Disability Insurance Roulette with Edward O. Comitz:
Dentistry Uncensored with Howard Farran

Founding member Ed Comitz recently sat down with Howard Farran, DDS, MBA of Farran Media to discuss the issues dentists face when filing “own occupation” disability claims.

Dentists are uniquely susceptible to slowly progressive, degenerative disabling conditions (such as musculoskeletal conditions like degenerative disc disease) due to the physical stressors of the job. Dentists’ claims are also often targeted for denial because of high benefit amounts, particularly if they have a condition that is difficult to prove up with objective medical evidence and testing.

During the podcast, Ed addressed several topics, including:

  • Why are most of your clients dentists?
  • When am I “sick enough” to file a claim?
  • What is a true own occupation policy? Are there different types of own occupation policies?
  • What should I expect if I file a claim?

For more information,watch the podcast below

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Why You Should Read Your Policy Carefully:
A Case Study

In prior posts, we’ve discussed the importance of thinking through the pros and cons of replacing an older policy with a newer one. We’ve also cautioned against blindly relying on agents when selecting a policy, without taking the time to read through what you are purchasing yourself.

The recent case of Mathis v. MetLife[1] illustrates why this is so important. Dr. Mathis, an orthopedic surgeon, had a Standard policy that he decided to replace in order to protect his increased income and earning ability. At the suggestion of his insurance broker, Dr. Mathis purchased a MetLife policy to replace the Standard policy. While the benefit amount of this new policy was higher and the MetLife policy was marketed as an “own-occupation” policy, it had additional terms that limited Dr. Mathis’s ability to work in a different capacity and collect disability benefits, if he could no longer be a surgeon.

Over ten years after purchasing this MetLife policy, Dr. Mathis became disabled and was no longer able to practice as an orthopedic surgeon. Believing that he had a policy that allowed him to collect benefits as long as he couldn’t do his prior occupation (and under the assumption that it didn’t matter if he was employed in a different profession), he took a job at an orthopedic device manufacturer.

Upon learning of this new job, MetLife informed Dr. Mathis that, in addition to being unable to perform the material and substantial duties of his regular occupation (orthopedic surgeon) he also had to demonstrate he was “not gainfully employed” in order to qualify for total disability benefits.

At that point, Dr. Mathis could not undo the decision to start the new job, so Dr. Mathis and his lawyer sued MetLife, the  brokerage firm, and his insurance broker for breach of contract, alleging that they were negligent in becoming familiar with the MetLife policy and negligently failed to insure him for total disability within his occupation (without the need to be gainfully employed), which was the coverage he thought he was getting. In response, the defendants argued that Dr. Mathis had had the policy for over ten years, and that he had a duty to read the policy when he first received it.

To date, the dispute is still ongoing and has not been fully resolved by the courts. However, so far, Dr. Mathis has had to deal with the additional initial headache of arguing over which state law applies to the dispute, since Dr. Mathis had been living and practicing in Alabama when he bought the policy (but now lives in Massachusetts), MetLife is headquartered in New York, and the broker’s company is headquartered in Indiana. It remains to be seen whether Dr. Mathis ultimately prevails, but at the very least, he would have saved significant expense and stress if he had simply read the terms of the MetLife policy carefully before paying years of premiums for coverage that he did not want.

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

[1] Mathis v. MetLife, No. 1:18-cv-01893-JRS-DLP, 2019 WL 1409464 (S.D. Ind. March 28, 2019).

 

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Insurance Company Tactics:
Overemphasizing Daily Activities

In prior posts, we’ve discussed how insurers conduct surveillance to determine if you can go back to work. Insurers also gather information about your daily activities through field interviews, claim forms and looking through your medical records for statements about your activity levels.

Many dentists and physicians with “own occupation” policies wonder why they are being asked these questions. In their minds, their hobbies and activities are completely unrelated to whether they can return to practice. However, to an insurer, gathering this information is often the first step towards challenging (and potentially denying) a claim. Insurers like to use reports or surveillance footage of daily activities to argue that a claimant’s condition has improved—particularly when a claim involves subjective symptoms, such as pain or numbness, that may be difficult to objectively verify.

The recent case of Dewsnup v. Unum[1] illustrates how insurers attempt to use information about claimants’ daily activities against them. Dewsnup was trial attorney who underwent quadruple bypass surgery after suffering a heart attack. Although the surgery was successful as far as his heart was concerned, he developed a constant burning pain across his chest at the incision site.

When he was not able to return to work after the surgery due to pain and fatigue, Dewsnup filed a total disability claim with Unum. Unum initially approved Dewsnup’s claim, but when Dewsnup eventually returned to the office part-time, Unum conducted a renewed, in-depth investigation of his claim and ordered a review of his medical records. When Unum contacted him, Dewsnup explained that his time in the office was limited, that he was only there to interact with clients, and that he was in no condition to go back to the rigors of practicing as a trial attorney (such as staying up all night, dealing with other attorneys, etc.).

Although Dewsnup had an own-occupation policy, Unum terminated Dewsnup’s benefits. When Dewsnup sued Unum, Unum argued that he could return full-time to the demanding and stressful work of a trial attorney, in part because he’d told Unum in phone interviews and other forms that he was able to wear his seatbelt when in a car, help his wife with chores, walk on a treadmill most days of the week, and had carved a wooden mantle.

Fortunately, the court was familiar with the duties of a trial attorney and held Unum in check. The court reversed the claim denial, observing that “Mr. Dewsnup never claimed that his pain was completely disabling in every facet of his life. . . . It is probable that his pain would prevent him completing the mentally-taxing work of trial attorney, but not prevent him from accomplishing relatively simple and low-stress daily tasks.”

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly targeting your claim for denial, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.

[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah)

 

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Arizona’s Doctor Shortage Highest in Rural Areas

In a prior post, we discussed Arizona’s new universal licensing law that allows certain professionals from other states to relocate to Arizona without additional licensing requirements. A recent study by the Arizona Hospital and Healthcare association found that Arizona ranks 44th out of 50 in its ratio of active primary care doctors to population, and Arizona’s shortage of about 600 doctors is more pronounced in rural and remote parts of the state.

This shortage is expected to triple in the next decade, attributed, in part, to a growing state population and an aging population that is outliving their predecessors (and thus needing more medical care). Current conditions (such as run-down facilities) make it hard to attract replacements, especially in these already under-served areas. In remote locations, one physician can serve thousands of residents. Such an overwhelming workload puts physicians at risk for burnout, mental health conditions like anxiety or depression, illnesses, and injury. It also can result in presenteeism—doctors working in spite of their own health conditions, and ignoring the risk to patients and their own health.

One solution the state is exploring is the expansion of local residency programs for general surgery and internal medicine, with the hope that those who complete their residency in Arizona will ultimately choose to stay and set up practice.

Sources:

Arizona’s Rural Hospitals Facing Severe Doctor Shortage, Associated Press, Sept. 7, 2019.

CNBC: Solving the Doctor Shortage, CNBC, Sept. 6, 2019.

 

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The Importance of Having a Transition Plan:
Part II

Physicians and dentists with slowly progressive conditions face unique challenges and hurdles when it comes to filing a claim with their disability insurance company.  In the previous post in this series, we looked at a few things doctors should take into account when deciding what to do with their practice in the event they need to file a disability claim. Another important part of a transition plan is determining an appropriate work schedule, given your condition, symptoms and policy requirements.

Should I Keep Working?

This is another question that we are asked a lot and, again, the answer is, it depends. There are risks associated with continuing to practice, but you can also prejudice your chances of collecting benefits if you make changes to your work schedule or take on another job without taking the requirements of your particular policy into account.

The primary factor is, of course, whether it is safe for you to be treating patients. If it’s not safe to practice, you shouldn’t be practicing. But with slowly progressive conditions, this can be a difficult thing to assess. There are usually good days and bad days. There may be remedies (like stretching, or ice/heat) that initially help, but over time lose effectiveness. Or in certain situations (such as progressive neuropathy or an essential tremor) the changes may happen so slowly that it is hard to perceive the day-to-day progression.

In addition, your policy may have certain definitions or requirements that set certain parameters for filing a successful claim that you can run afoul of if you are not careful. Some of the most common mistakes we see include:

  • Reducing work hours. While working shorter hours may make symptoms more bearable, doing this for too long could prompt your insurance company to change your classification from “full-time” to “part-time.” This becomes problematic because it is more difficult to prove you are totally disabled from working part-time. For example, if you stop taking on-call shifts and file a claim several months later, the company may argue that your previous on-call hours should no longer be considered part of your occupational definition for purposes of your disability claim.
  • Reducing procedures. Similarly, changing the types of tasks you perform can also prompt insurers to maintain that you have changed the material and substantial duties of your job. For example, if you’re a dentist and you stop performing root canals, your insurer may argue that your occupation is “a dentist who doesn’t perform root canals.” Again, this makes it more difficult for you to establish total disability because the more difficult procedures/duties are removed from the equation.
  • Taking a side job. Cutting hours or lightening work load can lead to a significant loss of income, so doctors often turn to side jobs that don’t exacerbate their symptoms, such as teaching part time at a local dental or medical school, financial advising, consulting, or perhaps selling real estate. However, what many don’t realize is that newer disability insurance policies often have plural definitions of occupation that define your occupation as everything you are doing immediately prior to the onset of disability. Again, an insurer can use the (lighter) duties of a second job to argue that you can still work as say, a real estate agent, and are therefore not eligible for total disability benefits, even if you can no longer practice as a doctor.

These are just a few examples of occupational changes that can have a dramatic impact on the future success of a disability claim. How much of an impact depends on the particular language of your policy, and this is not intended to be an exhaustive list of all of the issues that can arise during the transition out of practice. The above examples are merely intended as examples of why it is important to have a transition plan and know what your policy(ies) say before filing a claim. Conversely, if you put off these important questions for too long, you can make it much more difficult (and, in some cases) impossible to collect total disability benefits.

If you are considering filing a claim, or wondering how a transition plan would work for you, an experienced disability insurance attorney can help you understand the terms of your policy and apply it to your particular situation.

 

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SEAK Inc.’s 16th Annual Non-Clinical Careers for Physicians Conference, Oct. 19-20, 2019

Many doctors and dentists find themselves unable to practice, whether due to a disabilityburnout, loss of mobility or opportunity, wanting more control over their schedule, the desire for financial gain, or wanting to pursue different interests. Doctors with own occupation disability policies may be able to work in a different career and collect disability benefits, if their policies allow for that. But sometimes it can be hard for doctors to make the transition to a new career.

SEAK, Inc.’s 16th Annual Non-Clinical Careers for Physicians Conference is one resource for physicians looking to explore careers outside of the clinical setting, either full or part-time. This year, SEAK’s conference will be October 19 -20, 2019 in Chicago, Illinois, The attendees (over 400+ physicians in a variety of specialties) will participate in courses with over 40 faculty members, as well as attend free one-on-one mentoring sessions to explore dozens of non-clinical opportunities, and potentially meet with recruiters and employers. Industries that have recruited in the past include biotechnology, pharmaceuticals, medical devices, and healthcare consulting, among many others.

Potential opportunities discussed will include medical expert witnessing, writing (medical and non), conducting independent medical exams, file and peer reviews, consulting, life care planning, and inventing. Several of the presenters have transitioned out of clinical practice themselves and have gone on to become medical writers, work for agencies like the FDA, become physician or career coaches, CEOs, and entrepreneurs, among many other varied careers. The conference aims to show physicians that switching to a non-clinical career is an opportunity that “is in fact a step forward, not a step backwards,” and that it is possible to be financially successful when transitioning away from clinical practice, either partially or completely.

Additional information regarding the conference, and related materials from SEAK, and job postings can be found here.

If you are a physician thinking of transitioning to a new career it is important to consult with an experienced disability attorney in advance to ensure you will not be jeopardizing your ability to receive, or continue to receive, benefits under the terms of your policy.

 

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The Importance of Having a Transition Plan:
Part I

Many of the physicians and dentists we work with have slowly progressive conditions. When they initially reach out to us, they are often facing the difficult dilemma of weighing the risk of hurting a patient against the ramifications of ending the career that they worked so hard to build. Often, they are unfamiliar with the terms of their disability policies (and, in some cases, don’t even have copies of their policies). And most of the time, they are also unfamiliar with how the disability claims process works and not sure if it is appropriate (or if it is even possible) to file a claim with their disability insurance company if they have a medical condition that progresses gradually (as opposed to something like being injured in an accident). Our next two posts will look at important considerations that must go into a transition plan.

While it is possible to collect on a claim involving slowly progressive conditions (such as degenerative disc disease or an essential tremor), these types of claims present unique challenges and hurdles that doctors must be aware of—ideally well before they file.

With any disability claim involving a physician or dentist, the number one factor is patient safety. Whether or not it is safe for you to continue to practice depends on your particular symptoms and the progression of your condition—factors that are typically outside your control. Other factors that are not entirely within your control include whether/how soon you can find a buyer if you need to sell your practice, whether new treatments are developed for your condition, whether your health insurance covers a needed medical treatment, whether your doctor is willing to support your claim—and the list goes on.

These “unknowns” often prove to be the most daunting and frustrating aspect of filing a disability claim, particularly for our clients who are used to diagnosing and solving problems. Filing a successful disability claim requires patience and the ability to adapt and react appropriately, which can prove particularly difficult if you do not have experience with the disability process or the industry knowledge required to recognize the issues in play.

So where do you start? The first step is understanding your policy requirements and taking the time to make a transition plan that fits within the parameters of your particular policy(ies). There are a lot of different components to a transition plan, but in these next few posts, we are going to be focusing on issues related to your practice.

What Do I Do With My Practice?

If you own your own practice, a major part of your transition plan will be determining what to do with your practice. This is one of the more common questions we are asked and, unfortunately, like many questions in the area of law, there is no one-size-fits-all answer. The best course of action depends on a number of factors, including:

  • How your policy defines key terms, like “total disability” and “your occupation”;
  • Whether you have partners or associates that are able to buy your practice interest;
  • Whether you live in a large metropolitan area where there is a large pool of potential buyers or a rural area where there are very few potential buyers;
  • How long you think you can go on practicing (taking into account patient safety concerns);
  • Whether you can find a buyer who is understanding of your situation (as opposed to buyers who would seek to low-ball you/negotiate the price down if they became aware of your medical condition);
  • Whether there is an expectation that you will work in a different capacity following the sale (e.g. as an associate or consultant);
  • Whether your policy allows you to work in a different capacity and collect benefits;
  • Whether your policy offsets your benefits if you receive any post-disability income.

These are just a few of the issues that need to be considered, and oftentimes determining the best course of action is an ongoing process as new information is learned about the progression of your symptoms, the state of the market, the number of potential buyers, the needs/personality of interested buyers, etc. If you are considering filing a claim, or wondering how a transition plan would work for you, an experienced disability insurance attorney can help you understand the terms of your policy and apply it to your particular situation.

In part two of this series, we’ll look at another important part of any transition plan—whether you should continue to work in the face of slowly progressive condition.

Attorney Derek Funk to Participate in
St. Jude Research Hospital’s
Swing FORE Charity Golf Tournament

Attorney Derek Funk will be playing in the upcoming, inaugural Swing FORE St. Jude charity golf tournament at Mountain Shadows Resort in Scottsdale, Arizona on Saturday, September 14, 2019.

September is National Childhood Cancer Awareness Month and you can see gold ribbons all around Phoenix raising awareness. The doctors and physicians at St. Jude Research Hospital seek to advance cures and means of prevention for pediatric diseases through research and treatment and have pioneered new surgeries, treatments, and cures used all around the world. All proceeds from the event benefit St. Jude to help ensure that patients and their families don’t have to pay for treatment, travel, housing, or food.

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Insurance Company Tactics:
Questioning Medical Decisions

Who gets to decide what treatment is best for you?

Of course, the answer is ultimately you (with the guidance of your treatment provider). At the same time, many disability policies require you to be receiving ongoing treatment for your disabling condition in order to remain eligible for benefits. Some newer policies we have seen even go so far as to state that you must receive care that is directed towards a “return to work” or “maximum medical improvement.”

These provisions can give rise to disputes with your insurer if you do not want to undergo a particular procedure, but your insurer maintains that you are not seeking appropriate treatment and/or that you are malingering (i.e. your symptoms are not as severe as you are reporting). For example, your insurer may use an in-house doctor to review your medical records and challenge your treating provider’s treatment recommendations, stating that a more invasive procedure (like surgery) would fix your condition and allow you to return to work.

This is a tactic that Unum tried to use in the recent case of Dewsnup v. Unum[1]. Dewsnup was a trial attorney who had quadruple bypass surgery after suffering a heart attack. After the surgery, he had a constant burning pain across his chest at the incision site, which was exacerbated by stress and led to fatigue that eventually made it impossible for him to work.

Dewsnup was ultimately diagnosed with intercostal neuralgia. When a recommended diagnostic nerve block did not help, Dewsnup decided to not pursue a nerve ablation. His treating doctor supported this decision, as there were risks to the ablation procedure and the failed injection suggested that the ablation would likely not fix his pain. Dewsnup also began taking medication for the pain, but later stopped taking the medication when he determined that the potential risks and negative side effects of the medication outweighed any benefits.

In an effort to deny his claim, Unum hired several doctors to review Dewsnup’s medical records. The doctors noted that Dewsnup’s pain levels were subjectively reported, and concluded that he was not disabled, even though Dewsnup’s treating doctors all agreed that he was. Unum’s doctors based this decision, in part, on the fact that he had stopped his medication and was foregoing the ablation and additional treatment. Essentially, Unum argued that the pain must not be so bad, since he had decided not to have the nerve ablation and had stopped taking the medication.

Fortunately, in Dewsnup’s case, the court determined that that there was sufficient evidence that his pain was “severe enough to cause fatigue, hinder concentration, and prevent him from performing the mentally-demanding duties of a trial attorney.” The court also disapproved of Unum’s approach, noting that “[n]one of Unum’s reviewers examined Mr. Dewsnup in person” and that “[a]part from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence.” Ultimately, the court reversed Unum’s claim denial (but only after costly, time-consuming litigation).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that the terms of your policy aren’t being applied correctly, or if your insurer is questioning your treatment decisions in an attempt to undermine your claim, an experienced disability insurance attorney can help you understand your policy and apply it to your particular situation.

[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah).

 

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Cigna Seeks to Sell Group Insurance Business

Cigna has been looking to sell its group benefits insurance business, according to several recent news reports. Cigna’s group benefits business includes group disability policies, along with life, and accidental and dismemberment coverage policies. In total, Cigna’s group benefits insurance business is estimated to be valued at as $6 billion dollars.

Industry experts have interpreted this exploration to sell as a possible signal of Cigna’s intent to focus on their healthcare and medical provider operations arm and/or potentially pay down its long-term debt, which totaled $37 billion as of June 2019.

Although any sale is speculative at this point, it’s not unusual for insurers to sell portions of their businesses (e.g. both group and individual disability policies) to other insurers, or turn these policies over to third-party administrators. If Cigna does go through with the sale, it could impact how its disability claims are administered on an ongoing basis.

Sources:

Cigna seeks sale of group benefits insurance business, valued as high as $6 billion, Reuters, Aug. 20, 2019

Bruce Japsen, Cigna May Divest Group Life Business To Keep Up With Rivals Buying Providers, Forbes, Aug. 20, 2019

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What Can I Do If My Insurer
Misrepresented How My Policy Works?

Disability insurance policies are often difficult to understand, even for the most sophisticated buyers. The same policy provision may be explained differently at the time you are selecting it, at the time you receive it, and when you go to file a claim. In our experience, insurance companies are not always forthcoming when they explain your policy. Sometimes they fail to tell you about certain features of your policy, or explain ambiguities in their favor, or, in some instances, even misrepresent the terms of policy provisions.

For these reasons, many states, including Arizona, have adopted laws to protect consumers from these practices. For example, insurance companies in both Arizona and California must not misrepresent important facts or policy provisions relating to any issues of coverage.[1] If the insured can show any misrepresentation related to these issues, there may be a bad faith claim.

We often speak with doctors who misunderstand how their own occupation policies work. Sometimes this is because their insurers did not explain the policies to them correctly, and other times it is simply because they didn’t take the time to read the policy when they purchased it. Many physicians and dentists seek out an own occupation policy because it generally allows for an insured to be considered totally disabled if they can no longer work in their occupation. However, some “own occupation” policies are not true” own occupation policies, and can even shift to an “any occupation” policy after a certain amount of time has passed.

Additionally, most insurance companies today distance themselves from agents and brokers, and seek to avoid responsibility for misrepresentations made by the agents that sell their policies. While this does not necessarily mean that there are no consequences if a policyholder is mislead about the contents of their policy, it does mean that costly and time consuming litigation can be required to sort things out. For this reason, it is always best to take the time to read and understand your policy yourself, so that you know what you are paying for.

If your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] A.R.S. § 20-461(A)(1) (2018); Cal. Ins. Code § 790.03(h)(1) (2018).

 

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When Does a Disability Claim Investigation Begin?

You might think that the disability insurance claims process starts when you send back the initial packet of paperwork to your insurance company. However, disability insurers are starting to make an effort to gather information from the first time they talk to you—possibly before you’ve even decided if/when you’ll file a claim. More and more we are seeing companies that require you to call into them in order to obtain claim forms. Then, when you’re connected with a representative, he or she will not only get your contact information, but may also initiate an on-the-spot interview.

The purpose of this interview is not only to begin collecting information for their file on you, but to do it before you’ve had a chance to read through claim form or review your policy in detail. This initial interview can cover a wide variety of topics, including:

These are just a few of the questions an insurance company might ask you, and they all can potentially have a significant impact on your claim and chances of collecting if they are not answered precisely and accurately. So, while the interviewer may be friendly and the conversation may seem casual, it is not a call that should be taken lightly. Insurance companies will look for any inconsistencies that they can use to attack your credibility, and will often compare your answers during this initial interview to what you say on all future claim forms and field interviews, as well as information private investigators have gathered during surveillance. Consequently, even an innocent mistake or an answer that was imprecise or not well-thought out can cause problems for you claim later on.

If you find yourself considering filing a claim, an experienced disability insurance attorney can help you understand the terms of your policy and what to expect during the disability insurance claims process.

 

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Protective Life Insurance Company
Acquires Great-West Financial

On January 24, 2019, Protective Life Insurance Company announced that it would acquire, via reinsurance, substantially all of Great-West Life & Annuity Insurance Company’s individual life and annuity businesses. The transaction, expected to represent a capital investment by Protective of approximately 1.2 billion, was completed on June 3, 2019. The transferred businesses, formerly marketed under the Great-West Financial brand, includes bank and corporate-owned life insurance, single premium life insurance, individual annuities, and a portion of their closed block life insurance and annuities.

As many dentists know, the American Dental Association (ADA) is partnered with Great-West Financial to offer a group disability income protection plan to its members, as well as an office overhead expense plan. Great-West has retained a block of participating policies, including the ADA Members Insurance Plans; however, these plans will now be administered by Protective Life Insurance Company (or Protective Life and Annuity Insurance Company for policies issued in New York).

Sources

Protective Closes Reinsurance Transaction with Great-West, Protective Corporate News, June 3, 2019

American Dental Association, Disability Insurance

Great-West Lifeco completes sale of U.S. individual life insurance an annuity business, CNW Group, June 3, 2019

Protective Life acquires part of Great-West Life for $1B, AP News, January 24, 2019

ADA News, Great-West Life announcement regarding ADA Members Insurance Plans, July 1, 2019.

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Insurance Company Tactics:
Surveillance

We’ve discussed before how insurers often use surveillance in disability claimsPhysicians’ claims and dentists’ claims, in particular, are often targeted due to the high benefit amounts the company can save by denying or terminating the claim. Accordingly, professionals filing claims should expect that they’ll be under surveillance at least once, and sometimes several times, throughout the course of their claim.

If the company is able to obtain surveillance footage, the company may overstate the significance of the footage in an effort to deny or terminate benefits. The case of Fleming v. Unum[1] illustrates how insurers use surveillance as a tactic to improperly terminate benefits. Pamela Fleming worked a litigation attorney until she was in a serious car accident and suffered severe injuries to her neck and thoracic spine, leaving her unable to work. Fleming had own occupation policies that defined “disability” as the inability to do the material and substantial duties of her occupation.

After having paid her claim for over a decade, Unum hired a surveillance company to videotape Fleming. The surveillance video showed Fleming throwing away a bag of garbage, putting a cooler in her car, and then driving a significant distance. Unum told Fleming that the footage conflicted with her previously reported limitations and terminated her benefits.

When her claim was denied, Fleming sued Unum and the court ultimately reversed the claim denial. In doing so, the court determined that Unum had greatly overemphasized the significance of the surveillance footage. The court noted that while the video showed Fleming lifting a garbage bag, “[l]ifting the bag over her head was no feat of strength or indication of recovery” because it was clear from the surveillance footage itself that “the bag of trash contain[ed] empty plastic bottles.” The court then concluded that “[t]he fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney.”

Similarly, the court criticized Unum for taking the footage out of context, observing that the footage “shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days.” The Court then noted that “[b]oth coming and going from her apartment, Fleming walked gingerly  down and up a flight of stairs, one step at a time, while holding onto the handrail for support” and concluded, “[i]f anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment . . . . The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records” (emphasis added).

Luckily for Fleming, the judge in her case saw through Unums attempt to improperly terminate her claim. But, unfortunately, judges and juries can all too often put undue weight on surveillance footage, because it is easy to present out of context and is more interesting and attention-grabbing than other relevant evidence, such as medical records and doctors’ opinions. Consequently, it is likely that companies will continue to take this sort of footage out of context, in the hopes that claimants will give up and not challenge the denial, or give in and accept a low-ball settlement once their benefits are cut off.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly using surveillance, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.

[1] Fleming v. Unum, 2018 WL 6133859 (2018).

 

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Why Was My Claim Denied?
What Do I Do Now?

A disability insurance claim can be denied for a variety of reasons. Some reasons are legitimate, and some are not. This can be especially true for dentist and physician claims that can be targeted for denial simply because of the policies’ high benefit amounts and how much money is at stake.

Knowing the specific reason or reasons for a disability insurance claim denial is critical to deciding what your next step should be. Because of this, some states, including Arizona, have adopted laws that require insurers to provide you with timely information explaining the basis for a denial. In both Arizona and California, an insurer that denies a claim must provide a reasonable explanation for the denial based on the terms of the policy, the facts, or the applicable law.[1]  Some states’ laws also require that the notice of denial must be in writing, must reference any specific grounds for denial, and must explain how those grounds specifically apply to your claim.[2]  Failure to provide an explanation could lead to a finding that your insurer acted in bad faith.

When you receive the explanation of denial, chances are it may be confusing to understand. Even if an explanation is provided, it may still warrant a finding of bad faith if the explanation fails to clearly communicate the rationale behind a denial[3] , or the denial was founded on an improper bases (e.g. a biased medical exam).

If you have already filed and your insurance company has wholly or partially denied your claim, there is often a short window of time in which to act if you wish to preserve your claim. If you have filed a claim, or you are facing a denial from your insurance company, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] A.R.S. § 20-461(A)(15) (2018); Cal. Ins. Code § 790.03(h)(13) (2018).

[2] Cal. Code Regs. tit. 10, § 2695.7 (2018).

[3] See, e.g., the California case of du Mortier v. Mass. General Life Ins. Co., 805 F.Supp. 816, 823 (C.D. Cal. 1992).

 

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Disability Insurance Basics:
Business Overhead Expense Policies

We have previously discussed how important it is to periodically review your disability insurance policies to make sure your coverage and benefit amounts reflect where you are at in your career. Most physicians and dentists purchase a disability policy at the beginning of their careers. However, as time goes on, their financial situation, family life, and practice can evolve into something completely different that requires a different level of coverage.

A “business overhead expense policy” is one type of policy that many doctors consider when they have reached the point in their career where they are purchasing their own practice. These policies are designed for practice owners and cover short term business-related expenses. If you become disabled, these policies can help you cover day-to-day operations for a certain period of time (typically 1-2 years) to give you time to heal and return to practicing (or, alternatively, give you time to sell the practice, if you have a condition that is more permanent in nature and are having difficulty finding a buyer).

Like any disability insurance policy, each BOE policy is unique. Some common covered expenses can include:

  • Rent
  • Real estate and property taxes
  • Utilities
  • Laundry, janitorial, maintenance services
  • Licensing fees and dues
  • Insurance premiums
  • Billing and collection fees
  • Taxes
  • Interest on debts
  • Depreciation or scheduled installment payments on principal of debt
  • Rent or lease expenses on items such as furniture, equipment, other assets used in the practice
  • Normal, necessary, and customary fixed expenses
  • Salary(ies) of substitute employee(s) – this can be especially attractive to sole practitioners, who may need to employ another dentist or physician to keep their practices in operation

Keep in mind that a business overhead expense policy will typically not cover your lost wages, and typically only last for a limited time, so you will need to have other policies to protect your own monthly income in the event of a long-term disability. Some business overhead policies also contain a list of costs that are not covered by the policy, such as:

  • The cost of goods or merchandise
  • Implements of your profession
  • Premiums waived due to disability
  • Income or self-employment taxes
  • Purchases (such as equipment) after the date of disability
  • Prepayment or advance payment of covered overhead expenses
  • Salaries for employees that are also family members

Consequently, it is important to read your policy carefully so that you have a clear understanding of the expenses that are covered and the expenses that are not.

These are just a few examples of things to be aware of if you have or are considering a Business Overhead Expense policy. These 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.

 

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Why Does the Insurance Company
Want My CDT/CPT Codes?

When filing a claim, many dentists and doctors think that they will merely have to submit a form giving notice of the claim and have their doctor sign something verifying they are disabled. Most don’t realize or expect the breadth of their insurance company’s investigation and one thing that often surprises dentists and physicians is the company’s request for their CPT or CDT codes. Most newer insurance policies contain language that expressly allows insurers to request financial and practice information like this, and there are several things they are looking at when they request these codes.

Changes to Your Occupation/Job Duties

Most own occupation policies say they will consider you to be totally disabled if you can no longer do the “material and substantial” duties of your occupation. Insurance companies will look to CDT/CPT codes to see if you have changed or limited the types of procedures you do, and thus potentially modified your job description, prior to filing the disability.

When you file a claim, the company will typically be looking at what your duties were immediately prior to your reported date of disability. If you stopped performing more difficult procedures for an extended period prior to your date of disability, many companies will try to narrowly define your occupational duties as something less than what you perceive your occupation to be. For example, they might characterize you as a “dentist who doesn’t do root canals,” or a “surgeon who doesn’t do hip surgeries.”

Changes in Hours/Production

Similarly, reducing your work hours prior to filing a claim can impact your ability to collect. While your CDT/CPT codes won’t necessarily directly show the hours and days worked, they will show drops/increases in production and prompt follow-up questions from the insurance company if the production numbers don’t add up.

Additionally, some policies require an insured to work a certain number of hours a week, and cutting back on hours for an extended period of time prior to filing a claim could also lead your insurance company to classify your occupation as “part-time.” This is problematic because it becomes much harder to prove you can’t work part-time, versus proving you can’t work full-time.

Reviewing and understanding your policy, including what types of information your insurance company will request, is an important part of any transition plan. 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.

 

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Unum Study Shows the Prevalence of
Mental Illness in the Workplace

In prior posts, we’ve discussed the mental health challenges physicians and dentists can face due to their high-stress and high-responsibility work environments. We often see doctors who are wondering if they can successfully file a claim based on a mental health condition, but are also reluctant to ask because they are concerned about what their colleagues/families/friends with think. Often, they feel like they are the only one struggling with these challenges but, in reality, they are not alone.

Unum, one of the largest disability insurers in the U.S., recently released a report[1] that looks at mental health challenges in the U.S. workplace. The report found that mental illness was one of the top causes of worker disability in the United States, with 62 percent of missed work days attributable to mental health conditions. Of those employees with mental health conditions:

  • Forty-six percent of those who missed work took an extended period of time off (over a week)
  • Two-thirds of employees with mental health issues went to work while experiencing symptoms (and reported a drop in productivity)
  • Forty-two percent of those who came to work were experiencing suicidal feelings

Despite the prevalence of mental health conditions (including anxiety, depression, and PTSD), sixty-one percent of the surveyed employees indicated that they felt there was a social stigma around those with mental health issues.

Although this study looked at data from employees, human resource professionals, mental health professionals, and research organizations that was not specific to the medical field, it is widely accepted that doctors are among those most likely to experience burnout during the course of their careers, with symptoms that overlap those of depression, anxiety disorder(s), and/or other mental health conditions. Unfortunately, stigma in the workplace and presenteeism may make doctors even more likely to ignore the symptoms of a mental health condition, push themselves to keep working, and/or avoid seeking support on the job and/or through treatment.

Ironically, we often see Unum (and other insurance companies) target mental health claims made by professionals due to the higher benefit amount of their policies and the more subjective nature of symptoms related to mental health conditions. They may pressure your treating provider for a return to work date, conduct surveillance to catch you in a happy moment that can be taken out of context, or have their in-house doctor question your course of treatment.

Further, many disability insurance policies now have substance abuse and mental health limitations provisions, which limit the amount of time a policyholder can collect for these types of conditions (usually to 24 months).  For these reasons, it is very important for physicians, dentists, and other professionals to have an awarenes of the challenges that may arise when filing a claim and understand what their policy says.

If you are considering filing a disability claim based on a mental health condition, 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] Unum report explores mental health challenges in U.S. workplaces, Unum, March 27, 2019.

 

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Arizona Now Matches
Other States’ Professional Licenses

In April 2019, Arizona Governor Doug Ducey signed legislation making Arizona the first state to match other states’ professional licenses. This allows individuals whose jobs require licenses, including dentists and physicians, to automatically receive a license in Arizona, provided they held a similar license in another state for at least one year with no disciplinary action. Under the new law, Arizona’s licensing boards can only test for Arizona-specific information.

Proponents say it paves the way for skilled workers to relocate and bring their expertise to Arizona, without added expense and time delays before they can start working. Further, those in support say it could help to address the medical and nursing shortages in Arizona. Those against the bill cited potential public health and safety concerns, arguing that some states have easier licensing requirements and that new arrivals will compete with those currently practicing in Arizona, potentially driving down wages.

Other states have taken less sweeping steps to ease licensing requirements for relocating professionals, such as reciprocity agreements between states and, in the case of Utah, accepting licenses from other states, but only for military spouses.

Currently, the American Medical Association advises physicians, in general, to plan to wait 60 days between the date an application is submitted and the date a license to practice medicine is granted. The American Dental Association, while supporting individual state’s rights to regulate licensure for dentists, has also adopted policies on licensure issues, including the freedom of movement for dentists and standardization of clinical licensing examinations.

At the bill’s signing in Phoenix, the governor said an expected 100,000 relocating professionals will benefit from the legislation in 2019. Attorneys, private investigators, and security guards are exempt from the new legislation and are still required to complete the Arizona licensing process. As of this writing, the law is expected to go into effect August 2, 2019.

 

Sources:

Jonathan J. Cooper, Arizona becomes 1st to match out-of-state work licenses, Associated Press, April 10, 2019.

Lurissa Carbajal, Arizona becomes the first state to recognize all out-of-state occupational licenses, Cronkite News, April 10, 2019.

Howard Fischer, Ducey signs bill for state to recognize out-of-state-license, Arizona Capitol Times, April 10, 2019.

American Medical Association, Obtaining a medical license

American Dental Association, Licensure Overview

 

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Can You Collect On Your Specialty Specific Policy?
A Case Study

Disability claims filed by professionals can be complex, particularly when the dentist or physician’s underlying occupation is a specialty specific field.

If the claim involves a discrete practice area, disability insurers may use that as an excuse to drag their feet when making a claims decision. For example, they may make repeated requests for employer questionnaires, financial information and/or vocational examinations, among other things. Then, as time goes on, the financial pressures of being left with no income build, prompting some doctors to consider a return to work even though it’s not safe for them to be practicing on patients. Other doctors with specialty-specific policies reason that they can return to work in a different field and expect to receive their benefits as a supplement to the new job, only to find that their insurer disagrees that they were, in fact, a specialist, and refuses to pay total disability benefits.

This is what happened to Joanne Ceimo, M.D., a former invasive cardiologist from Scottsdale, Arizona who practiced at Banner Boswell Medical Center in Sun City, Arizona.[1] Dr. Ceimo had an own occupation policy and was practicing within her medically recognized specialty of invasive cardiology. In 1994, doctors diagnosed Dr. Ceimo with cervical degenerative disc disease, which made it increasingly difficult for her to perform surgeries and prevented her from performing on call duties. Eventually, she was forced to stop performing surgeries as well and instead began practicing general cardiology.

In her mind, Dr. Ceimo’s new job as a general cardiologist was substantially different than her prior job as an invasive cardiologist. However, Dr. Ceimo ultimately had to sue General American, along with Paul Revere and Provident (the other insurance companies administering her claim) for the benefits she was due under her policy. She filed her disability insurance claim in 1995 and, after a long, drawn-out claim investigation, was eventually denied benefits in 1998. Due to the long delay, Dr. Ceimo was forced to continue working as a general cardiologist to meet her expenses, even though it was bad for her health and working made her pain worse.

When they denied her claim, the companies asserted that Dr. Ceimo was not a specialty cardiologist because she had only spent six to ten hours on surgeries per week. The companies then stated that her occupation before her date of disability was that of a general cardiologist, and concluded she was not eligible for total disability benefits because she continued to practice in that capacity. In making this argument, the companies ignored the fact that Dr. Ceimo had practiced invasive cardiology from when she was licensed by the Arizona Medical Board in 1982 through the onset of her disability in 1995. The companies also failed to mention that their own medical records review classified Dr. Ceimo as an “invasive cardiologist.”

Dr. Ceimo and her lawyers filed a bad faith lawsuit in the District of Arizona against General American, Paul Revere and Provident.[2] In addition to arguing that the companies improperly interpreted her specialty, Dr. Ceimo and her attorneys also asserted that the companies improperly relied on biased in-house medical consultants and internal company practices geared towards denying high-dollar physician claims like Dr. Ceimo’s. The case ultimately produced a large verdict in favor of Dr. Ceimo, with almost $6.7 million in consequential damages, but it took nearly a decade of fighting before she obtained the benefits she was due under her policy.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your company is improperly delaying a claims determination and/or targeting your claim for denial or termination, an experienced disability insurance attorney can help you assess your claim and determine what action, if any, needs to be taken.

[1] See Ceimo v. Gen. Am. Life Ins. Co., 2003 WL 25481095 (D. Ariz. Sept. 17, 2003).

[2] They alleged that all three companies were licensed to do business in Arizona, subject to Arizona’s bad faith laws and required to abide by the Arizona Unfair Claims Settlement Practices Act.

 

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