Guardian Disability Claim Tips for Dentists

Our law firm has extensive experience filing and litigating Guardian disability claims for dentists. Our attorneys understand how Guardian operates and what it takes to file a successful Guardian disability claim, and are happy to set up a free consultation to discuss your particular Guardian claim.

Below are some answers to the most common questions our attorneys receive from dentists about the disability claim process, generally, and their Guardian disability benefits, specifically.

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1. I have a Berkshire policy; why is Guardian handling my disability claim?

2. Does Guardian have true own occupation policies for dentists?

3. How do I file a disability claim with Guardian?

4. When does Guardian’s disability claim investigation begin?

5. What should I expect after filing a Guardian disability claim?

6. How and when should I approach my treating doctor about my disability claim?

7. Do I need to hire a Guardian disability attorney to file my claim?

8. When should I contact an attorney about my claim?

9. Will Guardian pay my claim?

10. If I have a mental health condition, will Guardian pay my claim?

11. How does Guardian determine my occupation?

12. Why isn’t Guardian recognizing my job duties?

13. Why does Guardian keep bothering my doctors?

14. Why does Guardian want my CDT codes?

15. Guardian is saying I should go back to work and if I do they will pay me partial disability. Should I?

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1. I have a Berkshire policy; why is Guardian handling my disability claim?

Berkshire Life Insurance Company of America has been a subsidiary of Guardian and third-party administrator for Guardian since 2001. As a result, your disability claim may end up being investigated and administered by Berkshire or Guardian if your policy was issued by Berkshire or Guardian, or you have a mixture of policies issued by Berkshire and Guardian.

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2. Does Guardian have true own occupation policies for dentists?

Yes, in most cases older policies sold by Guardian to dentists will be true own occupation” policies that allow you to work in a different capacity, if you can no longer practice.

However, many newer polices contain a plural definition of the term “occupation,” such that having prior non-clinical occupational duties (e.g., business owner, administration, instructor) can adversely affect a claim for total disability benefits.  It’s important to consult with an attorney if your prior duties/jobs included any nonclinical components within twelve (12) months prior to your date of disability.

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3. How do I file a disability claim with Guardian?

In order to file a Guardian disability claim, you must submit the proof of loss required under your Guardian policy. Most Guardian policies request that proof be submitted in writing and within a certain time frame—typically within 20 or 30 days from the date of loss, or as soon as reasonably practical, but not later than one year.

The first step is obtaining and submitting Guardian’s initial proof of loss packet, which will consist of several forms for you to complete and sign, including an investigative authorization, along with a form with questions for your doctor to complete and sign.

Guardian makes some disability forms, for employer-plans, available online. But if you have an individual/private disability policy, Guardian requires to you call in to request the forms.

When you call in, our attorneys have observed that Guardian may subject you to an impromptu interview, often on a recorded line, so you should be prepared to answer important questions impacting your claim the very first time you are on the line with them.

If you are planning on having an attorney represent you on your disability claim, it is better to consult with counsel prior to making this initial call, so that you are not subjected to questioning before securing legal representation.

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4. When does Guardian’s disability claim investigation begin?

Guardian will begin investigating your disability claim the moment you make them aware of your intent to file a claim (which is typically in the initial call to request the proof of loss packet).

If you are planning on calling Guardian to request a claim packet without an attorney, you could be asked questions on a recorded line that can forever affect your ability to collect disability benefits.

Guardian’s policy provisions, many of which can seem innocuous, actually can be used to limit, deny or terminate a claim.  Some questions may include:

    • What are your symptoms, and when did they start?
    • Describe all treatments/medications you’ve tried?
    • How many doctors have you seen? What is their contact information?
    • What are your job duties, including your duties as a practice owner, and what percentage of time do you spend on each duty?
    • How much time have you taken off work? When do you plan on going back? Can you go back to work part-time or with accommodations?
    • What does a typical day look like for you?
    • Once you stop practicing, are you going to work somewhere else?
    • When did you last work, and why did you decide to file your claim now?
    • What is your income? Have you had a loss in income? Are you filing a total or partial disability claim?

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5. What should I expect after filing a Guardian disability claim?

After the initial proof of loss packet is submitted, Guardian assigns dentist’s disability claim to a benefit specialist, and he or she will send you a list of the additional information needed to evaluate your occupational duties and claim.

Ongoing Proof of Loss. As the claim progresses, Guardian will require ongoing proof of loss and additional paperwork to be completed by you and your doctor(s).  The paperwork will include questions relevant to various policy provisions that may limit your coverage, so it is advisable to be represented by an attorney.

Records Requests. After you submit the initial claim documents, Guardian will likely send a follow-up letter requesting additional records and documents. For dentists, this usually includes financial documents (such as tax returns), CDT codes, profit and loss statements, employment agreements, and practice sale documents, among other things. Whether these requests are appropriate depends on the terms of your policy and nature of your claim, and should be reviewed by an attorney.

Interviews. In addition to periodic phone interviews, Guardian may hire a field examiner to interview you in-person. This interview typically takes place at your attorney’s office, or at your home or office if you are not represented by an attorney, and interviewers/investigators may arrive unannounced if you are not represented. Guardian may also seek to interview your 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 various factors, including the particular issues at play in your claim.

Disability 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. Guardian’s older policies typically only expressly allow for “physical” or “medical” examinations, while newer Guardian policies are much more detailed and list several different types of exams, including mental exams, vocational evaluations, rehabilitation evaluations, functional capacity evaluations, and/or neuropsychological testing, in addition to physical exams. Whether an exam is appropriate depends on the particular facts of your case, and the underlying policy language.

Disability-Related Surveillance. Guardian is a company that conducts surveillance, including online and in-person surveillance. Guardian generally begins by reviewing your online presence/social media and then moves on to in-person surveillance if they feel that is warranted. If you have a partial disability claim with Guardian or keep a passive interest in your practice, Guardian will periodically review your practice’s website and social media to assess whether any posts suggest that your activity levels at the practice vary from what has been reported to Guardian.

Peer to Peer Calls. When you file your disability claim, Guardian will typically assign dentist’s disability claim to an in-house doctor and pay that doctor to review your medical records and look for any gaps or inconsistencies. Often, Guardian will then direct their doctor to call your treating doctors in what is called a “peer to peer” call. Guardian may tell you this is going to happen, but in most cases this takes place behind the scenes without your knowledge. In these calls, Guardian’s doctors ask questions that are crafted to elicit responses that the company can use to deny or terminate your claim.  For instance, Guardian’s doctor might ask whether there are alternative treatment options, when your doctor thinks that you will be able to go back to work, etc.  These questions are typically asked without advising your doctor that you have an “own-occupation” disability policy or describing your job duties in detail, including any risks to yourself or you patients if you were to continue to practice.  After the call, Guardian’s doctor generally sends your doctor a written summary of their discussion.  These summaries may contain statements that are inaccurate and prejudicial to your claim.  Your doctor may not have been provided with adequate information to answer Guardian’s questions, or have been too busy to notice the errors.  Often, doctors simply sign off on the summaries without much thought, inadvertently hurting your claim.  The best way to prevent this from happening is to have all correspondence with your medical providers be in writing and go through a disability attorney.

This process can feel very invasive and, if you have never experienced it before, it can be hard to tell whether your insurer is taking things too far.  If you are unsure whether Guardian is acting appropriately, an experienced disability insurance attorney can help you to assess/limit the scope of any overly broad or improper investigation.

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6. How and when should I approach my treating doctor about my disability claim?

Your treating physician’s support can often be critical to getting your claim approved.  A hurried, uninterested physician may not have time to devote to your claim, and Guardian is a company that typically requires a significant amount of medical documentation before approving a disability claim. You will need to find a treating doctor who is willing to take the time to understand how your policy works, complete claim paperwork and potentially answer follow-up questions from Guardian’s in-house doctors.

When the time comes to speak to your treating physician about your claim, it is also important that your doctor understands the definition of “disability” under your insurance policy—particularly if you have a “true own occupation” claim where disability is defined as the inability to practice dentistry (even if you can work in another capacity). Otherwise, if you start a new job, your doctor may assume you are no longer pursuing the disability claim and answer that you can resume working, even if your new job is unrelated to clinical dentistry.

In our experience, Guardian’s consulting physicians are reluctant to provide your treating doctor with information regarding your job duties and important policy provisions before commencing an interview.  If you are represented by at attorney, measures may be taken to ensure that interviews are schedule through counsel and are even-handed.

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7. Do I need to hire a Guardian disability attorney to file my claim?

While there are certainly claims that may not require attorney involvement—for example, a disability claim due to the loss of a limb or something very serious, such as paralysis—in our experience dentist claims are not that straightforward.

Many of our clients have slowly progressive conditions, conditions that may/may not respond to future treatment, or conditions that are irregularly and unpredictably debilitating, such as musculoskeletal conditions due to degenerative disc disease, Parkinson’s Disease, MS, Cystic Fibrosis, POTS, or seizures/migraines caused by periodic intracranial hemorrhages.

Other clients have conditions like a tremor, that may not prevent them from working in other jobs, but have a significant impact on their ability to work as a dentist.  Others have mental health conditions (anxiety disorder, panic attacks, PTSD) that cannot be verified by a single, definitive objective test.

These sorts of nuanced claims receive heightened scrutiny, including early and proactive involvement by a senior claims analyst, and direct and continued involvement of vocational/medical professionals with a return to work focus (often for the duration of the claim).

Obviously, if your claim is denied or you have a dispute over policy interpretation, you may need an attorney to become involved to resolve the matter.  That being said, lawsuits with insurance companies are often costly, stressful, and, in some instances, can drag out over several years, all to the insurance company’s advantage. Even if you prevail, it can be an exhausting process, and companies typically appeal, which can take at least another year or more, all the while you are not getting paid benefits.

In our view, it is more prudent to approach your claim carefully from the outset and have your attorney address any concerns that Guardian may have over the course of the investigation itself, so that you are not placed in a position where benefits have been cut off, you are not working and your only option is a lawsuit.

In our experience, the most common areas where complexities can arise in dentist’s disability claims include:

    • The timing of the claim (particularly in situations where a disabling condition is slowly progressive);
    • Claims made by dentists who own their practice and need to decide whether to sell, bring on new associates, or keep working in a limited capacity;
    • Claims made by dentists who have taken an active role if office administration or who are also involved in non-clinical work;
    • Claims where the underlying condition is difficult to diagnose or is diagnosed by exclusion;
    • Claims involving multiple co-morbid conditions;
    • Claims that involve conditions that may respond partially to future treatment;
    • Claims  involving conditions that are irregularly and unpredictably debilitating;
    • Claims that the insurer will likely attempt to contradict by selective surveillance;
    • Claims involving recommendations for or against certain treatments/surgery; and
    • Claims involving mental health conditions.

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8. When should I contact an attorney about my claim?

Dentists who are considering filing a claim for disability insurance benefits should meet with a disability attorney well-before submitting a claim.

Each disability policy has different, complex language that insurance companies may manipulate to circumscribe and restrict coverage.  Before filing, dentists should make a coordinated effort, with an attorney’s assistance, to determine whether their particular claim is covered, and if so, how

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Guardian Claim Tips and Answers to Other Common Guardian Questions

9. Will Guardian pay my claim?

Older Guardian policies are typically true own-occupation policies; however, they also contain very specific, technical requirements that must be followed in order to successfully collect benefits.

In our experience, Guardian is a company that conducts very thorough, and sometimes very lengthy, claim investigations. We have also found that Guardian often subjects claims involving younger claimants and/or policies that pay lifetime benefits to heightened scrutiny. Regardless, Guardian will usually send out long lists of additional information they need to evaluate a claim, before making a claim determination.

If you don’t understand your policy’s requirements or why Guardian is asking for certain information, it may seem like overkill, and you may be inclined to ignore the requests in the hopes Guardian will make a decision based on information already provided. However, if you do not provide the requested information, Guardian will often use that as an excuse to back-burner your claim until the information is received. We have become involved in several dentist disability claims where Guardian has put-off making a claims determination for several months because it has medical documentation, but not financial, or vice versa.

Historically, courts have also criticized Guardian for engaging in “artful neglect.” This is a legal term of art that essentially means that the company is not gathering all available information and/or willfully avoiding documentation that could support a claim approval. As one court put it,

Berkshire [Guardian] gives the appearance of investigating a claim in order to render a good faith claims determination.  As part of this appearance, Berkshire [Guardian] timely requests financial information from its insured and then timely requests more information from its insured.  In direct contrast to this “appearance,” however, Berkshire [Guardian] does not analyze the information at all, much less use an analysis in a cogent and rational way to support a proper claims determination.

See Berkshire Life Insurance Company v. Maryland Insurance Administration, 142 Md. App. 628, 791 A.2d 942 (App. 2002),

At the same time, in our experience, Guardian’s analysts do not always thoroughly document the claim file when it comes to communications with their outside consultants, IME doctors, etc. This can also result in a one-sided claim file that does not tell the whole story.

Consequently, with Guardian, it is very important to engage with the company throughout the claim investigation, proactively gather documentation that supports your claim, and fully present your claim properly to Guardian from the start—without taking any actions to limit or prejudice your rights

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10. If I have a mental health condition, will Guardian pay my claim?

In our experience, Guardian is more skeptical of mental health claims, in comparison to other companies. Guardian’s in-house doctors often prepare lists of certain treatments that have not been tried—including, in some instances, fringe treatments—and imply that x, y or z treatment will allow the dentist to return to work.

Guardian—like all disability insurers—is also generally inclined to assert all possible defenses available to them, even in situations where you might expect a disability company to be more sympathetic of the underlying dynamics at play. For example, in one Guardian case, the policyholder—a former CEO—sought to file his lawsuit against Guardian anonymously, in an effort to keep his mental health condition and situation confidential. Guardian could have permitted this, but instead objected and forced him to publicly disclose his identity as part of the case, which only added to the policyholders’ mental and emotional distress.

While, in that particular case, Guardian had a legal right to object and—from a legal standpoint—did not do anything wrong by objecting, Guardian’s objection highlights the fact that, at the end of the day, insurance is ultimately a bottom-line business—for Guardian and all disability insurers.

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11. How does Guardian determine my occupation?

Under most disability policies, including Guardian policies, your occupation is determined based upon what you were doing immediately prior to your date of disability.

Guardian policies can contain several other important occupation-related provisions that are policy-specific. For example, many Guardian policies define your occupation as the “occupation or occupations” you were engaged in prior to disability. Guardian uses this particular provision to draw in other sources of income, in addition to your clinical income, and make your “occupation” more expansive (which in turn, can make it more difficult for you to establish total disability).

As a dentist filing a Guardian claim, you also need to be wary about Guardian unfairly characterizing you as a “practice/business owner” and asserting a “dual occupation defense”—i.e. determining that you can’t perform clinical dentistry, but can still perform the duties of a business owner and are therefore not “totally disabled.” While some dentists do invest in multiple practices and generate income through non-clinical activities, many dentists are clinical dentists who own their practice, and only engage in ancillary administrative duties. Guardian does not always recognize the difference, without pushback, so it is important that you are mindful of this important distinction.

Some Guardian policies also include a 12-month lookback period for determining what counts as “your occupation.” If you have a policy with the 12-month lookback, Guardian may attempt to reach back to other roles you had during that time period, even if you are no longer receiving income from those endeavors.

Alternatively, your Guardian policy may state that working 40 hours a week, itself, does not count as a material duty of your occupation. This provision can make it more difficult for you to collect total disability benefits, because establishing that you can no longer work in your occupation full-time is not enough to qualify for benefits.

Our office has also found that some Guardian analysts are not aware of, or are resistant to, additional considerations stemming from disability case law. For example, some states, such as California and Arizona, require disability insurers to also consider whether the policyholder can perform the duties of his or her occupation in the “usual and customary” way—whether or not that language is in the actual policy. Accordingly, it is important to verify that your Guardian claim was evaluated under the proper standard.

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12. Why isn’t Guardian recognizing my job duties?

Our office has noted that, with dentists in particular, Guardian can be resistant to understanding and recognizing the unique aspects of your occupation.

Unlike other occupations, dentistry involves several duties that require a high degree of mental and physical stamina and special attention to detail necessary to ensure patient safety. It involves holding static positions for extended periods of time, maintaining concentration and coordinating movements using multiple extremities—often with little to no breaks in between patients, and limited time to recover between workdays.

In some claims, Guardian may be slow to recognize these patient safety risks and seek to generalize the occupation of dentistry as a “light duty” occupation. Accordingly, if you are a dentist, you need to ensure that your claim file documents your clinical duties in detail.

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13. Why does Guardian keep bothering my doctors?

Like most disability policies, Guardian policies typically require you to be under the care of a doctor in order to continue qualifying for benefits. Most Guardian policies require this care to be “appropriate according to prevailing medical standards, for the condition causing the disability.”

Guardian’s in-house doctors are often asked to evaluate whether any treatment or surgeries exist that could improve function and return the policyholder to work in his or her occupation—particularly at the outset of a claim. Guardian may similarly challenge your treating doctor’s plan of care as not “appropriate” if they do not feel the plan is aggressive enough.

Guardian is also aware that treating doctors are often very busy, and in today’s climate, doctor’s offices are often short-staffed, or understaffed. Requests for information can easily go unnoticed, or be set aside, giving Guardian the chance to deny the claim due to lack of medical evidence. Alternatively, Guardian may require you to submit to an in-person IME/FCE by a provider of their choosing, then forward the subsequent report to your doctor for review. Guardian typically interprets a lack of response from your doctor as your doctor signing off on the results, even if your doctor, in reality, disagrees with the conclusions in the report.

In many instances, treating providers are happy to help with initial requests for records and initial claim forms. However, as the claim goes on and Guardian continues to ask for physician’s statements and records every few months, and/or begins to challenge the treatment plan, your doctors may become less enthusiastic about helping you with your claim. Many of Guardian’s in-house doctors are not specialists, and some treating doctors can get upset when an in-house doctor, with no training in the relevant specialty, is second-guessing them. In some instances, your doctor may even tell you that you need to find another doctor, because they don’t have the bandwidth to deal with Guardian’s repeated requests for information.

Additionally, treating doctors are often not familiar with the nuances of own-occupation policies. In our experience, Guardian’s doctors sometimes seek to take advantage of this in peer-to-peer calls by asking generic questions about capacity to work, without mentioning dentistry specifically or explaining how your policy works.

If you are not represented by counsel, this often takes place behind the scenes and you may not find out about it until your claim is denied for lack of medical support, or your doctor complains to you about Guardian calling his or her office. Accordingly, if you have a Guardian claim, you need to ensure your doctors are responding to requests for medical information, assuming the requests are appropriate. The best way to do this is to engage counsel, and require all claim correspondence to go through your disability attorney.

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14. Why does Guardian want my CDT codes?

Most disability insurers will ask for CDT codes when you file a disability claim, to verify that you were actively practicing as a dentist. Guardian will often take it a step further and attempt to categorize your CDT codes, break down each category of procedures, and assign a percentage to each category. Guardian then often seeks to label the categories with higher percentages as your “material duties.”

This can be problematic, from a total disability perspective, if you have a disability based upon physical limitations, but have a significant number of codes that are not physically demanding (e.g. office visits, telemedicine appointments, Invisalign cases, etc.).

That being said, looking at unit production is only one way to evaluate material duties and may not be appropriate in all circumstances. For example, in situations where certain procedures bring in a disproportionate amount of income, it may be more appropriate to label those procedures as “material duties,” even if the total units are not as high as other areas.

In other situations, such as cash-pay scenarios, this data may not be available or the data may be skewed because it does not encompass all services provided, only services billed to insurance.

Accordingly, if you have a Guardian claim you should be aware of the state of your CDT codes and prepared to identify and provide evidence of your material duties in light of your particular situation.

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15. Guardian is saying I should go back to work and if I do they will pay me partial disability. Should I?

In our experience, Guardian tends to suggest a return to work more quickly and more frequently than other companies. Often, Guardian will offer to pay partial disability if you return to work but are not initially able to go back to work full-time, to incentivize you to return to practicing.

Additionally, many Guardian policies have graded lifetime riders that lock-in benefits based on the most recent date of total disability. If your claim shifts from total disability to partial disability, this can reduce or eliminate your ability to receive lifetime benefits.

Sometimes a return to work/partial disability status is appropriate, but it is not always the right path and can put patients at risk. Unlike other professions, dentists can’t afford to “test the waters” if they unsure about their capacity to work, because the consequences can be drastic (to both patients and their license) if they are not ready to go back yet.

When evaluating whether it is appropriate to return to work, patient safety and your own health are the key considerations, and you should not go back to work before you are ready.

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The information provided above is offered purely for informational purposes. It is not intended to create or promote an attorney-client relationship, and does not constitute and should not be relied upon as legal advice.

Every claim is unique and the discussion above is only a limited summary of information that may be relevant to your claim. If you are concerned that Guardian is not handling your claim fairly, an experienced disability insurance attorney can help you assess the situation and determine what options are available to you.

Notable Guardian Cases

Doe v. Berkshire Life Ins. Co., Civil Action No. 20-CV-01033-PAB-NRN, 2020 WL 3429152 (D. Colo. June 23, 2020).

Pomerance v. Berkshire Life Insurance Company of America, 654 S.E.2d. 638 (2007).

Sadel v. Berkshire Life Insurance Company of America, 473 Fed.Appx. 152 (2012).

Shapiro v. Berkshire Life Insurance Company, 212 F.3d 121 (2000).

Guardian Blog Posts

Disability Insurer Profiles #4: Guardian/Berkshire

Berkshire Criticized by the Maryland Insurance Commissioner for “Artful Neglect”

Medical History Misstatements on A Disability Policy Application Can Void The Policy In The Future

Pennsylvania and California Market Conduct Examinations of Guardian Life Insurance Company/Berkshire Life Insurance Company

Case Study: What Does “Material and Substantial” Mean?

Can I File Anonymously if I File a Disability Lawsuit? A Case Study

Case Study: Berkshire Attempts to Use the “Dual Occupation Defense”

Can I Sell My Practice and Collect on My Business Overhead Expense Policy?

Disability Insurer Profiles: Guardian

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