What is a Functional Capacity Examination (FCE)?
An Overview

Most policies now allow for insurance companies to request claimants undergo various examinations. One example is the Functional Capacity Evaluation, or FCE.

What is an FCE?

FCEs are usually conducted by a occupational or physical therapist. They generally last between 4-6 hours.  However, they can be spread out over multiple days.

You will have to complete intake paperwork.  The examiner may monitor you to see how long it takes for you to complete the paperwork.  Including whether it is difficult or painful for you to sit.

Once the FCE formally begins, it tests the following:

  • Your ability to lift, push, pull, and carry objects;
  • Your ability to reach, stoop, kneel, crouch, and crawl; and
  • Your ability to handle and manipulate small objects.

These tests evaluate your dexterity, coordination, and endurance. Further, they evaluate job-specific functions. The examiner should also be evaluating your pain levels during each test.

Once complete, the report will go to your insurance company. Then, your insurance company will evaluate it to determine if you are physically unable to perform duties of your occupation. A properly done FCE can help your claim. However, your insurance company may use them to try and deny your claim.

What Can I Do?

You can take certain steps to ensure the FCE doesn’t negatively impact your claim:

  • Request a copy of the report;
  • Be clear and precise about any pain you feel;
  • Do not exaggerate;
  • Document any pain or other symptoms you experience after testing is over; and
  • Follow-up with your own doctor about symptoms during and after the exam

An experienced disability insurance attorney can help you determine:

  • What type of evaluation was performed;
  • The methodology and criteria used; and
  • It’s accuracy in measuring your abilities.

Finally, if you have or are scheduled to have an FCE and have questions, please feel free to contact one of our attorneys directly.

 

Search Our Site

How Do Partial Disability Benefits Work?

Some disability policies allow for recovery of partial disability benefits if you are still able to work on a limited basis. In newer disability policies, this feature is typically added as a rider that you must choose to add to the base policy. If your policy does not have a partial disability or residual disability rider, it may only cover total disability.

What is the Difference Between Total Disability and Partial Disability?

Individual policies sold to physicians and dentists typically define “total disability” as the inability to perform the material and substantial duties of your occupation.

In contrast, partial disability benefits are designed to supplement your income if your ability to work is limited by a sickness or injury. After the elimination period has been satisfied, benefits are due for each month that you can prove both that you have (1) suffered a loss and (2) that the loss was due to sickness or injury. This second requirement is sometimes referred to as establishing a “demonstrated relationship” between the loss and the disability.

How Do I Collect Partial Benefits?

Most older disability policies require a threshold loss in income in order to qualify for partial benefits, typically around 15 to 20%. New policies can define loss in other ways, including losses in hours or losses in the ability to perform a certain percentage of your material duties.

When reviewing your policy, it is also important to pay attention to whether the requirements for collecting change over time. For example, many partial disability riders outline different rules for collecting during the first 6 or 12 months of disability, versus the remaining months of disability.

How Do I Know if I Have a Partial or Total Claim?

Because each policy defines partial disability differently, the first step is to locate the definitions for total disability and partial disability.

Once you know your policy’s requirements, the next step is evaluating factors such as the nature of your condition, the extent of your limitations, and whether you meet your policy’s loss thresholds. Another important consideration is whether you are putting your own health or patients’ health in jeopardy by continuing to practice.

In some instances—such as claims involving slowly progressive conditions like cervical radiculopathy or an essential tremor—it can be difficult to evaluate whether you are partially or totally disabled and/or whether a partial disability has progressed to the point where it is now totally disabling.

As each claim is different, there is no one-size fits all answer to this question, and whether you are partially or totally disabled will come down the particular facts of your disability claim and your particular policies’ requirements. If you have questions about your claim or potential claim, please feel free to contact our attorneys directly to set up a consult.

 

Search Our Site

What is an Independent Medical Examination (IME)?
An Overview

Your insurance company may ask you to undergo an Independent Medical Examination (IME).

Generally, a physician conducts the IME. Often, the company insists on picking the doctor. Broadly speaking, your insurer may request an IME if it does not agree with your doctors. Or if there is limited medical information in your file.

However, IMEs are not always truly “independent.” Often, insurance companies request IMEs in order to deny your claim. For example, the IME doctor’s primary income may come from these types of exams. Additionally, companies may unfairly use the same doctor over and over again in different claims.

What Can I Expect During an Independent Medical Examination?

  • Typically, the exam starts with an interview.
  • Often, the doctor starts with a general physical examination.
  • Next, the IME focuses on your disabling condition.
  • You may be asked to bend, lift or perform movements.
  • Throughout, the doctor looks for inconsistencies or signs of exaggeration.
  • After the exam, the doctor will prepare a report for your insurance company.

What Can I Do if I Have an IME?

First, review your policy to see if you are required to undergo an IME. Next, complete any intake forms in advance. At the exam:

  • Be cooperative and open;
  • Ask questions if you don’t understand something;
  • Discuss your symptoms fully and honestly; and
  • Connect your symptoms to your job duties.

If you are concerned about the company’s motives, talk with an attorney. A disability insurance attorney can help:

  • Determine what your policy actually requires;
  • Limit the test to certain parameters;
  • Verify the doctor’s credentials;
  • Record the exam;
  • Accompany you to the exam; and
  • Review the final report for accuracy.

I’ve you’ve been scheduled for an IME and have questions, please feel free to contact one of our attorneys directly.

 

Search Our Site

Insurance Company Tactics:
Conducting Multiple Paper Reviews

Insurance companies typically start their claim investigations by requesting forms and medical records from your treating provider(s). In order to deny a claim, they may go to great lengths to dismiss and ignore even the most supportive of records.  One way they do this is by using consultants to conduct paper-only reviews of the insured’s file.

One such example of this is Allen v. MetLife[1], where multiple consultants were used to try and undercut Linda Allen’s supportive physician’s statements and treatment records.  Allen, a highly educated professional, was exposed to toxic mold at her workplace and developed a myriad of symptoms/diagnoses as a result, including chronic rhinosinusitis, mold allergy, chronic fatigue disorder, neurocognitive disorder, vertigo, reactive airway disorder, depression, and anxiety disorder.

Although MetLife’s own doctor hired to examine Allen in-person concluded that her symptoms were “quite enough to limit her daily functioning”, MetLife denied her claim. In doing so, MetLife chose to place more weight on the multiple consulting physicians who only conducted paper reviews of Allen’s file. Alarmingly, one physician made several factual mistakes in his report (including errors in the names and types of medications Allen was taking) and another only reviewed a portion of Allen’s records.

Additionally, the Court noted that at least two of the reviewing doctors indicated a need for additional information. However, MetLife’s claim file revealed that MetLife did not share additional records received from Allen with its consulting doctors or ask its doctors to update their findings.

While the Court recognized “the importance of independent medical reviews” it also recognized the limitations of such reviews by doctors who did not examine a patient, going on to say “the mere fact that independent medical specialists were consulted does not automatically equate with a deliberate, reasoned process and substantial evidence.”

While the Court reversed MetLife’s wrongful denial and Allen was ultimately successful, it took litigation (which can often be costly and time consuming) to expose MetLife’s improper tactics and overturn MetLife’s denial of her legitimate claim.

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] Allen v. MetLife, No. 4:06-CV-175-H, 2008 WL 11429626 (E.D.N.C. March 31, 2008)

 

Search Our Site

Cigna Sells Group Disability
Businesses to New York Life

Cigna has now sold its group life, accident, and disability insurance business to New York Life in a $6.3 billion deal, initially announced in December 2019. The new business has been rebranded as New York Life Group Benefit Solutions.

This acquisition adds approximately 3,000 employees and over 9 million customers for New York Life, making it one of the top five insurers across group life, accident, and disability insurance.

Cigna will put the sales proceeds towards repayment of debt and share repurchase, and both companies will participate in a multi-year collaboration.

 

Sources:

Mallory Hackett, Cigna officially sells group life, accident and disability insurance business to New York Life, Healthcare Finance, Jan. 4, 2021

New York Life Completes Acquisition of Cigna’s Group Life and Disability Insurance Business, Businesswire, Dec. 31, 2020

Anusuya Lahiri, New York Life Snaps Up Group Life & Disability Insurance Business From Cigna For $6.3B, Nasdaq, Jan. 3, 2021

 

Search Our Site

Am I Under Surveillance?
An Overview

What Kind of Surveillance Do Insurance Companies Use?

If you’ve filed a claim for individual disability insurance, you will likely be under surveillance at least once.

Insurance companies use a variety of tactics to surveil claimants. For example:

  • Monitoring your online activities, including social media;
  • Stakeout operations and tailing;
  • Contacting friends or family members to try and gather information about you;
  • GPS and cell phone tracking;
  • Using drones or stingrays;
  • Pretexting;
  • Conducting an interview at your house; and
  • Using questions on claim forms to try and learn your schedule.

When Are Insurance Companies Watching?

Furthermore, there are certain times surveillance may occur more often.  For example:

  • During holidays;
  • On the claimant’s birthday;
  • Over weekends;
  • Near the end of fiscal quarters; and
  • Any time they have a chance to catch a claimant involved in physical activity (based on information provided by the claimant).

These are popular times because they are often scenarios where a claimant may push him or herself more than normal, especially in the context of physical activity. The point of this surveillance is to “catch” you doing activities that undercut your disability claim. Unfortunately, it is not uncommon for the insurance companies to take things out of context.

Using surveillance is not necessarily illegal. However, sometimes insurance companies cross boundaries. Understandably, it can be alarming to think about being under surveillance. And sometimes, repeated surveillance can mean your insurance company is targeting your claim for denial.

For this reason, it is important to be aware. An experienced disability insurance attorney can help if you feel your claim may be targeted for denial. Therefore, if you have questions, please feel free to contact one of our attorneys directly.

 

Search Our Site

Unum Announces Reinsurance Deal

In December 2020, Unum Group announced a reinsurance transaction with a subsidiary of Global Atlantic (Commonwealth Annuity and Life Insurance Company) in a coinsurance agreement. The closed block of business is backed by approximately $7.1 billion in reserves.  Unum will pay Global Atlantic a fee of around $376 million to reinsure about three quarters of the in-force policies in the closed block.

Global Atlantic’s primary focus is on selling life insurance and annuities, as well as reinsuring other businesses. Unum subsidiaries ceding individual disability business to Global Atlantic include Unum Life Insurance Company of America, Paul Revere Life Insurance Company, and Provident Life and Accident Insurance Company. Unum is also seeking permission from the original writers of some policies written by other companies to include them in the deal.

Around 95% of the affected policyholders are collecting benefits, while the remaining are not on claim.  Unum will continue to administer claims made under the policies.

Sources:

Allison Bell, Unum Picks Global Atlantic for $7.1B Reinsurance Deal, ThinkAdvisor, December 17, 2020.

Unum Press Release, Unum Group Announces Reinsurance Transaction with Global Atlantic on $7.1 Billion Closed Individual Disability Block, December 18, 2020.

 

Search Our Site

Can You File a Disability Claim for Hearing Loss?

According to the CDC and the National Institute for Occupational Safety and Health (NIOSH), hearing loss is the third most common physical condition among adults, with 24% of hearing difficulty among U.S. workers caused by occupational exposure.[1]

While one associates work-related hearing loss with careers like construction, studies have shown that the rates of hearing loss and tinnitus among dentists are double that of the general population, as a result of noise exposure from dental tools (such as high-speed handpieces).[2]  Unaided hearing loss has also been linked to increased depression, social isolation, and hospitalization. Further, it can result in reduced motor coordination, impaired cognition, learning, and memory.[3]

Like the two other most common disabling conditions experienced by dentists, musculoskeletal issues and vision loss, hearing loss and tinnitus are often slowly progressive and degenerative conditions—making it difficult to determine when and if symptoms have reached a level to prevent a dentist from safely practicing.

Hearing loss typically comes on gradually and, as it worsens, dentists may take steps to mitigate exacerbation of symptoms by either reducing the hours they work or avoiding doing procedures that exacerbate symptoms.  However, this can be problematic from a claims perspective because insurance companies will typically review dentists’ CDT codes to determine if they can argue that the dentist has modified his or her occupation.

If you are a dentist with a hearing condition that you feel may begin to compromise your ability to work, an experienced disability insurance attorney can help you evaluate whether you have a claim under your policy and guide you in preparing a transition plan so that, in the event you have to file a claim down the road, you are prepared and have not jeopardized your ability to collect.

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.

[1] Occupational Hearing Loss (OHL) Surveillance National Inst. for Occ. Safety and Health, last reviewed Dec. 9, 2019, https://www.cdc.gov/niosh/topics/ohl/default.html

[2] Ian D. Murray, BA, HIS, AHIP, IHS, Hearing Loss and Tinnitus Among Dentists, 73 The Hearing Journal, 10, January 2020, https://journals.lww.com/thehearingjournal/fulltext/2020/01000/hearing_loss_and_tinnitus_among_dentists.3.aspx

[3] Id.

Search Our Site

What is a COLA Rider?
An Overview

What is a COLA Rider?

Riders expand or limit coverage on a policy.  Usually, they are found at the back of a policy.

Adding riders can impact premium amounts. A Cost of Living Adjustment (COLA) rider is one of the more common riders added to disability insurance policies.

The cost of living typically goes up over time. Therefore, a COLA helps your benefits keep pace. Under most policies, the adjustment is made yearly.  The amount of the increase is calculated as a fixed percentage or based on the Consumer Price Index. However, insurers sometimes cap the overall increase in benefits.

COLAs are most beneficial to younger claimants. Younger claimants can be on claim for decades. Without a COLA, their benefit amount would become less effective over time.

Not All COLAs are the Same

COLAs are not the same across the board. Typically, COLAs kick in after a year of being on claim. However, sometimes there is a longer waiting period.

COLAs also can be limited in other ways. Sometimes, a cap is set on the amount of increases over the life of a claim. For example, increases may only be made for five years or to a certain age. A COLA rider may expire at age 65, even if your policy has lifetime benefits.

Some plans also set a maximum benefit amount. This means, if you reach this amount, a COLA will not be applied. This type of provision is typically found in employer-sponsored plans. Because of this, it is important to read your policy carefully. In some policies, limitations like maximum benefit amounts may be in a different part of the policy. So, even if you read the entire rider, you may not have a full understanding of your COLA.

If you are on claim, and have a question about how COLAs work, please feel free to contact one of our attorneys directly.

 

Search Our Site

Can I File a Disability Claim for
Breathing Problems Due To COVID-19?

While it may be some time before we fully understand COVID-19 and its long-term impact, experts have identified certain long-term complications from the virus, including breathing problems.

As COVID-19 is a respiratory disorder, it is no surprise that the lungs can be permanently damaged by the virus. Pneumonia associated with the disease can cause long-standing damage to the alveoli (tiny air sacs) in the lungs. Build-up of scar tissue can then lead to long-term breathing problems, including decreased lung function and decreased exercise capacity. Risks of this complication are highest among those with underlying conditions such as lung disease, hypertension, and obesity.[1]

Such disorders can be problematic for occupations that require mask-wearing, such as dentists and surgeons. Healthcare workers, including dentists, are also often most at risk for contracting COVID-19, due on their physical proximity to others and exposure to diseases[2].

In March of 2018, the CDC reported on a cluster of patients (dentists and dental workers) who were treated at a specialty clinic in Virginia for chronic, progressive lung disease, specifically idiopathic pulmonary fibrosis. The CDC said that occupational exposure was a possibility, stating “[d]ental personnel are exposed to infectious agents, chemicals, airborne particulates, ionizing radiation and other potentially hazardous materials. . .[i]nhalational exposures experienced by dentists likely increase their risk for certain work-related respiratory diseases.”[3]

Whether you can file a claim for COVID-19, a resulting complication, or a co-morbid condition depends on the terms of your policy and your unique circumstances. If you have questions about your particular situation, please feel free to contact one of our attorneys directly.

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

[1] Mayo Clinic.

[2] Lazaro Gamio, The Workers Who Face the Greatest Coronavirus Risk, The New York Times, March 15, 2020.

[3] CDC reports ‘cluster’ of dental professionals diagnosed with lung disease, ADA News, March 13, 2018.

 

Search Our Site

Can I File a Disability Claim
Based on COVID-19?

Since the pandemic started, many physicians and dentists are wondering “can I file a disability claim for COVID-19?”

The answer is–it depends. Disability policies typically have elimination periods that must pass before benefits are payable for a certain condition. Often, the elimination periods are several months and would outlast the typical duration of COVID-19. However, there may be claims where this might not be the case, such as claims involving long-term complications from COVID-19. Or claims involving increased health risks due to underlying conditions.

Can I File for Long-Term Complications?

While we are still in the early stages of knowing how COVID-19 may affect people long-term, initial information indicates both that some individuals will have long-lasting COVID-19 symptoms and some will go on to develop complications as a result of the infection. Studies have shown that some symptoms can linger for weeks and months, including:

    • Fatigue
    • Racing heartbeat
    • Shortness of breath, achy joints
    • Foggy thinking
    • Persistent loss of sense of smell

Others may recover but end up with long-term complications from COVID-19. Experts believe that COVID-19 can result in the following:

    • Heart damage or disease
    • Lung damage or long-lasting breathing problems
    • Brain damage as a result of stroke or seizures, or an increased likelihood of developing Alzheimer’s or Parkinson’s disease
    • Blood clotting that can lead to heart, lung, legs, liver, or kidney problems, or cause hypertension
    • Widespread inflammation
    • Problems with mood and fatigue, including chronic fatigue syndrome

Can I File a Claim for COVID-19 and My Underlying Conditions?

Certain underlying conditions have been associated with more severe COVID-19 symptoms, including:

    • Chronic lung disease, such as COPD
    • Serious heart conditions
    • Obesity
    • Type II diabetes
    • Chronic kidney disease that requires dialysis
    • Conditions that make a patient immunocompromised (including cancer treatment, immune deficiencies, and bone marrow or organ transplant).

Whether you can file a claim for COVID-19, a resulting complication, or a co-morbid condition depends on the terms of your policy and your unique circumstances. If you have questions about your particular situation, please feel free to contact one of our attorneys directly.

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

Sources:

Mayo Clinic

Centers for Disease Control

University of Maryland

American Association for the Advancement of Science

John Hopkins Medicine

 

Search Our Site

The Practice X-Factor Podcast with Dr. Tyler Williams “Putting your Health and Future First with Derek R. Funk”

Derek Funk, Esq. recently sat down with Dr. Tyler Williams, D.D.S., host of the popular The Practice X-Factor podcast, to talk about common challenges dentists face when it comes to their individual disability insurance claims, including:

      • When and why it makes sense to hire an attorney;
      • Why dentist claims can be particularly complex; and
      • Common disability pitfalls that many dentists are unaware of.

Episodes can also be accessed on https://yourpracticegrowth.com/podcasts/, and via iTunes, Google Play, Spotify and other podcast platforms.

 

Search Our Site

Disability Insurance Claims – COVID-19 Complications

COVID-19 has impacted several aspects of our lives, and many things are much more complicated now. Disability insurance claims are no exception, as COVID-19 has raised additional hurdles for policyholders filing “own occupation” claims. Some of the most common questions and concerns physicians and dentists are facing include:

How long will it take to get a decision during COVID-19?

Typically, insurers can take several months to issue a decision. With many companies operating with limited staff, claim decisions may now take even longer.

Now, more than ever, it is important to be proactive about your claim. Extensive delay may be unreasonable, even during the pandemic. But it is not always easy to determine how long is “too long” to wait.  An experienced disability attorney can help you determine if your disability insurer is unreasonably dragging its feet, or if any action needs to be taken to ensure a timely decision.

What if I can’t get in to see my doctor?

Many policies have care requirements that require you to be actively treating with a physician.  This can be difficult when many doctors’ offices are working on a limited basis. Delays are common, due to the backlog of patients needing to be seen. Certain legal rules allow for delay if it would be unreasonably difficult for you to produce evidence within a required time frame—but these can vary based on your policy and your jurisdiction.

What if I can’t get records or paperwork from my treating providers?

Insurance companies will typically ask for medical records and statements from your treating providers to support your disability.  Because many doctor’s offices are operating at limited capacity, this can also be difficult. Again, depending on your policy and the laws in your jurisdiction, you may be entitled to flexibility when responding to these requests.

Do I have to let my insurance company conduct a field interview or IME?

Insurers often conduct at least one field interview during the course of a claim. Similarly, insurance companies may ask an insured to attend an independent medical examination (IME). Understandably, during this time, insureds are reluctant to be in close proximity with a stranger. An experienced disability attorney can help you determine whether these sorts of requests are reasonable under the circumstances.

The best way to handle these situations depends on the specific terms of your policy and local laws. In some instances, what the insurance company is asking for may be unreasonable, and therefore unenforceable. If you have a question about how COVID-19 has impacted or may impact your claim, please feel free to contact one of our attorneys directly.

 

Search Our Site

           

Can I File a Claim for Anxiety/Depression/PTSD
Due to COVID-19?

In prior posts, we’ve discussed why physicians and dentists can be uniquely susceptible to burnout and mental health conditions such as anxietypanic disorder, depression, and PTSD. Now, in light of the COVID-19 epidemic, health experts are particularly concerned about physicians working in the intensive care unit, emergency room personnel, paramedics, and other frontline responders.

According to an article in Scientific American, experts believe that health care workers are presently at risk for developing high rates of anxiety, depression, substance use issues, acute stress and, eventually PTSD as a result of working on the front lines during the pandemic.

For example, one study of physicians and nurses in China at the height of the pandemic found that 50% of respondents reported symptoms of depression, 44% reported anxiety, and 34% reported insomnia.[1] Another study of data from the United Kingdom and U.S. showed that frontline health care workers had a nearly 12 times higher risk of testing positive for COVID-19 compared with those in the general community.  This rate was even higher for workers that didn’t have adequate access to PPE.[2]

Stress and emotional turmoil can also be related to caring for those most gravely ill with the disease, especially in light of the fact that many of these patients are dying without access to friends or family members. In situations where physicians normally would have turned to their families and friends for support, they are now fearful of passing the virus along to their loved ones, and many physicians are choosing to even live apart from their families and/or distance themselves from friends and colleagues outside of the hospital setting.

While the coronavirus and hospitalizations are abating in some parts of the country, frontline workers are also now facing new challenges.  In a New York Times article, Dr. Mark Rosenberg, the chairman of the emergency department at St. Joseph’s Health in Paterson, New Jersey, was quoted as saying “[a]s the pandemic intensity seems to fade, so does the adrenaline. What’s left are the emotions of dealing with the trauma and stress of the many patients we cared for.”[3]

For some, mental health conditions stemming from or exacerbated by COVID-19 can become persistent and long-lasting conditions.  If you have reached this point, you may be wondering if filing a disability insurance claim is an option for you.  If you have questions about whether you can file a claim under your disability policy, please feel free to contact one of our attorneys directly.

[1] Jillian Mock, Psychological Trauma Is the Next Crisis for Coronavirus Health Workers, Scientific American, June 1, 2020, https://www.scientificamerican.com/article/psychological-trauma-is-the-next-crisis-for-coronavirus-health-workers1/

[2] Katie Marquedant, Study Reveals the Risk of COVID-19 Infection Among Health Care Workers, Massachusetts General Hospital Press Release, May 5, 2020, https://www.massgeneral.org/news/coronavirus/study-reveals-risk-of-covid-19-infection-among-health-care-workers

[3] Jan Hoffman, ‘I can’t Turn My Brain Off’: PTSD and Burnout Threaten Medical Workers, The New York Times, May 16, 2020, https://www.nytimes.com/2020/05/16/health/coronavirus-ptsd-medical-workers.html

 

Search Our Site

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

When an insurance company denies a claim, the insured may have to resort to filing a lawsuit to collect their rightful benefits. Accordingly, insurance companies employ numerous tactics to deter insureds from filing lawsuits, especially those based on mental health claims like depression or anxiety.

One such example is the case of John Doe v. Berkshire Life Ins. Co.[1] where John Doe (formerly a high-powered CEO) sued his insurer, Guardian/Berkshire, for wrongfully denying his mental health claim.  When the CEO filed the claim, he sought to remain anonymous because: (1) the nature of his disability was mental health related (including PTSD) and highly-sensitive; (2) he feared he would be placing himself in danger by using his name because a former disgruntled employee had harassed him in the past; and (3) proceeding under his real name might exacerbate his PTSD symptoms. Guardian opposed the CEO’s motion, likely in the hopes of dissuading the CEO from pursuing his lawsuit.

Ultimately, the CEO’s motion was denied by the Court, as it determined the request did not meet the strict legal standard required to allow a party to proceed anonymously. Arguably, in this case, Guardian would have suffered little to no harm by allowing Doe to proceed anonymously; yet, they still chose to object.

Insurance companies have a history of wrongfully deterring individuals from challenging claim denials in similar cases, and they are unfortunately not above taking advantage of insureds who are financially, physically and/or emotionally vulnerable. Insurance companies often pull out all the stops when it comes to litigation because they have the advantage of time and financial resources on their side.  This can mean targeting those with mental health claims, especially those with strong reputations in their communities (including physicians and dentists), in the hopes that fear of public embarrassment may prompt them to drop the lawsuit, settle for less than they are owed, and/or allow an unfair denial to stand.

These can be challenging things to face—even for a CEO—especially if you are trying to take on the insurance company on your own. If you are concerned about how your insurance company has been treating you, or feel like your insurer is seeking to take advantage of your condition, an experienced disability attorney can help you evaluate the situation and what options are available to you.

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

 

Search Our Site

 

Panic Disorder

Dentistry is also not only one of the most hazardous jobs, it is also an incredibly stressful one. Unique stressors begin in dental school, with studies showing that in the final year of training, 67% of students had experienced possible pathological anxiety.[1]

Stressors only increase as a dentist enters clinical practice—including those found in the workplace, financial, practice management, and societal issues. In fact, dentists’ mental health has been shown to be poorer than that of those working in other professions.[2] The unique demands of the profession can unfortunately lead to serious mental health conditions that can interfere with the ability to practice safely. In this post will look at one such condition, panic disorder.

What Is Panic Disorder?

Panic disorder is an anxiety disorder that involves recurrent, unexpected episodes of sudden, intense anxiety (panic attacks). These episodes of overwhelming fear occur with no specific basis, and cause individuals to worry about future panic attacks and/or develop maladaptive changes in behavior related to the attacks. This fear of another attack can lead to avoiding situations and settings associated with past panic attacks.

An estimated 4.7% of U.S. adults will experience panic disorder at some point in their lives, with females at higher risk than males.  Those with the disease can suffer varying degrees of impairment, with the frequency of panic attacks varying from a few per year to daily. In some instances, panic disorder can become debilitating when the fear of having another panic attack interferes with the ability to carry out daily tasks and, in some instances, panic disorder presents with agoraphobia.

What Are the Symptoms of Panic Disorder?

Panic attacks typically happen unexpectedly and peak within several minutes. The symptoms of a panic attack can include:

  • Shortness of breath;
  • Pounding heart rate;
  • Chest pain;
  • Dizziness or lightheadedness;
  • Trembling or shaking;
  • Chills or hot flashes;
  • Sweating;
  • Headache;
  • Nausea or stomach ache;
  • Sensation of choking;
  • Feelings of being disconnected or unreal; and
  • Fears of losing control.

What Causes Panic Disorder?

The exact cause of panic disorder is not known, but experts believe certain factors can play a role, including:

  • Genetics;
  • Stress;
  • Temperament;
  • Changes in how the brain functions; and
  • Increased sensitivity to certain hormones that trigger excited feelings in the body.

What Are Treatments for Panic Disorder?

Panic disorder is most often treated with medication, typically anti-anxiety and/or antidepressant medications and counseling, including Cognitive Behavioral Therapy.

Panic disorder can prove debilitating, interfering with an individual’s ability to work, leave home, or carry out daily tasks. If you have been diagnosed with panic disorder and fear that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.

It is especially important to speak with an attorney before making changes to your schedule and/or job duties or working in another field, because making changes like these could jeopardize your ability to collect, or continue to collect, benefits under the terms of your policy. Further, it is important to understand how any limitations or exclusions in your policy may impact a claim based on a mental health condition before making a 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:

National Institute of Mental Health

Johns Hopkins Medicine

Mayo Clinic

[1] Robert E. Rada, DDS, MBA, Charmaine Johnson-Leong, BDS, MBA, Stress, burnout, anxiety and depression among dentists, Journal of the American Dental Association, Vol. 135, June 2004.

[2] Id.

 

Search Our Site

Insurance Company Tactics:
Selectively Reviewing Claim Files

Most disability insurance companies request medical records as part of the claim investigation, in order to verify the disabling condition. However, an insurer intent on denying a claim may improperly cherry-pick certain medical records and ignore other records.

One such egregious example is the case of Watson v. UnumProvident Corp.[1] Valerie Watson, a legal secretary, become disabled in 1998, primarily due to heart disease and cardiac arrest. She began receiving benefits from UnumProvident under her policy, which provided she was totally disabled if she was unable to perform her own occupation. Her doctor, cardiologist Dr. Larry Perry, provided regular certifications to support Watson’s claim that she was disabled.

In mid-2000, UnumProvident (Unum) conducted a review of Watson’s case and, as part of this review, requested medical records, including Dr. Perry’s. In response to Unum’s request, Dr. Perry’s office inadvertently returned records for a “Valerie Johnson” rather than the actual records for Watson.

Remarkably, Unum did not request the correct records; instead, Unum determined Watson was no longer totally disabled and terminated benefits in November 2000. As Watson’s disability policy was subject to ERISA, she appealed the decision to Unum, and Unum rejected the appeal and denied her claim a second time (again, without requesting and reviewing the correct medical records).

When Watson sued Unum for denying her claim, the Court found that Unum improperly based its decision on “scant” evidence. In response to Unum’s protests that it had conducted a full and fair review, the Court pointed to Unum’s repeated failure to notice the fact that Unum had the wrong medical records and held that “viewed in full context, Unum’s behavior in this case was far more than mere negligent inattention to its important procedural and substantive responsibilities . . . it bordered on outright fraud” (emphasis added). The judge held that Unum’s failure to notice the records were actually the records of another patient served as conclusive proof that Unum had engaged in “an unprincipled and unreasonably review process in which it demonstrably looked only at selective records.”

This instance shows despite having a supportive doctor and detailed medical records, an insurance company may still deny or terminate a claim by ignoring (or not even looking at) medical records.

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 claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Watson v. UnumProvident Corp., 185 F.Supp.2d 579 (D. Md. 2002)

Search Our Site

Unique Risk Factors in Dentistry

It is no secret that dentistry is hard work, and the unique physical demands of the profession can lead to health complications that may potentially result in a dentist having to leave his or her career earlier than anticipated and file a disability insurance claim. Top reasons for leaving dentistry include musculoskeletal disorders, cardiovascular disease, mental health symptoms (including anxiety and depression), tumors, and diseases of the nervous system.

At the top of the list are musculoskeletal disorders, which can include back pain, hand and wrist problems, and other related disorders. Signs and symptoms of musculoskeletal disorders include:

  • Loss of sensation;
  • Decreased range of motion;
  • Loss of coordination;
  • Loss of balance;
  • Tingling, burning or other pain in the extremities;
  • Numbness;
  • Weak grip or cramping hands; and
  • Clumsiness or dropping objects.

While each dentist’s symptoms and working conditions are unique, one study showed that 87.2% of dentists reported at least one symptom of musculoskeletal disease. While musculoskeletal conditions are common among dentists, they can also be among the hardest to prove up to insurance companies, due to the subjective nature of the many of the symptoms.

Below are some primary factors in the dentistry environment thought to contribute to musculoskeletal disorders:

  • Awkward postures increase stress on spinal disks and joints, especially when the back is bent or twisted during activities (compared to when the spine is straight).
  • Forceful exertions place a high load on muscles, tendons, ligaments, and joints.
  • Repetitive motions increase fatigue and muscle-tendon strain.
  • Extended duration increases the chances of both general and localized fatigue.
  • Contact stresses can create pressure on a specific part of the body, and inhibit blood flow and nerve function.
  • Vibrations may create change in the vascular, neural, and osteoarticular systems.
  • Psychosocial factors. Dentists with musculoskeletal conditions may also be more likely to have poorer psychosomatic health, and may be more likely to experience anxiety about hurting patients due to their limitations.

If you are considering filing a claim, an experienced disability insurance attorney can help you understand the terms of your policy and apply it to your particular situation.

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:

Anshul Gupta, et al., Ergonomics in Dentistry, International Journal of Clinical Pediatric Dentistry, 2014 Jan-Apr; 7(1): 30-34.

Jamshid Ayatollahi, et al., Occupational hazards to dental staff, Dental Research Journal, 2012 Jan-Mar; 9(1): 2-7.

 

Search Our Site

The Evolution of Disability Policies
Part 7: Financial Examinations

In Part 7 of our series on how disability insurance policies have evolved, we’ll be taking a look at provisions related to financial examinations.

Most older policies give the company the right to request financial information from you, and say something along the lines of:

The Company may require proof, including income tax returns, of the amount of Earned Income for Periods before and after the start of disability.

Newer policies contain additional language that allow companies to be much more aggressive in what they can request, and can include provisions like:

We have the right, at our expense, to analyze or require an analysis of all relevant financial and operational records, including Your personal, business and corporate federal and state tax returns, as often as We may reasonably require by a financial examiner of Our choice. Such assessments may include analysis of business, financial, and operational records for any business in which You have or may have an ownership interest. We can require that Your accounting practices be the same as those which were in effect at the time You first became Disabled.

(emphasis added).

Further, many policies now have language that a claim can be denied or terminated if the requested audit of financial information is not provided. These provisions can be particularly onerous for professionals, who often have complex financial structures in place. And while, in certain instances, financial information may be relevant to a disability claim, these sorts of requests are sometimes used to engage in unwarranted fishing expeditions and/or as a tactic to delay making a claims decision. Consequently, it is important for professionals to approach requests for financial information in an informed manner.

Every claim is different, and these are just some examples of financial examination provisions taken from different policies. Your policy may contain different and/or additional language that could impact your particular situation.  If you are unsure about the terms of your policy, or how a provision applies to your specific situation, you should contact an experienced disability insurance attorney.

Search Our Site

Insurance Company Tactics:
Ignoring Evidence

When investigating a claim, most insurers will request proof of disability in the form of medical records and/or certifications from an insured’s treating provider(s). They also may have their in-house doctors perform a medical records review or conduct an independent medical examination of the insured. When an insurer is intent on denying a claim, they may go to great lengths to seek out conflicting opinions in an effort to ignore evidence proving a disabling condition.

The case of Kenneth R. Omasta v. The Choices Benefit Plan illustrates how some insurers are willing to ignore relevant evidence of disability.[1]  Omasta, a vice-president in a high-stress job, worked for his company for 22 years before becoming permanently disabled due to cerebral vascular disease, neurological deficits, and musculoskeletal disease. He filed for long-term disability benefits through his employer-sponsored Reliance policy and submitted certifications from five medical providers (his physicians, psychologist, speech pathologist and chiropractor), along with statements from supervisors and co-workers verifying his disability.

Instead of fairly considering the information submitted, Reliance determined it was insufficient and required Omasta to undergo an IME. Reliance selected Dr. Weight, a psychologist, to perform the IME, and used the IME as a basis for denying the claim in spite of the fact that Omasta had submitted opinions from multiple providers supporting his disability claim.

Omasta later sued Reliance and the Utah District Court reversed the denial of Omasta’s benefits, finding that Reliance’s decision was arbitrary and capricious. In doing so, the Court observed “[t]here is no information that Dr. Weight is in any way qualified to diagnose neurological disease or its symptoms” and concluded that Dr. Weight’s “opinion regarding Plaintiff’s malingering is unsupported by any other information in the record, and is contradicted by the opinions of his doctors, his former supervisors and co-workers and his long and successful employment history.”

This case, while ultimately decided in favor of the insured, shows the length insurance companies will go to deny professionals’ claims by selectively ignoring reliable evidence and turning a blind eye to readily available information.

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 about how your claim is being administered, an experienced disability insurance attorney can help you assess your situation and determine what options, if any, are available

[1] Omasta v. The Choice Benefit Plan, et al., 352 F. Supp.2d 1201 (D. Utah 2004).

Search Our Site