Case Study: Abuse of Discretion Under ERISA
In previous posts, we have discussed how it is oftentimes harder to collect under ERISA policies. One of the primary reasons ERISA claims are more difficult is the fact that in most ERISA cases courts are required to defer to the insurer’s decision unless the insurer “abused its discretion.” Under the abuse of discretion standard, an insurer’s decision is only reversed if the claimant can demonstrate that the insurer’s actions were “arbitrary and capricious.” This is a high standard to meet.
While ERISA claims can be more difficult, particularly under the “abuse of discretion” standard, they are not impossible. Sometimes a court will determine that the insurer did, in fact, abuse its discretion. In this post, we will be looking at the recent court case Jalowiec v. Aetna Life Insurance Company[1] to illustrate some of the things that a court may find to be an abuse of discretion.
In Jalowiec, the claimant suffered from chronic migraine headaches, dizziness, nausea, vertigo, insomnia and fatigue after suffering a blow to the back of his head at a Tae Kwon Do event. After over a year of testing and treatment, the claimant was initially diagnosed with postural orthostatic tachycardia syndrome (“POTS”). Later on, claimant was diagnosed with an “unspecified disorder of autonomic nervous system.”
The insurer, Aetna, initially awarded the claimant short term disability benefits, but subsequently denied claimant’s claim for long term disability benefits. Ultimately, the court determined that Aetna’s denial of long term disability benefits was an abuse of discretion, for the following reasons:
- Aetna improperly classified claimant’s occupation as “sedentary,” which was not supported by substantial evidence.
- Aetna changed the classification of claimant’s occupation multiple times throughout the claims process, from “sedentary” at the short term disability phase, to “light’ at the initial stages of the long term disability claim, and then back to “sedentary” in order to deny the claim.
- Aetna relied on file reviews conducted by reviewers who were relying on incorrect and incomplete information about the claimant’s job classification (i.e. that the job was “sedentary,” not “light”).
- Aetna relied on file reviews conducted by reviewers who did not have the proper expertise to review claimant’s diagnosis of “unspecified disorder of autonomic nervous system.”
- Aetna relied on file reviews that were not based on informed consultation with the claimant’s treating physicians.
These are just a few examples of things that courts have found to be an “abuse of discretion” under ERISA. Remember, the law in each jurisdiction varies, so the courts in your state may not necessarily agree with the court in this case. An experienced disability insurance attorney should be able to give you a sense of whether a court would uphold or reverse your claim denial, under ERISA or otherwise.
[1] No. CV 14-4332 (DWF/LIB), 2015 WL 9294269, at *1 (D. Minn. Dec. 21, 2015).
Know Your Limits: How Issue and Participation Limits Affect Your Coverage
Recently, several disability insurers have decided to raise their Issue and Participation (I&P) limits. In this post we will discuss some of the potential ramifications of increased I&P limits.
What are Issue and Participation Limits?
The Issue Limit is the maximum amount of liability a single insurer will cover for a particular individual. The Participation Limit is the maximum amount of total coverage an insurer is willing to provide after factoring in the coverage that the individual is already receiving from other insurance companies. Usually your maximum monthly benefit is determined by your income, but some insurers allow professionals, such as physicians and dentists, to apply for default rates based on other factors such as occupation, years of experience, etc. Usually, an insurer’s I&P limits permit coverage in an amount that is approximately 40-65% of your actual monthly income.
Essentially, insurers use I&P limits to make it possible to collectively provide higher total benefits to high income earners, while at the same time ensuring that they are not over-insuring an individual.
What are the Ramifications of Higher Issue and Participation Limits?
In previous posts, we have talked about how in the 1980’s and early 1990’s, disability insurers aggressively marketed policies to doctors, dentists, and other high income earners. We’ve also discussed how, due to the emergence of managed care, doctors and dentists saw a significant decrease in income. The end result was that disabled doctors and dentists had policies that promised disability benefits that were equal to, or greater than, their modified salaries. When the insurance companies had to start paying the benefits they had promised, they lost hundreds of millions of dollars. This in turn led to insurance companies taking an aggressive stance toward claims involving high paying policies. Most disability insurers also stopped offering policies with high benefit limits.
Now, it appears that at least some insurance companies have come full circle and are once again marketing policies with high benefit limits. What does this mean? Now that insurers are beginning to raise I&P limits, it may be possible for you to obtain benefit amounts that are closer to your actual monthly income. Remember, as with any insurance, generally speaking, a higher benefit also means higher premiums. However, if you can afford it, it is usually better to have as much coverage as possible.
If insurers end up providing higher benefits again, it will be interesting to see if there is another corresponding spike in claim denials. If you do end up purchasing a high benefit policy, be sure to look it over carefully and make sure that there is not anything in it that would allow the insurance company to limit or deny your disability claim later on down the road. If you are unsure about whether you are being offered a good policy, an experienced disability insurance lawyer can review the disability policy and explain any complex provisions.
References:
http://www.virtual-strategy.com/2015/10/21/secura-consultants-highlights-new-benefit-levels-disability-insurance-coverage#axzz3ptYLroMT.
Build Your Own Insurance: What to Look for in a Policy
Recently, insurers have started to allow consumers to build and personalize their own disability insurance policies online. For instance, Guardian recently announced the launch of its online insurance quoting tool. According to Guardian, the tool “educates clients on the costs for various options based on age and occupation, demonstrates how adding or removing certain options affects pricing, and shows how to create the plan that best matches their individual needs.”[1]
If this “build your own insurance” concept catches on, consumers may have much more control over the terms of their policies than they have had in the past. Accordingly, in this post we are going to talk about things to look for in a policy, and some things to avoid in a disability insurance policy.
Things to Look for in a Policy
Generally speaking, here are a few things that you will want to look for when selecting a disability insurance policy:
- Make sure that the disability policy is a true “own occupation” policy.
- Make sure that the disability policy provides for lifetime benefits.
- If possible, add a specialty rider that clearly defines your own occupation as your specialty.
- Try and find a disability policy with a COLA (cost of living adjustment) provision. This provision will increase your potential disability benefits by adjusting for inflation as time passes.
- Make sure that you get the highest benefit amount you can afford. Remember, if you’re unable to practice, your monthly disability payments may be your only source of income.
Things to Avoid in a Policy
Generally speaking, here are a few things that you should avoid when selecting a disability insurance policy:
- “No Work” provisions that only provide disability benefits if you are unable to perform the material and substantial duties of your own occupation and you are not working in any other occupation.
- Substance abuse exclusions.
- Provisions requiring you to apply for Social Security benefits.
Remember, purchasing disability insurance is no different than any other significant purchase. Be sure to take your time and obtain quotes from multiple insurance companies before making a final decision.
For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.
[1] See http://www.businesswire.com/news/home/20151028005074/en/Guardian-Empowers-Consumers-Build-Disability-Insurance-Coverage.
Case Study: The Importance of Proper Documentation
In previous posts, we have discussed the importance of properly documenting your disability claim. From the moment you file your disability claim, most insurers begin collecting as much documentation as possible in the hopes that they can use the documentation to deny your initial claim, or terminate your disability benefits later on.
Oftentimes, disability benefits are terminated without warning. For example, an insurance company may conduct covert surveillance over an extended period of time, and then suddenly terminate your disability benefits once they feel that they have sufficient footage to assert that you are not disabled. If you are not consistently documenting the ongoing nature and extent of your disability, you may find yourself lacking sufficient evidence to contest a denial or termination of benefits.
For example, in the recent case Shaw v. Life Insurance Company of North America[1], the insurer refused to pay claimant her disability benefits. Although claimant saw multiple doctors and psychiatrists for PTSD and depression before filing her disability claim, the court ultimately found that the medical records she submitted were deficient, for several reasons.
First, even though claimant was asserting mental health claims, the claimant’s primary treatment provider was a family practice physician, not a psychologist or psychiatrist. Additionally, the court observed that the family practice physician’s records were “cursory, and contain[ed] minimal documentation of the frequency or intensity of [claimant’s] symptoms.” Id. To make matters worse, the claimant only saw the psychiatrists for a period of a few months, and the psychiatrists’ records showed that claimant had refused to follow the recommended treatment plan, which included both psychiatric medication and cognitive treatment.
The claimant attempted to supplement her medical records using a narrative letter she wrote describing her symptoms, along with several letters from family and friends. However, the court ultimately found the narratives unconvincing because there was a “significant potential for bias,” the severity levels described in the narratives conflicted with the psychiatrists reports, and claimant’s friends and family were not medical specialists or care providers and therefore could not diagnose claimant’s medical condition or assess claimant’s functional capacity. Id.
In the end, the court affirmed the denial of disability benefits, even under de novo review. Id.
What could the claimant have done better to avoid the denial? For one, she could have used a psychiatrist or psychologist as her primary treatment provider. She also could have followed the treatment plan recommended by her psychiatrists. Finally, she could have asked her physician to provide more thorough documentation.
Remember, courts will generally want to see medical records, not statements from friends and family. While such statements can be a useful way to provide background information, a court will want to see documentation of diagnosis and treatment by a health care provider. An experienced disability insurance attorney can help you review your medical records and determine if they are sufficient in comparison to the documentation that the insurance company will almost assuredly be collecting.
[1] No. CV1407955MMMFFMX, 2015 WL 6755187 (C.D. Cal. Nov. 4, 2015).
Attorney at Law Magazine Features Ed Comitz
Attorney at Law Magazine recently featured one of the firm’s founding members, Ed Comitz, as its “Attorney of the Month.” Go to Attorney at Law Magazine to read the full interview and learn about Ed’s unique niche, how he manages the disability insurance practice section, and why he decided to advocate for physicians and dentists filing disability insurance claims.
Exertion Levels: What They Are, and Why They Matter
The Dictionary of Occupational Titles (DOT) contains definitions of various exertion levels that are used to place different jobs within categories based on the level of strength required to perform each job. You may have noticed these categories listed on claim forms, or referred to in functional capacity evaluation (FCE) reports or independent medical evaluations (IME) reports. In this post, we are going to look at what the various exertion levels are, and why they matter in the disability insurance context.
What Are the Exertion Levels?
The DOT lists five exertion levels—sedentary, light, medium, heavy, and very heavy. The DOT definitions for each exertion level are summarized below.
Sedentary Work (S)
Occasionally (i.e. up to 1/3 of the time) exerting up to 10 pounds of force and/or frequently (i.e. from 1/3 to 2/3 of the time) exerting a negligible amount of force to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve occasional walking or standing for brief periods of time.
Light Work (L)
Occasionally exerting up to 20 pounds of force, and/or frequently exerting up to 10 pounds of force, and/or constantly (i.e. 2/3 or more of the time) exerting a negligible amount of force to move objects. Requires walking or standing to a significant degree, requires sitting most of the time but also involves pushing and/or pulling of arm or leg controls, and/or requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.
Medium Work (M)
Occasionally exerting 20 to 50 pounds of force occasionally, and/or frequently exerting 10 to 25 pounds of force, and/or constantly exerting greater than negligible up to 10 pounds of force to move objects.
Heavy Work (H)
Occasionally exerting 50 to 100 pounds of force, and/or frequently exerting 25 to 50 pounds of force, and/or constantly exerting 10 to 20 pounds of force to move objects.
Very Heavy Work (V)
Occasionally exerting in excess of 100 pounds of force, and/or frequently exerting more than 50 pounds of force, and/or constantly exerting more than 20 pounds of force to move objects.
Why Do They Matter?
Insurers usually rely on the DOT exertion levels in ERISA claims or cases involving “any occupation” policies. First, the disability insurer will seek to establish that the claimant can work at the highest level of capacity possible. Then, the disability insurer will claim that the claimant can return to work performing any job within that category, and any lower categories.
Conversely, if the case involves an “own occupation” policy, the disability insurer will seek to establish that the claimant’s occupation required the lowest level of capacity. The disability insurer will then assert that the claimant’s disability is not severe enough to prevent the claimant from returning to his or her old job.
In either case, if the disability insurer feels that it can demonstrate that a claimant is capable of returning to work, it will likely deny the claim for disability benefits, or terminate existing disability benefits.
References:
http://www.occupationalinfo.org/appendxc_1.html
Case Study: Can You Sue Your Insurer For Emotional Distress?
At least one court thinks so. In Daie v. The Reed Grp., Ltd.[1], the claimant was denied long term disability benefits under an ERISA plan. Instead of merely asking the court to reverse the denial of disability benefits (a result that can be difficult to achieve under ERISA), claimant filed a complaint in state court alleging intentional infliction of emotional distress.
The claimant asserted that the insurer “repeatedly engaged in extreme and outrageous conduct with the aim of forcing plaintiff to drop his claim and return to work.” Id. More specifically, the claimant alleged that the insurer had falsely claimed the claimant was “lying” about his disability and “exaggerating” his symptoms. Id. According to the claimant, the insurer had also urged claimant to take “experimental medications,” induced claimant to “increase his medications,” forced claimant “to undergo a litany of rigorous medical examinations without considering their results,” and pressured claimant “to engage in further medical testing that it knew would cause . . . pain, emotional distress and anxiety.” Id.
The insurer filed a motion to dismiss, arguing that ERISA preempted claimant from bringing the state law claim. The court denied the motion to dismiss for two reasons. First, the court determined that the claim was based on “harassing and oppressive conduct independent of the duties of administering an ERISA plan.” Id. Second, the court determined the insurer had a “duty not to engage in the alleged tortious conduct” that existed “independent of defendants’ duties under the ERISA plan.” Id.
The federal court then sent the case back to state court, where, as of the date of this post, the state court has not yet determined whether claimant should be awarded damages for emotional distress.
At this point, this ruling has only been adopted by the District Court, and not the Court of Appeals, so it is not binding upon other courts. However, it could potentially persuade other courts to recognize similar claims. It will be interesting to see how many other courts follow suit, and whether this ruling will ultimately be adopted by courts at the appellate level.
[1] No. C 15-03813 WHA, 2015 WL 6954915, at *1 (N.D. Cal. Nov. 10, 2015).
The Reality of Addiction: Physicians Are Susceptible Too
We’ve discussed the prevalence of depression and stress in physicians, but what about addiction? While physicians are just as likely as the general public to become dependent upon alcohol and illegal drugs, they are more likely to abuse prescription drugs. A survey of 55 physicians that were being monitored by their state physician health programs for problems relating to drug and alcohol abuse showed that 38 (69%) abused prescription drugs. While certainly concerning, this is not necessarily surprising, as physicians have far greater access to prescription drugs than the average person.
Compounding this issue is the stigma associated with substance abuse. Oftentimes, those who do not suffer from substance addiction believe that drugs and alcohol are something that people can quit easily, and that substance abuse can be solved by a quick trip to a rehab facility. But in many cases, substance abuse is more than mere recreational use of medications. In some cases, those who abuse prescription drugs may be trying to relieve stress or self-medicate chronic physical and/or emotional pain. In other cases, substance abuse may be a result of the phenomenon called “presenteeism”—doctors may be taking the medication simply because they believe it is the only way to continue working in spite of an illness, impairment, or disability.
How can medical professionals with substance addiction get help? One way is to seek confidential treatment to avoid the scrutiny of a medical board or coworkers. Confidential programs can be both outpatient and inpatient, with inpatient programs usually lasting around one to three months. After treatment, patients are able to continue recovering by completing 12–step programs, like Alcoholics Anonymous. However, this treatment option has similar relapse rates to the general public: nearly half of patients relapse in the first year.
A second road to recovery is physician health programs. These programs actively monitor patients after treatment for a period of five years by conducting drug testing, surveillance and behavioral assessments. This path may be difficult for physicians to come to term with after keeping their addiction hidden. However, going through the physician health programs boasts a much higher success rate of 78% (only 22% tested positive during the 5-year monitoring period), and roughly 70% of medical professionals who pursue this method of treatment are still working and retain their licenses.
If you, or a physician you know, struggles with substance dependency, we encourage you to seek out appropriate help. If you are a physician with a painful disability, you should not put your patients at risk by attempting to work through the pain or by seeking to dull the pain with self-medication. If you have disability insurance, you should contact an experienced disability insurance attorney. He or she will be able to guide you through the claims process and help you secure the benefits that you need without putting yourself or your patients at risk.
REFERENCES:
http://www.medscape.com/viewarticle/819223_3.
DOL Proposes Changes to ERISA
In prior posts, we have noted that employer-sponsored disability plans are generally governed by ERISA. We have also discussed some of the challenges claimants may face when filing a disability claim under ERISA.
Recently, the Department of Labor (DOL) proposed some new regulations that could make filing a disability claim under ERISA more claimant-friendly. If finalized, the regulations will change several aspects of the claims process under ERISA. Some of the most notable changes are as follows:
- Insurers will have to hire medical experts based solely upon professional qualifications (as opposed to hiring an expert because the expert is known for supporting disability denials of benefits).
- At both the initial claim stage and the appeal stage, insurers will have to provide a detailed explanation for their denial, including their bases for disagreeing with the claimant’s treating physician, the Social Security Administration, and/or other insurers who are paying benefits under other policies the claimant may have.
- Insurers will have to include the internal rules/guidelines/protocols/standards used to deny the disability claim, or expressly state that such criteria do not exist.
- Insurers will have to notify claimants at the initial claim phase that the claimant is entitled to receive and review a copy of their claim file (right now, insurers only have to do this at the appeal stage).
- During the appeal stage, insurers must automatically provide claimants with any new information that was not considered at the initial claim stage so that the claimants can review and respond to the new information.
- If an insurer violates the new rules (and it is not a minor violation) claimants can file suit immediately and the court must review the dispute de novo (i.e. without giving special deference to the insurer’s claim decision).
Some of these rules have already been established by case law, but as of right now, they are not uniformly applied across the country. If the DOL moves forward and finalizes the regulations, disability insurers and plan administrators will have to uniformly comply with these new rules when administrating ERISA claims.
Are Insurance Companies Discriminating Against Mental Health Claims?
In previous posts, we have noted that disability policies often limit the disability benefits available for claimants who suffer from mental health disorders. For example, many policies limit recovery under a mental health disability claim to a 2 or 3 year period. In contrast, most disability insurance policies provide benefits for physical disability claims to age 65, and some policies even provide lifetime benefits for physical disability claims.
Recently, Representative Ruth Balser has introduced a bill in the Massachusetts state house that would prohibit insurance companies from treating behavioral health claims differently from physical impairment claims. According to Representative Balser, offering shorter benefit periods to claimants with mental health disorders is discrimination.
Supporters of the bill contend that the way that disability insurers currently handle mental health is based on stigmas and ignores available treatments options. Supporters of the bill also argue that the bill will reduce government costs because individuals with mental health issues will no longer need to rely on Social Security or government welfare programs.
The insurance industry’s response is that requiring insurance companies to provide more coverage will cost businesses money because it will limit available options when buying insurance and force them to buy coverage that they do not want. The insurance companies also argue that the bill will actually result more people relying on government programs because they will not be able to afford the increased levels of coverage.
At the moment, the bill is still being considered in committee, so it has not yet become law. However, if the bill is ultimately passed, it could significantly alter the way insurance companies treat mental health disability claims, particularly if other states pass similar laws.
For more information, see http://www.milforddailynews.com/article/20151016/NEWS/151017038.
Fibromyalgia: Part 2
In Part 1 of this post, we listed some of the symptoms and potential causes of fibromyalgia. In Part 2, we will discuss some proposed treatments for fibromyalgia.
Treatment
Unfortunately, while there are a variety of ways to treat fibromyalgia, there is currently no cure for fibromyalgia. Some of the most prominent courses of treatment include:
- Exercise: Many fibromyalgia patients may be afraid to exercise because they think it will increase their pain. However, being active may help to alleviate pain because physical activity can increase endorphin levels that patients may be lacking. Exercise can also alleviate stress, anxiety and depression—common symptoms of fibromyalgia.
- Physical Therapy: Some physical therapists utilize exercises that help fibromyalgia patients relax tense muscles and move in ways that will not exacerbate pain levels. Physical therapy is often used as a precursor to exercise.
- Medication: Antidepressants are often prescribed to help with the depression, fatigue, and sleep issues associated with fibromyalgia. Medications that facilitate restful sleep may also help with the pain, by allowing patients the rest needed to recover. Other drugs, such as Lyrica, have been approved by the FDA to directly treat fibromyalgia pain. Remember, you should always consult with your doctor before taking any medication.
Conclusion
Fibromyalgia is a condition that varies from person to person, with people having both good and bad days. If you suffer from fibromyalgia, note what makes your pain worse or better, and try to avoid or continue those practices. As always, it is important to consult with your doctor to ensure that you are receiving appropriate treatment for the chronic pain caused by fibromyalgia.
If your fibromyalgia has progressed to the point where you can no longer practice, we encourage you to contact an experienced disability attorney before filing a disability claim. Disability claims involving fibromyalgia can be particularly difficult, due to the subjective nature of the condition, so it is important to have an experienced advocate at your side to help you navigate the claims process.
Fibromyalgia: Part 1
In this post, we are going to take a look at some of the symptoms and causes of a debilitating condition known as fibromyalgia.
Symptoms
Fibromyalgia is a syndrome that is characterized by chronic, widespread muscle pain. Other symptoms include:
- Fatigue;
- Trouble sleeping;
- Morning stiffness;
- Muscle knots, cramping, or weakness;
- Painful trigger points;
- Dry eyes;
- Concentration and memory problems, called “fibro fog”;
- Irritable bowel syndrome;
- Anxiety or depression; and
- Headaches.
Fibromyalgia is difficult to diagnose, because most of the symptoms are relative or subjective. Notably, certain forms of arthritis may cause similar symptoms. However, persons with arthritis suffer from pain that is localized in joints. In contrast, persons with fibromyalgia suffer pain that is primarily felt in muscles, tendons, and ligaments.
Potential Causes
Because fibromyalgia is difficult to diagnose (due to the subjective nature of its symptoms), there is no clear consensus as to the causes of fibromyalgia. Here are some of the theories that researchers have suggested:
Lower Levels of Serotonin and Endorphins
Serotonin is a neurotransmitter that is associated with calming and feelings of well-being and happiness. Endorphins are also associated with happiness and serve as painkillers. If someone has lower levels of serotonin and endorphins, they may be more susceptible to feeling pain, or may feel pain more intensely than someone with normal serotonin and endorphin levels.
Stress
Some researchers theorize that stress causes muscle “microtraumas,” which in turn leads to a cycle of pain and fatigue caused by an inability to rest due to the pain.
Gender and Biological Changes
Statistically speaking, women seem to be at greater risk for fibromyalgia. For this reason, some scientists have proposed that fibromyalgia pain may be connected to hormonal changes such as menopause.
Heredity/Genes
Fibromyalgia could be due to a genetic tendency that is passed down and regulates the way one’s body processes pain. Although, as of yet, no particular “fibromyalgia gene” has been identified, several genes have been found to occur more often in people with fibromyalgia.
Trauma
Accidents, injury, and illness involving the brain or spinal cord may contribute to fibromyalgia pain. Such trauma may alter the way neurotransmitters, such as serotonin, are produced, or it may lower an individual’s emotional threshold for pain.
Karla Thompson Discusses Common Claim Mistakes
in U.S. News & World Report
Attorney Karla Thompson recently spoke with Geoff Williams, a journalist for U.S. News & World Report Money, about common mistakes consumers make when they file insurance claims.
In the article, Ms. Thompson discusses one of the chief errors that can lead to a claim being denied: talking to claims analysts on the phone. Mr. Williams writes:
If you’re a conversationalist and enjoy talking, be careful. Karla Baker Thompson is a Scottsdale, Arizona-based insurance attorney who specializes in representing professionals with disability insurance claims.
…
“Most people don’t realize how claims handlers are trained to ask loaded questions whenever they talk to policyholders, and to memorialize everything the claimant says in a written memo after the call,” Thompson says. “The questions might seem routine or mundane to the policyholder, but the answers they elicit can have serious consequences, including denial of the claim.”
Thompson offers the example of a claims handler asking what you’ve been doing that day.
“If you say you went out to pick up a prescription, you’re not just making small talk. You’ve just led that claims adjuster to believe – whether accurately or not – that you’re capable of leaving the house, getting in your car, driving, filling out paperwork, and possibly lifting and carrying bags,” Thompson says.
Maybe, Thompson adds, someone drove you to get that prescription, or maybe you did go out yourself but you came back and felt miserable afterward.
“If you’re just speaking off the cuff, you may not be giving the proper context to your answers,” she says. “Worse, you could say something inaccurate by mistake.”
Other examples in the article include assuming your insurance company is right and not getting the proper documentation to support your claim.
Check out the article in its entirety to learn more: Don’t Make These Mistakes When Filing an Insurance Claim.
Should Women Pay More for Disability Insurance?
Massachusetts is currently considering a bill that would prohibit disability insurers from charging higher rates to women than to men. Even if a woman is the same age, has the same job, and has the same health history as a man, she pays on average 25% more for the same protection, according to Massachusetts State Representative Ruth Balser.
This bill would prohibit discrimination in premium costs or benefits based on sex in individual disability, accident, or sickness insurance policies. It would also bar disability insurers from making any distinction in insurance policies based on conditions unique to one’s sex, such as pregnancy.
The disability insurance companies, on the other hand, say that the difference is necessary, due to the fact that women account for 70-80% of long-term claims nationwide. While they do purchase more disability insurance policies than men (60% as compared to 40%), insurers argue that this isn’t enough to make up the difference in revenue. Insurers are in the business of making money, and paying out more in disability benefits than the amount of premiums coming in isn’t good for business.
According to the Affordable Care Act, health insurers can’t charge a woman more solely because she is a woman. Yet, Montana is the only state with a law requiring disability insurance to be gender neutral, and Massachusetts has a bill in the works. It remains to be seen whether Massachusetts will pass this bill, and other states will follow suit. With some of the major disability insurance carriers (such as Unum and Guardian/Berkshire) keeping corporate offices in Massachusetts, we doubt the bill will be passed without a fight.
What’s your opinion? Should women pay more in disability premiums than men with the same characteristics? Are the disability insurance companies’ arguments in favor of the disparity justified?
Essential Tremors (ET): Part 2
In Part 1 of this post, we looked at the risk factors, symptoms, and treatment options associated with ET. In Part 2, we will discuss how having an essential tremor could potentially affect your total disability claim.
How do I file for total disability when I have ET?
For those with an “Own Occupation” policy, which means you are considered totally disabled if you can no longer work in your own profession, having ET would certainly qualify you for disability benefits if you are a medical professional.
Many physicians think that they can simply decrease the types of procedures they perform or amount of time spent at working as their ET becomes more disabling, but this is the wrong move to make. Changing your work responsibilities can alter your “occupation” under the terms of your disability policy. For example, if you forego performing medical procedures and merely manage your practice, the insurance company may claim that your occupation has changed from a physician to an office manager, and attempt to decrease or deny your disability benefits. Similarly, if you start to work part-time instead of full-time, and then file for disability, an insurance company will likely classify you as a part-time worker, and thus only give you part-time benefits.
Other physicians may decide to continue working in spite of their ET. This is also a mistake. Trying to work when you have ET places your patients at risk. If a patient did get injured and filed suit, his or her attorney would almost certainly assert that you should not have been working with patients and that you knew your ET could harm the patient.
The correct way to deal with insurance companies and your condition is to stop working as soon as it impinges on your ability to perform your occupation and file for disability insurance. Since, in many cases, the onset of ET is gradual, it is important to discuss you symptoms with your doctor so he or she can determine when your condition will progress to the point that it affects your work.
Conclusion
ET is a condition that can have an effect on actions as small as carrying a water glass or tying your shoes. It can also affect your occupation and the financial security that comes from having total disability insurance. We encourage you to speak with your doctor if you think you may be at risk for or have ET, and to contact a disability insurance attorney to help with the claims process if you are planning on filing for disability benefits.
Essential Tremors (ET): Part 1
We’ve done a profile on how Parkinson’s disease can affect physicians and dentists, but did you know that essential tremors are eight times more common than Parkinson’s disease? A hand tremor is one of the last things a physician or dentist wants. Not only can it affect daily life, but working with patients safely becomes increasingly difficult.
In this post, we will list some of the risk factors and common symptoms associated with essential tremors and take a look at what can be done to perhaps alleviate symptoms.
What is an essential tremor and what are the symptoms?
An essential tremor (ET) is a neurological disorder that causes rhythmic shaking of part of the body—most often the hands, head, or voice.
The primary symptoms of ET are involuntary shaking, voice fluctuations, nodding head, balance problems, and tremors that get worse during periods of emotional stress, fatigue, caffeine use, and/or purposeful movement. ET is a progressive disorder than can become worse over time.
What is the difference between Parkinson’s and ET?
Many people believe that Parkinson’s and ET are the same thing. However, there are some subtle differences between the two conditions, including:
- Timing: ET usually occurs when you are in motion, while Parkinson’s is most noticeable when you are at rest.
- Related Conditions: ET generally does not cause other health problems, but Parkinson’s has been connected to poor posture, a shuffling gait, and slow movement.
- Parts of Body Affected: ET is most common in the hands, head, and voice. Parkinson’s most often starts in your hands and may also affect the legs and chin.
What are the causes and how do you know if you are at risk?
ET appears to be a genetic disorder, because approximately 50% of people with ET have a particular genetic mutation. However, scientists are not sure what causes ET in people who do not have the genetic mutation. Researchers have found that changes in specific areas of the brain may contribute to development of the condition, but such studies are inconclusive.
Because the other causes of ET are unknown, the primary way to determine whether you have a high risk of developing essential tremors is to check your family history. Due to the fact that the mutation is an autosomal dominant disorder, if one of your parents has ET, you have a 50% chance of developing the disorder. Another risk factor is age—people over 40 are more likely to have an ET.
Is there a cure for ET or a way to prevent it?
Unfortunately, is currently not a cure for ET. However, now that scientists have found a genetic link, further research could potentially discover ways to prevent ET.
How can I alleviate my symptoms?
Since emotional stress is one of the things that can aggravate ET, look for ways to relieve your stress. Other methods of alleviating ET include decreasing your coffee and caffeine intake and making sure that you get an adequate amount of sleep each night. Certain medications may also can help with ET, although it is important to speak with your doctor before starting any sort of treatment. Finally, surgery may be an option in some cases, although surgery certainly is not without its risks. Surgery for ET generally involves the implantation of a DBS, or a Deep Brain Stimulator. The DBS is a small device that delivers targeted electrical stimulation to the brain in an effort to reduce the frequency of tremors.
In addition to the foregoing methods of alleviating ET symptoms, there are other things that you can do to make living with ET easier, such as using a travel mug or straw for drinks, using heavier utensils for eating, wearing clothes that don’t have difficult buttons or laces, and saving your most difficult tasks for days when your tremor is least pronounced.
Disability Insurance Profiles: Principal Life
We are expanding our list of insurance company profiles that specifically market to dentists and doctors to include Principal Life.
See our other profiles of Great-West, MassMutual, MetLife, Northwestern Mutual, Guardian, Hartford, and Standard.
Principal Life (also known as “Principal Financial Group”) was founded in 1879. Initially, Principal Life operated primarily as an insurance company. Principal Life is now a member of the Fortune 500, and offers several additional services, such as retirement and asset management. Principal has most recently realized a growth in net income from $1.112 billion in June of 2014 to $1.290 billion in June of 2015.
Company: Principal Financial Group or The Principal.
Location: Des Moines, Iowa.
Associated Entities: Principal Financial Services, Inc.; Principal Life Insurance Company; Principal Real Estate Investors, LLC; Spectrum Asset Management, Inc.; Post Advisory Group, LLC; Columbus Circle Investors; Edge Management, Inc.; Morley Financial Services Inc.; Finisterre Capital, LLP.
Assets: $530.3 billion.
Notable Policy Features:
Principal Life sells polices that define “disability” as “own occupation”, which means that you are considered totally disabled if you are unable to perform the duties of your occupation. While this may seem like the right policy for a medical professional, you should be aware of a couple caveats. Coverage under a Principal Life policy is, in part, based upon a key definition that is usually referred to as your “occupation period.” Essentially, your “occupation period” is the time frame during which the “own occupation” definition of totally disabled applied. Once the “occupation period” has expired, Principal Life will only pay you benefits if you are unable to work in any occupation that you are reasonably suited to work in, based on your education, training, and experience.
The length of your “occupation period” can range from a base of 2 years after your disability to a period of 5 years, until age 65, until age 67, or until age 70, depending on your “occupation class.” Oftentimes, the policy provisions regarding “occupation periods” can be convoluted and difficult to decipher. If you unsure about the length of your “occupation period” under the terms of the policy, an experienced disability insurance attorney can help you understand the applicable policy language.
Claims Management Approach:
In comparison with other insurance companies, Principal Life generally conducts more in-person field interviews with claimants. Principal Life will not only conduct a field interview when you initially file your claim, but will also likely conduct several additional follow up interviews throughout the claims process.
Most insurance companies require you to fill out generic questionnaires that ask for information about the nature of your disability, among other things. Because Principal Life handles a lot of disability claims by physicians, it has created a particular “Medical Professional Occupation and Financial Questionnaire” that is more comprehensive than a generic questionnaire, and is specifically tailored towards collecting information from medical professionals. The questionnaire is quite extensive, and asks about a wide variety of information, from your ownership interest in your practice, to whether your practice participates in a health care network, to the credentials of the medical professional owners and associate professionals you work with, to whether you receive any reimbursements from prescriptions. If you are unsure about the content or scope of any questionnaire you receive, an experienced disability insurance attorney can help answer any questions you may have.
More than a Deep Breath: Stress in Doctors, and How to Handle It
We’ve talked about how medical professionals are more susceptible to mental health issues, so it shouldn’t be shocking that doctors and dentists are also more stressed out than the general populace. In fact, a study has shown threshold levels of stress that stay constant at about 28%, which is quite a bit higher than the general working population’s level of 18%. This shouldn’t be surprising, even if you disregard all the data associated with medical professionals and mental health; physicians are put in high risk situations every day.
While many physicians may assert that they have been dealing with stress their whole life and thus know how to handle it, it is important to be sure that you know how to recognize the signs of stress and how to properly decrease stress levels. Simply working through it or ignoring your stress may not get rid of it, and could even lead to other complications. For instance, stress increases the risk of conditions such as heart disease, Alzheimer’s, diabetes, depression, and obesity.
We created a list of some of the signs of stress, as well as a list of things that you can do to make your life a little less stressful both during work and outside of the office.
Signs of Stress
Some of these signs are very noticeable, and you could probably identify them in a second, but others are more subtle. If you suffer some of these symptoms on a daily basis, you may think that they are just part of your daily life, but it is important to note that many of these symptoms can be prevented.
Continue reading “More than a Deep Breath: Stress in Doctors, and How to Handle It”
Unum Denies Its Own Employee Disability Benefits
In previous posts, we have discussed how Unum is notorious for wrongfully denying disability claims. Recently, Unum refused to pay its own employee disability benefits.[1]
Apparently, the Unum employee suffered from carpal tunnel—due to all the typing that her job required—and also suffered a back injury in her home office. Naturally, the Unum employee saw a hand specialist for the carpal tunnel, and a back specialist for the back injury. After the Unum employee had surgery on her hand to treat the carpal tunnel, the Unum employee’s primary care physician placed her on work restrictions. However, the primary care physician did not send the work restrictions to Unum because she thought that the other doctors had already documented the restrictions.
Unfortunately for the Unum employee, the other doctors had not forwarded the restrictions to Unum. Instead of reaching out to the Unum employee’s doctors to see if the disability claim was legitimate, Unum simply denied the long term disability claim due to a lack of documentation. At that point, the primary care physician came forward and expressly told Unum that she supported the restrictions, but Unum still refused to pay any benefits.
[1] See http://www.lawyersandsettlements.com/articles/first_unum/interview-unum-lawsuit-insurance-29-20883.html#.VfhBwxFVikp.
