Will A Social Security Award
Help My Disability Insurance Claim?

July 5, 2022

Will being approved for Social Security Disability Insurance help your disability insurance claim?  Not necessarily, as the case of Bakos v. Unum[1] shows.  The case also highlights the importance of timeliness in filing.

Bakos was initially awarded disability benefits in December 2014, but Unum later told her she no longer met the Plan’s disability definition as of April 14, 2015.  Bakos appealed the decision and Unum upheld its termination on June 27, 2016.

Bakos also filed for Social Security Disability (SSDI) and, after an appeals process, was awarded full benefits on March 2, 2020.  Bakos then requested that Unum re-open the denial of her claim.  Unum declined to do so and Bakos filed suit.  However, Unum challenged the suit as being time-barred because her Plan had a three-year limitation period, which required Bakos to initiate an action challenging the denial on or before that date (in this case August 6, 2018).

The Court ultimately found for Unum, even though Bakos argued that she had never been notified of the three-year statute of limitations.  In part, the Court found that Bakos had not been diligent in investigating issues relevant to her claim, for example by requesting a copy of her Plan.

The Court also concluded even though Bakos believed her SSDI appeal decision vital to her appeal, she “points to no contractual provision showing why her SSDI result would have any material bearing on the timeliness of her Plan appeal.”

In the end, even though Bakos had an argument that she was disabled because of her SSDI award, Unum found a way to ignore this favorable finding.  The case illustrates how insurance companies will look for any means possible to deny a claim, regardless of whether there is bona fide evidence of disability.  An experienced disability insurance attorney can help navigate important requirements that may arise when a claim has been denied.

If you claim has been denied and you are wondering about next steps, please feel free to reach out to one of our attorneys directly.

[1] Bakos v. Unum Life Ins. Co., CV 121-058, 2022 WL 791922 (S.D. Ga. March 14, 2022).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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Am I Working In My Specialty?
A Case Study

June 20, 2022

Specialty-specific disability insurance policies allow you to collect benefits if you are no longer able to perform the duties of your specialty occupation (even if you are working in another medical or dental field).   We often get asked – will I be able to collect on my specialty-specific policy? Will my insurer fairly determine my specialty?

One illustrative case is that of Pak v. Guardian[1].  Dr. Pak, an anesthesiologist, sued Guardian after he was denied total disability benefits. Dr. Pak argued that his specialty was that of a pediatric anesthesiologist and that he was unable to perform the material and substantial duties of his occupation due to migraines and the accompanying symptoms. Guardian pointed to the policy’s plural definition of occupation and asserted a  “dual-occupation defense”, arguing that Dr. Pak had two occupations—anesthesiology and pediatric anesthesiology—and that he would only be totally disabled if he was disabled from both occupations.  In making this determination, in part, Guardian looked to Dr. Pak’s CPT codes.

Guardian argued, and the Court agreed, that just because Dr. Pak had a certification in pediatric anesthesiology, he had not necessarily limited himself to that occupation. The Court explained, “the provision does not state that a claimant’s specialty is automatically deemed their occupation. Viewing the provision in its entirety, it focuses on whether the claimant was restricted to that specialty.”

While Guardian’s analysis indicated that Dr. Pak’s CPT codes indicated that 93% of his pre-disability time and revenue was derived from general anesthesiology procedures, Dr. Pak argued that the CPT codes did not give the whole picture of his duties.  The Court determined that how much time Dr. Pak spent performing the work of a pediatric anesthesiologist (and what that work entailed) was a question best left to the jury.

This case highlights how difficult it can be to collect total disability benefits under a specialty-specific policy, even if you are board certified in a recognized specialty.  If you have a specialty-specific policy and are considering filing a disability insurance claim, please feel free to reach out to one of our attorneys directly.

[1] Pak v. Guardian Life Ins. Co., No. 21-cv-05032-WHO, 2022 WL 410947 (N.D. Cal. Feb. 10, 2022).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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Myasthenia Gravis

June 6, 2022

Myasthenia gravis is a chronic autoimmune, neuromuscular disease that leads to weakness and rapid fatigue in any of the muscles under voluntary control.  It is caused by a breakdown in the communication between the nerves and muscles.  Specifically, antibodies block, destroy, or alter the receptors for the neurotransmitter acetylcholine at the neuromuscular junction, preventing the muscle from contracting.

Myasthenia gravis is not hereditary or contagious.  It is more common in women younger than 40 and men older than 60.

Symptoms

Muscle weakness with myasthenia gravis worsens with periods of activity and improves after periods of rest.  While it can affect any of the muscles that are controlled voluntarily, certain muscle group are more commonly affected than other.  Common symptoms include:

• Weakness of the eye muscle (ocular myasthenia)
• Drooping of eyelid(s) (ptosis)
• Blurred or double vision (diplopia)
• Difficulty swallowing
• Shortness of breath
• Impaired speech (dysarthria)
• Weakness in the arms, hands, fingers, legs, and neck

A myasthenic crisis can occur when the muscles that control breathing become weak to the point where a ventilator is required to assist with breathing. About 15 to 20 percent of people with myasthenia gravis will experience at least one myasthenic crisis.

Diagnosis

• Neurological examination
• Blood analysis (to look for the presence of abnormal antibodies)
• Repetitive nerve stimulation
• Single-fiber electromyography (EMG)
• CT scan or MRI (to look for a tumor or abnormality on the thymus)
• Pulmonary function tests

Treatment

While there is no cure for myasthenia gravis, a variety of treatment is available to help manage the symptoms.

Since the thymus gland controls immune function and may be associated with myasthenia gravis, one course of treatment is a thymectomy, with about 50% of individuals who undergo this procedure experiencing remissions.  Other treatments include:

• Medications (cholinesterase inhibitors, corticosteroids, immunosuppressants)
• Intravenous therapy (plasmapheresis, intravenous immunoglobulin, monoclonal antibody)

Because myasthenia gravis can improve with rest, and can go into periods of remission, it can be difficult to prove up to an insurance company even if it has impacted your ability to practice to the point you need to file a claim.  If you have been diagnosed with myasthenia gravis and feel you may no longer be able to safely practice, please feel free to reach out to one of our attorneys directly.

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

Sources

National Institute of Neurological Disorders and Stroke
Myasthenia Gravis Foundation of America
Mayo Clinic

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Limited Conditions Provisions:
A Case Study

May 23, 2022

Musculoskeletal conditions, including back pain, of all different types can be debilitating and seriously impede your ability to practice. However, newer disability policies may exclude or limit recovery for conditions such as carpal tunnel syndrome, arthritis, and diseases or disorders of the cervical, thoracic, or lumbosacral back and its surrounding soft tissue, or sprains or strains of joints or muscles. If your policy contains this type of exclusion, your benefits may be limited to a shorter payout. For example, 24 months, instead of to age 65 or lifetime benefits.

One such example of this situation is the case of Zall v. Standard.[1] Dr. Zall was the co-owner of a dental practice when he began experiencing pain and numbness in his neck and in his thumb, and two fingers in his right hand.  Symptoms of neck pain and numbness began in 2011 and he was evaluated by an orthopedic surgeon and an MRI showed disc herniation at C5-C6 that was contributing to severe foraminal narrowing.  In 2013 the same doctor found Dr. Zall’s symptoms consistent with a herniated disc and intermittent radiculopathy.  Dr. Zall shortly thereafter filed a claim with his insurer, Standard.

In Dr. Zall’s case, his policy contained an “other limited conditions” exclusion that limited recovery for musculoskeletal conditions. Benefits could only be secured if the claim was based on a herniated disc or radiculopathy verifiable with tests (EMGs and MRIs). Standard initially approved Dr. Zall’s claim; however, upon later review Standard determined that the “other limited conditions” exclusion did apply, and stopped paying benefits.

Standard argued that later medical records did not establish that Dr. Zall’s symptoms were any longer attributable to either radiculopathy or a herniated disc. They based this decision on reviews by opinions of four board-certified physicians they had had review the file.  The Court agreed with Standard, indicating that it was neither arbitrary or capricious for Standard to conclude that Dr. Zall’s disability was caused or contributed something else, such as carpal tunnel syndrome or degenerative disc disease.

If you are wondering whether your policy has an “other limited conditions” provision, and how it might affect your claim, please feel free to reach out to one of our attorneys directly.

[1] Zall v. Standard Ins. Co., 21-CV-19-slc, 2021 WL 6112638 (W.D. Wisc. Dec. 27, 2021).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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2020 Benchmark Trends

May 9, 2022

A recent study published by the Integrated Benefits Institute entitled “2020 Benchmarking Trends”[1] looks at trends in the short-term and long-term disability market.  The dataset included thirteen carriers and TPAs (third party administrators), 10.6 million claims, more than 100,000 employer policies and nearly 1,000 SIC (Standard Industrial Code) codes.

When it comes to long-term disability, the most prevalent conditions leading up to filing a claim is diseases of the musculoskeletal system and connective tissues (accounting for almost 27% of new 2020 LTD claims), followed by neoplasms and diseases of the nervous system.

The study further found that across all U.S. employers, new LTD claims year over year rose by approximately 30 percent (from 8.3 cases per 1,000 in 2019 to 11.3 cases per 1,000 in 2020).  Employees classified as Service Industry employees continued to be the highest contributor to new claims in the benchmarking data.  However, the service sector experienced a reduction in claims.  The study posits that this could be due to the fact that during the COVID pandemic these workers were classified as essential and subject to worker separations due to quarantines, shutdowns, revenue reductions and social distancing mandates, in addition to a general fear of being out in crowds/public.

COVID-19 also effected the results of the benchmark study.  In large part this was due to late CDC guidance on coding, inconsistent condition coding, and irregularly categorized coding. Specific potential COVID-19 related conditions falling into a specific ICD 10 chapter (diagnosis code range Z00-Z99) included ill-defined and unknown cause of mortality, and general symptoms and signs. This chapter had an increase in claim count (2,000) a substantial percentage increase (60%) and accounted for 2% of new claims.  The study surmises that this is where many COVID-10 related cases fall.

[1] Joseph Aller, DHA, MBA, CPA, 2020 Benchmarking Trends, Integrated Business Institute, January 2022.

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Legal v. Factual Disability:
A Case Study

April 25, 2022

Disability insurance insurers often make the distinction between factual and legal disability when evaluating professional’s disability claims.

Factual disability refers to the inability to practice caused by an injury or illness that prevents an individual from practicing in their occupation. Legal disability refers to circumstances where an individual is not legally permitted to continue to practice.  One example of this would be the suspension of a professional license.

Most policies exclude coverage in situations involving the revocation or loss of a license to practice. But what happens if you are both legally and factually disabled—would you still be able to collect on your policy?

One case that examined this very scenario is that of Pogue v. Principal.[1] In his claim for disability benefits with Principal, Dr. Pogue, a physician, indicated that he suffered a nervous breakdown on November 9, 2012 as well as anxiety, and a few other medical issues that prevented him from continuing to practice medicine.

Principal denied Dr. Pogue’s claim, stating that the policy specifically excluded “benefit for any Injury or Sickness which in whole or in part is caused by, contributed to by, or which results from the suspension, revocation, or surrender of [an insured’s] professional or occupational license or certification.”  Principal asserted Dr. Pogue was legally, not factually, disabled because the Tennessee Board of Medical Examiners had suspended Dr. Pogue’s medical license in November 2012.

In its denial letter, Principal acknowledged that Dr. Pogue had documented medical concerns prior to his license suspension, but claimed that it was not until he knew there was an ongoing investigation (that went on to result in the suspension of his medical license) that he actually stopped working.  Dr. Pogue attempted to argue that his license suspension was a voluntary surrender that he agreed to as part of his treatment plan, instead of a cause or contributing factor to his mental condition. However, the Court ultimately sided with Principal.

This case emphasizes the importance of knowing when you are unable to practice due to a physical or mental disability, and not pushing yourself past the point where it is unsafe to practice.  If you feel you might need to file a disability claim, please feel free to contact our attorneys directly to set up a consult.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Pogue v. Principal Life Ins. Co., No. 3:14-CV-599-CHB, 2021 WL 3354605 (W.D. Ky. Aug. 2, 2021)

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Focal Dystonia

April 11, 2022

What is Focal Dystonia?

Dystonia is a movement disorder in which muscles contract involuntarily, causing repetitive or twisting movements; focal dystonia is where the conditions affects one part of the body only.  It may also be referred to as focal hand dystonia, focal task-specific dystonia, or occupational cramp/dystonia.

Typically, focal dystonia occurs during a specific action or activity (i.e. typing, playing an instrument, writing, manipulating a dental instrument) and worsens with stress, fatigue or anxiety.  While most of hand dystonia is isolated dystonia, it may occur in conjunction with early onset generalized dystonia (about 16% of primary focal hand dystonia spread proximally or contralaterally or become generalized within 8 years).

While focal dystonia can mimic symptoms of overuse injuries (e.g. carpal tunnel syndrome), it actually occurs as a result of changes to how the nerves communicate with the brain, not injuries to the nerves or hands.

What are the Symptoms of Focal Dystonia?

Symptoms, specifically in the hands, can include:

• Early signs are often mild, occasional and linked to a specific activity (e.g. playing a musical instrument), and may only be noticeable after prolong exertion, stress or fatigue.
• Involuntary muscle contractions, including in the fingers, hand, forearm and sometimes shoulder.
• Fingers that clench or curl
• Hands that freeze or stop moving
• Fingers that shake
• Physical disabilities that affect performance of everyday activities or specific tasks
• Pain and fatigue (due to the constant contraction of muscles)
• Tremor
• Permanent malformations (if muscle spasms lead to the constriction of tendons)
• Depression, anxiety and withdrawal
• Median and ulnar nerve entrapments are common in dystonia patients

What Causes Focal Dystonia?

The exact cause isn’t known but it may involve altered nerve-cell communication in several regions in the brain, including the basal ganglia.  While the theory is that neurotransmitters are abnormal in people with dystonia, it doesn’t affect intelligence, ability to think or mental health issues.

It can also be a sign of another disease, including Parkinson’s, traumatic brain injury, stroke, brain tumor or disorders that develop in some individuals with cancer, infections, heavy metal poisoning, or reactions to certain medications.

How is Focal Dystonia Diagnosed?

• Blood, urine or cerebrospinal fluid tests (to reveal signs of toxins or other conditions)
• MRI or CT scan (to look for abnormalities in the brain such as tumors, lesions, or stroke)
• EMG or EEG
• Genetic testing (5-25% of those with focal dystonia have a family history)

What is the Treatment for Focal Dystonia?

Focal dystonia is typically treated by a neurologist who specializes in movement disorders and treatments can include:

• Small changes to the way a task is carried out (e.g. writing with a thicker pen or holding a musical instrument differently)
• Physical and occupational therapy
• Medications
• Surgery (including deep brain stimulation and selective denervation surgery)

Focal dystonia can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with focal dystonia 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
Diego Torres-Russotto, MD & Joel S. Perlmutter, MD, Focal Dystonias of the Hand and Upper Extremity, J Hand Surgy Am. 2008 Nov: 33(9): 1657-1658
Dystonia Medical Research Foundation
Healthline
National Institute of Neurological Disorders and Stroke
Medline Plus (National Library of Medicine)
Cedars-Sinai

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Ignoring Treating Providers:
A Case Study

March 28, 2022

We’ve regularly seen insurance companies, in particular Unum, go to great lengths to deny a claim. Tactics can include overemphasizing daily activities, ignoring treating providers, and relying on the opinions of doctors who have not examined the insured.

One example is the case of Chicco v. Unum[1]. Ms. Michelle Chicco worked as a tax accountant until debilitating back pain, as well as fatigue and weakness in her limbs, caused her to be unable to continue at her job. She filed a claim with Unum for long-term disability benefits, which was initially approved. Chicco received benefits for several months and then tried to return to work part-time; however, her symptoms began to worsen as she ramped up to full-time work. Unum reviewed her claim and determined that she was no longer considered disabled and could return to work full time. Chicco appealed this decision and, when Unum upheld the denial, she filed a lawsuit.

As part of their review, Unum obtained the opinion of several doctors who reviewed Chicco’s medical records but did not examine her directly.  Despite her own treating provider’s diagnosis of radiculopathy and fibromyalgia, one of Unum’s experts surmised that her minimal improvement after spinal injections was not consistent with radiculopathy and suggested that the pain was myofascial (and that this myofascial pain should not have prevented Chicco from working).

In response to this report, Chicco submitted an updated letter from her treating provider and an examination performed by a neurologist—who confirmed that her physical examinations were consistent with her reports of pain and fatigue, as well as diagnoses of fibromyalgia and radiculopathy. Despite this, Unum’s reviewing doctor upheld his original conclusion.

Here, Unum’s disregard for the medical records and opinions for physicians who had actually examined Chicco did not go unnoticed.  The Court found for Chicco, indicating that she has submitted both subjective and objective medical evidence of her condition, and inability to work. The Court also found it “significant” that none of Unum’s physicians personally examined Chicco, whereas every physician who had examined her had found her unable to perform her job duties.

In addition to these paper only reviews, Unum also argued that if Chicco’s pain was as severe as she claimed it was, she would have received more serious treatment and would not have been as active at home.  The Court dismissed this argument, explaining that Chicco, before she stopped working, was on an “escalating treatment regimen” including medication, physical therapy, and multiple spinal injections (and was later referred to a spine surgeon for a surgery consultation).  The Court also noted that Chicco reported that she was only able to engage briefly in light housekeeping and self-care tasks—which the Court found were consistent with the severity of her condition.

Too often we’ve seen Unum, and other disability insurance companies, ignore meaningful evidence submitted by claimants (including supporting evidence by treating physicians). If you feel that your insurer may be engaging in these types of tactics, please feel free to reach out to one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Chicco v. First Unum Life Ins. Co., 20cv10593 (DLC), 2022 WL 621985 (S.D. N.Y. March 3, 2022)

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Lyme Disease

March 14, 2022

Lyme disease is caused by bacteria (borrelia burgdorferi and Borrelia mayonii in the United States) that is spread via a bite from an infected tick.  The signs, symptoms, and progression of Lyme disease can vary from person to person, but usually appear in stages.

Early Stages (3 to 30 days after a tick bite)

• A rash called erythema migrans (EM) occurs in 70 to 80% of infected people. The rash begins at the site of the tick bite and gradually expands
• Fever
• Chills
• Headache and body aches
• Fatigue
• Neck stiffness
• Swollen lymph nodes

Later Stages

• Appearance of EM rash on other parts of the body
• Arthritis with joint pain and swelling
• Intermittent pain in tendons, muscles, joints and bones
• Inflammation of the brain and spinal cord
• Intermittent pain in tendons, muscles, joints and bones
• Shooting pain, numbness or tingling in hands or feet
• Episodes of dizziness or shortness of breath
• Nerve pain

Other Symptoms

Serious but less common side effects include heart problems, eye inflammation, liver inflammation (hepatitis) and severe fatigue.

Diagnosis

Lyme disease can mimic other conditions and ticks can transmit disease other than Lyme disease, so diagnosis can be difficult.  Typically, your doctor will look at:

• Symptoms
• The likelihood of exposure to a tick
• The likelihood of other potential illnesses
• Laboratory tests that look for antibodies to the bacteria

Treatment

Treatment is a course of antibiotics.  Antibiotics work best when treatment is begun in the early stages of Lyme disease.

For some, even after treatment, symptoms (including muscle ache and fatigue) may persist.  This condition is known as post-treatment Lyme disease syndrome and the cause is unknown.  Unfortunately, treating with additional antibiotics doesn’t help.

Many symptoms of Lyme disease can impede the ability to safely practice and, especially if treatment fails to work, can potentially lead to the need to file a long term disability claim. If you have been diagnosed with Lyme disease and feel you may no longer be able to practice, feel free to reach out to one of our attorneys directly.

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

Sources:

CDC
Mayo Clinic
Medlineplus.gov

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Atrial Fibrillation

February 14, 2022

Atrial fibrillation (also known as A-fib or AF) is an irregular, and often rapid, heart rate.  When atrial fibrillation occurs, the heart’s two upper chambers beat irregularly, out of sync with the two lower chambers. Some people will have atrial fibrillation between periods of normal heartbeats (also called intermittent or paroxysmal AF) while others have persistent AF.

Atrial fibrillation increases the risk of stroke five fold (causing about 1 in 7 strokes), and these strokes are often more severe than strokes with other underlying causes.

Symptoms

• Palpitations
• Fainting
• Dizziness
• Fatigue
• Weakness
• Shortness of breath
• Angina pectoris (pain caused by reduced blood supply to the heart muscle)

Causes/Risk Factors

• Age (more common over age 50)
• Gender (more common in men)
• Race (more common in Caucasians)
• Other heart diseases and conditions
• Hypertension
• Diabetes
• Thyrotoxicosis (an excess of thyroid hormones)
• Obesity
• Chronic kidney disease
• Moderate to heavy alcohol use
• Smoking
• Sleep apnea

Studies have also suggested that stress and mental health issues may cause atrial fibrillation symptoms to worsen.

Diagnosis

Atrial fibrillation is typically confirmed with the following:

• Physical examination
• Electrocardiogram (ECG)
• Echocardiogram
• Blood tests
• Stress test
• Chest X-ray

Treatment

The goal of treatment is to reset the rhythm and control the rate of the heart and to prevent clots in order to decrease the risk of a stroke.  To that end, treatments include:

• Electrical cardioversion
• Medicines to control the heart’s rhythm and rate
• Blood-thinning medications
• Surgery
• Medicine and lifestyle changes to manage risk factors (see above)

Given the increased and serious risk of stroke, your doctor may advise you to limit stress, especially since intense stress may cause heart rhythm problems.  Stressors can come from a variety of different sources, including working as a dentist or physician.  If you have been diagnosed with atrial fibrillation and feel that you may need to file a disability insurance claim, please feel free to contact one of our attorneys directly.

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

Sources:

CDC
Mayo Clinic
John Hopkins

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

December 7, 2021

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

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

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

Disability Industry Trends of 2021

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

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

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

Disability Claim Trends of 2021

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

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

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

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

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

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

The 5 Most Common Disability Claim Management Tactics in 2021

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

More specifically, we have noticed that:

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

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

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

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

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

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

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

September 30, 2020 Milliman Survey

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

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

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

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

GenRe Report

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

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

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

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

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

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

Outlook for 2022

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

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

Sources:

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

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

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

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

Long Term Side Effects of Chemotherapy – Part II

November 15, 2021

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

Symptoms:

Common symptoms of CIPN include:

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

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

Treatment:

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

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

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

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

Sources

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

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Ischemic and Hemorrhagic Strokes

September 20, 2021

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

Signs

Signs of stroke include the following:

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

Risk Factors

There are numerous risk factors for stroke, including:

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

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

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

Complications

Complications of stroke include:

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

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

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

Sources

CDC
John Hopkins Medicine
Banner Health
Cleveland Clinic
Mayo Clinic

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

August 23, 2021

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

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

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

Sources:

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

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

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

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Coronary Artery Disease

August 9, 2021

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

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

Symptoms

Symptoms of heart attack include:

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

Risk Factors

Risk factors for coronary artery disease include:

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

Diagnosis

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

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

Treatment

Treatment for CAD can include:

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

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

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

Sources

CDC

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

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Have I Changed My Regular Occupation?

July 26, 2021

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

How is “Occupation” Determined?

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

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

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

Do You Know How Your Policy Works?

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

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

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

The Takeaway

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

If you have a disabling condition and are thinking about filing a claim, please feel free to contact one of our attorneys directly.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

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

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Mental Health Issues in the Workplace

July 12, 2021

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

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

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

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

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

Source:

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

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