Will My Insurer Pay My Claim if I Demonstrate that I Worked for as Long as I Could Before I Filed My Disability Claim?

Unfortunately, if a disability insurer has identified an argument that allows them to deny a claim, the insurer will generally not be swayed by the fact that the policyholder demonstrated a willingness to work for as long as possible before filing.

Take the case of Lim v. Lincoln.[1] The Plaintiff in this case, Dr. Kellie Lim, suffered from meningococcal disease when she was a child. Due to complications of the infection, her legs below the knees were amputated, along with her right arm below the elbow and all but her thumb and the fourth finger on her left hand. She learned to use prosthetics and was able to complete medical school and began practicing. However, she suffered from debilitating pain throughout her time practicing.

She was able to manage this pain through the use of opioid prescriptions. However, in 2020, new regulatory restrictions led her doctors to reduce Dr. Lim’s dosage, causing her pain to increase. Then, on February 24, 2022, Dr. Lim’s right prosthetic limb broke. She was able to return to work part-time from April through June while using an old prosthesis but the pain became too much and she filed a claim for long term benefits. Dr. Lim’s primary disabling complaints were back pain, trigger finger pain, and pain associated with learning to reuse her prosthesis.

Lincoln referred the claim to a peer review provider and their doctor both reviewed Dr. Lim’s records and interviewed her pain management specialist, Dr. Shah. According to the reviewing doctor, Dr. Shah indicated that Dr. Lim’s chronic pain was controlled with medications and opined that she was functionally able to sustain physical activity. However, during the course of the lawsuit, Dr. Shah disputed that he had said these things.

The reviewing doctor’s initial report also found that Dr. Lim was capable of physical activity, but did not even address Dr. Lim’s finger pain that she had reported as a disabling condition. Later on, the Lincoln analyst sent the claim back to the reviewing doctor, who provided a supplemental opinion stating that Dr. Lim was able to perform her typing duties for up to 15 minutes at a time followed by a 3-minute break throughout an 8-hour day. After reviewing this report, the analyst denied Dr. Lim’s total disability claim in spite of Dr. Lim’s serious medical conditions and the remarkable fortitude she demonstrated to practice medicine and maintain that practice for as long as it was realistically possible to do so.

This case demonstrates that disability insurance companies are willing to deny claims and force litigation even in instances where you might feel you have a clear-cut disability claim. If you feel that your insurance company has unfairly denied your claim, it is a good idea to at least speak with an experienced disability attorney.

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

[1]Lim v. Lincoln Nat’l Life Ins. Co., No. 22-CV-07493-RS (N.D. Cal. Jan. 9, 2025)

 

Search Our Site

ALS

What is Amyotrophic Lateral Sclerosis (ALS)?

ALS (also called Lou Gehrig’s disease) is a fatal neurodegenerative disease that affects nerve cells in the brain and spinal cord. It affects voluntary muscle control, including the muscles used for breathing, talking, eating and moving. ALS often begins with muscle twitching and weakness in an arm or leg, trouble swallowing, or slurred speech.

Symptoms can occur at any age, but most commonly develop between age 55 and 75. About 90% of cases are sporadic ALS, with no genetic component. The remaining 10% are familial ALS.  An estimated 5,000 people in the U.S. will be diagnosed each year. Men are slightly more likely to develop ALS. Some studies suggest that military veterans are about one and a half to two times more likely to develop ALS.

What are the Symptoms of ALS?

  • Trouble walking or doing usual daily activities
  • Tripping and falling
  • Weakness in the legs, feet or ankles
  • Hand weakness or clumsiness
  • Slurred speech or trouble swallowing
  • Weakness associated with muscle cramps and twitching in the arms, shoulders and tongue
  • Untimely crying, laughing or yawning
  • Thinking or behavioral changes

ALS typically starts in the hands, feet, arms or legs and then spreads to other parts of the body. As more nerve cells die, muscles get weaker and eventually chewing, swallowing, speaking and breathing are affected.

What are the Complications of ALS?

  • Breathing problems – the most common cause of death for those diagnosed with ALS
  • Speaking problems
  • Eating problems
  • Frontotemporal dementia (less common)

How is ALS Diagnosed?

ALS can be hard to diagnose because it’s early symptoms can mimic other diseases. Tests will be conducted to rule out other causes of symptoms and help a diagnosis, including:

  • Electromyogram (EMG) and Nerve Conduction Study (NCS) – to look for problems with the muscles or nerves
  • MRI – can reveal spinal cord tumors or herniated discs that may mimic ALS symptoms, or document ALS changes in the body
  • Blood and urine tests – can rule out other causes, or look for serum neurofilament light levels, which are high in those with ALS
  • Spinal tap – to look for other causes of symptoms
  • Muscle biopsy – to look for other causes of symptoms, specifically a muscle disease
  • Nerve biopsy – to look for other causes of symptoms, specifically a nerve disease

Neurologists will look for evidence of degeneration of both upper and lower motor neurons, as well as the progression of symptoms to other areas of the body. Other diseases/conditions have similar symptoms to ALS, including:

  • Multiple sclerosis
  • Parkinson’s disease
  • Huntington’s disease
  • Spinal muscular atrophy
  • Multifocal motor neuropathy
  • Primary lateral sclerosis
  • Hereditary spastic paraplegia
  • Cancers of the brain and spine
  • Polio
  • Lyme disease
  • HIV
  • Injuries to the brain and neck
  • Hyperthyroidism
  • Heavy metal poisoning

In most instances, if you have a clear diagnosis of ALS you should be able to collect under your policy without the assistance of an attorney.  However, if the diagnosis is uncertain and/or you are considering modifying your practice in any way after receiving an early-stage ALS diagnosis, you should review your disability policy and speak with an experienced disability insurance attorney to discuss your options under your policy and the best way to prove up your disability claim.

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

Sources:

Mayo Clinic
Cleveland Clinic
ALS Association
National Institute of Health
ALS Therapy Development Institute

 

Search Our Site

Can I File a Disability Claim for Pregnancy?
Part II

As explained in our previous post, some disability insurance policies indicate that they won’t pay benefits due to pregnancy or childbirth, but that they will cover a disability due to complications for pregnancy only.

Here are some examples of how various disability insurers have defined complications of pregnancy. In reviewing, keep in mind that insurance companies regularly change their policies over time and your policy may not necessarily contain the same definitions, even if it was issued by one of the below companies.

METLIFE POLICY

Complications of Pregnancy means:

  1. Physical conditions which are distinct from pregnancy, but which are caused by pregnancy or adversely affected by pregnancy, and which require medical treatment, prior or subsequent to the termination of pregnancy, such as acute nephritis, nephritis, cardiac decompensation, missed abortion, disease of the endocrine, hemopoietic, nervous or vascular systems, and similar medical and surgical conditions of comparable severity;
  2. Hyperemesis gravidarum and pre-eclampsia requiring Hospital confinement, placenta praevia, ectopic pregnancy which is terminated and spontaneous termination of pregnancy which occurs during a period of gestation in which a viable birth is not possible.

It does not include false labor, occasional spotting, Physician prescribed rest during the period of pregnancy, morning sickness and similar conditions associated with the management of a difficult pregnancy not constituting a classifiable distinct complication of pregnancy.

Other policies are less exacting when it comes to defining complications, for example:

NORTHWESTERN MUTUAL POLICY

Complications are physical conditions physicians consider distinct from pregnancy even though caused or worsened by pregnancy. For purposes of this policy, a non-elective caesarian birth is a complication of pregnancy. Examples of conditions that are not complications include false labor, fatigue, and morning sickness.

Some policies will also include exclusions specific to the policyholder, if the policyholder already has a history of complications related to pregnancy prior to applying for the disability policy.

Additionally, some conditions, including musculoskeletal issues (common with dentists) and mental health issues like depression, can be made worse during pregnancy and lead to longer recovery times. This may be relevant to a long-term disability claim, but ultimately depends on the language and limitations in the policy in question.

Once case example is that of Sprenkle v. Hartford[1].  In this instance, during her pregnancy, Sprenkle’s doctor indicated that she could not work due to complications of pregnancy—primarily due to complications from a previous pregnancy, but also current anxiety and weight loss. Despite the support of her doctor, Hartford denied Sprenkle’s claim, indicating that there was no evidence that she was unable to perform her occupation, and argued that her doctor was basing his recommendations on a previous pregnancy versus current limitations. The Court found that Hartford’s assessments were “simply not accurate” and determined that they had abused their discretion in denying Sprenkle’s claim.

Although Sprenkle’s policy even expressly provided for disabilities caused by pregnancy but the companies still held that she was not totally and continuously disabled, despite her doctor’s findings to the contrary. In pregnancy cases like this, strong medical support can be key to getting a claim to go through.

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

[1] Sprenkle v. Hartford Life Ins. Co., 84 F. Supp. 2d 751, 756 (N.D.W. Va. 2000).

 

Search Our Site

Can I File a Disability Claim for Pregnancy?
Part I

Can you file a successful disability insurance claim if you are not able to work due to pregnancy? The answer is, it depends on the provisions of your specific policy.

In general, under most policies, coverage is not provided for pregnancy but a disabling condition can arise if there are complications from pregnancy; however, different companies will approach this differently.

Most disability policies start by defining disability as being unable to work due to “sickness” or “injury.” Some policies address how pregnancy is treated in their definition of sickness. For example:

UNUM POLICY

“Sickness” means sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force. It includes Disability due to complications of pregnancy or childbirth. It includes Disability due to normal pregnancy or childbirth after You have been Disabled for 90 days.

MASSACHUSETTS MUTUAL POLICY

SICKNESS – An illness or disease that first appears (makes itself known) while this Policy is In Force. Sickness also includes:

    • the transplant of a part of the Insured’s body to another person;
    • complications of pregnancy or childbirth.

GUARDIAN POLICY

Sickness means a sickness or disease, including pregnancy, which is diagnosed and treated while this policy is in force.

As you can see from these examples, sometimes normal pregnancy is considered a disabling condition (provided the period of disability lasts longer the elimination period). In other instances, only complications of pregnancy are considered a disabling condition.

For this reason, it is important to read your policy carefully before making a claim for pregnancy-related conditions. Our next post will examine how complications of pregnancy are defined and assessed under disability policies.

 

Search Our Site

Do I Have the Own Occupation Coverage I Think I Do?
Part II

Our last post compared two policies with different “own occupation” riders.  In this post, we are going to look at the NML “medical own occupation” rider in more detail, to further highlight how complicated “total disability” determinations can be under some disability policies.

Here’s the beginning of the rider again:

Total Disability or Totally Disabled. The words “Total Disability” or “Totally Disabled” mean the Insured is unable to perform the substantial and material duties of the Regular Occupation.

If the Insured can perform one or more of the substantial and material duties of the Regular Occupation, the Insured will be considered Totally Disabled if:

    • The Insured is not Gainfully Employed in an occupation;
    • More than 50% of the Insured’s time in the Regular Occupation at the time Disability began was devoted to providing direct patient care and services; and
    • The Insured is unable to perform the substantial and material duties which accounted for more than 50% of the Insured’s charges for direct patient care and services as evidenced by the Billing Codes for the 12 months before the Disability began.

If the Insured can perform one or more of the substantial and material duties of the Regular Occupation and is not considered Totally Disabled, the Insured may qualify as Partially Disabled.

This may already seem overly complicated, but the policy only gets more complicated when it comes to the next part of the rider that outlines how to calculate the benefits payable for total disability based on the above-enumerated parameters. Let’s take a look:

The Benefit payable for Total Disability is:

    • the Disability Income Full Benefit, if the Insured is Totally Disabled and not Gainfully Employed; or
    • the Calculated Benefit, if the Insured is Totally Disabled and working in an occupation other than the Regular Occupation.

Calculated Benefit: If the Insured has no other Northwestern Mutual Individual Disability Income policies, the Calculated Benefit is the lesser of:

    • the Disability Income Full Benefit; or
    • the Insured’s Loss of Earned Income.

If the Insured is covered under any other Northwestern Mutual Individual Disability Income policies, the Calculated Benefit is the lesser of:

    • the Disability Income Full Benefit; or
    • the following equation: Eligible Benefit X Disability Income Full Benefit of the Policy/Transitional Coverage

Eligible Benefit means the Loss of Earned Income minus Non-Transitional Benefits.

Transitional Coverage means the sum of the Disability Income Full Benefits of all Northwestern Mutual Individual Disability Income policies, which cover the Insured, that include the Transitional Own Occupation Option or the Medical Own Occupation Option.

Non-Transitional Benefits means the sum of all the monthly benefits payable to the Owner under all Northwestern Mutual Individual Disability Income policies, which cover the Insured, that do not include the Transitional Own Occupation Option or the Medical Own Occupation Option.

If the Calculated Benefit is less than the Proportionate Benefit, then the Calculated Benefit is equal to the Proportionate Benefit, as set forth in the Partial Disability Benefit.

If the Loss of Earned Income is less than or equal to zero, then no benefit is payable under this Option. In no event will the amount payable be more than 100% of the Disability Income Full Benefit.

As you can see here, there are a myriad of paths/scenarios that go into calculating a benefit, including multiple paths to the physician’s claim being designated a Partial Disability claim.   In this NML example, in order to determine total disability and whether a full benefit is received, a wide array of questions must be answered, including:

  1. Am I unable to do all my substantial and material duties, or just some of them?
  2. Am I gainfully employed?
  3. Was my time working spent doing 50% or more providing direct patient care and am I unable to do those associated duties?
  4. Am I actually just Partially Disabled if I can do one or more of my substantial duties?
  5. Am I working in another occupation?
  6. Do I have any other Northwestern Mutual policies and how much coverage do they provide?
  7. Do my other policies have Transitional Own Occupation or Medical Own Occupation riders?
  8. Have I had a loss of income?

In traditional, older true own occupation claims, the matter of determining total disability was relatively simple—i.e. can I work at all in my occupation? If the answer was no, the policyholder was entitled to their full benefit under the policy.

Here, even if you are physician and unable to practice, you may end up receiving less than a full benefit depending on the amount of patient care you were providing at the time of your disability, whether you are working in another occupation, and whether you have other coverage.

This is only one policy, but it is an example of why it is so important to understand how your policy works before you file a claim. If you are a physician and think you may need to file a disability insurance claim and have questions, please feel free to reach out to one of our attorneys directly.

 

Search Our Site

Attorneys Edward O. Comitz and Derek R. Funk
Recognized by Super Lawyers for 2025

Attorney Ed Comitz has been named a Southwest Super Lawyer for 2025 for the fourteenth consecutive year for excellence in the field of insurance coverage.  Attorney Derek Funk has also been recognized as a Rising Star in the field of insurance coverage by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  The selection is a multiphase process comprised of independent research, peer nominations and peer evaluations.  Only 5% of attorneys receive a Super Lawyers distinction, and only 2.5% of attorneys receive the Rising Star distinction.

 

Search Our Site

Do I Have the Own Occupation Coverage I Think I Do?
Part I

We’ve talked before about the importance of professionals choosing true own occupation policies that allow policyholders to be totally disabled and collect full benefits—even if they are working in another occupation.

That being said, if you are going to pay higher premiums for “own occupation” coverage, it is also important to ensure that you are actually receiving the benefit set-up you are looking for, and simply checking the box for “own occupation” is no longer enough.

As disability policies have evolved over time, some insurers have created “own occupation” riders that are specific to the medical field. However, in some instances these riders have become so hyper-technical and convoluted that you may be better off with something that is more simple, unless the framework in question is particularly relevant to your practice and field of medicine.

Let’s look at a few examples. Can you tell which excerpt below is from a “medical own occupation” rider?

GUARDIAN POLICY

Total Disability or Totally Disabled means that due to Injury or Sickness, You are no able to perform the material and substantial duties of Your Occupation.

Your will be Totally Disabled even if You are Gainfully Employed in another occupation so long as, solely due to Injury or Sickness, You are not able to work in Your Occupation.

NORTHWESTERN MUTUAL POLICY

Total Disability or Totally Disabled. The words “Total Disability” or “Totally Disabled” mean the Insured is unable to perform the substantial and material duties of the Regular Occupation.

If the Insured can perform one or more of the substantial and material duties of the Regular Occupation, the Insured will be considered Totally Disabled if:

    • The Insured is not Gainfully Employed in an occupation;
    • More than 50% of the Insured’s time in the Regular Occupation at the time Disability began was devoted to providing direct patient care and services; and
    • The Insured is unable to perform the substantial and material duties which accounted for more than 50% of the Insured’s charges for direct patient care and services as evidenced by the Billing Codes for the 12 months before the Disability began.

If the Insured can perform one or more of the substantial and material duties of the Regular Occupation and is not considered Totally Disabled, the Insured may qualify as Partially Disabled.

The answer is the Northwestern Mutual (NML) policy and the rider is an example of how policies marketed specifically to doctors can be more complicated than you might expect. Riders like the above are not unique to NML, and in fact Guardian itself has a variation of the above.

It is possible for physicians to collect under these riders, but the process has more steps and can cause problems for physicians who are expecting a straightforward disability claim and are not aware of the additional considerations that come into play with these riders.

Our next post will further delve into how definitions of total disability can be complicated under newer disability policies.

 

Search Our Site

Under Arizona Law, Can I Force My Insurance Company to Pay
 All My Future Benefits To Me Upfront?

Dealing with insurance companies can be difficult, even under the best of circumstances, which is why we often get asked if an insurance company can be forced to pay out all future benefits due in one lump sum—especially if the insurance company has acted particularly egregiously.  The answer is, it is possible in some instances but may require lengthy and costly litigation to secure the future benefits.

In one Arizona case, the Ninth Circuit Court of Appeals held that the insured was entitled to an award of future disability benefits as part of his compensatory damages award, as well as punitive damages. See, Greenberg v. Paul Revere Life Ins. Co., 91 Fed.Appx. 539, 541-42 (9th Cir. 2004).  In this case, Greenberg sued Paul Revere for bad faith termination of his disability benefits.  Greenberg also supplied evidence that his disability was likely permanent and thus that he was qualified for future benefits.

The court found in favor of Greenberg, holding that Paul Revere had so strained its relationship with Greenberg, through the constant claims and threats it made to terminate his policy benefits, that they had repudiated his insurance policy.

The Court advanced the payments due under the policy and also awarded Greenberg $2.4 million in punitive damages.  The Court reasoned that allowing future policy benefits as part of the regular damages award was consistent with the fact that the jury could have reasonably concluded that the policyholder would have been entitled to receive future benefits if the policy had not been prematurely repudiated.

In its discussion, the Ninth Circuit pointed out that the Arizona Supreme Court had not addressed the issue directly, regarding paying future benefits as an award for a bad faith termination, but that Arizona law did contain a general presumption in favor of future damages.

It also pointed out that “[o]ther states have found that an award of future damages is consistent with the general tort requirements of ‘direct and proximate’ causation where there is evidence that (1) the insured will continue to be ‘entitled’ to disability benefits, and (2) the insurer will continue to deny those benefits.”  The court summarized that if the Arizona Supreme Court were to address the issue, it would likely hold that future policy benefits may be awarded as compensatory damages.

 

Search Our Site

Peripheral Vascular Disease

What is Peripheral Vascular Disease?

Peripheral vascular disease (PVD), also called peripheral arterial disease (PAD), is a slowly progressing disorder of the blood vessels, which is caused by narrowing, blockage, or spasms in the blood vessel. PVD can affect any blood vessel outside of the heart including arteries, veins, or lymphatic vessels. Organs supplied by these vessels may not get enough blood flow to function properly. The legs and feet are most often affected.

What are the Symptoms of PVD?

  • About half of those diagnosed with PVD have no symptoms
  • Most common first symptom is painful leg cramping that occurs with exercise and improves with rest (intermittent claudication)
  • Muscle pain or cramping in the arms or legs, often in the calf
  • Leg numbness or weakness
  • Painful cramping in one or both hips, thighs, or claves after walking or other activities
  • Pain when using the arms
  • Changes in the skin (decreased temperature; think, brittle or shiny skin on the legs and feet)
  • Weak pulses in the legs or feet
  • Gangrene
  • Hair loss on legs
  • Impotence
  • Wounds that won’t heal over pressure points
  • Numbness, weakness or heaviness in the muscles
  • Pain (burning or aching) at rest, commonly in the toes and at night while lying flat
  • Paleness in elevated legs
  • Restricted mobility
  • Reddish-blue discoloration in extremities
  • Severe pain when the artery is very narrow or blocked

What Causes PVD?

  • Atherosclerosis (buildup of plaque inside the artery wall, which reduced blood flow to the limbs, possible development of clots) – most common cause
  • Injury to the arms of legs
  • Irregular anatomy of muscles or ligaments
  • Infection

What are Complications of PVD?

  • Untreated can progress to critical limb ischemia which can result in the loss of an affected limb
  • Poor wound healing
  • Restricted mobility due to pain or discomfort
  • Severe pain in affected extremity
  • Stroke (3 times greater chance in people with PVD)

How is PVD Diagnosed?

  • Angiogram (x-ray of the arteries)
  • Ankle-brachial index (comparison of the blood pressure in the ankle with that in the arm)
  • Doppler ultrasound flow studies
  • Magnetic resonance angiography (MRA)
  • Treadmill exercise test
  • Photoplethysmography (PPG) (similar to brachial index test)
  • Pulse volume recording waveform analysis
  • Reactive hyperemia test (comparative blood pressure measurements on the thighs or ankles)

How is PVD Treated?

  • Lifestyle changes (exercise, nutrition, not smoking)
  • Aggressive treatment of other conditions that may worsen PVD (diabetes, high blood pressure, high cholesterol)
  • Medicines to improve blood flow (blood thinners, medication to relax blood vessel walls, statins to control cholesterol)
  • Vascular surgery (bypass graft using a blood vessel from another part of the body or synthetic tube is placed in the area of the blocked or narrowed artery; reroutes the blood flow)
  • Angioplasty (multiple options):
    • Balloon angioplasty (balloon inflated inside the block artery)
    • Atherectomy (blocked area is shaved away)
    • Laser angioplasty (laser vaporizes the blockage)
    • Stent (coil is expanded in the blocked artery)

If you have been diagnosed with peripheral vascular disease and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

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

Sources:

Johns Hopkins
Yale Medicine
Mayo Clinic

 

Search Our Site

Offsets Based on Social Security Benefits
A Case Study

Many disability insurance policies, especially those governed by ERISA, are subject to offsets—meaning that the insurer can reduce benefits if the insured receives income from other sources. However, not all sources of other income are fair game, as evidenced in the case of Aisenberg v. Reliance Standard.[1]

Here, Mr. Aisenberg, an attorney underwent a serious open-heart surgery in July 2020 and was unable after that to complete the material and substantial duties of his job as an attorney. Reliance denied Aisenberg’s claim twice, before the Court ordered them to pay benefits. However, when calculating benefits, Reliance claimed that an offset applied to Aisenberg’s Social Security benefits.

Aisenberg’s policy stated that the “Other Income Benefits” that may be offset under his policy included benefits “resulting from the same Total Disability for which a Monthly Benefit is payable under this policy” which can include “disability or Retirement Benefits under this United States Social Security Act.”  Aisenberg argued that his benefits should not be offset because he was not receiving Social Security disability benefits, but rather Social Security benefits from earned income (as a result of having reached retirement age). Reliance argued that because he began collecting Social Security benefits during the same year he became disabled, his Social Security benefits did result from the same disability.

The Court did not find Reliance’s argument persuasive and found for Aisenberg, stating that under the plain language of the plan, only Social Security disability benefits would be eligible for an offset, and it did not matter when Aisenberg took out his earned income Social Security benefits.

However, not all policies have the same policy language (for example, they may not have the same “resulting from” language in Reliance’s plan) and there are certain instances where, under some insurance company’s plans, offsets for all Social Security benefits could be taken.

This case highlights the importance of carefully reviewing your policy and understanding how offsets will work under your specific plan. If you feel that your insurance company is incorrectly applying an offset, it is a good idea to at least speak with an experienced disability insurance attorney.

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

[1] Aisenberg v. Reliance Standard Life Ins. Co., No. 1:22CV125 (DJN), 2024 WL 2154739 (E.D. Va. May 14, 2024).

 

Search Our Site

What if I Don’t Agree with How My Monthly Income
is Being Calculated in my Partial Disability Claim?

While every disability policy contains definitions for key terms, such as “monthly income,” the policies do not always provide for what happens in every scenario. Many dentists receive income from multiple sources, and this can give rise to disputes over whether certain income amount should be factored into the benefit calculations.

Below are just a few example of complications that can arise.

[1] Many dentists own their own business, get paid via payroll, and take some extra distributions/draws in addition to W-2 wages. Some dentist take distributions on a monthly basis, and base those amounts on how the practice did in that particular month. But, more commonly, dentists take these distributions as-needed, or at irregular times of the year. This can cause problems when attempting to calculate monthly losses, as the actual income coming in during a particular month may be unusually high or low, and not necessarily reflect how the practice is doing or how much the dentist is working.

[2] It’s not uncommon for members of a dentist’s household to work and get paid by a practice. It’s important to show that the dentist’s family members are paid proportionately for their work. The insurance companies will also look at whether the dentist’s family member(s) were working prior to the onset of disability. Additionally, if both spouses are dentists but the practice is paying lump-sum amounts to a joint account without designating which dentist is being compensated, it can be difficult to get the insurance company to agree that all of the household income should not count for benefit calculation purposes.

[3] Insurance companies will also look at whether income from owning a practice is passive or active (and will likely try to argue that it is active, and therefore applied to monthly income). For example, it is not uncommon for dentists to get rental income from owned properties, or to invest in other practices. In this scenario, insurance companies will look to whether the dentist is investing only, or if they are actively involved in the practice.

As these last several posts have shown, partial disability claims include lots of moving parts and financial considerations—and you and your insurance company may be at odds when it comes to determining the amount of prior income, monthly income, and loss of income. Before filing a disability insurance claim, it is beneficial to speak with a disability insurance attorney to understand how your policy works, whether partial disability is the best option, and to determine any areas that may complicate your claim.

 

Search Our Site

Will a Short Term Disability Claim Approval Mean My Longer Term Claim Will be Approved? A Case Study

Will long term disability insurance claims be approved if a short term disability claim and/or a Social Security claim has been previously approved for the same condition? It may seem logical to assume that the long term claim will be approved, especially if the underlying disabling condition is one that is chronic and degenerative; however, this is not always the case.

One such example is the case of Artz v. Hartford[1]. Here, Donald Artz worked as al electric distribution controller. As part of his job, he worked 12-hour days three days a week, alternating between the day shift and the night shift. He was diagnosed with multiple sclerosis (MS) in 1998 but was able to continue working until early 2020, when he became unable to work his schedule due to increasing fatigue (a well-known symptom of MS). He was granted short term disability (under a policy also administered by Hartford). He was also granted Social Security disability benefits in April 2020. Despite this, Hartford denied his claim for long term disability benefits.

This denial was based on several factors, including that Artz’s own providers had conflicting opinions on how much (or whether) Artz could work. Hartford hired independent physicians to perform paper-only file reviews, and these providers determined that Artz could work up to 8 hours a day, during a regular day shift. While Artz pointed out that he was required to work 12 hours a day for his employer (in fact, he had requested a reduction to 8-hour days and his employer had refused), Hartford determined that this was a job duty specific to his employer, not an “essential duty” in the general workplace. In this scenario, Artz’s Hartford policy specifically said that the definition of his occupation was how his job was defined in the “general workplace” not a specific job being performed for a specific employer or at a specific location.

In light of these facts, the Court, although sympathetic to Artz, upheld Hartford’s denial. They pointed to the fact that, first, Artz had not provided Hartford with his Social Security approval records, despite being invited to do so. Further, even if they had been provided, the Court explained that Hartford’s decision hinged on the interpretation of the terms in the “plan at issue” rather than what the Social Security Administration had used as a basis for their determination.  In regards to the short term disability approval, the Court explained that administrators (such as Hartford) are able to seek and consider new information and change their mind. Here, new information included the opinions of the consulting physicians.

In summation, a short term disability policy or Social Security approval will not necessarily mean that a long term disability claim will be approved. Even after the approval of other benefits based on a disabling condition, it is important to have a strong ongoing claim – including supporting records of disability and proof of restrictions and limitations that prevent you from working at your occupation. If you are considering filing a long term disability insurance claim, please feel free to reach out to one of our attorneys directly.

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

[1] Artz v. Hartford Life & Accident Ins. Co., No. 23-2269, 2024 WL 1986000 (7th Cir. May 6, 2024).

 

Search Our Site

How do Insurance Companies Calculate
Monthly Loss of Income in Partial Disability Claims?

If you file a partial disability claim, your benefit amount will be calculated each month based upon the monthly income loss for the particular month in question. Often, you must meet a minimal income loss threshold (typically 15-20%) in order to qualify for benefits at all.

Once you hit that threshold, the total benefit often depends on your percent loss for that month. For example, if you have a 50% loss, you receive half of the benefit. Or if you have a 60% loss, you receive 60% of the benefit. Many disability policies also pay you the full benefit, even if you are only medically partially disabled, if your income loss is 75-80% or higher in a particular month.

Generally speaking, most disability policies only count active income in these calculations and passive income, such as investments or rental property, do not count as income. In some instances, if you have true own occupation coverage and can establish that the income is from a different “occupation,” you can work in a different job and still receive your full total disability benefits. Other policies (sometimes called “transitional own occupation” policies) let you earn income from a different job, but reduce benefit payments if your income from your disability policies plus your income from a new job ever exceeds your pre-disability earnings.

These evaluations can be complicated, however, as the disability companies will be looking for any overlap between the new job and the duties you were performing pre-disability.

Accordingly, if you are being paid total disability benefits and considering a new job, it is a good idea to speak with an experience disability attorney first to ensure that you understand how your policy works, and how the new job will impact your benefit amount and total monthly income.

 

Search Our Site

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

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

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

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

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

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

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

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

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

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

 

Search Our Site

How is Prior Income Calculated in a Partial Disability Claim?

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

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

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

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

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

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

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

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

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

 

Search Our Site

Overpayment and Offsets
A Case Study

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

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

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

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

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

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

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

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

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

 

Search Our Site

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

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

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

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

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

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

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

 

Search Our Site

Attorneys Edward O. Comitz and Derek R. Funk
Recognized by Super Lawyers for 2024

Attorney Ed Comitz has been named a Southwest Super Lawyer for 2024 for the thirteenth consecutive year for excellence in the field of insurance coverage.  Attorney Derek Funk has also been recognized as a Rising Star in the field of insurance coverage by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  The selection is a multiphase process comprised of independent research, peer nominations and peer evaluations.  Only 5% of attorneys receive a Super Lawyers distinction, and only 2.5% of attorneys receive the Rising Star distinction.

 

Search Our Site

Peripheral Neuropathy

What is Peripheral Neuropathy?

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

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

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

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

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

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

What are the Symptoms of Peripheral Neuropathy?

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

In motor neuropathy, symptoms can include:

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

In sensory neuropathy, symptoms can include:

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

In automatic neuropathy, symptoms can include:

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

What Causes Peripheral Neuropathy?

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

How is Peripheral Neuropathy Diagnosed?

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

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

What is the Treatment for Peripheral Neuropathy?

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

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

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

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

Sources

Mayo Clinic

Cleveland Clinic

Johns Hopkins

 

Search Our Site

Benign Paroxysmal Positional Vertigo

What is Benign Paroxysmal Positional Vertigo (BPPV)?

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

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

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

What are the Symptoms of BPPV?

Symptoms include:

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

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

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

What Causes BPPV?

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

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

In other causes, BPPV can be associated with:

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

How is BPPV Diagnosed?

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

What is the Treatment for BPPV?

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

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

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

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

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

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

Sources

Mayo Clinic

John Hopkins

Cleveland Clinic

 

Search Our Site