Unum Study Shows an Increase in
Musculoskeletal & Joint Disorder Disability Claims
Over the Past 10 Years

As we have discussed in previous posts, musculoskeletal disorders are common among dentists because the profession requires dentists to perform repetitive movements and hold static positions for long periods of time.  Unum, one of the largest private disability insurers in the U.S., recently released the results of a ten-year review of its disability claims, showing that both short and long term disability claims for musculoskeletal issues and joint disorders have increased significantly.

According to Unum’s internal statistics, long term disability claims related to musculoskeletal issues have risen approximately 41% over the past ten years, and long-term disability claims related to joint disorders have risen approximately 24%.  In that same period of time, short term disability claims for musculoskeletal issues have increased by 24%, and short-term disability claims for joint disorders have risen 29%.

Unum no longer sells individual disability insurance policies, so the profitability of this block of business is reliant upon premiums received from existing policyholders (or costs saved by denying/terminating claims).  Musculoskeletal claims made by physicians, dentists, and other professionals in particular are intensely scrutinized, and often targeted for denial or termination, both because of the increasing number of claims and the difficulty claimants often face in trying to prove up their conditions (which often have primarily subjective symptoms that aren’t often verifiable through a medical exam, or via tests like MRIs or EMGs). In musculoskeletal claims insurers may request that physicians and dentists undergo tests such as independent medical examinations (IME) or functional capacity evaluation (FCE), or the insurer may conduct surveillance in order to find manufacture a basis for denying or terminating a legitimate claim.

Given the rising number claims based on these conditions, Unum and other insurers may subject them to even higher scrutiny.  For this reason, physicians, dentists, and other professionals must be aware of the obstacles they can face when filing a claim.

References:

https://www.businesswire.com/news/home/20180503006409/en/Ten-year-review-Unum%E2%80%99s-disability-claims-shows-trends.

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #5)

In an effort to provide professionals with more information about how the disability claims process works and identify some of the most common pitfalls for professionals filing disability claims, Comitz | Beethe attorneys Ed Comitz and Derek Funk have compiled an updated list of the 10 most common mistakes we are seeing physicians, dentists, and other professionals make when they file claims under the new post-2000 generation of disability policies (which are much more complex and stringent than the policies sold to professionals in the 1980s and 1990s).

In this post, we’ll be looking at the common mistake of not realizing that you can modify your occupation prior to filing a claim.

Mistake # 5: Misunderstanding the New Definitions of “Occupation”

Disability insurance policies generally define “occupation” as the occupation the insured was performing at the time he or she became disabled. This can be problematic for insureds who have reduced their work hours (see Mistake #6, below), or for those who have decided to focus on an aspect of their work that they would not consider to be their occupation, such as managing their medical practice rather than practicing medicine. Oftentimes, professionals dealing with a disabling condition will seek out other avenues of income, prior to filing, such as selling real estate, or teaching. While seemingly innocuous, these types of decisions can dramatically impact a professional’s ability to collect under his or her policy, because doing so allows the insurance company to argue that the professional has modified his or her occupation prior to filing and expanded his or her list of material job duties. For example, the insurance companies now often take the position that the professional is a part-time dentist and a part time realtor or professor. Or the company might characterize the professional’s occupation as part-time, rather than full-time, or say that the professional is really a physician and a “business owner” (as opposed to a practicing medical professional).

Action Step: Read your policy carefully and fully understand the definition of occupation before filing a claim. Do not make changes to your job duties prior to filing without first conferring with an experienced disability insurance attorney.

To read the rest of the 10 most common mistakes, click here.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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Thoracic Outlet Syndrome

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

Overview

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

There are different types of TOS, including:

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

Symptoms

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

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

Symptoms of vascular TOS include:

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

Causes

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

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

Diagnosis

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

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

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

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

Treatment

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

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

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

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

References:

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

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #6)

In an effort to provide professionals with more information about how the disability claims process works and identify some of the most common pitfalls for professionals filing disability claims, Comitz | Beethe attorneys Ed Comitz and Derek Funk have compiled an updated list of the 10 most common mistakes we are seeing physicians, dentists, and other professionals make when they file claims under the new post-2000 generation of disability policies (which are much more complex and stringent than the policies sold to professionals in the 1980s and 1990s).

In this post, we’ll be looking at the common mistake of reducing work hours instead of filing a claim.

Mistake # 6:  Reducing Work Hours Prior to Filing a Claim

Reducing work hours may seem like a logical solution for a professional experiencing a condition that is beginning to impact his or her ability to work. However, as noted above, working fewer hours per week for an extended period of time prior to filing can make it much more difficult to collect, because it opens the door for the insurance company to argue that the professional has modified his or her job duties and is no longer practicing full-time. Continuing to work post-diagnosis of a potentially disabling condition also raises malpractice concerns and cuts against the severity of the condition.

Delaying filing, while reducing hours and continuing to work may also reduce the amount of lifetime benefits an insured is entitled to. Many policies that provide for lifetime benefits now only pay benefits if a claim is filed before a certain age or pay a lower lifetime benefit amount if a claim is not filed before a certain date. Additionally, some policies now require insureds to work a certain number of hours per week to maintain coverage, and if an insured’s work hours per week drop below the minimum threshold, he or she may lose coverage altogether.

The decision of when to stop working and/or reduce work hours is one that is particularly difficult for professionals who suffer from slowly progressive or degenerative conditions. Many professionals also need to sell their practice as part of the work transition, and need to keep up the value in the meantime. In these situations, the timing of both the sale and your claim is critical.

Action Step: Consult with an experienced disability insurance attorney before reducing your work hours or selling your practice, particularly if you have a progressive or degenerative condition.

To read the rest of the 10 most common mistakes, click here.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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The Challenges Faced By
Professionals Filing Mental Health Claims

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

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

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

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

 

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

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

10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #7)

In an effort to provide professionals with more information about how the disability claims process works and identify some of the most common pitfalls for professionals filing disability claims, Comitz | Beethe attorneys Ed Comitz and Derek Funk have compiled an updated list of the 10 most common mistakes we are seeing physicians, dentists, and other professionals make when they file claims under the new post-2000 generation of disability policies (which are much more complex and stringent than the policies sold to professionals in the 1980s and 1990s).

In this post, we’ll be looking at the common mistake of underestimating the aggressiveness of the claim investigation.

Mistake # 7: Being Caught Off-guard by the Aggressiveness of the Claim Investigation

Many professionals do not understand what the claims process entails, and are caught off-guard by the insurance company’s aggressive tactics. One of the most common and first mistakes made by professionals filing a disability claim is assuming that the claims investigation does not begin until after they file the initial packet of claim forms.

While insurance companies used to provide their claim forms online, most insurance companies now require insureds to call the company to request the initial claim forms, so that they can conduct a recorded impromptu interview and collect as much information from you as they can before you have a chance to see the claim forms, review your policy or talk with an attorney about the proper scope of a disability claim investigation. The interviewer may request information about your condition, exactly what you can and can’t do, when you think you will be able to go back to work, the timeline of events leading up to the claim, your exact job duties, and plans for future employment. The interviewer may also ask about your daily schedule, so the company’s private investigators know where to find you when they conduct surveillance, which is now practically an inevitability.

Although the tone of the interview may seem informal and friendly, it is important to recognize that the company’s review of your claim begins from the moment of your first contact with the insurance company, and that, from that point forward, the insurance company will be searching for reasons to deny your claim.

Another common tactic that is now widely used by insurance companies is termed the “peer-to-peer” call. This is something that typically occurs behind the scenes, without any prior notice to the claimant, and involves the insurance company’s in-house doctors contacting your treating physicians directly, in an effort to obtain statements that can be presented out of context as a basis for denying the claim.

As just one example, the insurance company’s doctor may pressure your doctor for a recovery date post-surgery, even though it may be too early to know what will happen. The company’s doctor will keep pressuring until your doctor gives a generalized, estimated recovery date, which the insurance company then characterizes as a “return to work” date. If you are not back to work by then, the company will say your limitations are inconsistent with your own doctor’s opinion, and use the manufactured inconsistency as a basis for terminating your claim. When you go back to your surgeon for clarification, he or she often does not want to get involved any further with your claim, so you are between the proverbial rock and a hard place.

As another example, the insurance company’s doctors often purposefully mislead your doctors regarding how disability is defined under your policy. If you have a true “own occupation” policy, you are entitled to total disability benefits if you can no longer perform the duties of your prior occupation. However, the insurance company’s doctors will ask your doctor to instead opine on broad, irrelevant questions (e.g. “Will the claimant ever be able to work again?”; “Is the claimant’s ability to perform basic activities of daily living impacted by the condition?”) in order to imply that you must essentially be home-bound in order to collect benefits. If you have not taken the time to explain how your policy works to your doctor (to the extent he or she is even interested), your doctor may unwittingly say something that prejudices your claim and, by the time you find out about it, it will be too late to do anything about it.

Action Step: Before calling your insurance company to request claims forms, consult with an experienced disability insurance attorney, review your policy carefully, and take the time to thoroughly prepare for the call.

To read the rest of the 10 most common mistakes, click here.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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How the Disability Claims Process Works, in a Nutshell

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

Obtaining the Claim Forms

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

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

Completing the Claim Forms

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

Records Requests

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

Interviews

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

Examinations

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

Surveillance

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

Elimination Period

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

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

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

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

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

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

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

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

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What Every Dentist Needs to Know About Disability Insurance

Dentists have a high likelihood of filing a disability claim at some point in their career, which is not surprising given the unique demands of the profession. Comitz | Beethe attorney Derek Funk’s article in Dentist’s Money Digest discusses what dentists should look for when reviewing new or existing policies and what to expect when filing a disability claim. Read the full article at Dentist’s Money Digest today.

“What Every Dentist Needs to Know About Disability Insurance”

If you would like to set up a consultation, please call or e-mail our office.

Return to Dentist Resources

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #8)

In an effort to provide professionals with more information about how the disability claims process works and identify some of the most common pitfalls for professionals filing disability claims, Comitz | Beethe attorneys Ed Comitz and Derek Funk have compiled an updated list of the 10 most common mistakes we are seeing physicians, dentists, and other professionals make when they file claims under the new post-2000 generation of disability policies (which are much more complex and stringent than the policies sold to professionals in the 1980s and 1990s).

In this post, we’ll be looking at the common mistake of having an inaccurate expectation of how the claims process works, and what it entails.

Mistake #8: Misunderstanding the Scope of the Investigation

Disability insurance companies have substantially broadened the scope of claims investigations over time. While many professionals expect and anticipate that the insurance company will review their medical records and ask for reports from their treating doctors, many professionals are surprised when the insurance company also requests a long list of additional information as part of the claim investigation, including tax and financial records of personal accounts, businesses, and trusts. Whereas many older policies merely required insureds to simply submit to a physical examination while the claim was pending, new policies grant disability insurance companies the right to require their insureds to undergo a host of other examinations, including vocational and rehabilitation examinations, occupational analyses, and psychiatric evaluations, and threaten suspension of benefits if the insured refuses to cooperate. As you might suspect, in most cases the insurance company’s evaluators are not incentivized to make fair decisions.

Action Step:  Review your policy carefully and consult with an experienced disability insurance attorney prior to filing your claim, so that you know what the insurance company can and cannot do when investigating your claim.

To read the rest of the 10 most common mistakes, click here.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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Can You Collect Disability Benefits For Burnout?

Physicians experiencing burnout can put both themselves and their patients at risk if they continue to practice. However, it is important to recognize that there are several degrees between ordinary stress and fatigue and a disabling condition, and where you fall on that scale is something that your insurance company can (and likely will) misconstrue, if you are not precise when reporting your claim. Comitz | Beethe attorney Derek Funk’s article in MD Magazine discusses some of the challenges faced by physicians who file disability claims due to mental health conditions and limitations. Read the full article at MD Magazine today.

            “Can You Collect Disability Benefits for Burnout?”

If you would like to set up a consultation, please call or e-mail our office.

Return to Physician Resources

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How Far Will Insurers Go To Deny Your Benefits?

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

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

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

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

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

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

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

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #9)

In an effort to provide professionals with more information about how the disability claims process works and identify some of the most common pitfalls for professionals filing disability claims, Comitz | Beethe attorneys Ed Comitz and Derek Funk have compiled an updated list of the 10 most common mistakes we are seeing physicians, dentists, and other professionals make when they file claims under the new post-2000 generation of disability policies (which are much more complex and stringent than the policies sold to professionals in the 1980s and 1990s).

In this post, we’ll be looking at the common mistake of not understanding how the care provision in your disability insurance policy impacts your disability claim.

Mistake #9: Allowing the Insurance Company to Dictate the Terms of Your Care

Many disability insurance policies now condition receipt of benefits on compliance with stringent care requirements. In contrast to older policies, which typically required an insured to obtain “regular care,” many newer policies require insureds to obtain care designed to achieve “maximum medical improvement.” While the older regular care requirements provided little leverage for insurance companies to require insureds to obtain specific treatments or procedures, these new requirements give them leverage to argue that an insured must undergo treatment that arguably could enable the insured to return to work. In some cases, the insurance company may go so far as to demand surgery, leaving the insured with the choice of undergoing an operation involuntarily and bearing all of the medical and financial risks himself or herself, or potentially giving up his or her right to collect benefits.

Action Step:  Contact an experienced disability insurance attorney to ensure your rights are protected if your insurer attempts to dictate the terms of your care.

To read the rest of the 10 most common mistakes, click here.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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What to Expect When Filing a Disability Claim

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

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

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

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

While each claim is different, insurance companies will typically:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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References:

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