context of a disability claim, but it is a broad overview of some of the major aspects of the claims process. Some of the items in the list, such as the elimination period, apply to virtually every claim, while the likelihood of other items in the list occurring (such as medical exams) depends on the facts of your particular case.

Because of this, if you’re thinking about filing a claim, it is always a good idea to have someone who is familiar with the claims process (like an experienced disability insurance attorney) evaluate your specific situation, so that you can have a better sense of what to expect in your particular circumstances.



Policy Enhancements:
Why They Aren’t Necessarily As Good As They Sound

In prior posts, we’ve talked before about the different types of disability insurance, including group disability insurance.  Group policies are a subset of disability policies that are often made available to members of professional organizations. With group policies, the organization is the policy owner and the coverage amount and policy features are ultimately determined by the organization, not its members. Because the policy is owned by the organization, this also means that policy terms can change or be updated without your input.  When this occurs, these changes may be presented to you as a “policy enhancement.”

While “policy enhancements” sound like they’ll be an upgrade to a policy, sometimes they are quite the opposite. Policy enhancements can be beneficial to the policy holder. For example, the organization might decide that it wants to increase the policy’s maximum benefit period from age 65 to age 67.

Unfortunately, not all changes to group policies benefit the insured.  While most organizations don’t want to put their members in a worse off position, many organizations receive some degree of pressure from their members to reduce the premium costs of the policies they offer. Knowing this, disability insurers frame changes to the policy as a way to “cut costs” and, as a result, an organization might agree to allow the insurance company to add a more stringent care provision, add a mental/nervous disorder limitation, or insert a no-work provision in an effort to  reduce premium costs for its members. Additionally, policy language (especially the provisions found in newer policies) is often unduly complex and crafted so that it is difficult for a layperson to understand. Consequently, even a well-meaning organization may be misled into making policy changes without understanding the full impact a “policy enhancement” may have on disability coverage.

If you are a member of a group plan, it is important that you remain aware of any changes to the group policy and know its current terms.  Because policy enhancements change the terms of a policy, you should receive a notification in the mail if any changes are made. If you throw this notice away or place it in a drawer without reviewing it, you won’t know how the adopted change affects you (including whether can still rely on the policy for adequate coverage and, by extension, whether you want to continue paying premiums to keep the coverage in place).

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How Far Will Insurers Go To Deny Your Benefits?

In a previous post, we discussed the great lengths insurers will go to offset your benefits.  Insurance companies are financially motivated to reduce and/or deny your disability benefits, and you may be surprised by how far insurers will go to find a reason to deny benefits.

In the case of Dowdy v. MetLife,[1] Tommy Dowdy suffered serious injuries, including a “semi-amputated left ankle,” as the result of a car accident.  After several months, Mr. Dowdy’s injury failed to improve, and he ultimately his leg was amputated below knee.  Mr. Dowdy had disability coverage under a MetLife plan his wife had purchased through her employer, which provided insurance for any loss that was a “direct result of an accidental injury.”  The plan, governed under ERISA, also had several exclusions, including an illness or infirmity exclusion, which stated that MetLife would not issue benefits “for any loss caused or contributed to by … physical … illness or infirmity, or the diagnosis or treatment of such illness or infirmity.”

The Dowdys filed a claim with MetLife but just prior to the amputation, MetLife informed the Dowdys that it intended to deny the claim because his injury was not a “severance” under the terms of the policy.  Despite being informed by Ms. Dowdy that the amputation would be performed within the next week, MetLife issued a letter denying coverage. After the amputation, Mr. Dowdy’s doctor, Dr. Coufal, wrote a letter to MetLife, explaining that Mr. Dowdy’s wound and the fracture to his left leg were slow to heal, and his wound issues were complicated by his diabetes.  As a result, he developed a deep infection and underwent elective left below-the-knee amputation for treatment. At this point, MetLife sent a second denial letter, citing the illness or infirmity exclusion, quoted above.  The letter stated that Mr. Dowdy’s “amputation was contributed [to] and complicated by diabetes per Dr. Coufal,” and was therefore excluded from coverage under the plan’s terms.

When the Dowdy’s filed for administrative appeal, MetLife upheld its denial, and also concluded that the accident was not the “direct and sole cause” of the amputation, as was required under the policy. The Dowdy’s then sought review in federal court.  Initially, the district court found that diabetes caused or contributed to the need for amputation, and affirmed the denial of benefits.  However, the Ninth Circuit Court of Appeals reversed the lower court’s decision and found that Mr. Dowdy was entitled to benefits.

In their decision, the Court of Appeals addressed MetLife’s denial on the grounds that the accident was not the “direct and sole cause” of the amputation.  The Court found that while diabetes was a factor in the injury, it did not substantially contribute to Mr. Dowdy’s amputation. The Court then addressed MetLife’s denial under the illness or infirmity exclusion, and found that Mr. Dowdy’s injury was not excluded from coverage.  The Court noted that “the record with respect to the role of diabetes in Mr. Dowdy’s recovery [was] notably thin.”  Instead, it was the car accident that resulted in a severe injury, which led to Mr. Dowdy’s eventual leg amputation.  The Court held that exclusions are to be construed narrowly, and because Mr. Dowdy’s diabetes did not substantially contribute to his amputation, this exclusion did not bar coverage.

While Mr. Dowdy was ultimately able to receive the benefits that he was entitled, this case shows how far insurance companies are willing to go to deny your disability benefits.  This case also highlights the importance of communicating with your treating physician, and ensuring that he or she understands the terms of your policy before contacting the insurance company.  Any seemingly innocent statement, like Dr. Coufal opining that Mr. Dowdy’s injury was complicated by his diabetes, can give the insurance company enough ammunition to deny you coverage.

[1] Dowdy v. Metropolitan Life Insurance Company, 890 F.3d 802 (9th Cir. 2018).

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What to Expect When Filing a Disability Claim

When it comes time to file a disability claim, many professionals believe that they’ll just submit their claim forms, have their doctor sign a statement verifying their disabling condition, and start receiving their monthly benefit checks. But filing a disability claim is much more involved than that.

The process begins when you give notice to your insurer of your claim, and request the initial packet of claim forms. Many insurers now require you to call-in to request the forms, as this gives them the opportunity to conduct an impromptu interview, catch you off guard and collect as much information from you as they can before you have a chance to see the claim forms, review your policy or talk with an attorney about the proper scope of a disability claim investigation. And this interview is only the beginning.

Once you have the forms, there are trick questions on the forms that can prejudice your ability to collect if not answered precisely and correctly. After these first forms are submitted, the investigation continues based upon your responses on the claim forms, and the insurance company will likely have several follow-up questions as they look for ways that they can deny your claim, or limit their liability (by, for example, paying you partial/residual disability benefits, instead of total disability benefits).

It’s also important to remember that this is not a one-time process. You will have to continue to provide satisfactory proof of loss to your insurer on an ongoing basis for as long as your claim is active, and your insurer has a right under your policy to continue to investigate your claim at any point until your maximum benefit period is reached and your policy expires.

While each claim is different, insurance companies will typically:

Speak with your treatment providers, family, friends and co-workers about your condition. The insurance company will have you sign authorizations that grant the insurance company sweeping authority to speak directly with a host of individuals (e.g. any physician you have ever been treated by, pharmacies, benefit plan administrators, insurance agents, financial institutions, the Social Security Administration, family, friends, co-workers and employees, among others).

Request a wide range of personal information. Most authorizations also allow the disability insurer to request virtually any information not otherwise barred by law–not just medical records. The information can include medical records, tests, or consultations, prescription history, mental health records, HIV/AIDS treatment information, records for any substance abuse treatment, court records, occupational data, employment history, driving history, financial statements, and your earning history.

Schedule face-to-face interviews with you. Many insurers seek to interview you in your home, so that they can view your surroundings to see if they can find discrepancies in the claim, or learn more about you so that it is easier for them to conduct surveillance. These interviews can be stressful if you’ve never experienced them before, and they can be particularly difficult if you are expected to discuss your medical conditions and the facts surrounding them with a complete stranger who you have never met.

Order an In-Person Exam. The insurance company may claim that the exam is used to verify a disability; however, insurers also use these exams as a means to criticize your provider’s course of treatment, or dispute your own provider’s conclusions and diagnoses. Most disability policies also provide that refusal to participate in an exam allows the insurance company to deny a claim or terminate benefits.

Use a private investigator to conduct surveillance. The insurance company may employ a private investigator to conduct photo, video and/or online surveillance, in an attempt to find discrepancies in your claim, or evidence of “malingering.” This can pose a particular challenge for dentist and physician claims, as oftentimes a dentist or physician’s symptoms may be significantly alleviated once he or she steps away from the demands of practicing.

This process can be very invasive and, if you have never experienced the claim process before, it can be hard to tell whether your insurer is taking things too far. If you feel your insurance company is being too aggressive, an experienced disability insurance attorney can assess the scope of the investigation and advise whether the insurer’s conduct is proper.

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Carpal Tunnel Surgery – What if it Doesn’t Work?

For some, surgery is an effective treatment option for carpal tunnel syndrome (CTS) after conservative treatment fails to deliver any lasting results. However, for others, carpal tunnel surgery also fails to provide relief. This can be especially disappointing for physicians and dentists who had hoped that surgery would allow them to return to practicing.

Over the years, we’ve represented several clients who did not experience relief from their symptoms following carpal tunnel surgery. In some instances, the surgery was simply not performed correctly or soon enough to prevent permanent nerve damage, but in many instances the symptoms did not resolve because the hand pain, numbness and weakness were being caused or contributed to by other co-morbid conditions (particularly with dentists, due to the demands of the dental profession).

Since we know from experience how frustrating it can be for a professional searching for answers, we’ve attempted to put together a list of some of the conditions our clients have had that manifest similar symptoms to carpal tunnel syndrome below (in no particular order):

    • Cervical Radiculopathy: Occurs when there is damage or disturbance of the nerve function if one or more of the nerve roots near the cervical vertebrae is compressed. Based on location of the damaged root(s), symptoms include pain, loss of sensation to the arm and hand, pain that spreads to the neck, arm, chest, upper back and/or shoulders, muscles weakness and/or numbness, or tingling in the fingers and hand. In some cases, lack of coordination is experienced.
    • Cubital Tunnel Syndrome/Ulnar Entrapment: A condition where the ulnar nerve becomes injured, inflamed, and swollen where it passes through the cubital tunnel on the inside of the elbow. Symptoms include numbness and tingling in the hand and/or ring and little finger, hand pain, weak grip, loss of dexterity, and aching pain on the inside of the elbow.
    • Arthritis of the Metacarpophalangeal Joint of the Thumb: The metacarpophalangeal joint is where the finger bones meet the hand bones (knuckle). This type of arthritis most commonly develops in the thumb and index finger and over time the fingers can shift towards the little finger, called ulnar drift.  Symptoms include pain, loss of motion, swelling, and weakness, which may be made worse when gripping or grasping objects.  Patients may also develop a tendency to drop objects due to severe pain.
    • Multiple Points of Impingement (“Double Crush” Syndrome): Multiple sites of asymptomatic nerve compression along a nerve, that then create a symptomatic compressive neuropathy because of the cumulative compression.
    • Thoracic Outlet Syndrome (TOS): A group of disorders where blood vessels or nerves in the area between the collarbone and first rib are compressed. Symptoms include shoulder and neck pain, along with numbness in the fingers.
    • Chronic Regional Pain Syndrome: Pain that usually affects one limb/extremity, typically after an injury. Symptoms include prolonged pain that is felt as burning and/or a “pins and needles” sensation, as well as increased sensitivity, swelling or stiffness in joints, and/or problems coordinating muscle movements.

While most insurers will pay benefits immediately following CTS surgery, insurers also rely upon durational guidelines to determine how long it will take you to recover. Many insurers also have their in-house doctors contact your surgeon following the surgery and push for a return-to-work date. Consequently, in claims involving CTS surgery, the real fight to maintain benefits most often comes several months after the surgery.

If the dentist or physician has not thought ahead, this can be a particularly stressful time, because the persistent symptoms may necessitate the sale of a practice that is only being kept afloat by temporary associates filling in during the recovery period. Similarly, if you are not prepared with documentation and medical records to demonstrate that the carpal tunnel surgery failed or that you have other co-morbid conditions that continue to prevent you from being able to practice, your benefits may be denied or terminated. Because of this, it is important to have a plan in place for this contingency before having the surgery.

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.

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References:

Webmd.com
Mayo.com
Healthline.com
Carpal-Tunnel.net
AAOS.org
Robert Tiel, MD, Carpal Tunnel Syndrome at LSU, Department of Neurosurgery, LSU Medical Center, http://www.medschool.lsuhsc.edu/neurosurgery/nervecenter/carpal.html.
Michael J. Lee, DPT and Paul C. LaStayo, PT, PhD, CHT, Pronator Syndrome and Other Nerve Compressions That Mimic Carpal Tunnel Syndrome, 34, J Orthop Sports Phys Ther, 601, Oct. 2004



Can You Remain Anonymous in a Lawsuit Against Your Insurer?

If your disability claim has been denied or your disability benefits have been terminated, you may be considering filing a lawsuit against your disability insurer, and may be wondering if you have to publicly disclose your name and medical condition in order to so. You may be concerned that filing a lawsuit disclosing your condition could prompt future potential employers to decide not to hire you, in the event that you recover and seek to return to work in your profession. And if your disabling condition is a mental condition, you may (understandably) simply be concerned about the details of your condition being shared with strangers in a public forum.

While, ultimately, whether or not you can remain anonymous in a lawsuit will depend on the particular law of your jurisdiction, a recent case involving Unum suggests that if an insurance company can force you to disclose your name in court filings, it will, even if there is no real basis for doing so (other than, of course, to cause you embarrassment, in the hopes that you will drop your case.

In A.G. v. Unum Life Ins. Co.[1], the claimant worked at a well-known, national law firm prior to her disability. She suffered from a mental health condition and was concerned that publicly disclosing this in court filings could deter law firms from hiring her in the future, should she recover from her condition and attempt to return to work. Because of this, she simply used her initials when she filed her case, and didn’t disclose her full name. In response, Unum filed a motion asking the court to compel her to disclose her full name in the publicly filed court documents.

Because the case was filed in Oregon, the Court applied the Ninth Circuit’s multi-factor test for determining whether a claimant can proceed anonymously. Prior cases applying this test had essentially determined that, in order to proceed anonymously, the claimant had to show a reasonable fear of physical harm. In light of these cases, the Court felt it had no choice but to require A.G. to disclose her name, because (among other things) the harm that she feared was economic and emotional, not physical.

What is perhaps more significant about this case is the fact that the Court also found that Unum failed to show that it would have suffered any prejudice to its case if A.G. had been allowed to stay anonymous. The Court pointed out that Unum obviously already knew A.G.’s full name from the claim forms and medical records that already existed in Unum’s file, and concluded that Unum had made “no showing that [A.G.] proceeding by initials impairs its ability to defend against the allegations.”

Unfortunately, for A.G., this ultimately didn’t matter much, because under the Ninth Circuit’s test, the party wishing to remain anonymous had the burden of proving that the risk of harm was substantial (in addition to showing that the prejudice to the other party was outweighed by this risk). So, in the end, A.G. had to face the unenviable choice of either disclosing her condition publicly or dropping her claim against Unum.

Situations like this are, unfortunately, not uncommon. Insurance companies view claims (and related litigation) as a war of attrition. They know that they have more time, money and industry knowledge than most insureds (particularly insureds who are not represented by counsel) and they also know that there is a social stigma that surrounds mental health diagnoses that can be used to their advantage. For this reason, many insurers aggressively target mental health claims or claimants who are well-known in the community (such as physicians, dentists, and lawyers) because they know that some claimants will choose to drop their claim (or settle for substantially less then they are entitled to) when faced with the prospect of having their mental or physical health publicly disclosed in court proceedings or at trial.

[1] A.G. v. Unum Life Ins. Co., No. 3:17-CV-01414-HZ, 2018 WL 903463 (D. Or. Feb. 14, 2018).

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Do You Have the “Own Occupation” Coverage
You Think You Have?

Most physicians and dentists know that they should purchase an “own occupation” policy that provides disability benefits if they are no longer able to practice in their profession. True own occupation policies pay benefits if the insured cannot perform at least one of the material and substantial duties of his or her occupation. Some policies are also specialty-specific and further define “occupation” as the dentist or physician’s specialty.

While true own occupation and specialty-specific policies were commonplace in older disability insurance policies, newer policies are substantially different across the board. Over time, insurance companies have come up with several variations of the “own occupation” provision and these new provisions typically contain additional requirements and limitations that restrict coverage and/or make it much more difficult for professionals to prove they are totally disabled and collect benefits.

This is something that not always apparent from the marketing and application materials provided when you are purchasing the policy. For example, a physician quickly reviewing a policy application may check the box for the “medical occupation definition of total disability” rider because it sounds like what he or she would want if he or she could no longer practice. It’s likely that the physician would just assume that this option is the equivalent of the true own occupation policy described above, and move on to the next part of the form without a second thought. However, if the physician never reviews the subsequently issued policy, he or she may be in for a surprise if the need to file a claim arises.

Here’s an example of what you could get if you ask for a “medical occupation definition of total disability option” (taken from an actual policy):

(Click here for a larger view.)

In addition to this being a particularly confusing, complex total disability definition, this rider would also cost you higher premiums, without providing the disability coverage that you likely wanted.

It is therefore very important to review your policy when it is issued, to ensure you have a complete and accurate understanding of the coverage that you are paying thousands (upon thousands) of dollars in premiums for, so that you have the disability coverage you need, if/when you need it.

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How Far Will Insurers Go To Offset Your Benefits?

We have previously discussed benefit offsets, which are provisions in policies that permit the insurer to reduce the amount of your monthly benefits if you are receiving income from certain sources (listed in the policy). While you may be aware that these provisions exist, you may be shocked by how far some insurers are willing to go to reduce benefits.

In the case of Rustad-Link v. Unum[1], Dawn Rustad-Link suffered a below-the-knee amputation after receiving negligent medical care. In addition, she had been diagnosed with multiple sclerosis (MS) several years earlier. Accordingly, she filed for disability benefits under her Unum policy.

At the outset of Rustad-Link’s claim, Unum determined that her MS was the primary disabling condition, and asserted that she had to wait 12 months to receive benefits, because the MS was a pre-existing condition.

Later on in the claim, Rustad-Link received a medical malpractice settlement (in connection with the below-the-knee amputation). When Unum learned about the settlement, it changed it’s prior assessment, determined that the amputation (not the MS) was the primary disabling condition, and asserted that, because of this, they were entitled to offset any income she received as a result of the amputation (i.e. the medical malpractice settlement). Significantly, when asked to assess the situation, Unum’s own in-house attorneys concluded that the settlement proceeds did not qualify as an offset; however, Unum’s “Financial Recovery Unit” ignored this, and continued its efforts to apply and enforce the offset. Unum then claimed that it had overpaid roughly $47,000 in benefits, and informed Rustad-Link that, moving forward, it would be reducing her benefits each month by roughly $2,000 until this amount was repaid to Unum (resulting in a remaining monthly benefit of only $115). Rustad-Link then filed suit to contest Unum’s determination.

Fortunately, the Court saw through Unum’s efforts to improperly apply the offset and concluded that Unum’s interpretation of the policy was “impermissibly self-serving.” In reviewing the record, the Court noted that Unum did not change its assessment until after it learned of the medical malpractice settlement, and concluded that the only purpose behind this change was “to take advantage of the settlement by treating the entirety of her misfortune as income.”

Although, in the end, Rustad-Link was able to avoid an offset, this case highlights the fact that insurance companies are financially motivated to deny and/or reduce your disability benefits, and illustrates how far insurance companies are willing to go to apply an offset. This case also shows that, while many juries have awarded damages and regulators have imposed fines in an effort to deter to bad faith conduct, Unum (and other insurance companies) continue to take aggressive and unreasonable positions in order to benefit their bottom-lines.

[1] Rustad-Link v. Providence Health & Serv., No. CV 16-136-M-DWM, 2018 WL 651833 (D. Mont. Jan. 31, 2018).

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Do You Have A Specialty-Specific Policy?

Your ability to collect disability benefits under your insurance policy depends first and foremost on how “total disability” is defined under your policy. As we have previously discussed, if you are a professional choosing a policy, you will want to look for a policy that defines “total disability” in terms of your inability to perform your “own occupation,” and you will want to be sure to look for a true “own-occupation” policy.

While most professionals are aware of the importance of seeking out an “own-occupation” policy, you may not be aware that insurance companies also offer specialty-specific own occupation policies that are tailored to physicians and dentists who are specialists. These policies have a more precise definition of “total disability” that requires the insurance company to not only consider your occupation, but also your specialty when assessing eligibility for disability benefits.

Here’s a few examples of what these specialty-specific policies look like:

Oftentimes, the premiums charged for these types of policies are higher than other policies, but if you end up needing to file a claim down the road, and you are a physician or dentist with a board recognized specialty, this type of “total disability” provision can help ensure that your specialty (and corresponding job duties) are given proper weight. If you have a specialty-specific definition, and your insurance company is not taking into consideration the unique demands and duties of your specialty, you should contact an experienced disability insurance attorney and he or she can ensure that this important provision is enforced.

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What is an EMG?

Most people are familiar with CAT scans or MRIs.  EMG tests are another diagnostic tool that are, perhaps, not as well known.

What Is An EMG/NCS?

EMGs and Nerve Conduction Studies (NCSs) are diagnostic procedures that are often done at the same time and are used to assess the health of the muscles and the nerve cells (motor neurons) that control them. Because motor neurons transmit electrical signals that cause muscles to contract, an EMG can record these and turn the signals into sounds, graphs, or numerical values to be interpreted.

During an EMG, a needled electrode is inserted into a muscle to record the electrical activity.  The activity is recorded muscle during rest, slight contraction, and forceful contraction.  This data used to help detect any neuromuscular abnormalities.

In a NCS, electrodes are taped to the skin and the speed and strength of signals between two points is measured. When a signal travels at a slower rate that it should, the nerve may be damaged.

Why Might Your Doctor Order An EMG/ NCS?

Typically, these tests are used to diagnose a nerve or muscle disorder, so a doctor may order them if he/she is looking for an explanation for the following:

What Are EMGs Used For?

They are used, in connection with other tests, to diagnose or rule out muscle disorders, nerve disorders, or disorders affecting the connection between the two, including:

While who is authorized to perform EMGs varies by state, EMGs/NCSs are typically performed by a specialist or a specially trained physician, usually a neurologist, qualified to interpret the data.

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.

References:

Mayoclinic.com
Webmd.com
Healthline.com
Providence.org

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Cubital Tunnel Syndrome

In previous posts, we’ve discussed several chronic conditions that can affect dentists in particular, as their jobs require them to hold unnatural, static positions for extended periods of time while continuously gripping instruments. This puts tremendous stress on their musculoskeletal systems, especially their hands, and this is, in part, why dentists experience nearly four times the prevalence of hand, wrist and arm pain found in the general public.

While most dentists and surgeons are likely familiar with carpal tunnel syndrome, there are other conditions affecting the hands that can be just as debilitating. In this post we will examine the causes, diagnosis, symptoms, and treatment of cubital tunnel syndrome, a similar condition that arises from nerve impingement at the elbow.

Overview

Cubital tunnel syndrome is a condition that involves pressure or stretching of the ulnar nerve (also known as the “funny bone” nerve) that runs in a groove on the inner side of the elbow. This can cause numbness or tingling in the ring and small fingers, pain in the forearm, and/or weakness in the hand. Those suffering from cubital tunnel syndrome can find it difficult or impossible to function with the same level of dexterity that they used to have.

Causes

Cubital tunnel syndrome occurs when the ulnar nerve becomes compressed or irritated at the elbow, but the exact cause of this is often unknown. There are several factors that can lead to nerve irritation such as:

  • Keeping your elbow bent for long periods of time
  • Repeatedly bending your elbow
  • Leaning on your elbow for long periods of time
  • Repetitive activities that require the elbow to be flexed
  • Prior fractures or dislocations of the elbow

Diagnosis

In order to diagnose cubital tunnel syndrome, a physician will perform a medical history review and physical examination. The examination will include an evaluation of the sensation of the hand and fingers as well as a test of your elbow reflex. Additional screening may be required, including:

  • X-rays: to check for bone spurs, arthritis, or other places that the bone may be compressing the nerve
  • Nerve conduction studies: to determine how well the nerve is working and to help identify where it is being compressed
  • Electromyogram: a test that measures the electrical discharges produced in the muscles

Symptoms

Generalized symptoms of cubital tunnel syndrome include:

  • Numbness and tingling in the ring finger and pinky finger, usually occurring when the elbow is bent (such as when driving or holding a phone)
  • Feeling of pins and needles or the feeling of the hand “falling asleep” in the ring and pinky finger
  • Weakening of the grip and difficulty with finger coordination, especially when manipulating objects

Severe symptoms can include:

  • Weakness in the ring and little fingers
  • Decreased hand grip
  • Muscle wasting in the hand
  • Curling up of the pinky and ring finger along with pain, or a claw-like deformity of the hand

Treatment

Mild symptoms of cubital tunnel syndrome can be managed with home remedies such as:

  • Avoiding activities that require you to keep your arm bent for long periods of time
  • Avoiding leaning on your elbow or putting pressure on the inside of your arm
  • Keeping your elbow straight at night when sleeping by wrapping a towel around your elbow or wearing an elbow pad backwards
  • Performing nerve gliding exercise

More severe cases of cubital tunnel syndrome may require medical interventions such as:

  • Use of non-steroidal anti-inflammatory drugs (NSAIDs) to reduce swelling around the nerve
  • Use of corticosteroids
  • Bracing or splinting
  • Surgery to increase the size of the cubital tunnel or to transpose the nerve in order to relieve the pressure

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.

References:

American Society for Surgery of the Hand, http://www.assh.org
American Academy of Orthopaedic Surgeons, https://orthoinfo.aaos.org/
Mayo Clinic, www.mayoclinic.org
WebMD, www.webmd.com
Healthline, www.healthline.com
Dental Products Report, dentalproductsreport.com

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Multiple Sclerosis

Multiple sclerosis (MS) is a disease of the central nervous system, which is made up of the brain, spinal cord, and optic nerves. It’s estimated that 2.3 million people worldwide have MS.  In this post we’ll examine the symptoms, causes, diagnosis, and treatment of this disease.

Overview

With MS, the immune system begins to attack the protective sheath, called myelin, that covers the nerve fibers.  The result is faulty communication between the brain and the rest of the body.  The disease may eventually cause the nerves deteriorate and they may even become irreversibly damaged.

The symptoms experienced and the rate of progression and severity of the disease will vary greatly from person to person.  Some individuals may have a very minor form of MS, while others will go on to become paralyzed, or, in rare instances, have a potentially fatal form that progresses rapidly from onset.

MS has several difference courses, in terms of how the disease progresses:

Relapse-Remitting MS: Most people with MS experience times of new symptoms, or relapses, that develop in a relatively short period of time followed by periods remission where there are few or no symptoms.

Secondary-Progressive MS: About 60 to 70% of people with relapse-remitting MS type will go on to experience a steady progression of symptoms.

Primary-Progressive MS: Some individuals have a gradual onset and progression of symptoms without relapses.

Benign MS: MS is considered benign if the individual has no relapses and a mild, stable disability after about 15 years from the time of diagnosis.

Symptoms 

Because MS attacks the central nervous systems, a wide range of symptoms in nearly any function can occur.  Symptoms will also vary in type and severity from one person to another.  Symptoms can resolve, come and go, or be permanent. Common symptoms include:

  • Blurred vision
  • Partial or complete loss of vision
  • Loss of balance
  • Poor coordination
  • Dizziness or vertigo
  • Slurred speech
  • Tremors
  • Tingling
  • Electric shock sensations
  • Numbness or weakness
  • Extreme fatigue
  • Depression
  • Temperature sensitivity
  • Memory and concentration problems
  • Paralysis

Causes and Risks Factors 

While the cause of MS is unknown, many believe it is a mix of genetics and environmental factors.  Scientists have identified several risk factors that may be associated with MS:

  • Genetics and family history
  • Gender (women are 2 to 3 times more likely to develop MS)
  • Age (most people are diagnosed between the ages of 20-50)
  • Certain infections, including the Epstein-Barr virus
  • Certain autoimmune diseases, including type 1 diabetes or thyroid disease
  • Smoking

Diagnosis 

MS is often a hard disease to diagnose, especially because symptoms vary from person to person, can come and go, and are similar to other disorders of the nervous system.  While there is no single diagnostic test, there are several methods physicians use to evaluate individuals for MS, including:

  • Blood tests to screen for other diseases with similar symptoms (e.g. Lyme disease)
  • Balance, coordination, vision, and other tests to see how the nerves are functioning
  • MRIs to detect changes in the brain (lesions) and/or spinal cord
  • Evoked potentials tests, which evaluate electrical activity in the brain
  • Analysis of the cerebrospinal fluid (CSF) in the brain and spinal cord for specific proteins
  • Spinal tap to look for abnormalities in antibodies, and look for infections or other conditions with similar symptoms

Treatment

At present, there is no cure for MS.  However, there are several treatments doctors utilize in an effort to manage symptoms, shorten the length of attacks, and modify the progression of symptoms.  Some of them are listed below.

Treatment to Modify Progression

  • Medications to curb the body’s immune system to attempt to stem the body’s attack on the myelin

Treatment for MS Attacks

  • Corticosteroids to reduce nerve inflammation
  • Muscle relaxants
  • Plasma exchange

Treatments for Symptoms

  • Medications (fatigue, depression, and other symptoms)
  • Muscle relaxants
  • Physical therapy
  • Staying cool, sometimes with devises such as a cooling vest (symptoms often worsen when body temperature rises)
  • Alternative medicine (acupuncture, massage, relaxation techniques)
  • Exercise and reducing stress

Treatment will often involve an interdisciplinary approach and may require treatment from a care team including neurologists, physiatrists, urologists, psychiatrists, physical and occupational therapists, and others as needed.

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 below 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.

References

National Multiple Sclerosis Society, https://www.nationalmssociety.org
Mayo Clinic, https://www.mayoclinic.org
John Hopkins Medicine, https://www.hopkinsmedicine.org
WebMD, https://www.mayoclinic.org

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Why You Can’t Blindly Rely on Your Agent to Choose the Right Policy for You

In earlier posts we’ve discussed how agents don’t have the authority to change, delete, or add provisions to a disability insurance policy.  We’ve also discussed how most disability insurance policy applications now contain language stating that you cannot rely upon representations made by agents regarding the scope of coverage, or eligibility for coverage.  Thus, while agents can provide helpful advice and help to point you in the direction of a disability insurance policy that may fit your needs, it is ultimately up to you, the purchaser, to review your policy, become familiar with the provisions of the policy, and confirm that you are in fact purchasing the coverage that you expected to receive.

If you don’t take the time to do this, and blindly pay premiums without reviewing your disability insurance policy first, you could end up paying for coverage that provides less protection than you thought you were getting when you applied for the policy.  For example, most physicians and dentists know that their disability insurance policies should be “own occupation”, meaning a policyholder is considered totally disabled (and eligible to collect benefits) when he or she can no longer work in his or her profession, versus being unable to work at all, in any profession.  In some policies, own occupation is further defined as being unable to practice in a particular medical or dental specialty (i.e. anesthesiologist, periodontist, etc.).

Quite often physicians and dentists decide to buy another policy, either because they let a previous one lapse, or because they want to purchase additional coverage as their income increases and they can afford higher premiums, and they ask their agent for a new policy with the “same coverage”.  This can be incredibly difficult or impossible to achieve, because over time disability insurance policies have evolved to become more restrictive, and each company has variations on what they deem an “own occupation” policy.  Consequently, while your agent may present you with a policy that contains the phrase “own occupation”, it may not be a true own occupation policy at all.

For example, some policies are actually conversion policies, which mean they start out as “own occupation” policies, but after a certain time frame (e.g 2 years, or 5 years), they change to an “any occupation” policy, which means that, in order to continue receiving disability benefits, you would have to show that you can’t work at all.  This can be very difficult to prove, particularly if you worked in another capacity for all or some of the prior “own occupation” period.

Even if your agent does locate an own occupation plan with similar premiums and benefit amounts to an older policy, there may also be provisions that cancel each other out in the new and old policies.  One scenario we’ve seen is a disability insurance policy containing the provision that a claimant must not be working (a “no work” provision) in their own occupation or another profession in order to collect benefits, while the second policy states that a claimant must not be working in their own occupation but must be working in another field in order to collect benefits (a “work provision”).  Under this scenario, in essence, one of the policies you’ve been paying years of premiums for is worthless, as both requirements cannot be met at once.

These examples highlight why it is important that you do more than just check an “own-occupation” box on your application and/or blindly rely on your agent’s assurance that a new policy is compatible and/or the same as an existing one.  If you end up with a policy you essentially cannot use, your recourse is limited, as insurance companies have gone to significant lengths to shield themselves from any liability based on an agent’s representations of a policy.  It is therefore far better to take the time to review your policy at the outset, before you pay years of premiums, to ensure that it provides the disability coverage that you applied for and need.

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