Can You Remain Anonymous in a Lawsuit Against Your Insurer?

If your disability claim has been denied or your disability benefits have been terminated, you may be considering filing a lawsuit against your disability insurer, and may be wondering if you have to publicly disclose your name and medical condition in order to so. You may be concerned that filing a lawsuit disclosing your condition could prompt future potential employers to decide not to hire you, in the event that you recover and seek to return to work in your profession. And if your disabling condition is a mental condition, you may (understandably) simply be concerned about the details of your condition being shared with strangers in a public forum.

While, ultimately, whether or not you can remain anonymous in a lawsuit will depend on the particular law of your jurisdiction, a recent case involving Unum suggests that if an insurance company can force you to disclose your name in court filings, it will, even if there is no real basis for doing so (other than, of course, to cause you embarrassment, in the hopes that you will drop your case.

In A.G. v. Unum Life Ins. Co.[1], the claimant worked at a well-known, national law firm prior to her disability. She suffered from a mental health condition and was concerned that publicly disclosing this in court filings could deter law firms from hiring her in the future, should she recover from her condition and attempt to return to work. Because of this, she simply used her initials when she filed her case, and didn’t disclose her full name. In response, Unum filed a motion asking the court to compel her to disclose her full name in the publicly filed court documents.

Because the case was filed in Oregon, the Court applied the Ninth Circuit’s multi-factor test for determining whether a claimant can proceed anonymously. Prior cases applying this test had essentially determined that, in order to proceed anonymously, the claimant had to show a reasonable fear of physical harm. In light of these cases, the Court felt it had no choice but to require A.G. to disclose her name, because (among other things) the harm that she feared was economic and emotional, not physical.

What is perhaps more significant about this case is the fact that the Court also found that Unum failed to show that it would have suffered any prejudice to its case if A.G. had been allowed to stay anonymous. The Court pointed out that Unum obviously already knew A.G.’s full name from the claim forms and medical records that already existed in Unum’s file, and concluded that Unum had made “no showing that [A.G.] proceeding by initials impairs its ability to defend against the allegations.”

Unfortunately, for A.G., this ultimately didn’t matter much, because under the Ninth Circuit’s test, the party wishing to remain anonymous had the burden of proving that the risk of harm was substantial (in addition to showing that the prejudice to the other party was outweighed by this risk). So, in the end, A.G. had to face the unenviable choice of either disclosing her condition publicly or dropping her claim against Unum.

Situations like this are, unfortunately, not uncommon. Insurance companies view claims (and related litigation) as a war of attrition. They know that they have more time, money and industry knowledge than most insureds (particularly insureds who are not represented by counsel) and they also know that there is a social stigma that surrounds mental health diagnoses that can be used to their advantage. For this reason, many insurers aggressively target mental health claims or claimants who are well-known in the community (such as physicians, dentists, and lawyers) because they know that some claimants will choose to drop their claim (or settle for substantially less then they are entitled to) when faced with the prospect of having their mental or physical health publicly disclosed in court proceedings or at trial.

[1] A.G. v. Unum Life Ins. Co., No. 3:17-CV-01414-HZ, 2018 WL 903463 (D. Or. Feb. 14, 2018).

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Do You Have the “Own Occupation” Coverage
You Think You Have?

Most physicians and dentists know that they should purchase an “own occupation” policy that provides benefits if they are no longer able to practice in their profession. True own occupation policies pay benefits if the insured cannot perform at least one of the material and substantial duties of his or her occupation. Some policies are also specialty-specific and further define “occupation” as the dentist or physician’s specialty.

While true own occupation and specialty-specific policies were commonplace in older policies, newer policies are substantially different across the board. Over time, insurance companies have come up with several variations of the “own occupation” provision and these new provisions typically contain additional requirements and limitations that restrict coverage and/or make it much more difficult for professionals to prove they are totally disabled and collect benefits.

This is something that not always apparent from the marketing and application materials provided when you are purchasing the policy. For example, a physician quickly reviewing a policy application may check the box for the “medical occupation definition of total disability” rider because it sounds like what he or she would want if he or she could no longer practice. It’s likely that the physician would just assume that this option is the equivalent of the true own occupation policy described above, and move on to the next part of the form without a second thought. However, if the physician never reviews the subsequently issued policy, he or she may be in for a surprise if the need to file a claim arises.

Here’s an example of what you could get if you ask for a “medical occupation definition of total disability option” (taken from an actual policy):

(Click here for a larger view.)

In addition this being a particularly confusing, complex total disability definition, this rider would also cost you higher premiums, without providing the coverage that you likely wanted.

It is therefore very important to review your policy when it is issued, to ensure you have a complete and accurate understanding of the coverage that you are paying thousands (upon thousands) of dollars in premiums for, so that you have the coverage you need, if/when you need it.

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How Far Will Insurers Go To Offset Your Benefits?

We have previously discussed benefit offsets, which are provisions in policies that permit the insurer to reduce the amount of your monthly benefits if you are receiving income from certain sources (listed in the policy). While you may be aware that these provisions exist, you may be shocked by how far some insurers are willing to go to reduce benefits.

In the case of Rustad-Link v. Unum[1], Dawn Rustad-Link suffered a below-the-knee amputation after receiving negligent medical care. In addition, she had been diagnosed with multiple sclerosis (MS) several years earlier. Accordingly, she filed for disability benefits under her Unum policy.

At the outset of Rustad-Link’s claim, Unum determined that her MS was the primary disabling condition, and asserted that she had to wait 12 months to receive benefits, because the MS was a pre-existing condition.

Later on in the claim, Rustad-Link received a medical malpractice settlement (in connection with the below-the-knee amputation). When Unum learned about the settlement, it changed it’s prior assessment, determined that the amputation (not the MS) was the primary disabling condition, and asserted that, because of this, they were entitled to offset any income she received as a result of the amputation (i.e. the medical malpractice settlement). Significantly, when asked to assess the situation, Unum’s own in-house attorneys concluded that the settlement proceeds did not qualify as an offset; however, Unum’s “Financial Recovery Unit” ignored this, and continued its efforts to apply and enforce the offset. Unum then claimed that it had overpaid roughly $47,000 in benefits, and informed Rustad-Link that, moving forward, it would be reducing her benefits each month by roughly $2,000 until this amount was repaid to Unum (resulting in a remaining monthly benefit of only $115). Rustad-Link then filed suit to contest Unum’s determination.

Fortunately, the Court saw through Unum’s efforts to improperly apply the offset and concluded that Unum’s interpretation of the policy was “impermissibly self-serving.” In reviewing the record, the Court noted that Unum did not change its assessment until after it learned of the medical malpractice settlement, and concluded that the only purpose behind this change was “to take advantage of the settlement by treating the entirety of her misfortune as income.”

Although, in the end, Rustad-Link was able to avoid an offset, this case highlights the fact that insurance companies are financially motivated to deny and/or reduce your disability benefits, and illustrates how far insurance companies are willing to go to apply an offset. This case also shows that, while many juries have awarded damages and regulators have imposed fines in an effort to deter to bad faith conduct, Unum (and other insurance companies) continue to take aggressive and unreasonable positions in order to benefit their bottom-lines.

[1] Rustad-Link v. Providence Health & Serv., No. CV 16-136-M-DWM, 2018 WL 651833 (D. Mont. Jan. 31, 2018).

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Do You Have A Specialty-Specific Policy?

Your ability to collect benefits under your insurance policy depends first and foremost on how “total disability” is defined under your policy. As we have previously discussed, if you are a professional choosing a policy, you will want to look for a policy that defines “total disability” in terms of your inability to perform your “own occupation,” and you will want to be sure to look for a true “own-occupation” policy.

While most professionals are aware of the importance of seeking out an “own-occupation” policy, you may not be aware that insurance companies also offer specialty-specific own occupation policies that are tailored to physicians and dentists who are specialists. These policies have a more precise definition of “total disability” that requires the insurance company to not only consider your occupation, but also your specialty when assessing eligibility for benefits.

Here’s a few examples of what these specialty-specific policies look like:

Oftentimes, the premiums charged for these types of policies are higher than other policies, but if you end up needing to file a claim down the road, and you are a physician or dentist with a board recognized specialty, this type of “total disability” provision can help ensure that your specialty (and corresponding job duties) are given proper weight. If you have a specialty-specific definition, and your insurance company is not taking into consideration the unique demands and duties of your specialty, you should contact an experienced disability insurance attorney and he or she can ensure that this important provision is enforced.

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What is an EMG?

Most people are familiar with CAT scans or MRIs.  EMG tests are another diagnostic tool that are, perhaps, not as well known.

What Is An EMG/NCS?

EMGs and Nerve Conduction Studies (NCSs) are diagnostic procedures that are often done at the same time and are used to assess the health of the muscles and the nerve cells (motor neurons) that control them. Because motor neurons transmit electrical signals that cause muscles to contract, an EMG can record these and turn the signals into sounds, graphs, or numerical values to be interpreted.

During an EMG, a needled electrode is inserted into a muscle to record the electrical activity.  The activity is recorded muscle during rest, slight contraction, and forceful contraction.  This data used to help detect any neuromuscular abnormalities.

In a NCS, electrodes are taped to the skin and the speed and strength of signals between two points is measured. When a signal travels at a slower rate that it should, the nerve may be damaged.

Why Might Your Doctor Order An EMG/ NCS?

Typically, these tests are used to diagnose a nerve or muscle disorder, so a doctor may order them if he/she is looking for an explanation for the following:

What Are EMGs Used For?

They are used, in connection with other tests, to diagnose or rule out muscle disorders, nerve disorders, or disorders affecting the connection between the two, including:

While who is authorized to perform EMGs varies by state, EMGs/NCSs are typically performed by a specialist or a specially trained physician, usually a neurologist, qualified to interpret the data.

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:

Mayoclinic.com
Webmd.com
Healthline.com
Providence.org

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Edward O. Comitz and Michael F. Beethe Named Southwest Super Lawyers for 2018

Ed Comitz and Mike Beethe, the founding members of the firm, have both been named Southwest Super Lawyers for 2018.  This is the seventh consecutive year that Mr. Comitz and Mr. Beethe have been recognized by Super Lawyers for excellence in their fields, insurance coverage and real estate, respectively.

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

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Can You Sue Your Insurance Company for Invasion of Privacy?

We’ve talked before about how insurers often hire private investigators to follow and investigate claimants.  While the purported goal is to find claimants who are “scamming the system” and faking a disability, investigators often employ invasive tactics in their attempts to gather videos and other information requested by insurers.

Unfortunately, all too often investigators go too far and claimants feel threatened or endangered by these investigators’ actions. The question then arises–at what point do insurance companies become legally liable for the actions of investigators that they hired?  Can you sue your insurance company for invasion of privacy?

At least one court thinks so. In Dishman v. Unum Life Insurance Company of America, 269 F.3d 974 (9th Cir. 2001), the Court agreed with Dishman that he could sue Unum for tortious invasion of privacy committed by investigative firms hired by Unum. In this case, the investigative firms in question aggressively attempted to find out employment information on Dishman by (1) falsely claiming to be a bank loan officer; (2) telling neighbors and acquaintances that Dishman had volunteered to coach a basketball team and using that as a pretext to request background information about Dishman; (3) successfully obtaining personal credit card information and travel itineraries by impersonating Dishman; (4) falsely identifying themselves when they were caught photographing Dishman’s residence; and (5) repeatedly calling Dishman’s house and either hanging up or harassing the person who answered for information about Dishman.

Because the underlying Unum disability insurance policy was an ERISA policy, the Court assessed whether Dishman’s invasion of privacy claim (which was based on California law) was precluded by statutory language which states that ERISA “shall supersede any and all state laws insofar as they . . . relate to any employee benefit plan.” 29 U.S.C. Sec. 1144 (a).  The Court, in its decision, went on to discuss a lack of consensus on this issue, but ultimately ruled that, in this particular instance, “[t]hough there is clearly some relationship between the conduct alleged and the administration of the plan, it is not enough of a relationship to warrant preemption” of state tort law, because Dishman’s “damages for invasion of privacy remain whether or not Unum ultimately pays his claim.” In other words, the Court explained, ERISA law does not provide Unum with blanket immunity for “garden variety tort[s] which only peripherally impact plan administration.”

It should be noted the Court in Dishman cautioned that there is no consensus regarding how far ERISA reaches, and not every disability is governed by ERISA, so not every court will necessarily reach the same conclusion as the Dishman court. This is a complicated area of the law, and whether or not you can sue your insurer for invasion of privacy will largely depend on the facts of the case, the type of policy you have, whether your jurisdiction recognizes an “invasion of privacy” cause of action, and the existing case law in your jurisdiction.

Information offered purely for general informational purposes and not intended to create an attorney-client relationship.  Anyone reading this post should not act on any information contained herein without seeking professional counsel from an attorney.

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Cubital Tunnel Syndrome

In previous posts, we’ve discussed several chronic conditions that can affect dentists in particular, as their jobs require them to hold unnatural, static positions for extended periods of time while continuously gripping instruments. This puts tremendous stress on their musculoskeletal systems, especially their hands, and this is, in part, why dentists experience nearly four times the prevalence of hand, wrist and arm pain found in the general public.

While most dentists and surgeons are likely familiar with carpal tunnel syndrome, there are other conditions affecting the hands that can be just as debilitating. In this post we will examine the causes, diagnosis, symptoms, and treatment of cubital tunnel syndrome, a similar condition that arises from nerve impingement at the elbow.

Overview

Cubital tunnel syndrome is a condition that involves pressure or stretching of the ulnar nerve (also known as the “funny bone” nerve) that runs in a groove on the inner side of the elbow. This can cause numbness or tingling in the ring and small fingers, pain in the forearm, and/or weakness in the hand. Those suffering from cubital tunnel syndrome can find it difficult or impossible to function with the same level of dexterity that they used to have.

Causes

Cubital tunnel syndrome occurs when the ulnar nerve becomes compressed or irritated at the elbow, but the exact cause of this is often unknown. There are several factors that can lead to nerve irritation such as:

  • Keeping your elbow bent for long periods of time
  • Repeatedly bending your elbow
  • Leaning on your elbow for long periods of time
  • Repetitive activities that require the elbow to be flexed
  • Prior fractures or dislocations of the elbow

Diagnosis

In order to diagnose cubital tunnel syndrome, a physician will perform a medical history review and physical examination. The examination will include an evaluation of the sensation of the hand and fingers as well as a test of your elbow reflex. Additional screening may be required, including:

  • X-rays: to check for bone spurs, arthritis, or other places that the bone may be compressing the nerve
  • Nerve conduction studies: to determine how well the nerve is working and to help identify where it is being compressed
  • Electromyogram: a test that measures the electrical discharges produced in the muscles

Symptoms

Generalized symptoms of cubital tunnel syndrome include:

  • Numbness and tingling in the ring finger and pinky finger, usually occurring when the elbow is bent (such as when driving or holding a phone)
  • Feeling of pins and needles or the feeling of the hand “falling asleep” in the ring and pinky finger
  • Weakening of the grip and difficulty with finger coordination, especially when manipulating objects

Severe symptoms can include:

  • Weakness in the ring and little fingers
  • Decreased hand grip
  • Muscle wasting in the hand
  • Curling up of the pinky and ring finger along with pain, or a claw-like deformity of the hand

Treatment

Mild symptoms of cubital tunnel syndrome can be managed with home remedies such as:

  • Avoiding activities that require you to keep your arm bent for long periods of time
  • Avoiding leaning on your elbow or putting pressure on the inside of your arm
  • Keeping your elbow straight at night when sleeping by wrapping a towel around your elbow or wearing an elbow pad backwards
  • Performing nerve gliding exercise

More severe cases of cubital tunnel syndrome may require medical interventions such as:

  • Use of non-steroidal anti-inflammatory drugs (NSAIDs) to reduce swelling around the nerve
  • Use of corticosteroids
  • Bracing or splinting
  • Surgery to increase the size of the cubital tunnel or to transpose the nerve in order to relieve the pressure

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:

American Society for Surgery of the Hand, http://www.assh.org

American Academy of Orthopaedic Surgeons, https://orthoinfo.aaos.org/

Mayo Clinic, www.mayoclinic.org

WebMD, www.webmd.com

Healthline, www.healthline.com

Dental Products Report, dentalproductsreport.com

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Multiple Sclerosis

Multiple sclerosis (MS) is a disease of the central nervous system, which is made up of the brain, spinal cord, and optic nerves. It’s estimated that 2.3 million people worldwide have MS.  In this post we’ll examine the symptoms, causes, diagnosis, and treatment of this disease.

Overview

With MS, the immune system begins to attack the protective sheath, called myelin, that covers the nerve fibers.  The result is faulty communication between the brain and the rest of the body.  The disease may eventually cause the nerves deteriorate and they may even become irreversibly damaged.

The symptoms experienced and the rate of progression and severity of the disease will vary greatly from person to person.  Some individuals may have a very minor form of MS, while others will go on to become paralyzed, or, in rare instances, have a potentially fatal form that progresses rapidly from onset.

MS has several difference courses, in terms of how the disease progresses:

Relapse-Remitting MS: Most people with MS experience times of new symptoms, or relapses, that develop in a relatively short period of time followed by periods remission where there are few or no symptoms.

Secondary-Progressive MS: About 60 to 70% of people with relapse-remitting MS type will go on to experience a steady progression of symptoms.

Primary-Progressive MS: Some individuals have a gradual onset and progression of symptoms without relapses.

Benign MS: MS is considered benign if the individual has no relapses and a mild, stable disability after about 15 years from the time of diagnosis.

Symptoms 

Because MS attacks the central nervous systems, a wide range of symptoms in nearly any function can occur.  Symptoms will also vary in type and severity from one person to another.  Symptoms can resolve, come and go, or be permanent. Common symptoms include:

  • Blurred vision
  • Partial or complete loss of vision
  • Loss of balance
  • Poor coordination
  • Dizziness or vertigo
  • Slurred speech
  • Tremors
  • Tingling
  • Electric shock sensations
  • Numbness or weakness
  • Extreme fatigue
  • Depression
  • Temperature sensitivity
  • Memory and concentration problems
  • Paralysis

Causes and Risks Factors 

While the cause of MS is unknown, many believe it is a mix of genetics and environmental factors.  Scientists have identified several risk factors that may be associated with MS:

  • Genetics and family history
  • Gender (women are 2 to 3 times more likely to develop MS)
  • Age (most people are diagnosed between the ages of 20-50)
  • Certain infections, including the Epstein-Barr virus
  • Certain autoimmune diseases, including type 1 diabetes or thyroid disease
  • Smoking

Diagnosis 

MS is often a hard disease to diagnose, especially because symptoms vary from person to person, can come and go, and are similar to other disorders of the nervous system.  While there is no single diagnostic test, there are several methods physicians use to evaluate individuals for MS, including:

  • Blood tests to screen for other diseases with similar symptoms (e.g. Lyme disease)
  • Balance, coordination, vision, and other tests to see how the nerves are functioning
  • MRIs to detect changes in the brain (lesions) and/or spinal cord
  • Evoked potentials tests, which evaluate electrical activity in the brain
  • Analysis of the cerebrospinal fluid (CSF) in the brain and spinal cord for specific proteins
  • Spinal tap to look for abnormalities in antibodies, and look for infections or other conditions with similar symptoms

Treatment

At present, there is no cure for MS.  However, there are several treatments doctors utilize in an effort to manage symptoms, shorten the length of attacks, and modify the progression of symptoms.  Some of them are listed below.

Treatment to Modify Progression

  • Medications to curb the body’s immune system to attempt to stem the body’s attack on the myelin

Treatment for MS Attacks

  • Corticosteroids to reduce nerve inflammation
  • Muscle relaxants
  • Plasma exchange

Treatments for Symptoms

  • Medications (fatigue, depression, and other symptoms)
  • Muscle relaxants
  • Physical therapy
  • Staying cool, sometimes with devises such as a cooling vest (symptoms often worsen when body temperature rises)
  • Alternative medicine (acupuncture, massage, relaxation techniques)
  • Exercise and reducing stress

Treatment will often involve an interdisciplinary approach and may require treatment from a care team including neurologists, physiatrists, urologists, psychiatrists, physical and occupational therapists, and others as needed.

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 below 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

National Multiple Sclerosis Society, https://www.nationalmssociety.org
Mayo Clinic, https://www.mayoclinic.org
John Hopkins Medicine, https://www.hopkinsmedicine.org
WebMD, https://www.mayoclinic.org

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Ranking Arizona Names Comitz | Beethe #1 Law Firm for Best Workplace Culture

Comitz Beethe is proud and honored to announce we have been named Arizona’s #1 Law Firm for Best Workplace Culture and the #2 firm in both Healthcare Law and Firm with Under 22 Lawyers by Ranking Arizona: The Best of Arizona Business. Ranking Arizona publishes the results of the largest annual poll of the Arizona business community. Residents are asked to share their opinions of the best products, services, and individuals in the state.

We’ve earned this distinction through the development and execution of studied, meticulously considered strategies aimed at obtaining optimal results for our clients. We have also remained a small firm in order to encourage the sharing of ideas and information in an environment fostered by mutual trust. We pride ourselves on recruiting only the top attorneys in education, skills, and temperament.

We offer dentists, physicians, and other professionals compassion, thoughtful and meticulous legal representation, and are dedicated to making the claims process as painless as possible for each client.  Comitz Beethe offers unparalleled strategy, advocacy, and adaptability.  Our clients have immediate attorney access, including their direct telephone lines and emails.  Each case has a minimum of two attorneys and a paralegal working on it, with senior partners directly involved in developing each case.

Comitz Beethe’s keen legal, medical, and disability industry insight allows us to know what really matters in a case, and we are able to leverage this experience to deliver success.  We are pleased that our dedication has earned us this recognition for both our legal expertise and our firm’s collaborative ethos, which allows us to work together tirelessly in order to exceed our clients’ most optimistic expectations.

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Why You Can’t Blindly Rely on Your Agent to Choose the Right Policy for You

In earlier posts we’ve discussed how agents don’t have the authority to change, delete, or add provisions to a policy.  We’ve also discussed how most policy applications now contain language stating that you cannot rely upon representations made by agents regarding the scope of coverage, or eligibility for coverage.  Thus, while agents can provide helpful advice and help to point you in the direction of a policy that may fit your needs, it is ultimately up to you, the purchaser, to review your policy, become familiar with the provisions of the policy, and confirm that you are in fact purchasing the coverage that you expected to receive.

If you don’t take the time to do this, and blindly pay premiums without reviewing your policy first, you could end up paying for coverage that provides less protection than you thought you were getting when you applied for the policy.  For example, most physicians and dentists know that their disability insurance policies should be “own occupation”, meaning a policyholder is considered totally disabled (and eligible to collect benefits) when he or she can no longer work in his or her profession, versus being unable to work at all, in any profession.  In some policies, own occupation is further defined as being unable to practice in a particular medical or dental specialty (i.e. anesthesiologist, periodontist, etc.).

Quite often physicians and dentists decide to buy another policy, either because they let a previous one lapse, or because they want to purchase additional coverage as their income increases and they can afford higher premiums, and they ask their agent for a new policy with the “same coverage”.  This can be incredibly difficult or impossible to achieve, because over time policies have evolved to become more restrictive, and each company has variations on what they deem an “own occupation” policy.  Consequently, while your agent may present you with a policy that contains the phrase “own occupation”, it may not be a true own occupation policy at all.

For example, some policies are actually conversion policies, which mean they start out as “own occupation” policies, but after a certain time frame (e.g 2 years, or 5 years), they change to an “any occupation” policy, which means that, in order to continue receiving benefits, you would have to show that you can’t work at all.  This can be very difficult to prove, particularly if you worked in another capacity for all or some of the prior “own occupation” period.

Even if your agent does locate an own occupation plan with similar premiums and benefit amounts to an older policy, there may also be provisions that cancel each other out in the new and old policies.  One scenario we’ve seen is a policy containing the provision that a claimant must not be working (a “no work” provision) in their own occupation or another profession in order to collect benefits, while the second policy states that a claimant must not be working in their own occupation but must be working in another field in order to collect benefits (a “work provision”).  Under this scenario, in essence, one of the policies you’ve been paying years of premiums for is worthless, as both requirements cannot be met at once.

These examples highlight why it is important that you do more than just check an “own-occupation” box on your application and/or blindly rely on your agent’s assurance that a new policy is compatible and/or the same as an existing one.  If you end up with a policy you essentially cannot use, your recourse is limited, as insurance companies have gone to significant lengths to shield themselves from any liability based on an agent’s representations of a policy.  It is therefore far better to take the time to review your policy at the outset, before you pay years of premiums, to ensure that it provides the coverage that you applied for and need.

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Diabetes: An Overview

We’ve talked before about how diabetes can occur in conjunction with other diseases, such as anxiety, or contribute to certain medical conditions, such as radiculopathy. In this post we will be taking a broader look at diabetes and its complications.

Overview:

Diabetes (diabetes mellitus) refers to a group of diseases, including prediabetes, type 1, type 2, and gestational diabetes. While prediabetes and gestational diabetes can be reversible, types 1 and 2 are chronic and there is currently no cure.

Diabetes can occur either when the pancreas produces very little or no insulin, or when the body does not respond to the insulin that the pancreas does produce. In this post we will examine only types 1 and 2.

Type 1 diabetes typically appears during childhood or adolescence (it is also called juvenile diabetes), and the symptoms come on quickly and are more severe. Type 2 diabetes is more common, and more often occurs in people over 40 (it is often referred to as adult onset diabetes). Those with type 2 diabetes may not exhibit symptoms at first.

Symptoms:

  • Increased thirst
  • Extreme hunger
  • Frequent urination
  • Unexplained weight loss
  • Ketones in the urine
  • Fatigue
  • Irritability
  • Blurred vision
  • Difficulty breathing

Additional symptoms experienced in Type 2 diabetes include:

  • Cuts or sores that are slow to heal
  • Infections
  • Itchy skin (often in the groin area)
  • Recent weight gain
  • Numbness or tingling of the hands and feet
  • Impotence or ED

Causes:

Type 1 diabetes occurs when the body’s immune system destroys the insulin producing cells of the pancreas. Scientists believe that Type 1 is caused by genetic and environmental factors, such as exposure to certain viruses.

Type 2 diabetes is caused primarily by lifestyle factors and genes. Some risk factors include:

  • Being overweight
  • Lack of physical activity
  • High blood pressure
  • Abnormal cholesterol and/or triglyceride levels
  • Family history (having a parent or sibling with diabetes increases risk)
  • Age
  • History of gestational diabetes while pregnant
  • Polycystic ovary syndrome

Diagnosis:

Diabetes can be diagnosed based on blood tests that show a patient’s blood sugar levels, using a glycated hemoglobin (A1C) test, random blood sugar test, fasting blood sugar test, and/or an oral glucose tolerance test.

With respect to type 1 diabetes, a patient’s urine will be analyzed for ketones, a byproduct produced when muscles and fat are used for energy when the body doesn’t have enough insulin to use available glucose.

Treatment:

While there is no cure for diabetes, ongoing monitoring and management of symptoms is required to prevent serious complications from occurring. Possible treatments include:

Lifestyle changes 

  • Diet/healthy eating
  • Exercise
  • Weight loss

Medication

  • Those with Type 1 diabetes must take insulin because it is no longer made by the body
  • Those with Type 2 may need to take insulin, but may also take different medications (such as metformin, which lowers the amount of glucose the liver makes)

Surgery

  • Bariatric surgery
  • Artificial pancreas
  • Pancreatic islet transplantation

Serious Complications:

Undiagnosted, untreated, or resistant to treatment, diabetes can have serious health consequences, including:

  • Cardiovascular disease;
  • Nerve damage (neuropathy), especially in the limbs (which left untreated can result in loss of feeling); nerve damage is also connected to problems with internal organs, weakness, weight-loss, and depression;
  • Kidney damage (nephropathy), which may result in the eventual need for dialysis or kidney transplant;
  • Eye damage (retinopathy), which may result in cataracts, glaucoma, or blindness;
  • Skin conditions, including bacterial and fungal infections;
  • Foot damage, which can often lead to the need for amputation;
  • Depression; and
  • Alzheimer’s disease (type 2 diabetes)—currently there is no agreed upon theory about why there is a correlation between the two diseases.

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 below 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:

Center for Disease Control (CDC), www.cdc.gov
WebMD, webmd.com
Mayo Clinic, mayoclinic.com
National Institute of Diabetes and Digestive and Kidney Disease, www.niddk.nih.gov
American Diabetes Association, www.diabetes.org

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How Do I Know if My Insurer Might Be Interested in a Lump Sum Settlement?

We are often asked whether a particular claim is the type of claim that an insurance company would be interested in settling for a lump sum buyout.  The answer, as explained in more detail below, is always, it depends, because there are a number of factors that come into play, and many of those factors are not even directly related to whether the claim itself is legitimate or whether the insured’s condition is permanent (although those are important factors that impact whether a buyout is a possibility).

What is a Lump Sum Buyout?

You may be familiar with the terms of your disability policy, but you may not know that, in certain instances, insurers are willing to enter a lump sum settlement. Under a lump sum settlement, your insurer agrees to buy out your policy and, in return, you agree to surrender the policy and release the insurer from any further obligations to you going forward.

There are certain pros and cons to this sort of settlement.  Some claimants prefer a lump sum settlement, because it allows them to avoid having to rely on month-to-month payments from their insurer (which may or may not arrive, or if they do arrive, may not arrive on time) and/or to avoid the hassle of dealing with claim forms, medical exams, etc. for years to come.  A lump sum settlement can also allow you to take advantage of present investment opportunities that can provide for your and your family’s future.  But there are also other considerations that you will need to discuss with your attorney as well as your accountant and other financial advisors.  For example, if your benefit period lasts to age 65 (and you end up living to the end of the benefit period), you would likely receive more money cumulatively over time if you stayed on claim and received monthly benefits in lieu of a lump sum settlement.

Lump sum settlements can also be attractive to insurance companies.  A settlement can allow insurance companies to release money from their reserves and to eliminate administrative expenses associated with the ongoing review of your claim year after year. But just as you might receive more money cumulatively over time if you stayed on the claim, the insurer might benefit financially from not offering you a lump sum settlement. For example, if your policy provided for lifetime benefits, and you met an untimely demise, your insurance company’s obligation to pay benefits would cease, and they may end up ultimately paying out a lower amount in total monthly benefits than they would have if they paid out a lump sum settlement on your claim.

Because this process is completely discretionary on their part, insurance companies are very deliberate about offering lump sum settlements. Before doing so, they must weigh multiple factors including the following:

    • Permanency. The insurer is more likely to offer a settlement if its actuaries determine that you will likely be on claim for the maximum benefit period.
    • Reserves. Over the course of your claim, your claim’s reserves slowly peak as you are on claim for an extended period of time (and permanency is established) and then at some point, they start to diminish as the claim is paid out, and you get closer and closer to the end of the maximum benefit period. The insurer is more likely to offer a settlement when the reserves are at their peak (typically around 3-5 years into a claim), because that is when the insurance company would improve its bottom line the most by freeing up the reserves.
    • Mortality/Morbidity Issues. The insurer is more likely to offer a settlement if its actuaries determine that you will probably live to the end of the maximum benefit period. Or if you have lifetime benefits, the insurer will estimate your lifespan based on your health history to determine whether it is financially beneficial for the company to offer a lump sum settlement.
    • Offsets. The insurer is more likely to offer a settlement if it determines that you will probably not receive income in the future that would offset the benefit amount before the end of the maximum benefit period.
    • Anticipated Gain. Companies will not offer a buyout unless they stand to save money in the long run, so they have their actuaries calculate how much of a gain (percentage-wise) the company would net if they settle the claim. Insurers often have internal financial objectives that impact the amount they are willing to offer on settlements such as requiring a net gain amount of a certain percentage (e.g. 35%).
    • Cash Outflow. The insurer will be more or less willing to offer a settlement depending on their quarterly or even annual cash outflows. Thus, if a company had paid out a lot of buyouts recently, the company may not have enough cash available to offer additional lump sum settlements.

The bottom line is that offering a lump sum settlement is completely voluntary on the part of the insurer and doing so depends on the unique factual circumstances of your claim. Nevertheless, knowing the factors that insurers consider in making this decision can help you understand whether a lump sum settlement is appropriate in your case.

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The Importance of Reviewing Your Policy Application

In our last post we discussed why you should not rely solely on your agent’s representations when purchasing a new disability policy. It is similarly important that you not rely solely on your agent to complete the policy application.

While an agent may offer to help you by filling out the application, this could end up negatively impacting a future claim or even voiding your policy down the road, if the application contains any errors or omissions.  As explained in our prior posts, while it may seem like telephone interviewers, licensed representatives, agents, and medical examiners have significant control over the application process and whether you receive a policy, many applications have language that explicitly limits your ability to rely upon representations made by such individuals, and expressly places the burden of reviewing the application for accuracy upon you (regardless of who completed the application).  Below is a sample of policy language:

 

Thus, you may speak with several people during the application process, and give them the requested information, but it is ultimately up to you to make sure the information provided to the insurance company is correct.  It is therefore very important that you read through your application carefully to make sure it is complete and accurate before signing.

It is also very important that you carefully review your policy when you receive it from the insurance company, and not just file it away without a second thought.  When you receive your copy of the full policy, it will typically contain language stating that you have a certain time period (e.g. 10 or 30 days) to review the policy and return it to be voided if it does not contain the terms you expected.  This clause will normally be found on the first page of the policy, and typically looks something like this:

If you decide to keep your policy and do not send it back within this review period, you are bound by all provisions of the policy, regardless of whether you are actually aware of them or not.  For instance, if you asked your agent for a certain provision and/or requested it on your application, but the insurance company omits it for some reason, and you don’t catch it during this review period, you may end up paying years of premiums for coverage that is different than what you thought you had purchased.  Similarly, if your policy contains an unfavorable provision that you didn’t know was going to be in the policy, you will still be bound by it unless you return the policy.

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How Insurance Companies Distance Themselves from Agents (And Why It Matters)

Reading through contracts, especially lengthy insurance ones, can be time consuming. Many policies contain confusing language, terms of art, and often include supplemental riders that change the terms or definitions contained in the main body of the policy.  But if you don’t read your policy until it’s time for you to file a claim, you may be caught off-guard by what your policy actually says.  This next series of posts will discuss the importance of taking the time to read through your policy, and will review some things to watch out for when you buy a disability insurance policy.

Dentists and physicians are often swamped with work, and rely heavily on insurance agents when selecting and purchasing a policy.  One scenario we commonly see is doctors requesting a policy that is “the same” policy that the other doctors in the practice have. Another common scenario is the doctor who wants more coverage and just asks his or her agent for another policy that is “like” his or her existing policy, or has the “same coverage” as his or her existing policy.  What they don’t realize is that some of the same favorable terms may no longer be available in today’s policies.  For example, while most older policies contained “true own occupation” provisions, there are now several different variations of “own occupation” provisions, so if you just ask for an “own occupation” policy, you may not actually be receiving the coverage that you think you are.

It is also important to be aware that, over the years, insurers have sought to distance themselves from agents and now often go so far as to include clauses or statements in their policies and applications that state no agent or broker has the authority to determine insurability or make, change, or discharge any contract requirement.  Here’s an example of this type of policy language:

So what does this mean?  It means that, while solely relying upon an agent’s assurance of the terms of a policy may have been a more acceptable (but not advisable) option in the past (when policies were often similar and generally favorable to policyholders), you can no longer solely rely upon your agent’s description of the policy.  No matter how well-meaning or knowledgeable your agent may seem, ultimately, you are going to be on the hook if your policy doesn’t say what you thought it said, so it is crucial that you carefully review your disability policy to ensure you are receiving sufficient coverage.

Our next post will discuss the importance of the application process and policy review period.

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