Better Treatment for Back Pain?

Chronic back pain is one of the issues that countless doctors and dentists face every day. Many of our clients have suffered from pain that doesn’t allow for effective practice, and thus have had to deal with the disability insurance claims process. According to the American Society of Anesthesiologists, there is a new treatment that could help alleviate some forms of back pain in certain patients. We’re going to be taking a look at the study they published regarding spinal cord stimulation (SCS), as well as answer some questions about SCS for those who don’t know about it.

The Study

This study compared the effectiveness of high frequency to traditional SCS therapy for back and leg pain. Researchers treated 90 patients with high frequency therapy while 81 received the traditional SCS. After three months, 85% of back pain patients, and 83% of leg pain patients reported a 50% or greater reduction in pain, while only 44% of back pain patients and 56% of leg pain patients in the traditional SCS group experienced a 50% reduction in pain.

Also, more patients (55% to 32%) in the high frequency group stated that they were “very satisfied” with their pain relief. Patients of the high frequency treatment didn’t experience any paresthesia, which is commonly associated with SCS.

SCS Questions

  1. What is SCS?

SCS is therapy that delivers low-level electrical signals to the spinal cord or to specific nerves in order to block pain signals from reaching the brain.

  1. How does SCS work?

A device is implanted in the back near the spinal cord through a needle and generator is placed through a small incision in the upper buttock. The patient is able to adjust the intensity of the signals or turn the current on or off.

  1. How does the SCS stay charged?

It depends on the device: some SCS systems have a pulse generator, which is like a battery, some have a rechargeable pulse generator system that can be charged through the skin, and others do not require recharging but last a shorter time before they need to be replaced.

  1. How much higher is the high frequency SCS?

The high frequency SCS pulses at 10,000 Hz, while traditional SCS has a frequency between 40 and 60 Hz.

  1. What is paresthesia?

Paresthesia is a sensation such as tingling or buzzing that is commonly associated with SCS. It is thought to potentially mask a patient’s perception of pain, and is often distracting or uncomfortable, thus limiting the effectiveness or desirability of SCS treatment.

  1. What are the risks of SCS?

SCS doesn’t address the source of the pain; it merely interrupts the pain signals sent to the brain from your body. If you have pain that stems from a correctable anatomical problem, it is probably best to look for treatment that will address this problem first. SCS also involves an implant and surgery, which naturally comes with risks and potential complications.

            These include:

  • Allergic reactions to the implanted material
  • Bleeding
  • Infection
  • Weakness, numbing, clumsiness, paralysis
  • Fluid lead from the spinal cord
  • Migration of the electrode
  1. What is this treatment called?

The treatment is being called HF10™.

Conclusion

This study is just the first step in a new treatment that could bring relief to people suffering from chronic pain. We encourage you to speak with your doctor before starting any sort of treatment.

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“Working Through Pain:
How Chronic Conditions Affect Dentists”

Dentists are particularly at risk for disability due to the strenuous nature of their job.  Dentists are also some of the most likely to keep working through the pain–even if they shouldn’t be.  Our new article in Dentaltown Magazine explores how working through chronic pain can affect dentists in their personal and professional lives.  Read the full article at Dentaltown today.

“Working Through Pain: How Chronic Conditions Affect Dentists”

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Are Longer Hours Hindering Your Ability to Work?

Long hours at work are typical of doctors: there is no break in people getting sick or having physical issues. But what does working long hours do physically and mentally to doctors, and how can this affect your practice? The term “overwork” refers to the increasing risk that a worker will experience symptoms of fatigue and work stress, which can undermine productivity rates. We’re going to be taking a look at some of the statistics involved with professionals working long hours and then discuss how this can not only hinder productivity in your practice, but can also affect your body and, in some cases, how soon you need to file a disability insurance claim.

Longer Hours

There numbers regarding the average work week for Americans, especially professionals such as doctors, show that most people expect to work extended hours. This is associated with the trend of “presenteeism” among doctors and dentists, which we have spent some time dissecting. In fact, many professionals now view the traditional 40-hour work week as a “part-time” job, and state that working those hours show laziness or a lack of desire to get ahead.

  • In 2006, American families worked an average of 11 hours more per week than they did in 1979.
  • 85.8% of males and 66.5% of women are working 40 or more hours per week. ((See American Average Work Hours at 20Something Finance))
  • 37.9% of professional men worked over 50 hours a week between 2006 and 2008, which is an increase from 34%.
  • The number of professional women working over 50 hours increased even more drastically, from 6.1% to 14.4% in the same time period. ((See Top-Level Professionals View 40-Hour Work Week as Part-Time at The Huffington Post))
  • 52% of top income earners in America report working “extreme jobs,” which are those that require more than 60 hours a week. ((See Success Comes at a Steeper Price at ABC News))

Effects of Overwork ((See The Effects of Working Time on Productivity and Firm Performance))

Studies have shown that working longer hours leads to a decrease in productivity per hour. Any doctor that has worked more than 10 hours a day, as they often do, can attest that the 9th hour is much more difficult to get through than the first. The evidence shows that longer working hours have a negative effect on worker health due to fatigue and work stress, all of which further decrease labor productivity.

Workers with long hours are at a greater risk of health issues. For instance, those who perform repetitive tasks have an even greater chance of cumulative trauma disorder, such as carpal tunnel syndrome. This shouldn’t be shocking to medical professionals, as many of the disabilities that they suffer come from repetitive use injuries. An interesting way to think of the way your hours affect your work is to think of your body using a minimum amount of energy for posture and immunity, which has a great effect on back and neck pain. If you draw too much on this energy for work, your posture and immunity will suffer.

As another example, working extended hours can have a negative effect on mental health. We have also discussed how medical professionals are more susceptible to mental illness. Studies have shown that working long hours leads to increased stress, which can contribute to the already stressful situations doctors face every day.

What Does This Mean for You?

One positive finding regarding hours worked and productivity is that those who have the flexibility to schedule their own hours are not only happier but more productive. Even more striking is the fact that even if workers had to put in overtime, if they chose this overtime themselves instead of being asked to do it by a supervisor, they were much more productive and less fatigued.

This is certainly good news for those medical professionals that own their own business and are able to schedule their time as they see fit. However, doctors such as residents or those working within another professional’s practice may feel pressured to take on more hours, and are also constrained by other doctors’ schedules. For these reasons, it’s important for the medical and dental community as a whole to take a better approach regarding long hours. While we certainly don’t presume to know what is most appropriate in terms of streamlining care and administration, it certainly seems logical that doctors be encouraged to work fewer hours or have more freedom in scheduling the hours that they are going to work.

Let us know what you think about working long hours and whether you have schedule flexibility in the comments!

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Could Your Tech Be Hurting You? : Skype Doctors

The third and final post of our series on insurance claims technology focuses on the recent development of digital healthcare. Our previous topics included Facebook and insurance company apps, and we analyzed how they can have a greater effect on your claim than you would think. You are now able to obtain a diagnosis and medication prescriptions via Skype. Just like the Hartford app, this is looking to streamline administrative processes and save people time. However, it is controversial in that many doctors believe that there are cases in which a physical examination is necessary, and webcam quality may not be enough to correctly diagnose a patient.

Diagnoses via Skype

It is touted as being quick and efficient; users need only to type in their symptoms and payment information and they will be connected with a doctor who can then call in a prescription as they see fit. While this is very convenient for people who are too busy or in too much pain to travel to and wait in a doctor’s office, it could also lead to a wrong diagnosis, which would almost assuredly use more time and money.

While there haven’t been any studies on how effective this form of treatment is, we advise disability insurance claimants to exercise caution when using these Skype calls. Because this technology is so new, there is little information on how disability insurance would approach Skype consultations in conjunction with a disability insurance claim.  An insurance company could potentially say that this information is unreliable, and use the alleged lack of reliable medical evidence to deny your claim. If you are facing a disability insurance claim, speak with an attorney experienced in the area before you use a Skype consultation as evidence of your condition.

Conclusion

While it is certainly helpful that many things are now available at our fingertips through the development of new technologies, it is important to keep in mind that giving more information than necessary to insurance companies may hurt your claim. Most people who file disability claims have nothing to hide, but it is the insurer’s job to make money, and paying every claim isn’t a good way to do this.

Did we miss any new technology? Let us know in the comments!

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Unum is Making Some Changes, But Are They Good For Your Plan?

In previous posts, we have discussed how courts and juries have reprimanded Unum and its various subsidiaries for wrongfully denying disability claims.  Now, Unum is once again making the headlines—this time for making significant changes to its leadership at the highest levels of the company.

What’s changing?

Essentially, Unum is undertaking a widespread overhaul of its upper management.  Marco Forato is now the senior vice president for global growth strategy, Steve Mitchell is the new chief financial officer, and Steve Zabel is the new president of the U.S. closed block operations.  Additionally, Vicki Gordan has been promoted to senior vice president and chief internal auditor, and Matt Royal is now the chief risk officer for Unum.

While any change of leadership can have substantial ramifications, those insured by Unum should take particular note that Unum has appointed a new “president of the U.S. closed block operations.”  “Closed block” refers to Unum’s discontinued product lines, which, according to Unum’s 2014 Annual Report, include long-term care and older individual disability policies.  If you are a physician or dentist with a Unum policy, your policy is probably part of Unum’s “closed block” operations.

Unum’s new president of “closed block” operations will likely face a challenging task because any losses suffered from paying out Unum’s old disability policies cannot be offset by new business.  Additionally, such “closed block” operations are a relatively new phenomenon in the insurance industry, so there is a very small reserve of historical data for Unum to draw upon.

What does this mean?

Generally speaking, a company does not make such extensive changes without expecting results.  Consequently, it is likely that several, if not all, of Unum’s newly appointed leaders will be under substantial pressure to perform.  Because fresh leaders often want to leave their own mark on their industry, insureds should pay close attention to any new changes in policy announced by Unum during this transitional period.

More specifically, insureds with older individual disability policies with Unum should be aware that Unum will likely be looking for new, creative ways to deny their claims.  If you have such a policy and you feel that Unum has arbitrarily changed your policy’s terms and/or wrongfully denied your disability claim, you should consult with an experienced disability insurance attorney to ensure that Unum’s leadership is not improperly exceeding the scope of their newly acquired authority.

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Ed Comitz and Patrick Stanley Named to Arizona’s Finest Lawyers

Edward Comitz and Patrick Stanley have been selected by their peers as Members of Arizona’s Finest Lawyers. Mr. Comitz and Mr. Stanley practice in the areas of healthcare, disability insurance and commercial litigation. The AFL has a limited membership of individuals who have attained positions of honor and trust in the legal community through their noteworthy achievements.

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All About Disability Insurance with Dentaltown’s Howard Farran DDS, MBA

Edward Comitz is talking about disability insurance with Howard Farran, the founder and publisher of Dentaltown Magazine. Ed will be discussing why and when to buy disability insurance and what to avoid or look for when you do.

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Carpal Tunnel Syndrome and You: The Issue, and 10 Things You Can Do to Prevent It

Carpal Tunnel Syndrome consists of pain, weakness, numbness, or tingling in the fingers or hand caused by pressure on the median nerve in your wrist. The median nerve controls the feeling and movement in the thumb and all of the fingers except the pinky. For a dentist, this syndrome can be quite debilitating, as this profession requires the full use of both hands in order to examine and perform surgery on patients. Today, we’re going to take a closer look at the symptoms and causes of Carpal Tunnel Syndrome, as well as 10 steps you can take to prevent it from happening.

Symptoms and Causes

While there are multiple symptoms of Carpal Tunnel Syndrome, there are a few that are rather noteworthy:

  • Sleep interruption from numb hands and tingling fingers: you may think that the numbness and tingling is simply due to sleeping on your hand in an awkward position, but there may be more to it than that.
  • Loss of fine motor skills/weakness in hands.
  • Pain radiating up the arm: it may just radiate up the forearm, or it could potentially also make your shoulder and neck ache.
  • Hand pain or wrist pain: this is perhaps the most straightforward symptom of the syndrome.

There seems to be no one cause of Carpal Tunnel Syndrome, but there are several risk factors, including:

  • Anatomic factors: wrist fractures or dislocations can lead to extra pressure on the median nerve.
  • Sex: the syndrome is more common in women.
  • Inflammatory conditions: illnesses such as rheumatoid arthritis.
  • Workplace: working with vibrating tools, holding static positions for a long time, repetitive motions with the wrist. These workplace factors put dentists at a higher risk for contracting Carpal Tunnel Syndrome than the general population.

Continue reading “Carpal Tunnel Syndrome and You: The Issue, and 10 Things You Can Do to Prevent It”

Do You Need Disability Insurance for More than Just Yourself?

We spend a lot of time talking about disability insurance claims and mostly focus on the big one: personal disability insurance. However, there are three other types of insurance that you may not have been aware of, and could be potentially helpful to you and your practice. Today, we’ll be taking a look at key-person disability insurance, buyout disability insurance, disability insurance for overhead, and, of course, personal disability insurance.

Personal Disability Insurance

Essentially, disability insurance is insurance that you buy for yourself in the event that you become disabled while working. If you work in a profession where disability is a possibility, it is important to have personal disability insurance for the sake of your future. For instance, dentists are at higher risk for disability due to repetitive movements and static positions, so it is crucial for them to have a disability policy.

Further, we recommend that you purchase an individual disability insurance policy for yourself, and not through an employer-sponsored program. This makes sure that the policy is not covered by ERISA in the event that you do have to file a disability claim.

Key-Person Disability Insurance

Key-person disability insurance is a type of coverage for those that own their own business or practice. This form of insurance covers an employee that is “key” to your business: someone who would be impossible to replace due to their skill, customer base, knowledge or burden of responsibility. If this person was to become disabled, and you had key-person disability insurance, the business would receive disability income checks. These checks could be used to cover the financial loss of the missing employee, or it could pay for a temporary worker while the insured person recovers from the disability.

There are several things to consider when determining if you should buy key-person disability insurance. These include the contingencies for the company if a key employee is disabled, the time to find and train a suitable replacement, the amount of revenue directly attributable to the key person, whether or not the key person’s disability will result in the loss of clients, and whether your company is willing to self-insure.

Unlike personal disability insurance policies, key-person policies are limited in their features and options. Often, they are custom designed for the company so that they meet specific needs, and are also often very short term, lasting between 12–24 months. This is because it is usually assumed that you could find and train a replacement in that time span.

Continue reading “Do You Need Disability Insurance for More than Just Yourself?”

Presenteeism & Sick Doctors: Does This Lead to More Sick People?

We’ve discussed the issues involved with “presenteeism” and how it can affect disability insurance claims, but it’s making waves in other news regarding healthcare workers and their patients. Healthcare workers are going to work sick, and while it is admirable to be dedicated to your job, it creates a huge risk to those with already compromised immune systems. Since healthcare workers are entrusted with the duty of caring for high risk patients, it’s important that we take care of our healthcare workers as well. However, that seems to not be the case, as in the medical field it is seen as weak to take days off, and sometimes taking more than two sick days is rewarded with an extra week of work for residents.

Here are some statistics that highlight this phenomenon:

95.3% of 504 physicians believed that working while sick put patients at risk. ((http://archpedi.jamanetwork.com/article.aspx?articleid=2344551))

83.1% of the 504, however, worked sick at least 1 time in the past year.

98.7% didn’t want to let colleagues down, and 64% feared being shunned by colleagues.

80% of a random sampling of 1,033 Norwegian physicians reported working even though they had symptoms that in a patient would be considered “sickness”. ((http://www.ncbi.nlm.nih.gov/pubmed/11355720/))

However, it’s imperative that we don’t blame healthcare workers, but instead society and its approach to doctors’ and dentists’ sickness as a whole. It doesn’t seem to make sense that we place such a heavy emphasis on coming to work no matter what when lives are at stake. While it would seem to be common knowledge that placing an already compromised immune system in jeopardy would be a bad idea, the medical community’s desire to work through diseases is contradictory to this, and perhaps it’s time to change the culture.

Physicians, what do you think about “presenteeism”, and how do you think we can change the culture surrounding it? Tell us in the comments.

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Protecting the Protectors:
Depression, Medical Professionals, and the Conflicts Involved with Under-reporting

Today we’re taking a closer look at how depression can affect doctors and dentists, their practices, and the way they file for disability insurance. We examine how the medical community’s approach toward mental health is perhaps preventing some doctors from reporting illness, and how this changes a doctor’s ability to obtain adequate treatment and secure disability insurance benefits.

Depression and anxiety are undeniably prevalent among physicians and dentists.  For instance, a study in Australia showed that the rates of depression in doctors is four times higher than the general population and in a British study, 60% of dentists surveyed reported being anxious, tense, or depressed.

Simply looking at the daily life of doctors, and comparing that to the risk factors for depression shows some striking connections between the two. Some of the risk factors associated with depression (as outlined by the Mayo Clinic) include being overly self-critical, having serious or chronic illness and dealing with traumatic or stressful events. Interestingly, these are many things that doctors and dentists struggle with; indeed, probably more often than the average person. Doctors and dentists have to be self-critical because if they aren’t, lives could be at stake. In addition, doctors and dentists often suffer from chronic illness and pain due to the physically and emotionally taxing nature of their work. Worrying about patients, running a practice, and working long hours are all part of the job description for the average doctor.

While physicians and dentists commonly have symptoms of depression, they often don’t report their issues due to the stigma of mental health issues within the medical community. Lay people look to doctors and dentists as the paragon of health, and physicians take the same approach: while their patients are characterized by their illness, physicians are supposed to be the ones who cure them. While the general populace’s approach to mental illness has improved greatly over time (we no longer lock people in tiny jail cells simply because they are mentally ill), the negative stigma attached to depression and anxiety in the medical and dental community is still present. In the Australian study noted above, half of the respondents reported thinking that they were less likely to be appointed to a new position if they had a history of mental illness, and 40% admitted thinking less of doctors that have a history of depression or anxiety.

Nevertheless, it is important for doctors to recognize whether they exhibit signs of mental illness. Aside from needing to be mindful of their own health and well-being, doctors are responsible for the health and well-being of their patients, too.  Physicians and dentists both are in the unique position that a mistake that they make at work could endanger a life. Attempting to work through depression and anxiety symptoms that impair the doctor’s ability to provide responsible patient care could lead to a malpractice suit. Perhaps the solution to this issue is a re-evaluation of the medical community’s approach to mental illness. While that seems like a large task to take on, it starts with each individual doctor either seeking treatment for mental health, or supporting those that do.

For physicians, states have programs in place called Physician Health Programs (PHPs) that are supposed to support the health, including mental health, of medical licensees. A PHP is advertised as a way to get the help one needs, while avoiding disciplinary action such as a loss of license. Physicians should be aware, however, that PHPs are often connected to the licensing boards, and non-compliance with the PHP can lead to disciplinary action. For example, in Arizona, while the PHP is operated by an independent agency, it does have a formal contractual relationship with the state licensing board.

Continue reading “Protecting the Protectors: Depression, Medical Professionals, and the Conflicts Involved with Under-reporting”

Arthritis and Its Many Forms: How It Affects Dental Professionals

The number one cause of disability in America is arthritis, which afflicts over 50 million people. With a U.S. population of 320 million this means that 1 person in every 6 has arthritis. These large numbers could be due to the fact that there are over 100 different types of arthritis ranging from lupus to gout. In this post, we will look to focus on the three most prevalent types of arthritis: osteoarthritis, rheumatoid arthritis and psoriatic arthritis. We will also discuss how they can affect your practice as a dentist, and how to approach a disability insurance claim for arthritis.

The Basics: Symptoms, Causes & Treatment

Osteoarthritis (OA) is the arthritis that arises simply from the overuse of joints, and for this reason it is known as “wear and tear” arthritis. Symptoms include pain, swelling and stiffness in the joints after either overuse or long periods of inactivity. It is most commonly developed as people naturally age and their bodies reflect that age, but can also be found in professions with repetitive movements, such as dentistry.

Since OA is due to aging or the effects of repetitive motion, OA is often progressive. It is the most common form of arthritis, and treatment can range from added exercise and weight loss (where the main cause of the OA is obesity), to taking various pain relievers, and even surgery.

Rheumatoid arthritis (RA), on the other hand, is an autoimmune disease, and is three times more common in women than it is in men. The body’s immune system mistakenly attacks joints, which leads to inflammation that causes further damage. While the symptoms are similar to OA in that there is joint pain and swelling, rheumatoid arthritis also can bring about fevers, fatigue, and weight loss. The joint pain you may be experiencing is often symmetrical, meaning both sides of the body are affected, in RA.

Unfortunately, the causes of RA aren’t fully understood. Symptoms can start and stop, occasionally going into remission, but RA is usually progressive. Risk factors for RA include family history of the disease, smoking, periodontal disease, and microbes in the bowels. There is no cure for RA, and it is treated somewhat similarly to OA in that pain medication, increased exercise, and surgery can be used to try to alleviate symptoms.

Continue reading “Arthritis and Its Many Forms: How It Affects Dental Professionals”

Patrick Stanley Selected as a Sustaining Member of Arizona’s Finest Lawyers

Firm member Patrick Stanley, whose practice areas include disability insurance and healthcare litigation, was selected as a Sustaining Member of Arizona’s Finest Lawyers. Nominations to Arizona’s Finest Lawyers are governed by strict ideologies and are made by Sustaining Members, selectees, and members of the Executive and Advisory Boards. The AFL seeks to build a diverse membership of individuals who, through noteworthy achievement, have reached positions of honor and trust. A Sustaining Member must be highly skilled, have a well-known reputation for honor and professional behavior, and be dedicated to AFL’s mission and goals.

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Wearable Fitness Trackers and Disability Insurance Litigation: How Your Fitbit Could Help or Hurt Your Claim

Recently, courts have been exploring the use of data from wearable fitness trackers in litigation.  Devices like the FitBit, Jawbone UP, and Nike Fuelband have the capability to track all kinds of fitness-related data, such as steps taken, heart rate, temperature, calories burned, and sleep patterns.  In cases where someone’s physical abilities are at issue, as is often the case with disability insurance claims, this data can be valuable.  But who is this data most valuable to–the claimant or the insurance company?  And is that value outweighed by a claimant’s right to privacy?  These are questions yet to be fully addressed.

Benefits and Drawbacks.  For claimants, data from a wearable fitness tracker could be a great way to show how a disability has caused a cessation or downward trend in activity. Providing the data to an insurance company may give a better picture, over a longer period of time, than any single doctor’s visit or Independent Medical Examination.

On the other hand, providing wearable fitness tracker data to an insurance company could hurt a claim in several ways.  First, if your disability isn’t the type that would prevent you from walking (such as a hand injury, vision problems, orthopedic injuries where movement is part of physical therapy, etc.), step counts could be irrelevant. Nevertheless, data showing a high step count can give an insurance claims adjuster or a jury the erroneous impression that you are very physically active and thus not “disabled.”

Second, for claimants that haven’t accurately described their limitations to the insurance company, the tracker’s data can be presented as objective evidence that the claimants weren’t telling the truth.  For instance, if a claimant wrote on a claim form that he “never” walks for more than 10 minutes at a time, then he has a very unusual day where he had to walk for 30 minutes, the insurance company could use the fitness tracker data to argue that the claimant is a liar.  (In such a scenario, the claimant should have told the insurer that he “rarely” walks more than 10 minutes, or that he tries to avoid doing so, as opposed to saying he “never” does).

Third, inaccurate data could lead the insurer to make inaccurate conclusions. Wearable fitness trackers aren’t perfect.  Step trackers tend to log movements other than walking as steps, such as when the wearer raises her arms up and down.  Heart rate monitors will track increases in heart rate that are the result of mental or emotional stress in the exact same way they track increases caused by physical exertion.  There is also the possibility of human error that affects the accuracy of the data.  For example, if you forget to turn your device into “sleep” mode, it can’t track how restless your sleep is.

When Data Can Be Required.  An insured may or may not want to provide fitness tracking data to an insurance company voluntarily, but if the insurance company requests it, does the claimant have to comply?  The answer is less than clear.

In the claim context (when no litigation has ensued), the insurance company can only impose requirements covered in the policy.  Of course, policies don’t explicitly state that a claimant has to provide fitness tracker data–at least not yet.  However, an insurance company could argue that policy clauses requiring you to “cooperate” with the claims investigation or provide “proof of loss satisfactory to us” include a requirement to produce this type of data.  In those instances, it’s best to have an attorney evaluate the request to see if it is, in fact, required under the policy.

If a lawsuit has been filed, the insurance company may have more leeway when it comes to requesting wearable fitness tracker data.  While it is doubtful that an insurer could force a claimant to wear a tracker if he or she isn’t already, it’s easy to imagine a case where an insurer requests existing data from a device that a claimant already uses.

In federal courts, where most disability insurance cases are litigated, the insurance company can ask for any information that is relevant, or reasonably calculated to lead to the discovery of information that is relevant, to the claims or defenses in the case. The only exceptions are for things like privileged information (such as communications with your attorney) or requests that cause undue annoyance, embarrassment, oppression, or burden.

For data stored online, insurers could subpoena the data directly from the device manufacturer.  Fortunately, some fitness tracker manufacturers have already publicly stated that they will resist such subpoenas to the extent possible.  Insurance company lawyers are more likely to request that data from the claimant directly, in which case it becomes very important for the claimant’s attorney to evaluate whether that request is allowed under court rules.

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What Is A Discretionary Clause?

Discretionary clauses grant your insurance company substantial discretionary authority to interpret your disability insurance policy and determine your eligibility for disability benefits.  If your disability policy contains a discretionary clause and your insurance company denies your claim, courts will generally be reluctant to overturn the denial.

Here is an example of a discretionary clause taken from a Unum policy:

DISCRETIONARY ACTS

The Plan, acting through the Plan Administrator, delegates to Unum and its affiliate Unum Group discretionary authority to make benefit determinations under the Plan. Unum and Unum Group may act directly or through their employees and agents or further delegate their authority through contracts, letters or other documentation or procedures to other affiliates, persons or entities.  Benefit determinations include determining eligibility for benefits and the amount of any benefits, resolving factual disputes, and interpreting and enforcing the provisions of the Plan.  All benefit determinations must be reasonable and based on the terms of the Plan and the facts and circumstances of each claim.

It is easy to see why discretionary clauses are “highly prized” by disability insurance companies.[1]  Such clauses not only grant your insurance company the authority to interpret the provisions of your disability policy, but also the authority to resolve factual disputes. The practical consequences of this are obvious:  any close calls regarding ambiguous policy language or the seriousness of your disability will be resolved in the insurance company’s favor.

Discretionary clauses also make overturning a denial of disability benefits much more difficult.  If your disability insurance policy has a discretionary clause, the court can generally only overturn your denial if you prove that the denial was an “abuse of discretion” because it was “illogical, implausible, or without support in . . . the record.”[2]   In contrast, if your disability policy does not contain a discretionary clause, the court generally conducts a “de novo,” or independent, review of your claim.[3]   In some cases involving discretionary clauses, courts that would normally be willing to overturn a denial under de novo review have been compelled to uphold the denial under the more exacting abuse of discretion standard.[4]

Not surprisingly, because the “abuse of discretion” is a high legal standard, the inclusion of discretionary clauses in disability policies dramatically reduces policyholders’ chances of successfully challenging a denial of benefits.  A 2004 study found that only 28% of lawsuits to overturn denials of benefits were successful if the policy included a discretionary clause.[5]   In contrast, policyholders won 68% of similar cases involving policies that did not have discretionary clauses.[6]

Insurance companies’ abuse of discretionary clauses has led several states to outlaw them.[7] You should avoid disability policies which include discretionary clauses.  If you already have a disability policy which includes one, talk to your insurance agent about finding a new policy.

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[1] See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 384 (2002).

[2] Saloma v. Honda Long Term Disability Plan, 642 F.3d 666, 667 (9th Cir. 2011).

[3] Id. at 673.

[4] See, e.g., Curtis v. Kansas City Life Ins. Co., 2011 WL 901992 (W.D. Ky. 2011).

[5] Brent Brehm and Corinne Chandler, California’s Ban on Discretionary Clauses in Disability and Life Insurance Policies, Advocate: Journal of Consumer Attorneys Associations for Southern California, June 2013.

[6] Id.

[7]The states that have outlawed discretionary clauses are:  California, Colorado, Hawaii, Illinois, Indiana, Kentucky, Maryland, Maine, Michigan, Montana, New Hampshire, New Jersey, New York, Oregon, South Dakota, Texas, Utah, Vermont, and Wyoming.  See American Health Insurance Plan’s (AHIP) “Limitations on the Use of Discretionary Clauses:  Summary of State Laws,” available at www.ahip.org.

Disability Insurer Profiles: Great-West

Great-West Life & Annuity Insurance Company (“Great-West”) is the final disability insurance provider we will look at in our series profiling insurance companies that specifically market to physicians and dentists.

See our profiles of MassMutual, MetLife, Northwestern Mutual, Guardian, Hartford, and Standard.

Great-West, which also goes by the registered mark of “Great-West Financial,” was incorporated in 1907, and traces its roots to a Canadian parent company that was incorporated in 1891.  Due to the nature of the economy and other factors, many insurance companies have suffered substantial losses in the past few years, and Great-West is no exception.  Great-West’s net income recently dropped from 238.1 million in 2012 to 128.7 million in 2013.  Consequently, Great-West may be looking to substantially increase its profits by, for example, denying high paying disability claims.

Company:  Great-West Life & Annuity Insurance Company.

Location:  Greenwood Village, Colorado.

Associated Entities:  Great-West Lifeco Inc.; Great-West Lifeco U.S. Inc.; Great-West Life Assurance Company; Great-West Life & Annuity Insurance Company of New York; Great-West Capital Management, LLC; Great-West Funds, Inc.; GWFS Equities, Inc.

Assets:  $55.3 billion in 2013.

Notable Policy Features:  Great-West is the insurance company that provides group disability insurance for the American Dental Association (ADA), so if you have a Great-West policy, your claim will probably be governed by the terms of the ADA’s group disability policy.

Great-West frequently sends out notices of updates and changes to the underlying contract between the ADA and Great-West, so there is a chance that you may end up with insurance coverage that you did not bargain for at the point of sale.  Oftentimes these notices are full of legalese and insurance jargon, and may be difficult to understand.  Nevertheless, it is important for you to promptly review any notices you receive, because they may impact your disability coverage in significant ways.  If you receive such a notice and are unsure about what it means, an experienced disability insurance attorney can explain how the changes outlined in the notice will impact your policy.

Additionally, if you have a Great-West policy, you should be aware that your policy may contain a very strict provision requiring you to obtain proper medical care for your condition.  For this reason, if you are thinking about filing a disability claim with Great-West, you should make sure that your medical treatment is both well-documented and “appropriate” under the policy’s terms.

Claims Management Approach:  How Great-West administers your disability claim will depend on the terms of the policy at the time you file your claim.  Because the terms of the ADA’s group disability policy are renegotiated on a regular basis, the terms of your disability policy will likely change over time.  Since your initial copy of the policy may no longer be accurate by the time you file your disability claim with Great-West, be sure to ask for a copy of the current version of your policy so that you know your rights under your disability insurance policy.

These profiles are based on our opinions and experience. Additional source(s): Great-West Financial’s 2013 Annual Report; www.greatwest.com.

 

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Disability Insurer Profiles: Standard

Standard is another disability insurer we will look at that specifically markets its policies to physicians and dentists.

See our profiles of MassMutual, MetLife, Northwestern Mutual, Guardian, and Hartford.

StanCorp Financial Group (“StanCorp”) was founded in 1906 and uses the marketing name “The Standard” to refer to its primary subsidiaries, which include the Standard Insurance Company and the Standard Life Insurance Company of New York.  In 2013, StanCorp received $351.7 million in pre-tax income, and $272.4 million (approximately 77%) of that income was attributable to profits from StanCorp’s insurance services.  StanCorp is particularly proud of its consistent long term growth and—given the fact that 77% of StanCorp’s profits come from its insurance services—StanCorp has an obvious incentive to deny high paying disability claims submitted by physicians and dentists.

Company: StanCorp Financial Group, Inc.

Location: Portland, Oregon.

Associated Entities: Standard Insurance Company; The Standard Life Insurance Company of New York; StanCorp Investment Advisers, Inc.; Standard Retirement Services, Inc.; StanCorp Mortgage Investors, LLC.

Assets: $22.73 billion in 2014.

Notable Policy Features:  If you are considering a Standard disability insurance policy, you should pay particular attention to whether the policy allows for total disability benefits if you are working in another occupation.  Oftentimes, Standard policies will pay nothing more than residual disability benefits if you are able to secure other part-time employment.  For example, if you can no longer practice dentistry, but you are able to teach classes at a dental college, Standard may refuse to pay you total disability benefits.  If you are eligible for residual benefits, Standard will require you to submit proof of your income every single month.

Read more about the difference between total disability benefits and residual disability benefits.

Claims Management Approach:  Standard tends to demand strict compliance with its claims procedures, and Standard will generally not be very accommodating if you make a mistake.  This can be problematic, because, for many policyholders, the disability claims process is unfamiliar and daunting.  If you are dealing with Standard, be sure to ask for a detailed explanation of what is required of you.  You should pay close attention to deadlines, as they will likely not be flexible.  You should also make sure that you use Standard’s forms when providing attending physician statements or other documentation of your disability, because Standard will not accept other insurers’ forms.

These profiles are based on our opinions and experience. Additional source(s): “Quick Facts About the Standard” and “About the Standard,” available at www.standard.com; StanCorp 2014 KBW Conference Presentation, available at investor.stancorpfinancial.com.

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Disability Insurer Profiles: Hartford

Hartford is the next disability insurer we will look at that specifically markets its disability policies to physicians and dentists.

See our profiles of MassMutual, MetLife, Northwestern Mutual, and Guardian.

The Hartford Financial Services Group, Inc. (“Hartford”) was founded over 200 years ago and now has more than 100 offices located throughout the U.S.  In 2013, Hartford’s revenues were approximately $26.2 billion.  However, in 2014, Hartford’s revenues dropped to $18.6 billion.  Given this significant decrease in revenue, Hartford will likely go to great lengths to avoid paying high paying claims submitted by physicians and dentists, and may even attempt to revoke disability benefits that it approved before the company experienced this dramatic drop in profits.

Company: The Hartford Financial Services Group, Inc.

Location: Hartford, Connecticut.

Associated Entities:  Hartford Fire Insurance Company; Hartford Life, Inc.; Hartford Accident and Indemnity Company; Hartford Casualty Insurance Company; Hartford Life and Accident Insurance Company; Hartford Life and Annuity Insurance Company; Hartford Life Insurance Company; Property and Casualty Insurance Company of Hartford.

Assets: $245 billion in 2014.

Notable Policy Features:  Hartford offers disability insurance policies that define total disability as being unable to perform one of your prior substantial and material duties.  If your disability policy contains such a definition, it will be much easier for you to demonstrate that you are totally disabled.  In contrast, if your disability policy does not define total disability in this manner, you may have to prove that you cannot perform any of your prior substantial and material duties in order to receive total disability benefits.

Claims Management Approach:  Hartford only offers group disability policies (as opposed to individual disability policies).  This means that if you have a Hartford policy, it will probably be governed by ERISA.  For many reasons, it will likely be harder for you to obtain your disability benefits if your policy is governed by ERISA.

For example, normally, if you become disabled and you have an individual disability policy, you can collect your disability benefits without filing for Social Security.  However, if you have a Hartford group policy, your policy may require you to apply for Social Security benefits before you can receive your disability benefits.  Hartford requires its policyholders to apply for Social Security because, under ERISA, any Social Security benefits the policyholder receives automatically offset the amount of disability benefits Hartford must pay the policyholder.

Read more about how ERISA claims are treated differently than non-ERISA claims.

These profiles are based on our opinions and experience. Additional source(s): Hartford’s 2014 Annual Report; “The Hartford Fact Sheet (2013),” and “The Hartford Fact Sheet (2014),” available at www.thehartford.com.

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