Disability Insurer Profiles: Guardian
In the last few posts, we’ve looked at a few of the most common disability insurance companies for doctors. See our profiles of MassMutual, MetLife, and Northwestern Mutual. Guardian is another disability insurer that specifically markets its disability policies to physicians and dentists.
Guardian has been around for over 150 years and is one of the largest individual disability income insurance providers in the United States. Guardian’s business model emphasizes the need for continuous growth, and Guardian reports that it has paid out dividends to its owners every year since 1868. To reach its goal of uninterrupted growth and live up to its owners’ expectations that it will pay out dividends each year, Guardian must not only maintain its past levels of profitability, but also come up with new ways to be more profitable. Obviously, from Guardians’ perspective, denying high paying disability claims submitted by physicians and dentists is an attractive method of increasing its profits.
Company: The Guardian Life Insurance Company of America.
Location: New York, New York.
Associated Entities: The Guardian Insurance & Annuity Company, Inc.; Berkshire Life Insurance Company of America; Guardian Investor Services, LLC; Park Avenue Securities LLC; RS Investment Management Co. LLC; Reed Group, Ltd.
Assets: $84.1 billion in 2013.
Notable Policy Features: Guardian policies oftentimes attach a “Residual Disability Rider” to their disability policies. This rider could impact you in significant ways if you are partially disabled and considering part-time work. For instance, the residual disability rider to your policy might contain the following provisions:
“Income. Income means your gross earned income, less business expenses, but before any other deductions. It includes salaries, wages, fees, commissions, bonuses, business profits or other payments for your personal services.”
“Prior Income. Prior income means your average monthly income for the tax year with the highest earning in the three years just prior to the date on which you became disabled.”
“Current Income. Current income means all income which you receive on a cash basis in each month while you are residually disabled.”
“Loss of Income. Loss of income means the difference between your prior income and your current income.”
“Residual Indemnity. Residual indemnity = (loss of income/prior income) x monthly indemnity.”
“Termination of Residual Indemnity. Residual indemnity will stop when the first of the following events occurs:
- you become totally disabled; or
- the benefit period ends; or
- your loss of income is less than 20% of prior income . . . .”
When read together, these provisions essentially mean that if you are partially disabled and working in another occupation, Guardian includes the additional income earned in that occupation when determining your current monthly income. This is important because you could lose your residual disability benefits if, after adding in your additional income, your loss of income amounts to less than 20% of your prior income. If you have this residual rider in your disability insurance policy, you should be aware that accepting part time work could jeopardize your ability to collect residual disability benefits.
Read more about residual disability benefits.
Claims Management Approach: Like many of the other insurance companies we have profiled, Guardian frequently conducts in-home field interviews, in an effort to catch you off guard and observe you in a state of activity that may not accurately reflect the severity of your condition. In-home field interviews also allow Guardian to collect personal information, such as your daily routine, hobbies and interests, names of friends and family, and work hours, so that its private investigators can more easily conduct surveillance of you.
If your disability claim involves a psychological disability, Guardian will likely require you to submit proof that you are being treated by a PhD level therapist, even if you have been working with a non-PhD level therapist for a significant period of time. Consequently, if you have a Guardian disability insurance policy and are in need of therapy, you might want to consider consulting with a PhD level therapist from the start.
A final tactic frequently used by Guardian is the peer-to-peer call, which consists of Guardian directly contacting your treatment providers over the phone without your consent. This tactic is similar to the in-home field interview in the sense that it is an attempt to catch your treating physicians off-guard by ambushing them with detailed questions about your disability. Since these discussions take place over the phone, your treating physicians will likely not have an opportunity to provide well thought out, thorough answers, and there will likely be little, if any, documentation of the call. Although this tactic is alarming, it is easily countered. As we explained in a previous post, peer-to-peer calls can be preempted in most cases if you have your disability insurance attorney notify the insurance company that all communications with your treatment providers must be coordinated through your attorney’s office.
These profiles are based on our opinions and experience. Additional source(s): Guardian’s 2013 Annual Report; Guardian Fact Sheet 2013; guardianlife.com.
Ed Comitz Selected as one of Arizona’s Top 100 Lawyers by Az Business Magazine
Attorney Ed Comitz was chosen by AZ Business as one of the Top 100 Lawyers in Arizona. Attorneys throughout the state were nominated by their firms and their peers. From that pool of over 1,000 attorneys, the editorial team and industry experts narrowed down the list to the 100 best lawyers in the state based upon their professional success, impact on the firm, impact on the community and impact on the legal profession.
Disability Buyout Policies
Have you ever wondered about disability buyout insurance for doctors and dentists?
Attorney Patrick T. Stanley gives a comprehensive overview of these policies on Comitz Stanley’s healthcare transactions and litigation blog.
Check it out and contact Mr. Stanley with your questions: Disability Buyout Insurance–Protecting Yourself and Your Partners.
Disability Insurer Profiles: Northwestern Mutual
In this series, we’re taking a look at some of the most popular disability insurance companies for doctors. See our profiles of MassMutual and MetLife. Northwestern Mutual is another disability insurer that specifically markets its disability policies to physicians and dentists.
In 2014, the company insured 476,000 people through 727,000 individual disability policies. Northwestern Mutual prides itself on paying more dividends that its competitors. In order to do that, of course, it must maintain consistently high profit levels.
Company: Northwestern Mutual Life Insurance Company.
Location: Milwaukee, Wisconsin.
Associated Entities: Northwestern Long Term Care Insurance Co., Northwestern Mutual Investment Services, LLC, Northwestern Mutual Wealth Management Co., The Frank Russell Co.
Assets: $217.1 billion in 2014.
Notable Policy Features: Northwestern Mutual sells policies with an “own occupation” definition of total disability. However, these disability insurance policies are often only truly “own occupation” for a limited amount of time, after which they become any occupation policies (only providing benefits if you are unable to work in any job) or “no work” own occupation policies (only providing benefits if you are unable to perform your job duties and are not working in another job).
For instance, a Northwestern Mutual policy might include the following definition:
Total Disability. Until the end of the Initial Period [defined elsewhere as 60 months of benefits], the Insured is totally disabled when is unable to perform the principal duties of his occupation. After the Initial Period [i.e., 60 months], the Insured is totally disabled when he is unable to perform the principal duties of his occupation and is not gainfully employed in any occupation.
In order to make sure a Northwestern Mutual disability insurance policy keeps the own occupation definition for as long as you hold the policy, you may need to purchase an additional benefit rider.
Read more about Northwestern Mutual’s interpretation of its own occupation policies.
Claims Management Approach: Some of the claims strategies that Northwestern Mutual is known to use include conducting in-home field interviews on top of third-party surveillance, hiring its own medical consultants to review claimants’ records and opine on whether or not they are disabled, and demanding that claimants (especially those with mental conditions) undergo “independent” medical examinations (IMEs) with providers of Northwestern Mutual’s choosing.
These profiles are based on our opinions and experience. Additional source(s): Northwestern Mutual’s 2013 Annual Report; Northwestern Mutual Fact Sheet 2014; Forbes.com.
Disability Insurer Profiles: MetLife
Today we’re profiling another popular insurer that issues private disability policies to dentists and physicians: MetLife.
Company: Metropolitan Life Insurance Company, a.k.a. MetLife.
Location: New York, NY.
Associated Entities: MetLife, Inc. (parent company), General American Life Insurance Company, New England Life Insurance Company.
Assets: MetLife, Inc. held over $885 billion in assets as of May 2014, according to Forbes.
Notable Policy Features: One thing to watch out for in MetLife disability insurance policies is a limitation on benefits for mental disorders and/or substance use disorder. Under the Limited Monthly Disorders and/or Substance Use Disorders provision of some MetLife policies, policyholders are only entitled to a total of 24 months of benefits for any mental or substance abuse disorder, such as depression, panic disorder, post-traumatic stress disorder (PTSD), bipolar disorder, and alcohol abuse or dependency. The 24 month limitation is cumulative. So, for example, if you have depression that disables you for 23 months, then start suffering from disabling alcohol dependency later in your life, you would only have one month of benefits still available to you.
Claims Management Approach: In its 2013 Annual Report, MetLife, Inc. reported that “unfavorable morbidity experience in our individual income disability business resulted in a $6 million decrease in operating earnings.” In other words, in 2013, more private disability insurance policyholders experienced disabling illnesses or injuries than in years before, and that hurt MetLife’s profits. In these situations, where an insurer is facing increased liability for disability benefit payments, we often see that insurer put additional resources towards managing disability claims. In this way, the insurer can spend extra time and effort looking for ways to deny or terminate disability claims, with the goal of limiting its liability.
In our experience, one way that MetLife attempts to dispose of claims as quickly as possible is by ordering surveillance early on in the claim. While some companies will wait until they have received more information before starting surveillance, MetLife has started following and videotaping claimants within weeks of the claim being filed.
With respect to its medical investigation, we have found that MetLife often follows a similar strategy to MassMutual’s. The insurer will often attempt to have its own medical personnel schedule “peer-to-peer” telephone consultations with claimants’ treating physicians, with the aim of catching the treating physician off guard and persuading them into saying their patient isn’t disabled. However, we have found that, in certain circumstances, MetLife can be amenable to submitting medical questions to the treating doctor in writing instead. That way, the treating doctor can more carefully consider the issues, without feeling pressured or put on the spot.
These profiles are based on our opinions and experience. Additional source(s): MetLife’s 2013 Annual Report; Forbes.com
Disability Insurer Profiles: MassMutual
We have written about Unum, arguably the most notorious disability insurance company, in great detail. However, we realize that many physicians and dentists may not know very much about other disability insurance companies, including those whose policies they own. In the next few posts, we’ll profile some of the most common doctors’ disability insurers.
Company: Massachusetts Mutual Life Insurance Company, a.k.a. MassMutual.
Location: Springfield, Massachusetts.
Associated Entities: Mass Mutual Financial Group (parent company), C.M. Life Insurance Company, MML Bay State Life Insurance Company.
Assets: Over $195 billion in 2013.
Notable Policy Features: As part of its product offerings, MassMutual sells own-occupation disability insurance policies to physicians and dentists. One notable aspect of some MassMutual policies we’ve seen recently is an especially restrictive definition of “Total Disability,” which we sometimes refer to as a “no work” own-occupation definition. Under the “no work” own-occupation definition, an insured is Totally Disabled if he or she is unable to perform the material and substantial duties of his or her own occupation and not working in any occupation. Unlike traditional own-occupation policies that allow a physician or dentist to collect total disability benefits and return to work in a different occupation, this one will not pay total disability benefits if the policyholder is doing any type of gainful work.
Claims Management Approach: MassMutual is a highly successful insurer. In June 2014, it was ranked number 96 in the Fortune 500. However, Fortune reports that MassMutual is currently experiencing a dramatic reduction in profits. If MassMutual follows the current trends in the disability insurance industry, we believe it will increase scrutiny on disability insurance claims in order to try to regain its former profit levels.
In our experience, one of the ways MassMutual aggressively approaches disability claims is to hire a medical consultant to evaluate claimants’ medical records. The consultant then tries to insert himself or herself between the claimant and the treating physician, writing or calling the treating physician and suggesting treatment methods that, in the consultant’s opinion, will get the claimant back to work as soon as possible.
These profiles are based on our opinions and experience. Additional source(s): MassMutual’s 2013 Annual Report; Fortune 500 2014; Bloomberg.com
Edward Comitz Named as an Arizona Business Leader in Healthcare Law
Edward O. Comitz has been selected as an Arizona Business Leader in the area of Healthcare Law. According to the editor in chief, Arizona Business Magazine made its final selections from a pool of over 5,000 of “the best and brightest Arizona business leaders in healthcare, real estate, construction, education, banking, financial services and law. Over the course of more than two dozen meetings, that list of 5,000 leaders under consideration was pared down to about 500 names, which the selection panel considered to be the most influential leaders in their industries, broken down into categories.”
Other Arizona leaders named in 2015 include U.S. Senator John McCain, Phoenix Mayor Greg Stanton, and sports executive and former owner of the Phoenix Suns, Jerry Colangelo.
What to Do When Your
Disability Insurance Claim Is Denied
A large part of our practice consists of helping physicians and dentists whose disability insurance claims have been denied or terminated. When our clients come to us, we carefully analyze their medical records, the claim file, and the law to craft a specific strategy for getting the disability insurer to reverse its adverse determination. Unfortunately, we sometimes find that in between receiving notice that their claim has been denied or terminated and getting in touch with our firm, doctors will inadvertently take actions that prejudice their disability claims. With that in mind, it’s important to review what to do and what not to do in the first few days after your claim is denied or terminated.
- In all likelihood, you will first find out that your insurer is denying or ending your disability benefits via a telephone call from the claims consultant who analyzed your claim. As we’ve explained before, the consultant will be taking detailed notes about anything you say during that call. Therefore, even if you are justifiably upset or angry, be very mindful of what you say. Anything you tell the consultant will certainly be written down and saved in your file.
- During the call with your consultant, make your own notes. You don’t have to ask a lot of questions at this stage, but you do want to make sure to record whatever information the consultant gives you.
- Following the phone call, you should receive a letter from the insurance company stating that it has denied your disability claim or discontinued your disability benefit payments. According to most state and federal law, the letter should have a detailed explanation of the evidence the company reviewed and why the insurer thinks that evidence shows you aren’t entitled to disability benefits. When you receive the letter, read through it carefully. Make notes on a separate document about any inaccuracies you identify.
- Make sure you keep a copy of the denial or termination letter as well as the envelope it came in. You should also make a note of the date on which you received the letter. The date the letter was actually mailed and received could be important to your legal rights in the future. Then, the best thing to do is to scan the documents electronically or make a photocopy for your file, just in case the original denial letter gets lost or damaged.
- Once you find out that your disability claim has been denied or terminated, you should contact a disability insurance attorney. Some doctors and dentists attempt to handle an appeal of their claim on their own, but we strongly suggest at least consulting with a law firm. Every insurance company has its own team of highly-trained claims analysts, in-house doctors, and specialized insurance lawyers to help it support the denial of your claim. Having your own counsel can level the playing field by making sure you know your rights under your policy and what leverage the applicable law provides you, and help you avoid the common traps that insurance companies lay for claimants on appeal.
- The lawyer you consult can be in your area, or it can be a firm with a national practice that’s physically located in another state. You may want to review these questions to ask potential attorneys before you decide who you would like to represent you.
- Whatever attorney you choose to contact, make sure you do so as soon as possible. In many circumstances, you will only have a limited amount of time to appeal the insurance company’s decision. Particularly in claims governed by the federal law ERISA, the clock starts ticking as soon as you find out your disability claim has been denied or terminated.
- It’s usually best to contact a disability insurance attorney before you respond to the denial letter, to avoid saying anything that could prejudice your appeal. For instance, if you have a disability insurance policy that is governed by ERISA, and you submit some additional information, the insurance company may not allow you to submit any additional information after your initial response.
- Before you meet with potential disability insurance lawyers, gather whatever documents you can to help them evaluate what’s going on with your claim. Our firm will always want to review the insurance policy or policies. (Here’s information on how to get a copy of your policy). We typically also like to see your relevant medical records and any correspondence between you and your insurance company. If you aren’t able to locate this information, it could cause delays in starting the appeal process.
- If you are a physician or dentist that is totally disabled, you should not try to go back to work just because your insurance company thinks you don’t qualify for disability benefits. Trying to practice when you aren’t in a physical or mental condition to do so could cause you to re-injure yourself or accidentally harm your patients. Of course, trying to work on patients after you’ve claimed that you are totally disabled can expose you to professional liability as well. Further, trying to return to work could impair your ability to collect your disability benefits upon appeal.
Field Interviews: What to Expect After the Interview Ends
We’ve discussed why a disability insurer might want to schedule a field interview and what to expect before and during the interview itself. Now we review what claimants can expect can expect after the interview ends. Again, the process is usually different depending on whether not a disability insurance attorney is involved.
After the Field Interview
After your interview ends, the field representative will leave to do some additional reconnaissance. Without telling you, the representative may drive to your office to talk to people on your staff. He or she will see what the office looks like, if it’s busy, and whether your name is still listed on the door. If you have a disability insurance attorney, the attorney will have discussed this with you ahead of time, and together you will have taken steps to make sure the representative doesn’t bother your staff or catch them off guard.
Some days after the field interview, the representative will send you a copy of his or her report, which purports to summarize your conversation. The report will ordinarily be 8 to 10 pages or more. He or she will ask you to review the report, make any changes you see fit, and return it. The representative will advise that if you don’t make any changes by a certain date, he or she will assume that everything in the report is accurate.
For claimants with legal representation, the report will be sent to your attorney’s office. Your attorney will review the report to make sure that it accurately reflects the facts of your disability claim. He or she should be able to correct any seemingly harmless statements that a claims adjuster may take out of context to support denying or terminating your disability claim. If any important information is missing, your attorney will make sure to include it along with the report.
Meanwhile, the field representative will usually send a separate report to the insurance company. This second report will have the representative’s personal observations about you, their conversations with your staff, and any other information he or she was able to gather about your outside of the interview. You will not be provided with a copy of this report unless you’re able to obtain the claim file after your disability claim has been terminated or denied. If you have an attorney, this second report will be much more limited, as the representative will not have had the opportunity to visit your home or to pry into irrelevant or confidential information. If your disability claim is denied or terminated, your attorney will obtain and review this report for any inaccuracies or misstatements.
A field interview can be intimidating, but knowing why the interview is being conducted and what to expect during the process can make you better prepared to handle it in a way that doesn’t prejudice your claim. If you have questions or concerns about a field visit, contact a disability insurance lawyer right away.
Field Interviews:
What to Expect Before and During the Interview
Our last post discussed why an insurance company might want to conduct a field visit or field interview. Now that you know what the insurer is trying to accomplish, we’ll discuss what exactly to expect before the interview, during the interview, and afterwards. As with many aspects of the disability claims process, the field interview will be different depending on whether or not you have a disability insurance attorney involved. First, what to expect before and during the interview:
Setting Up the Field Interview
Initially, the field representative will call or e-mail you personally to set up a time to meet. He or she will ask to come to your home, or sometimes your office (particularly if you have been practicing as a dentist or physician), and talk one-on-one. If you’re being represented by a disability insurance lawyer, the field representative will call or write a letter to the lawyer’s office to request a field interview. Your attorney will evaluate whether the in-person interview is necessary and appropriate under the terms of your policy and your particular claim situation. If so, your attorney will likely ask the field interviewer to meet at the attorney’s office, rather than in your home or office. Your attorney, and sometimes an assistant as well, will attend the interview. The attorney and/or his or her assistant will take careful notes of the entire conversation.
During the Field Interview
When the representative arrives, he or she may ask to take your photograph. The representative may also ask to audio-record your conversation. If an attorney is present, the representative will usually refrain from asking to take a photograph or audio-record the conversation, knowing that your legal counsel will likely determine it unnecessary and/or inappropriate.
The field representative will sit down and talk with you for an hour or more. He or she will have an extensive list of questions to ask you, most of which your claims analyst will have specifically requested the representative address. For those with legal representation, your attorney will have prepared you for each of the questions the representative will ask, so you’ll be ready to give accurate and well-considered answers.
During your conversation, the representative will be very warm and friendly. The representative will normally try to establish a rapport so that you’ll relax and talk openly. He or she will try to get you to talk without thinking, encourage you to go into unnecessary detail, and may ask personal questions that a claims adjuster would normally avoid.
The representative often acts somewhat more reserved when a disability insurance attorney is present. Field representatives know that if they ask any questions that are irrelevant, seek confidential information, or are otherwise inappropriate, your attorney will intervene and let you and the representative know that you don’t need to answer the question.
While you’re talking, the field interviewer will take copious notes. These notes will include the interviewer’s own observations about your appearance, how well you move, how long you were able to sit or stand, what your house looks like (if in your home), and whether you seem nervous or not. If your attorney attends, the representative will know that his or her notes will be compared against the attorney’s, so he or she will be especially careful to document the circumstances accurately.
In our next post, we’ll talk about what happens after the field interview ends.
Why Does My Insurer Want to
Conduct a Field Interview?
At some point after you’ve filed a disability insurance claim, your carrier may contact you to arrange a field interview. Also called a “field visit,” a field interview is when a disability insurer hires a representative to come meet with you face-to-face to talk about your benefit claim. Most times, the company will ask that you meet the field representative at your own home or office.
Your claims analyst will probably tell you that the field interview is just a way to get to know you better, or to help the company gain a better understanding of your disability claim. What the claims analyst won’t tell you are the real reasons why insurance companies put so much time and effort into planning in-person field interviews, such as:
- To take your picture so that a private investigator will recognize you during surveillance.
- To find out what your house and/or office looks like to further aid in surveillance.
- To look inside your house and see if you’ve been doing a lot of housework, paperwork, cooking for yourself, etc., all of which (according to the insurance company) can mean you’re able to work in your own occupation.
- To see if you look like you’re in pain, if you can sit down for a long period of time, or if you can walk without any gait abnormalities.
- To see if you look like you might have current monthly income from sources other than your occupation (i.e., if you have a nice car, a big house, a boat, etc.).
- To drop in and try to interview your spouse, former business partners, office manager, or neighbors.
- To try and get you to relax and open up, or to catch you off guard so that you give information the company can use against you.
In our next post, we’ll discuss what you can expect during the field interview itself.
Why Won’t My Doctor Help
With My Disability Insurance Claim?
We frequently discuss how important it is for your treating doctor to support your disability insurance claim. Oftentimes, though, doctors are reluctant to help with the process. Understanding why your provider is hesitant to get involved can better equip you to enlist his or her support.
In our experience, these are the most common reasons why treatment providers decline to assist with disability insurance claims:
They don’t have time. Doctors have extremely busy schedules. Often, they’re concerned that they simply don’t have enough time to properly complete all of the insurance company’s required forms or to answer questions from your claims adjuster.
They are worried about the insurance company harassing them. Many healthcare providers know how complex and combative disability insurance claims can be. Sometimes, providers don’t want to get involved with a claim at all, because they’ve heard of (or experienced) claims personnel harassing treating doctors. This can be a legitimate concern, as left unchecked, insurance companies will often bother treating doctors with repetitive requests for information, pushy phone calls, or by second-guessing the doctors’ treatment plan.
They are worried about doing something to hurt your claim. On the other hand, many providers aren’t familiar with the private disability insurance claims process at all. This sometimes makes providers hesitant to complete Attending Physician’s Statements or to discuss your claim with an adjuster for fear that they will inadvertently say something that prejudices you.
They don’t know the definition of disability in your policy. Not every treatment provider is familiar with the type of own-occupation policy that many physicians, dentists, and other professionals purchase. When some providers hear the word “disability,” they think of a state of total helplessness, or of the much more stringent Social Security definition of “disability.” If a provider doesn’t know that your policy deems you “disabled” if your condition prevents you from performing the duties of your own job, he or she might think you don’t qualify for disability benefits.
Continue reading “Why Won’t My Doctor Help
With My Disability Insurance Claim?”
Understanding Residual Disability Benefits: Are They Worth The Cost?
Part 3 – Current Monthly Income
In our previous posts, we identified the basic formula disability insurers use to calculate residual (partial) disability benefits and discussed variations in how disability insurers calculate Prior Monthly Income. Now, we will examine the other principal component in calculating a residual disability benefit: Current Monthly Income.
Current Monthly Income is the calculation of how much a doctor is earning now, versus how much he was earning prior to his disability. Although this sounds like a simple concept, calculating Current Monthly Income can be challenging in the healthcare industry. Many physicians and dentists own their own practices or are a partner in a practice group. Their income is not only based on their productivity, but also includes a passive component from the other business activities of the practice. For example, a dentist may employ one or more hygienists or associate dentists who generate additional revenue. When a doctor becomes disabled, the practice revenue may remain relatively constant as associates increase their production to account for the doctor’s reduced schedule.
Some insurers take advantage of this by calculating Current Monthly Income not on the doctor’s production, but rather on the practice’s revenue. This fails to take into account the true financial impact of a disability because, while revenue may remain high, expenses increase as associate doctors and hygienists work more (and earn more) to fill in for the disabled doctor.
Additionally, many doctors pay themselves based on a percentage of their own production, in addition to the income they earn as practice owners. When a doctor becomes partially disabled, his income from working in the practice will drop, even if the practice’s overall profitability does not. Depending on the language in a particular disability insurance policy, the policy may not take into account the drop in production, and the doctor may not be able to recover the full loss caused by his disability.
Electronic Medical Records: What You Don’t Tell Your Doctor Might Hurt Your Disability Claim
Over the last ten years, there has been an increasing movement away from paper records and toward Electronic Medical Records (EMR). This move has been accelerated by the federal government’s mandate that doctors who treat Medicare and Medicaid patients must have adopted and implemented EMR systems as of January 1, 2014.
There are many benefits to using EMR. They can facilitate patient care between referring doctors, improve data tracking over time, increase efficiency and reduce errors. However, EMR systems have drawbacks when they are used for purposes never intended, such as to document a disability claim.
Many EMR systems allow the doctor to input his findings for every major system in the human body, such as the cardiovascular, musculoskeletal, gastrointestinal, neurological and psychiatric systems. However, if the doctor does not put in something regarding one of the symptoms, the default setting on the EMR will report the system as being “within normal limits” or that the patient has “no complaints.” The concern with this from a disability perspective occurs when a patient sees his doctor for a condition unrelated to his disability.
For example, a patient with a history of degenerative disc disease could visit his doctor for an unrelated infection or illness. Since the doctor is conducting only a limited examination for purposes of treating the presenting illness, he may not input any information related to the patient’s disabling condition. The EMR will then generate an inaccurate record stating that the patient’s musculoskeletal system and neurological system are within normal limits.
Disability insurance carriers can then use these default settings to their own advantage to raise questions about the severity of the claimed disability, justify an independent medical examination or functional capacity evaluation, or support a claim termination. For patients who are receiving disability benefits, it is therefore important to know what their medical records look like and to effectively communicate with their physicians to ensure that their conditions and symptoms are accurately recorded on each visit.
Beware the “Offset”
Insureds may think that if their disability claim is approved and the insurer begins paying disability benefits, they have won the battle. In reality, however, even the insurer’s complete admission that the insured is disabled within the terms of the policy does not mean that the insurer will pay the full monthly benefit listed in the policy. Most of us think of disability insurance as providing a stream of income to replace lost salary, but few understand that these policies often contain language effectively cutting off other benefits to which the insured would otherwise be entitled.
Disability insurance policies, especially long-term disability policies, frequently contain “offset” provisions, which offset other benefits against the insurer’s monthly payments. Common offsets include benefits which the insured receives from Social Security disability or retirement, unemployment compensation, worker’s compensation, no-fault auto insurance, sick leave, severance pay, and others. The net effect of these offsets is that should the insured receive a benefit from another source, the disability insurance company will reduce its monthly payment by the same amount.
How Can I Keep My Disability Insurance Company From Contacting My Doctors Without My Consent?
In our recent post, “Should Disability Insurance Companies Be Deciding What Kind of Care You Receive?” we explained that insurance companies will often contact your treatment providers directly without your consent, ambushing them with medical studies and demanding answers to a plethora of questions about your medical treatment in an effort to undermine your disability claim. In many instances, insurance companies will refuse to produce the medical reports their in-house doctors wrote about you, but still expect full access to your treatment providers and their reports.
If this happens to you, you may (justifiably) feel like the insurance company is going behind your back and unfairly manipulating the disability claims process. Your treatment providers may become upset because the insurance company is harassing them to respond to detailed questions without adequate time to understand the questions and/or provide thorough answers. You may even notice your doctors acting differently towards you after speaking with the insurance company. For example, your doctor might begin to avoid you when you ask him or her to provide you with documentation to support your disability claim.
How can you protect your treatment providers from being ambushed by insurance companies and protect your claim from being manipulated?
How Functional Capacity Evaluations Impact
Your Disability Insurance Claim
Our last post discussed what to expect during a functional capacity evaluation (“FCE”), as well as the intended purpose of an FCE. Though FCEs can be a useful tool for measuring your abilities, FCEs do not always provide results that are truly indicative of your ability to do your job on a regular, consistent basis. Many courts have recognized the weaknesses and limitations of FCEs in the disability insurance claim context.
Weaknesses and Limitations of FCEs
There are approximately 10 different types of FCEs, each with its own program, measurement methods, and possible evaluative outcomes. Because FCEs can be influenced by many factors, such as physical ability, beliefs, and perceptions, FCEs need to “be interpreted within the subject’s broad personal and environmental context.”[1] Thus, the FCE “process and its administration are only as good as the examiner.”[2]
Disability insurers often stop paying benefits based on FCE results, even when you can’t actually meet the demands of your former job duties on a consistent basis. This is due to an inherent limitation of FCE testing: the FCE can only measure your capacity to do a certain task for a limited amount of time on a certain day. For instance, you may be able to push and pull ten pounds for a few minutes during the FCE, but that doesn’t mean you can do the same task all day, every day.
Another important limitation of FCE testing is how effort is measured. The FCE examiner normally monitors the subject’s heart rate to determine if he or she is putting forth full effort. If your heart rate isn’t high enough, the examiner will say you didn’t try your hardest, so you can probably do more than you demonstrated during the testing. However, there are factors that affect your effort level that can’t be measured by your heart rate alone. For example, heart rate monitoring doesn’t measure the impact of migraine headaches, kidney failure, or other non-exertional limitations (such as interference with attention and concentration due to pain and fatigue).
Continue reading “How Functional Capacity Evaluations Impact
Your Disability Insurance Claim”
What Is a Functional Capacity Evaluation?
After filing a disability insurance claim, your insurance company may ask you to undergo a Functional Capacity Evaluation, or FCE. The insurer tells you where and when to show up, but you likely have little idea what to expect when you arrive. What is an FCE, what is its purpose, and how will it affect your disability claim?
What Is an FCE?
FCEs are formal examinations performed by occupational therapists (OTs) or physical therapists (PTs), not physicians. The purpose of the FCE, according to your disability insurer, is to evaluate your ability to perform the substantial and material duties of your occupation.
What Can You Expect at the FCE?
FCEs usually last between four to six hours, but depending on the tests your insurer has requested, they could be longer, taking place over two consecutive days.
Continue reading “What Is a Functional Capacity Evaluation?”
What is an Incontestability Clause? An Arizona Case Study
What is an incontestability clause? An incontestability clause protects you against being denied coverage because of a preexisting condition.
This clause precludes insurance carriers from inquiring into the representations dentists, physicians, and other professionals made on the policy application if the two-year incontestable period has lapsed. In essence, the clause gives insurers a two-year time limit to review policy applications. If the insurance company makes no inquiry in those two years, they lose the ability to rescind the policy based on a preexisting condition.
For example in the case of Robison v. Brotherhood of R. R. Trainmen Ins. Dept.,[1] the plaintiff had been treated for tuberculosis prior to the effective date of the policy. Three years after obtaining the policy he became disabled from tuberculosis. When the insurance company tried to deny the insured’s claim, the Arizona Supreme Court ruled from its bench in Phoenix that the incontestable clause of the contract precluded the insurance company from inquiring about the insured’s health prior to the effective date of the policy.[2]
Second, this clause protects you against an insurance company’s attempt to deny a claim for disability insurance benefits based on a representation you made that is not material. For instance, when filling out the application for the insurance policy, you might write down the wrong year that you had some minor knee surgery. An insurance company cannot use such a miniscule and immaterial mistake to deny you coverage when your claim is for debilitating arthritis in your hands which doesn’t allow you to practice properly in your field of medicine.
Third, this clause protects an insured that is completely truthful when filling out the policy paperwork. In Paul Revere Life Ins. Co. v. Haas the court upheld a policy which limited “coverage to sicknesses that ‘first manifest’ themselves after the policy has been issued.”[3] This means that if you have a condition before the insurer issued the policy, but you don’t become aware of it until after the policy has become effective, the condition should be covered.
It is important to remember that and incontestable clause usually includes a caveat: it does not protect an insured that knowingly or fraudulently misrepresents information during the application process. The Haas court stated that the language of the incontestable clause “does not protect insureds who make fraudulent misrepresentations in their applications. Rather, the language is intended to protect those insureds who are unaware of their diseases.”[4] The insurance company in Haas (Paul Revere, a subsidiary of Unum) was allowed to deny coverage of the insured’s eye condition when the insured knew about and had been treated for the disease well before the start of the policy. The court believed that the legislature did not intend for the mandatory incontestable clause to be “an invitation for fraudulent applications for disability insurance.”[5] The preexisting eye condition was deemed to be a fraudulent misrepresentation, and the insurance company denied its coverage. We also discussed this topic in a previous post entitled “Medical History Misstatements On A Disability Insurance Application Can Void The Policy In The Future.”
The outcomes of the cases based on incontestable clauses show how important it is to be truthful throughout the insurance claim process. The more accurate you are about your health condition, the fewer coverage problems you may have down the road.
If you have questions about your policy’s incontestability provisions, an experienced Arizona disability insurance attorney can help talk you through how they work, and how that could impact your disability insurance claim.
[1] Robison v. Brotherhood of R. R. Trainmen Ins. Dept., 73 Ariz. 352, 241 P.2d 791 (1952), opinion modified on reh’g on other grounds, 74 Ariz. 44, 243 P.2d 472 (1952).
[2] Id.
[3] Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 210, 644 A.2d 1098, 1108 (1994).
[4] Id.
Should Disability Insurance Companies Be Deciding What Kind of Care You Receive?
What role should your insurance company play in determining your treatment options? In our article, “Can Your Disability Insurer Dictate the Terms of Your Care?” by Ed Comitz and Michael Vincent, we discussed how, depending on the terms of your disability insurance policy, insurers can dictate what care you should receive, and whether you can be forced to undergo surgery in order to continue to receive policy benefits.
When prescribing you a specific treatment or medication, your doctor usually has very specific goals in mind. First, they want to medically treat you in the best way possible. They want to provide you with the best means for curing or coping with your situation after considering the totality of your circumstances and your recovery goals. Second, they want to make you feel better and help you recover from your ailments if possible.
For example, if surgery isn’t an option for your consistently high levels of pain, your doctor may prescribe strong medication to give you the relief you need. They may effectively manage the pain you struggle, but the side effects may impede you from returning to work.
Unlike doctors, insurance companies have one goal in mind: to get you off of their claims list and not pay monthly claim benefits. They want you treated in a way that returns you to work in the short run and may not be as concerned about the long term side effects or repercussions of alternative treatment options.
One way they accomplish this is by having their doctor contact your doctor to discuss treatment alternatives. Such alternative methods include using less effective medications that would allow you to return to work. A strategy they employ is to point your doctor to studies like those outlined in articles like “Disability experts question long-term opioid use,” or “Reed Group Releases New Opioid Treatment Guidance in Disability Guidelines.”
What many people don’t realize is that the Reed Group, the company who released the “updated expert guidelines,” is a subsidiary of Guardian Life Insurance Company, parent company of Berkshire Life. This company has a substantial incentive to downplay the safety and effectiveness of drugs, like opioids, that are able to manage acute pain, but render patients unable to return to work because of medication side effects. These companies want to point your doctors to these guidelines to influence their bottom line by getting you back to work quickly.
The problem with this tactic is that these blanket guidelines do not take into account your pain, your needs, or your situation. Yes, the alternative options may get you back to work, but in the long run you may experience repercussions. Letting claims consultants, who aren’t medical professionals, or the insurance company’s doctors determine your care and treatment is a conflict of interest for insurance companies and is not always in your best interests.
