“Do You Have a True ‘Own Occupation’ Policy?”

As a dentist, you probably have purchased at least one disability insurance policy, and you probably sought out “own occupation” coverage. However, in our experience, many dentists do not understand what their policy actually says or realize that there are several variations of “own occupation” policies. Additionally, many of the newer disability policies being sold to dentists have particular requirements and “rules” that must be followed in order to qualify for benefits.

Our latest article with Dentaltown Magazine discusses some of these pitfalls and explains why it is important to know what your policy says before filing a claim. Read the full article at Dentaltown today.

https://www.dentaltown.com/magazine/article/7481/do-you-have-a-true-own-occupation-policy

10 More Legal Mistakes Professionals Make When
Filing a Disability Claim (Mistake #1)

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 being actively engaged in the process of selecting your disability insurance coverage.

Mistake # 1: Blindly Relying on an Insurance Agent

Many professionals who are considering purchasing a disability insurance policy rely on an agent to find the right policy for them, often providing the agent with a vague, general objective like finding the “best” policy (or the “best” policy within the professional’s budget). In our experience, we’ve also found that it is common for professionals to go to an agent that a colleague recommended, and merely ask that agent to set them up with the “same” policy that their colleagues (e.g. the other doctors in their practice) have. Or, if the professional already has a policy, he or she may ask the agent to find them a policy that is the “same” as their existing policy.

This is problematic because there are no standard policies, and the differences between the multiple key provisions in policies are difficult to explain—even for an agent. Therefore, asking for the “same” coverage is often a request that is impossible for the agent to achieve. Additionally, while input from an agent can be helpful, insurance companies rarely provide agents with adequate training or information about a policy beyond what is necessary to sell it. As a result, agents are often unfamiliar with many of the complex terms in a policy, and the agent may not know how certain key provisions will play out during the claims process (which is understandable, as they typically just sell the policies and do not have legal experience filing claims or litigating these matters).

By design, insurance companies have now explicitly placed distance between themselves and their agents, for liability purposes. Most disability policies and policy applications now contain express language stating that agents cannot alter the terms of the policy, and disclaimers stating that the insurance company cannot be held liable for representations made by an agent. In the past, an agent’s representations could modify the policy under a legal principle called the “reasonable expectations doctrine,” so we would advice insureds to keep notes of any conversations with their agents (as well as any marketing materials). This legal doctrine is now largely obsolete given this new policy language limiting the insurance companies’ liability at the point of sale.

Action Step:  If you are considering purchasing a policy, do your own research and do not rely blindly on your agent to pick your policy for you. Do not accept coverage or pay premiums for a policy until you have thoroughly reviewed the policy.

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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Doctor Money Matters Podcast
Q & A with Ed Comitz, Esq.
What Every Physician Should Know About Disability Claims

Ed Comitz recently sat down with Dr. Tarang Patel, host of the popular Doctor Money Matters Podcast, to talk through some of the most common questions physicians have about filing disability claims, such as:

  • What should a physician look for in a disability policy?
  • How hard it is for a physician to collect disability benefits?
  • Do I need a lawyer to file a disability claim?
  • What is the disability claims process like?
  • If I have an “own occupation” policy, can I work in a different occupation and still collect disability benefits?
  • What are the most common pitfalls that lead to physician’s claims being denied?

Click here to listen to Part 1 of the Podcast: https://www.doctormoneymatters.com/episode44/ and here to listen to Part 2: https://www.doctormoneymatters.com/episode45/.

Episodes can also be accessed on www.drmoneymatters.com, and via iTunes, Google Play, Stitcher and other podcast platforms along with Facebook and YouTube.

 

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #2)

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 failing to carefully review your policy application.

Mistake # 2: Failing to Carefully Review Policy Applications

In many jurisdictions, the law allows insurance companies to void policies if the application for the policy contains a “misrepresentation.” Most people believe a “misrepresentation” means something akin to fraud, but now even an honest mistake can void coverage in some instances, depending on the jurisdiction. Most policy applications contain unclear, compound questions or ask for detailed medical information that may be difficult to recall on the spot, off the top of your head. Additionally, most companies also require applicants to sign a disclaimer stating that the applicant has thoroughly reviewed the application and all statements made in the policy application are true. In some cases, an agent may complete the application for the applicant, or the applicant may provide the answers to the application questions via a phone interview, further increasing the risk that an incorrect statement, omission, or misrepresentation will be inadvertently made during the application process. Accordingly, applicants should be very careful when completing policy applications, as an incorrect response to even a seemingly innocuous or unimportant question can be construed as a misrepresentation that could result in the limitation or loss of coverage.

Action Step: Rather than completing the policy application in your agent’s office, take the application home with you so that you can carefully complete, review, and sign it on your own. Then keep a copy of your application in an organized file, so you have a record of the answers you provided.

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 is the Effective Date of My Disability Policy?

The “effective date” of a policy is the day your policy becomes enforceable. While this may seem like a simple concept, it is not always as straightforward as you might think. Understanding the date your policy became effective may require you to read several different provisions together. Additionally, if you apply for benefit increases at a later date to increase your policy’s monthly benefit, this can further complicate matters because, depending on the terms of your policy, you can end up with multiple effective dates for the same policy (corresponding to each benefit increase to the base amount).

Here is an example of a provision defining the effective date of a policy (taken from an actual policy):

————————————————————————————————————————————

EFFECTIVE – Coverage is Effective when this Policy is issued and delivered to You provided the first full premium is then paid and all answers on the application are true and complete as if made at the time of delivery.

Coverage is Effective on the Issue Date if a premium was paid at the time of the application; the Conditional Advance Premium Receipt was given at that time; and this Policy was issued at standard rates exactly as applied for.

Additional coverages are Effective on the Monthly Anniversary on or after the date We issue the new Policy Specifications containing the coverage, subject to payment at the initial premium. If the initial premium is not paid when due, the coverage will be treated as never having been Effective and new Policy specifications will be issued showing this fact.

————————————————————————————————————————————

Under this provision, there are three possible effective dates. First, the policy’s coverage will be effective when the policy is issued and delivered, as long as the first premium was paid and the application was accurate when it was submitted.

However, the provision alternatively states that the policy can be effective on the “Issue Date.” In this scenario, the policy will be effective on the “Issue Date” if: (1) a premium was paid at the time the application was completed and submitted; (2) a receipt for this payment was given to the policyholder at that time; and (3) the rates in the policy are exactly what were applied for. But what is the “Issue Date?” This is also separately defined in the policy:

————————————————————————————————————————————

ISSUE DATE – The date the Policy Specifications are printed. Subsequent Policy Specifications carry their own Issue Dates.

————————————————————————————————————————————

Finally, if the policyholder purchases additional benefits after the original policy has been issued, there is a different effective date for this new coverage (i.e. additional coverages are effective on the “Monthly Anniversary” on or after the new policy specifications are issued, as long as the first premium is paid). This requires the policyholder to understand what “Monthly Anniversary” (another separately defined term) means:

————————————————————————————————————————————

MONTHLY ANNIVERSARY – [This date is] computed from the Policy Date shown in the Policy Specifications…. The Monthly Anniversary is the same date in each succeeding month as the Policy Date.

————————————————————————————————————————————

So, as you can see, under some policies, determining when your coverage becomes effective (and/or whether benefit increases apply to your claim) can be particularly complicated and depend on the particular facts at play. Disability insurance policies—particularly newer disability policies—are complex documents, and insurers often take advantage of this complexity when denying claims. If you are having difficulty understanding your policy’s provisions, an experienced disability insurance attorney can help you interpret confusing policy language and apply it to your particular situation.

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Disability Insurer Profiles: Unum

Unum, originally called Union Mutual, was founded in 1848. Over the years, Unum has merged with additional companies such as Colonial Life and Provident (which had acquired Paul Revere) to form one of the largest insurance companies in America.[1] In 2017, Unum’s total revenue reached $11.3 billion, with total assets of $64 billion.[2]

In 2004, Unum was the subject of a multistate market conduct examination which identified the following inappropriate claims handling practices: (1) excessive reliance on in-house medical staff; (2) unfair evaluation of attending medical examiner notes; (3) failure to evaluate the totality of the claimant’s medical condition; and (4) an inappropriate burden placed on the claimants to justify eligibility for benefits. Following the 2004 investigation, Unum was required to reform its claims practices and pay a fine of $15 million. Unum was also required to reassess certain denied claims stretching over a seven year period. It is estimated that compliance with the settlement cost Unum around $120 million.[3]

If you are a dentist or physician with a Unum policy and are thinking about filing a disability claim, you should be prepared for an in-depth evaluation of your occupational duties. When a disability claim is filed by a professional, the amount of money at stake is significant. One way for the companies to save money is to deny the claim. Another is to maintain that the claim is not a “total disability” claim, but rather a “residual disability” claim, so they only have to pay a fraction of the full monthly benefit amount.

Whether a claim is a “total” or “residual” disability claim often come down to how the duties of your pre-disability occupation are defined in the context of your claim. Then, the insurer assesses whether it can argue that you can still perform any of those duties, taking into account what your medical records report regarding your limitations and any post-disability job or volunteer activities you may be engaging in. Even if your policy allows you to work in another occupation and still collect benefits, the insurance company may argue that your new job has overlapping job duties with your prior occupation, and therefore you are only partially disabled.

For example, in Ogborne v. Unum[4], a dentist filed a disability claim with Unum after suffering a ligament injury to his right index finger. His doctors told him that his injury would be slow healing, and eventually told him that his injury was permanent. Unum denied his claim, stating that he had given untimely notice of the claim and that the dentist was not “totally disabled” because his particular injury only prevented him from performing “two types of procedures.” Unum also relied on the fact that the dentist had returned to work and was making more money than he had before the injury.

The dentist sued to challenge the denial, and the court determined that Unum was improperly interpreting the definition of “total disability” under the policy, which defined “total disability” as “the inability of the Insured to perform the duties of his regular occupation.” The court observed that “[t]his definition is susceptible to two different, yet reasonable, interpretations: namely, that the insured is totally disabled if he cannot perform either more than one of his pre-injury duties or all such duties.” Then the court determined that the ambiguous language should be construed against Unum, as the drafter of the contract.

Next, the court determined that the dentist had, in fact, produced evidence demonstrating that he was unable to perform several of the duties of dentistry, including root canals, periodontal work, and root scaling. Ultimately, the court ordered Unum to overturn the denial, but it took several years and a favorable decision from a judge to get Unum to pay benefits.[5]

These are just a few examples of things to be aware of if you have a Unum policy or claim with Unum. Unum policies are not all identical, and they are updated frequently. Your policy may or may not include the provisions mentioned above. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.

 

[1] https://www.unum.com/about/corporate/history.

[2] https://investors.unum.com/Cache/1001235181.PDF?O=PDF&T=&Y=&D=&FID=1001235181&iid=103324.

[3] https://www.insurancejournal.com/news/national/2004/11/18/47854.htm.

[4] Ogborne v. UNUM Life Ins. Co. of Am., No. 3:04CV7231, 2006 WL 2505905, at *2 (N.D. Ohio Aug. 28, 2006).

[5] It should be noted that this particular case was also decided under Ohio law. As the law regarding how disability policies are interpreted varies from state to state, this case could have come out differently in a different jurisdiction.

 

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #3)

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 the common mistake of failing to watch out for the limitation provisions that insurance companies are adding to newer disability policies.

Mistake # 3:  Failing to Understand the Limitations in Newer Disability Policies

Professionals should carefully review their policies to make sure they understand the scope of coverage provided. An important consideration in evaluating a new policy now involves whether it imposes conditions on eligibility for benefits that conflict with those imposed by an existing policy. For instance, one policy may only pay total disability benefits if an insured is unable to work in his prior occupation and is working in another occupation (an “own-occupation” policy with a “work” provision), whereas another policy may provide benefits only if the insured is not working in another occupation (an “own-occupation” policy with a “no work” provision). Thus, if you are not careful and intimately familiar with the terms of your existing policy or policies, you can end up purchasing a new policy (and paying years of premiums) for coverage that is essentially worthless (because it is impossible to collect benefits under both policies at the same time). Some policies even have “offset” provisions that deduct the amount of benefits you receive if you receive disability insurance benefits from other sources.

It is also important to take note of limitations or exclusions in the policy that may limit recovery for certain conditions. Many policies contain limitations on benefits for disability caused by a mental illness or an illness with largely subjective symptoms that cannot be verified with objective testing. Other policies that provide for lifetime benefits may permit lifetime recovery for disabilities caused by “injury,” but place a limitation on disabilities caused by “illness or disease.”

Action Step:  When you receive the full policy, read it cover to cover and make sure you are aware of all of its terms, conditions, and limitations.

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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Disability Insurer Profiles: Standard

Standard Insurance Company (also branded as “The Standard”) is one of the largest disability insurance companies in operation, with over $4.3 billion collected annually from premiums.[1]

If you have a Standard policy, you will want to pay close attention to how disability is defined under the policy, as Standard policies can contain provisions that shift from “own occupation” coverage to “any occupation” coverage after a certain period of time.[2] Because of this, Standard will sometimes approve a claim initially, but then reassess and terminate the claim when the more stringent “any occupation” provisions kicks-in later on.

For example, in Pringle v. Standard Insurance Company, Standard initially found the claimant to be disabled due to bilateral shoulder pain, bilateral knee pain, and numbness in his legs, feet and toes. Later on, after the “any occupation” definition replaced the “own occupation” definition of disability, Standard terminated the claim (and subsequently denied the claimant’s appeal of the claim termination) even though the claimant’s treating physicians had all opined that he could not work.

In support of its termination decision in Pringle, Standard relied on memos produced by its physician consultants after file reviews of the medical records. Notably, while other companies often only have one doctor conduct a file review of the record when evaluating whether to deny a claim, Standard in this case paid three doctors of various specialties to review the record and author peer review reports. Accordingly, if you have a Standard policy, it is important that you have supportive doctors and accurate and up-to-date medical records that support your claim, because you may have to go up against multiple physician reports if your claim is denied.

Another tool that Standard uses is the peer-to-peer call, where it assigns a doctor to contact your treating physicians to discuss your claim. This can be problematic, because the doctors hired by Standard (and other insurers) are often adept at asking trick questions, and don’t always explain the significance of how key terms like “own occupation” or “total disability” are defined in your particular claim. After the call, the insurance company’s doctor will typically prepare a letter “summarizing” the call in a way that favors the insurance company, in the hopes that your doctor (who is likely very busy) signs off on it without reading it carefully.

In the Pringle case, mentioned above, Standard’s doctor conducted this sort of call and the follow-up letter to the primary care doctor stated, in part, “you indicated the claimant was a ‘muscular guy’ and that, from your perspective, the claimant could function at a sedentary capacity as people in wheelchairs and who have had amputations are capable of working at a sedentary capacity.” According to the case record, the primary care doctor ended up signing off on this statement, even though it is arguably inconsistent with what the primary care doctor stated in his prior records and opinions (raising the question of whether he, in fact, read it before signing and sending it back to Standard). Ultimately, in Pringle, the court reversed the termination and required Standard to pay back benefits, but it took several years of costly litigation in order to get the denial reversed and the benefits reinstated.

These are just a few examples of things to be aware of if you have a Standard policy or claim with Standard. Standard policies are not all identical, and they are updated frequently. Your policy may or may not include the provisions mentioned above. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.

[1] https://www.standard.com/sites/default/files/2017annual_statement_sic.pdf.

[2] See, e.g., Pringle v. Standard Ins. Co., No. 3:18-CV-05025-RBL, 2019 WL 912297 (W.D. Wash. Feb. 25, 2019).

 

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The Importance of Reading Your Policy

In previous posts, we have discussed why it is important for professionals to be actively engaged in choosing their disability policies. While agents can provide helpful advice, it is ultimately your financial well-being on the line, and ultimately up to you to review your policy, become familiar with the provisions of the policy, and confirm that you are paying for the coverage that you expected to receive.

The case of Jacobs v. Chadbourne[1] illustrates the importance of reading your policy. In Jacobs v. Chadbourne, Gene Jacobs purchased disability insurance from Unum through the services of an independent broker. Two years later in 1988, Jacobs asked his broker about adding lifetime coverage to his policy, and Unum issued Jacobs a “Lifetime Total Disability Benefit Rider.” This rider stated that Unum would pay benefits if Jacobs’ disability begins before age 65 and continues until age 65. However, Jacobs was reportedly unaware at the time that this rider also stated that his maximum monthly insurance benefit would decrease 10% for each year after age 55 and until age 65.

In 2003, Jacobs called Unum to confirm his benefits in his disability policy. Unum faxed a letter outlining Jacobs’ benefits, which provided the policy’s issue date, the monthly premium, and the maximum monthly benefit. Notably, this letter did not mention the lifetime rider or the 10% reductions described in that rider.

In 2011, Jacobs submitted a claim for total disability benefits based on a date of disability at age 64. Unum accepted his claim and began paying benefits to him, which were subsequently reduced because of the restrictions in the lifetime rider. Jacobs sued Unum and his broker (Chadbourne) for their failure to mention the lifetime rider’s restrictions in the 2003 letter, and argued that he should be entitled to 100% of the benefit amount because he didn’t know about the percentage reductions outlined in the rider.

The Court held that, because Jacobs had the policy and lifetime rider in his possession, he was responsible for knowing the contents of his policy. The Court also found that Unum and Chadbourne had not misrepresented his coverage amounts or otherwise perpetrated fraud or injustice in the 2003 letter.  Even though his broker had failed to explain the lifetime rider’s restrictions when Jacobs first purchased the coverage in 1988, and even though Unum had failed to even mention the lifetime rider when Jacobs asked about the benefits in his policy in 2003, the Court determined that Jacobs should not be rewarded for failing to read his policy.

This case highlights the importance of reading your policy and fully understanding its provisions.  Oftentimes, marketing materials and policy summary sheets only outline the benefits of the policy, and you have to read the fine print to have a full understanding of the limitations of the policy. If you are considering purchasing a policy, you should not accept coverage or pay premiums for a policy until you have thoroughly reviewed and understand what you are paying for.

[1] Jacobs v. Chadbourne, No. 17-12868, 2018 WL 2068648 (11th Cir. May 3, 2018).

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10 More Legal Mistakes Professionals Make When
Filing a Claim for Disability (Mistake #4)

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 assuming you have a true “own occupation” policy, when in fact you have one of the new “own occupation” provisions that limit coverage and/or makes it harder for you to collect benefits.

Mistake # 4: Mistakenly Believing that They Have a True “Own Occupation” Policy

Most professionals know that they should purchase an “own occupation” policy that provides benefits if they are no longer able to practice their profession. In the past, these policies all contained virtually the same language, so it was easy for the agent to explain the coverage. What professionals don’t realize is that there are now several iterations of “own occupation” provisions and the differences are difficult to explain. Regardless, insurers market all of these as “own occupation” policies because they know that professionals are just looking for these two magic words. Unfortunately, the new policy variations typically contain additional requirements and limitations that restrict coverage and/or make it much more difficult to collect.

A true “own occupation” policy pays benefits if you cannot perform at least one of the material and substantial duties of your occupation and allows you to work in another occupation (that does not have any overlapping duties with your previous occupation). Under these policies, the insured is essentially allowed to “double-dip”—collect benefits under their policy and collect earnings from another occupation. These provisions used to be commonplace in the industry, but now you will likely need to specifically ask your agent for this type of coverage, and you may need to look into policies offered by multiple insurance companies before you find a true own occupation provision.

Some of the more common limitations and restrictions that are included in the new “own occupation” policies include: (1) “no work” provisions that only allow a claimant to collect benefits if he or she is not working in any capacity; (2) “work” provisions that require a claimant to be working in a new occupation before he or she can collect benefits; (3) provisions that offset the monthly benefit based upon the amount of income a claimant earns working in a new occupation; (4) provisions that require a claimant to prove that he or she is unable to perform all of the duties of his or her occupation; (5) provisions that require a claimant to prove that there are no workplace modifications that exist that would allow him or her to perform his or her prior occupation; and (6) provisions that initially provide “own occupation” coverage, but after a certain time frame (usually somewhere between 2 to 5 years) shift to an “any occupation” provision that only pays benefits if the claimant can demonstrate that he or she is unable to work at all, in any capacity, and allows the company to terminate benefits if they think the claimant could be working (even if the claimant is not actually working at the time).

Many of the professionals we consult with checked “own occupation” on their policy application but didn’t bother to read their full policy when it arrived, assuming that it contained true own occupation language. They are then surprised to learn that, upon closer inspection, although their policy contains the phrase “own occupation,” the policy that they have been paying premiums on for years does not actually provide true own occupation coverage.

Action Step:  Read your policy carefully and fully understand the definition of total disability before filing a 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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Disability Insurer Profiles: Mutual of Omaha

Mutual of Omaha (also known as United of Omaha Life Insurance) was founded in 1909 and is now one of the largest insurance carriers in the United States, with an operating income of $554.8 million and revenues of $8.7 billion in 2017.[1]

If you have a claim with Mutual of Omaha, you may be asked to produce “objective” evidence of your disability.  Sometimes, this is an express requirement of the policy. In other instances it is simply a question asked on the claim forms (for example, an attending physician statement). Or sometimes it is question asked in a peer-to-peer call from the insurance company’s doctor to your doctor. Regardless of how it comes up, characterizing a claim as being based on purely “subjective” reports (as opposed to being based on “objective” evidence) is a common tactic that Mutual of Omaha (and other insurance companies) use to deny and terminate claims.

For example, in Schatz v. Mutual of Omaha[2], a nurse filed a disability claim due to chronic back pain. Notably, at the time she filed for disability, the nurse was working as a medical review nurse for Mutual of Omaha. Nevertheless, Mutual of Omaha denied her claim and refused to pay her benefits under her policy.

In fact, when the nurse sued Mutual of Omaha to challenge the denial, the fact that she worked for Mutual of Omaha ended up hurting her case, to some extent, because the court assumed that Mutual of Omaha understood her particular job duties. Consequently, the court excused Mutual of Omaha’s failure to conduct a detailed inquiry into the physical demands of her position—an omission that otherwise may have proved significant.

In addition, Mutual of Omaha claimed that the nurse’s medical records were not “consistent” or “conclusive,” pointing to a statement from the nurse’s long-time treating physician stating that his opinion that she should not work was not based on “some new objective finding” but was based on the nurse’s reports that “she couldn’t tolerate the pain, that she couldn’t do it and it wasn’t getting better.”

Similarly, the physician selected to perform an independent medical exam stated that, although the nurse reported “multiple subjective complaints,” the physical exam was “essentially normal.” In light of these statements, the court ultimately held that Mutual of Omaha’s denial of benefit was proper, under an abuse of discretion standard.

These are just a few examples of things to be aware of if you have a Mutual of Omaha policy or claim with Mutual of Omaha. Mutual of Omaha policies are not all identical, and they are updated frequently. Your policy may or may not include the provisions mentioned above. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.

 

[1] https://www.mutualofomaha.com/our-story/newsroom/article/mutual-of-omaha-reports-2017-financial-results.

[2] Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944 (8th Cir. 2000).

 

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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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Disability Insurer Profiles: MetLife

Metropolitan Life Insurance Company, or MetLife, is one of the largest insurance providers in the world. Originally founded in 1868, the company now employees almost 50,000 people, services over forty national markets, and reported $22.925 billion in revenue from premiums alone in 2017.[1] MetLife discontinued the sale of individual disability policies in March 2017 and now only sells group policies.[2]

If you have a MetLife policy and are considering filing a claim, it is important to recognize that a disability claim is an ongoing evaluation. Even if your claim is initially approved, the disability company has a right under most disability policies to continuously re-assess whether you remain “totally disabled.” Given the amount of money on the line, MetLife (like other insurance companies) will typically review its claims periodically, to see if there is any basis to terminate benefits. This can be problematic for physicians and dentists who are not anticipating this degree of ongoing scrutiny, and have not taken the time to understand how their policy works.

One common mistake that physicians and dentists make is going back to work in a new job, without understanding how that will impact their claim. For example, in Abena v. MetLife[3], a dentist filed a disability claim due to pain and numbness in his hands and arms. MetLife initially approved his claim, but roughly a year after his disability date, MetLife learned that the dentist has started a new job as the director of the dental clinic at a university.

MetLife investigated the new position, and determined that the job responsibilities of the clinic director at that particular university included providing direct patient care, which MetLife maintained was inconsistent with the dentist’s disability claim. Next, MetLife hired an investigator to conduct surveillance of the dentist over a three day period, and concluded that the dentist was able to engage in a variety of daily activities and tasks without any apparent limitations or problems. Finally, MetLife hired a doctor to review the dentist’s medical records, and the consultant doctor determined that the dentist had no physical impairments that would preclude him from practicing dentistry.

At this point, MetLife terminated the dentist’s claim. The dentist appealed, but MetLife upheld its decision on appeal. The dentist eventually sued MetLife, but did not file the lawsuit until three years after the MetLife’s decision to uphold the termination. Because the dentist waited too long to file the lawsuit, the court dismissed the lawsuit without even considering whether the termination was improper.

These are just a few examples of things to be aware of if you have a MetLife policy or claim with MetLife. MetLife policies are not all identical and they are updated frequently. Your policy may or may not include the provisions mentioned above. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim. And if your claim has been denied or terminated, you should talk with an attorney as soon as possible, to ensure that you do not forfeit your right to challenge the insurance company’s decision.

[1] https://investor.metlife.com/node/30501/html.

[2] https://www.metlife.com/support-and-manage/current-customers/individual-disability-insurance/.

[3] Abena v. Metro. Life Ins. Co., No. 06-C-495, 2007 WL 1575354, at *1 (E.D. Wis. May 29, 2007), aff’d, 544 F.3d 880 (7th Cir. 2008).

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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