Many of the physicians and dentists we work with have slowly progressive conditions. When they initially reach out to us, they are often facing the difficult dilemma of weighing the risk of hurting a patient against the ramifications of ending the career that they worked so hard to build. Often, they are unfamiliar with the terms of their disability policies (and, in some cases, don’t even have copies of their policies). And most of the time, they are also unfamiliar with how the disability claims process works and not sure if it is appropriate (or if it is even possible) to file a claim with their disability insurance company if they have a medical condition that progresses gradually (as opposed to something like being injured in an accident). Our next two posts will look at important considerations that must go into a transition plan.
While it is possible to collect on a claim involving slowly progressive conditions (such as degenerative disc disease or an essential tremor), these types of claims present unique challenges and hurdles that doctors must be aware of—ideally well before they file.
With any disability claim involving a physician or dentist, the number one factor is patient safety. Whether or not it is safe for you to continue to practice depends on your particular symptoms and the progression of your condition—factors that are typically outside your control. Other factors that are not entirely within your control include whether/how soon you can find a buyer if you need to sell your practice, whether new treatments are developed for your condition, whether your health insurance covers a needed medical treatment, whether your doctor is willing to support your claim—and the list goes on.
These “unknowns” often prove to be the most daunting and frustrating aspect of filing a disability claim, particularly for our clients who are used to diagnosing and solving problems. Filing a successful disability claim requires patience and the ability to adapt and react appropriately, which can prove particularly difficult if you do not have experience with the disability process or the industry knowledge required to recognize the issues in play.
So where do you start? The first step is understanding your policy requirements and taking the time to make a transition plan that fits within the parameters of your particular policy(ies). There are a lot of different components to a transition plan, but in these next few posts, we are going to be focusing on issues related to your practice.
What Do I Do With My Practice?
If you own your own practice, a major part of your transition plan will be determining what to do with your practice. This is one of the more common questions we are asked and, unfortunately, like many questions in the area of law, there is no one-size-fits-all answer. The best course of action depends on a number of factors, including:
- How your policy defines key terms, like “total disability” and “your occupation”;
- Whether you have partners or associates that are able to buy your practice interest;
- Whether you live in a large metropolitan area where there is a large pool of potential buyers or a rural area where there are very few potential buyers;
- How long you think you can go on practicing (taking into account patient safety concerns);
- Whether you can find a buyer who is understanding of your situation (as opposed to buyers who would seek to low-ball you/negotiate the price down if they became aware of your medical condition);
- Whether there is an expectation that you will work in a different capacity following the sale (e.g. as an associate or consultant);
- Whether your policy allows you to work in a different capacity and collect benefits;
- Whether your policy offsets your benefits if you receive any post-disability income.
These are just a few of the issues that need to be considered, and oftentimes determining the best course of action is an ongoing process as new information is learned about the progression of your symptoms, the state of the market, the number of potential buyers, the needs/personality of interested buyers, etc. If you are considering filing a claim, or wondering how a transition plan would work for you, an experienced disability insurance attorney can help you understand the terms of your policy and apply it to your particular situation.
In part two of this series, we’ll look at another important part of any transition plan—whether you should continue to work in the face of slowly progressive condition.
Attorney Derek Funk to Participate in St. Jude Research Hospital’s Swing FORE Charity Golf Tournament
Attorney Derek Funk will be playing in the upcoming, inaugural Swing FORE St. Jude charity golf tournament at Mountain Shadows Resort in Scottsdale, Arizona on Saturday, September 14, 2019.
September is National Childhood Cancer Awareness Month and you can see gold ribbons all around Phoenix raising awareness. The doctors and physicians at St. Jude Research Hospital seek to advance cures and means of prevention for pediatric diseases through research and treatment and have pioneered new surgeries, treatments, and cures used all around the world. All proceeds from the event benefit St. Jude to help ensure that patients and their families don’t have to pay for treatment, travel, housing, or food.
Who gets to decide what treatment is best for you?
Of course, the answer is ultimately you (with the guidance of your treatment provider). At the same time, many disability policies require you to be receiving ongoing treatment for your disabling condition in order to remain eligible for benefits. Some newer policies we have seen even go so far as to state that you must receive care that is directed towards a “return to work” or “maximum medical improvement.”
These provisions can give rise to disputes with your insurer if you do not want to undergo a particular procedure, but your insurer maintains that you are not seeking appropriate treatment and/or that you are malingering (i.e. your symptoms are not as severe as you are reporting). For example, your insurer may use an in-house doctor to review your medical records and challenge your treating provider’s treatment recommendations, stating that a more invasive procedure (like surgery) would fix your condition and allow you to return to work.
This is a tactic that Unum tried to use in the recent case of Dewsnup v. Unum. Dewsnup was a trial attorney who had quadruple bypass surgery after suffering a heart attack. After the surgery, he had a constant burning pain across his chest at the incision site, which was exacerbated by stress and led to fatigue that eventually made it impossible for him to work.
Dewsnup was ultimately diagnosed with intercostal neuralgia. When a recommended diagnostic nerve block did not help, Dewsnup decided to not pursue a nerve ablation. His treating doctor supported this decision, as there were risks to the ablation procedure and the failed injection suggested that the ablation would likely not fix his pain. Dewsnup also began taking medication for the pain, but later stopped taking the medication when he determined that the potential risks and negative side effects of the medication outweighed any benefits.
In an effort to deny his claim, Unum hired several doctors to review Dewsnup’s medical records. The doctors noted that Dewsnup’s pain levels were subjectively reported, and concluded that he was not disabled, even though Dewsnup’s treating doctors all agreed that he was. Unum’s doctors based this decision, in part, on the fact that he had stopped his medication and was foregoing the ablation and additional treatment. Essentially, Unum argued that the pain must not be so bad, since he had decided not to have the nerve ablation and had stopped taking the medication.
Fortunately, in Dewsnup’s case, the court determined that that there was sufficient evidence that his pain was “severe enough to cause fatigue, hinder concentration, and prevent him from performing the mentally-demanding duties of a trial attorney.” The court also disapproved of Unum’s approach, noting that “[n]one of Unum’s reviewers examined Mr. Dewsnup in person” and that “[a]part from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence.” Ultimately, the court reversed Unum’s claim denial (but only after costly, time-consuming litigation).
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that the terms of your policy aren’t being applied correctly, or if your insurer is questioning your treatment decisions in an attempt to undermine your claim, an experienced disability insurance attorney can help you understand your policy and apply it to your particular situation.
 Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah).
Cigna has been looking to sell its group benefits insurance business, according to several recent news reports. Cigna’s group benefits business includes group disability policies, along with life, and accidental and dismemberment coverage policies. In total, Cigna’s group benefits insurance business is estimated to be valued at as $6 billion dollars.
Industry experts have interpreted this exploration to sell as a possible signal of Cigna’s intent to focus on their healthcare and medical provider operations arm and/or potentially pay down its long-term debt, which totaled $37 billion as of June 2019.
Although any sale is speculative at this point, it’s not unusual for insurers to sell portions of their businesses (e.g. both group and individual disability policies) to other insurers, or turn these policies over to third-party administrators. If Cigna does go through with the sale, it could impact how its disability claims are administered on an ongoing basis.
Cigna seeks sale of group benefits insurance business, valued as high as $6 billion, Reuters, Aug. 20, 2019
Bruce Japsen, Cigna May Divest Group Life Business To Keep Up With Rivals Buying Providers, Forbes, Aug. 20, 2019
Disability insurance policies are often difficult to understand, even for the most sophisticated buyers. The same policy provision may be explained differently at the time you are selecting it, at the time you receive it, and when you go to file a claim. In our experience, insurance companies are not always forthcoming when they explain your policy. Sometimes they fail to tell you about certain features of your policy, or explain ambiguities in their favor, or, in some instances, even misrepresent the terms of policy provisions.
For these reasons, many states, including Arizona, have adopted laws to protect consumers from these practices. For example, insurance companies in both Arizona and California must not misrepresent important facts or policy provisions relating to any issues of coverage. If the insured can show any misrepresentation related to these issues, there may be a bad faith claim.
We often speak with doctors who misunderstand how their own occupation policies work. Sometimes this is because their insurers did not explain the policies to them correctly, and other times it is simply because they didn’t take the time to read the policy when they purchased it. Many physicians and dentists seek out an own occupation policy because it generally allows for an insured to be considered totally disabled if they can no longer work in their occupation. However, some “own occupation” policies are not “true” own occupation policies, and can even shift to an “any occupation” policy after a certain amount of time has passed.
Additionally, most insurance companies today distance themselves from agents and brokers, and seek to avoid responsibility for misrepresentations made by the agents that sell their policies. While this does not necessarily mean that there are no consequences if a policyholder is mislead about the contents of their policy, it does mean that costly and time consuming litigation can be required to sort things out. For this reason, it is always best to take the time to read and understand your policy yourself, so that you know what you are paying for.
If your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
 A.R.S. § 20-461(A)(1) (2018); Cal. Ins. Code § 790.03(h)(1) (2018).
You might think that the disability insurance claims process starts when you send back the initial packet of paperwork to your insurance company. However, disability insurers are starting to make an effort to gather information from the first time they talk to you—possibly before you’ve even decided if/when you’ll file a claim. More and more we are seeing companies that require you to call into them in order to obtain claim forms. Then, when you’re connected with a representative, he or she will not only get your contact information, but may also initiate an on-the-spot interview.
The purpose of this interview is not only to begin collecting information for their file on you, but to do it before you’ve had a chance to read through claim form or review your policy in detail. This initial interview can cover a wide variety of topics, including:
- What are your symptoms, and when did they start?
- What treatments have you tried? What are all the medications you’ve tried?
- How many doctors have you seen? Can you give their me contact information?
- What are your job duties?
- How much time have you taken off work? When do you plan on going back?
- What does a typical day look like for you?
- Once you stop practicing, are you going to work somewhere else?
- What is your income?
These are just a few of the questions an insurance company might ask you, and they all can potentially have a significant impact on your claim and chances of collecting if they are not answered precisely and accurately. So, while the interviewer may be friendly and the conversation may seem casual, it is not a call that should be taken lightly. Insurance companies will look for any inconsistencies that they can use to attack your credibility, and will often compare your answers during this initial interview to what you say on all future claim forms and field interviews, as well as information private investigators have gathered during surveillance. Consequently, even an innocent mistake or an answer that was imprecise or not well-thought out can cause problems for you claim later on.
If you find yourself considering filing a claim, an experienced disability insurance attorney can help you understand the terms of your policy and what to expect during the disability insurance claims process.
On January 24, 2019, Protective Life Insurance Company announced that it would acquire, via reinsurance, substantially all of Great-West Life & Annuity Insurance Company’s individual life and annuity businesses. The transaction, expected to represent a capital investment by Protective of approximately 1.2 billion, was completed on June 3, 2019. The transferred businesses, formerly marketed under the Great-West Financial brand, includes bank and corporate-owned life insurance, single premium life insurance, individual annuities, and a portion of their closed block life insurance and annuities.
As many dentists know, the American Dental Association (ADA) is partnered with Great-West Financial to offer a group disability income protection plan to its members, as well as an office overhead expense plan. Great-West has retained a block of participating policies, including the ADA Members Insurance Plans; however, these plans will now be administered by Protective Life Insurance Company (or Protective Life and Annuity Insurance Company for policies issued in New York).
Protective Closes Reinsurance Transaction with Great-West, Protective Corporate News, June 3, 2019
American Dental Association, Disability Insurance
Great-West Lifeco completes sale of U.S. individual life insurance an annuity business, CNW Group, June 3, 2019
Protective Life acquires part of Great-West Life for $1B, AP News, January 24, 2019
ADA News, Great-West Life announcement regarding ADA Members Insurance Plans, July 1, 2019.
We’ve discussed before how insurers often use surveillance in disability claims. Physicians’ claims and dentists’ claims, in particular, are often targeted due to the high benefit amounts the company can save by denying or terminating the claim. Accordingly, professionals filing claims should expect that they’ll be under surveillance at least once, and sometimes several times, throughout the course of their claim.
If the company is able to obtain surveillance footage, the company may overstate the significance of the footage in an effort to deny or terminate benefits. The case of Fleming v. Unum illustrates how insurers use surveillance as a tactic to improperly terminate benefits. Pamela Fleming worked a litigation attorney until she was in a serious car accident and suffered severe injuries to her neck and thoracic spine, leaving her unable to work. Fleming had own occupation policies that defined “disability” as the inability to do the material and substantial duties of her occupation.
After having paid her claim for over a decade, Unum hired a surveillance company to videotape Fleming. The surveillance video showed Fleming throwing away a bag of garbage, putting a cooler in her car, and then driving a significant distance. Unum told Fleming that the footage conflicted with her previously reported limitations and terminated her benefits.
When her claim was denied, Fleming sued Unum and the court ultimately reversed the claim denial. In doing so, the court determined that Unum had greatly overemphasized the significance of the surveillance footage. The court noted that while the video showed Fleming lifting a garbage bag, “[l]ifting the bag over her head was no feat of strength or indication of recovery” because it was clear from the surveillance footage itself that “the bag of trash contain[ed] empty plastic bottles.” The court then concluded that “[t]he fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney.”
Similarly, the court criticized Unum for taking the footage out of context, observing that the footage “shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days.” The Court then noted that “[b]oth coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support” and concluded, “[i]f anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment . . . . The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records” (emphasis added).
Luckily for Fleming, the judge in her case saw through Unum’s attempt to improperly terminate her claim. But, unfortunately, judges and juries can all too often put undue weight on surveillance footage, because it is easy to present out of context and is more interesting and attention-grabbing than other relevant evidence, such as medical records and doctors’ opinions. Consequently, it is likely that companies will continue to take this sort of footage out of context, in the hopes that claimants will give up and not challenge the denial, or give in and accept a low-ball settlement once their benefits are cut off.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly using surveillance, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.
 Fleming v. Unum, 2018 WL 6133859 (2018).
A disability insurance claim can be denied for a variety of reasons. Some reasons are legitimate, and some are not. This can be especially true for dentist and physician claims that can be targeted for denial simply because of the policies’ high benefit amounts and how much money is at stake.
Knowing the specific reason or reasons for a disability insurance claim denial is critical to deciding what your next step should be. Because of this, some states, including Arizona, have adopted laws that require insurers to provide you with timely information explaining the basis for a denial. In both Arizona and California, an insurer that denies a claim must provide a reasonable explanation for the denial based on the terms of the policy, the facts, or the applicable law. Some states’ laws also require that the notice of denial must be in writing, must reference any specific grounds for denial, and must explain how those grounds specifically apply to your claim. Failure to provide an explanation could lead to a finding that your insurer acted in bad faith.
When you receive the explanation of denial, chances are it may be confusing to understand. Even if an explanation is provided, it may still warrant a finding of bad faith if the explanation fails to clearly communicate the rationale behind a denial , or the denial was founded on an improper bases (e.g. a biased medical exam).
If you have already filed and your insurance company has wholly or partially denied your claim, there is often a short window of time in which to act if you wish to preserve your claim. If you have filed a claim, or you are facing a denial from your insurance company, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
 A.R.S. § 20-461(A)(15) (2018); Cal. Ins. Code § 790.03(h)(13) (2018).
 Cal. Code Regs. tit. 10, § 2695.7 (2018).
 See, e.g., the California case of du Mortier v. Mass. General Life Ins. Co., 805 F.Supp. 816, 823 (C.D. Cal. 1992).
We have previously discussed how important it is to periodically review your disability insurance policies to make sure your coverage and benefit amounts reflect where you are at in your career. Most physicians and dentists purchase a disability policy at the beginning of their careers. However, as time goes on, their financial situation, family life, and practice can evolve into something completely different that requires a different level of coverage.
A “business overhead expense policy” is one type of policy that many doctors consider when they have reached the point in their career where they are purchasing their own practice. These policies are designed for practice owners and cover short term business-related expenses. If you become disabled, these policies can help you cover day-to-day operations for a certain period of time (typically 1-2 years) to give you time to heal and return to practicing (or, alternatively, give you time to sell the practice, if you have a condition that is more permanent in nature and are having difficulty finding a buyer).
Like any disability insurance policy, each BOE policy is unique. Some common covered expenses can include:
- Real estate and property taxes
- Laundry, janitorial, maintenance services
- Licensing fees and dues
- Insurance premiums
- Billing and collection fees
- Interest on debts
- Depreciation or scheduled installment payments on principal of debt
- Rent or lease expenses on items such as furniture, equipment, other assets used in the practice
- Normal, necessary, and customary fixed expenses
- Salary(ies) of substitute employee(s) – this can be especially attractive to sole practitioners, who may need to employ another dentist or physician to keep their practices in operation
Keep in mind that a business overhead expense policy will typically not cover your lost wages, and typically only last for a limited time, so you will need to have other policies to protect your own monthly income in the event of a long-term disability. Some business overhead policies also contain a list of costs that are not covered by the policy, such as:
- The cost of goods or merchandise
- Implements of your profession
- Premiums waived due to disability
- Income or self-employment taxes
- Purchases (such as equipment) after the date of disability
- Prepayment or advance payment of covered overhead expenses
- Salaries for employees that are also family members
Consequently, it is important to read your policy carefully so that you have a clear understanding of the expenses that are covered and the expenses that are not.
These are just a few examples of things to be aware of if you have or are considering a Business Overhead Expense policy. These policies are not all identical, and they are updated frequently. Your policy may or may not include the provisions mentioned above. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.
When filing a claim, many dentists and doctors think that they will merely have to submit a form giving notice of the claim and have their doctor sign something verifying they are disabled. Most don’t realize or expect the breadth of their insurance company’s investigation and one thing that often surprises dentists and physicians is the company’s request for their CPT or CDT codes. Most newer insurance policies contain language that expressly allows insurers to request financial and practice information like this, and there are several things they are looking at when they request these codes.
Changes to Your Occupation/Job Duties
Most own occupation policies say they will consider you to be totally disabled if you can no longer do the “material and substantial” duties of your occupation. Insurance companies will look to CDT/CPT codes to see if you have changed or limited the types of procedures you do, and thus potentially modified your job description, prior to filing the disability.
When you file a claim, the company will typically be looking at what your duties were immediately prior to your reported date of disability. If you stopped performing more difficult procedures for an extended period prior to your date of disability, many companies will try to narrowly define your occupational duties as something less than what you perceive your occupation to be. For example, they might characterize you as a “dentist who doesn’t do root canals,” or a “surgeon who doesn’t do hip surgeries.”
Changes in Hours/Production
Similarly, reducing your work hours prior to filing a claim can impact your ability to collect. While your CDT/CPT codes won’t necessarily directly show the hours and days worked, they will show drops/increases in production and prompt follow-up questions from the insurance company if the production numbers don’t add up.
Additionally, some policies require an insured to work a certain number of hours a week, and cutting back on hours for an extended period of time prior to filing a claim could also lead your insurance company to classify your occupation as “part-time.” This is problematic because it becomes much harder to prove you can’t work part-time, versus proving you can’t work full-time.
Reviewing and understanding your policy, including what types of information your insurance company will request, is an important part of any transition plan. If you are considering filing a disability claim, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.
In prior posts, we’ve discussed the mental health challenges physicians and dentists can face due to their high-stress and high-responsibility work environments. We often see doctors who are wondering if they can successfully file a claim based on a mental health condition, but are also reluctant to ask because they are concerned about what their colleagues/families/friends with think. Often, they feel like they are the only one struggling with these challenges but, in reality, they are not alone.
Unum, one of the largest disability insurers in the U.S., recently released a report that looks at mental health challenges in the U.S. workplace. The report found that mental illness was one of the top causes of worker disability in the United States, with 62 percent of missed work days attributable to mental health conditions. Of those employees with mental health conditions:
- Forty-six percent of those who missed work took an extended period of time off (over a week)
- Two-thirds of employees with mental health issues went to work while experiencing symptoms (and reported a drop in productivity)
- Forty-two percent of those who came to work were experiencing suicidal feelings
Despite the prevalence of mental health conditions (including anxiety, depression, and PTSD), sixty-one percent of the surveyed employees indicated that they felt there was a social stigma around those with mental health issues.
Although this study looked at data from employees, human resource professionals, mental health professionals, and research organizations that was not specific to the medical field, it is widely accepted that doctors are among those most likely to experience burnout during the course of their careers, with symptoms that overlap those of depression, anxiety disorder(s), and/or other mental health conditions. Unfortunately, stigma in the workplace and presenteeism may make doctors even more likely to ignore the symptoms of a mental health condition, push themselves to keep working, and/or avoid seeking support on the job and/or through treatment.
Ironically, we often see Unum (and other insurance companies) target mental health claims made by professionals due to the higher benefit amount of their policies and the more subjective nature of symptoms related to mental health conditions. They may pressure your treating provider for a return to work date, conduct surveillance to catch you in a happy moment that can be taken out of context, or have their in-house doctor question your course of treatment.
Further, many disability insurance policies now have substance abuse and mental health limitations provisions, which limit the amount of time a policyholder can collect for these types of conditions (usually to 24 months). For these reasons, it is very important for physicians, dentists, and other professionals to have an awarenes of the challenges that may arise when filing a claim and understand what their policy says.
If you are considering filing a disability claim based on a mental health condition, you should consult with an experienced disability insurance attorney to learn more about your policy and any potential issues related to your particular claim.
 Unum report explores mental health challenges in U.S. workplaces, Unum, March 27, 2019.
In April 2019, Arizona Governor Doug Ducey signed legislation making Arizona the first state to match other states’ professional licenses. This allows individuals whose jobs require licenses, including dentists and physicians, to automatically receive a license in Arizona, provided they held a similar license in another state for at least one year with no disciplinary action. Under the new law, Arizona’s licensing boards can only test for Arizona-specific information.
Proponents say it paves the way for skilled workers to relocate and bring their expertise to Arizona, without added expense and time delays before they can start working. Further, those in support say it could help to address the medical and nursing shortages in Arizona. Those against the bill cited potential public health and safety concerns, arguing that some states have easier licensing requirements and that new arrivals will compete with those currently practicing in Arizona, potentially driving down wages.
Other states have taken less sweeping steps to ease licensing requirements for relocating professionals, such as reciprocity agreements between states and, in the case of Utah, accepting licenses from other states, but only for military spouses.
Currently, the American Medical Association advises physicians, in general, to plan to wait 60 days between the date an application is submitted and the date a license to practice medicine is granted. The American Dental Association, while supporting individual state’s rights to regulate licensure for dentists, has also adopted policies on licensure issues, including the freedom of movement for dentists and standardization of clinical licensing examinations.
At the bill’s signing in Phoenix, the governor said an expected 100,000 relocating professionals will benefit from the legislation in 2019. Attorneys, private investigators, and security guards are exempt from the new legislation and are still required to complete the Arizona licensing process. As of this writing, the law is expected to go into effect August 2, 2019.
Jonathan J. Cooper, Arizona becomes 1st to match out-of-state work licenses, Associated Press, April 10, 2019.
Lurissa Carbajal, Arizona becomes the first state to recognize all out-of-state occupational licenses, Cronkite News, April 10, 2019.
Howard Fischer, Ducey signs bill for state to recognize out-of-state-license, Arizona Capitol Times, April 10, 2019.
American Medical Association, Obtaining a medical license
American Dental Association, Licensure Overview
Disability claims filed by professionals can be complex, particularly when the dentist or physician’s underlying occupation is a specialty specific field.
If the claim involves a discrete practice area, disability insurers may use that as an excuse to drag their feet when making a claims decision. For example, they may make repeated requests for employer questionnaires, financial information and/or vocational examinations, among other things. Then, as time goes on, the financial pressures of being left with no income build, prompting some doctors to consider a return to work even though it’s not safe for them to be practicing on patients. Other doctors with specialty-specific policies reason that they can return to work in a different field and expect to receive their benefits as a supplement to the new job, only to find that their insurer disagrees that they were, in fact, a specialist, and refuses to pay total disability benefits.
This is what happened to Joanne Ceimo, M.D., a former invasive cardiologist from Scottsdale, Arizona who practiced at Banner Boswell Medical Center in Sun City, Arizona. Dr. Ceimo had an own occupation policy and was practicing within her medically recognized specialty of invasive cardiology. In 1994, doctors diagnosed Dr. Ceimo with cervical degenerative disc disease, which made it increasingly difficult for her to perform surgeries and prevented her from performing on call duties. Eventually, she was forced to stop performing surgeries as well and instead began practicing general cardiology.
In her mind, Dr. Ceimo’s new job as a general cardiologist was substantially different than her prior job as an invasive cardiologist. However, Dr. Ceimo ultimately had to sue General American, along with Paul Revere and Provident (the other insurance companies administering her claim) for the benefits she was due under her policy. She filed her disability insurance claim in 1995 and, after a long, drawn-out claim investigation, was eventually denied benefits in 1998. Due to the long delay, Dr. Ceimo was forced to continue working as a general cardiologist to meet her expenses, even though it was bad for her health and working made her pain worse.
When they denied her claim, the companies asserted that Dr. Ceimo was not a specialty cardiologist because she had only spent six to ten hours on surgeries per week. The companies then stated that her occupation before her date of disability was that of a general cardiologist, and concluded she was not eligible for total disability benefits because she continued to practice in that capacity. In making this argument, the companies ignored the fact that Dr. Ceimo had practiced invasive cardiology from when she was licensed by the Arizona Medical Board in 1982 through the onset of her disability in 1995. The companies also failed to mention that their own medical records review classified Dr. Ceimo as an “invasive cardiologist.”
Dr. Ceimo and her lawyers filed a bad faith lawsuit in the District of Arizona against General American, Paul Revere and Provident. In addition to arguing that the companies improperly interpreted her specialty, Dr. Ceimo and her attorneys also asserted that the companies improperly relied on biased in-house medical consultants and internal company practices geared towards denying high-dollar physician claims like Dr. Ceimo’s. The case ultimately produced a large verdict in favor of Dr. Ceimo, with almost $6.7 million in consequential damages, but it took nearly a decade of fighting before she obtained the benefits she was due under her policy.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your company is improperly delaying a claims determination and/or targeting your claim for denial or termination, an experienced disability insurance attorney can help you assess your claim and determine what action, if any, needs to be taken.
 See Ceimo v. Gen. Am. Life Ins. Co., 2003 WL 25481095 (D. Ariz. Sept. 17, 2003).
A recent study published by the Association of American Medical Colleges (AAMC) found that the U.S. is facing a growing shortage of physicians—both those in primary care and specialty care—with an estimated expected shortage of between 46,900 and 121,900 by 2032. The shortage is likely due to a number of factors such as the increased costs of going to medical school, the long hours that doctors work, doctors facing disabling conditions that interfere with their ability to practice safely, and other distractions that interfere with their ability to focus on helping patients, like lawsuits and dealing with insurance companies/bureaucratic rules/red-tape.
Arizona is not exempt from this trend, with the AAMC ranking Arizona just 42nd nationwide in the number of active primary-care physicians per 100,000 people. This, in part, is what prompted Nebraska-based Creighton University to expand its medical program and open a medical school in Phoenix (opening in the fall of 2021). Creighton will continue partnering with Arizona-based St. Joseph’s Hospital and Medical Center (part of Dignity Health), District Medical Group, and the Maricopa Integrated Health System. Arizona’s two other medical schools, both based at the University of Arizona, are affiliated with Banner Health.
While expanding educational opportunities can be an important next step in addressing physician shortage, an upcoming Healthcare Breakfast Panel 2019 will also look additional issues surrounding the growing shortage, including how the shortage affects other healthcare physicians, patients and employers, how technology is being used in virtual medicine, and what experts see for the future. The panel will also look at what the passage of Arizona Senate Bill 1354, an act appropriating money from Arizona state’s general fund (fiscal year 2019-2020) to Arizona graduate medical education programs, could mean for the state. The panel is scheduled for June 20, 2019 and is sponsored by Health System Alliance of Arizona.
 New Findings Confirm Predictions on Physician Shortage, AAMC News, April 23, 2019.
 Greg Toppo, From Omaha to Phoenix, Inside Higher Ed, Feb. 13, 2019.
While the difference between an injury and sickness may, initially, seem clear-cut, if you have certain disabling conditions (such as degenerative disc disease or carpal tunnel syndrome) whether you have a disabling sickness versus injury can be a very nuanced determination. For example, when a particular event causes a slowly progressive disease to become suddenly disabling to the point a dentist or doctor can no longer work in his or her occupation, the final determination may have to be made by a court.
This is what happened in a recent case before the Arizona District Court. Dr. Wood was an anesthesiologist who practiced in Page, Arizona within the Banner health system. Dr. Wood suffered from degenerative disc disease in his lumbar and cervical spine, but continued to practice (a common phenomenon among physicians and dentists called presenteeism). In 2015, he and a team of nurses lifted a patient from the operating table to a hospital bed—a routine maneuver that he had done thousands of times before. This time, however, the maneuver resulted in intense radiating pain in his spine and he found himself unable to work. Dr. Wood then filed a claim with his insurer, Provident, due to the disabling back condition.
While Dr. Wood felt his disability was caused by an accident, making him eligible for lifetime benefits under the terms of his policy, Provident classified his disability as a result of sickness, and maintained he was only eligible for 48 months of benefits. Dr. Wood sued Provident and the court had to determine what “injury” meant.
Fortunately for Dr. Wood, in this case, the Arizona judge determined that the policy had a vague definition of “injury” and ruled the provision should be interpreted in Dr. Wood’s favor. The court turned to precedent set by the Arizona Court of Appeals, finding that Arizona does not distinguish between ‘accidental means’ and ‘accidental results.’” The court also noted the Arizona Supreme Court’s findings that “accident” must be read in light of common speech, usage, and understanding of the average man. In the end, the court found that, under Arizona law, Dr. Wood became disabled when performing the lifting maneuver and he was eligible receive lifetime benefits.
Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are unsure of how your policy interprets sickness versus injury, an experienced disability insurance attorney can help you interpret this language and apply it to your particular situation.
 See Wood v. Provident Life & Accident Ins. Co., 2018 WL 2416190 (D. Ariz. May 29, 2018).
 Id. quoting Central Nat. Life Ins. Co. v. Peterson, 529. P.2d 1213 (Ariz. App. 1975).
 Id. quoting Knight v. Metro Life Ins. Co., 437 P.2d 416 (Ariz. 1968).
Ed Comitz and Mike Beethe, the founding members of Comitz | Beethe, have both been named Southwest Super Lawyers for 2019. This is the eighth consecutive year that Mr. Comitz and Mr. Beethe have been recognized by Super Lawyers for excellence in their fields, insurance coverage and real estate, respectively.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Only 5% of attorneys in the Southwest receive this distinction. The selection process is comprised of independent research, peer nominations and peer evaluations.
Comitz | Beethe’s primary office is located in Scottsdale, Arizona and the firm also has satellite offices in Phoenix, Arizona and Tucson, Arizona.
An independent medical exam (“IME”) is an exam conducted by a doctor to verify whether you are truly disabled under your disability insurance policy’s terms. These IMEs are rarely “independent”, and the doctors conducting them are almost always selected and paid by the insurers. In this post, we will explain what you can expect during an IME, and how you can protect yourself during the IME process.
What Can I Expect During an IME?
The IME doctor will likely begin by conducting an interview to learn about your medical history, the nature of your job, your symptoms, your treatment to date, and your daily activities. During the interview, the doctor will be looking for signs that you are not telling the truth or that you are exaggerating your symptoms and limitations. The doctor will pay attention to your demeanor, body language, and general appearance in order to assess your credibility. The doctor will also compare your reported symptoms and limitations to your medical records, claim forms, and daily activities in an attempt to find inconsistencies.
Typically, the IME will largely consist of a physical examination, and the doctor may also require objective testing, such as x-rays, MRIs, or EMGs. The doctor will often begin by conducting a general checkup, taking height/weight measurements, listening to your heart and lungs, testing your blood pressure, etc. The doctor may then perform tests that focus on your disability and require you to provide subjective indications of pain and discomfort. He or she may ask you to bend, lift, or perform simple physical movements, depending on the nature and location of your condition. Again, the doctor will be looking for inconsistencies or any signs that you might be exaggerating your symptoms.
After the IME, the doctor will complete a report that summarizes the findings of the exam. The doctor will opine as to the extent of your disability, your ability to return to work, and recommended treatment or further testing.
How Can I Protect Myself in the IME Process?
As explained above, IMEs can be used as a tool for the insurance companies to deny or terminate disability benefits. Fortunately, there are ways you can protect yourself and ensure that you are treated fairly before, during, and after the IME.
Before the IME:
- Review your policy. Most insurance policies do have a provision that allows the company to require you to submit to a physical exam. However, these provisions are sometimes unclear as to the exact type examinations that are allowed. Review the terms of your policy to make sure that your insurer can require you to undergo an IME.
- Complete intake forms in advance. Your doctor will most likely ask you to complete intake forms, including questionnaires that outline your symptoms and medical history. If you are nervous or hurried, you may forget to include important information. Filling out the forms in advance allows you to answer each question carefully and accurately.
During the IME:
- Bring a friend. If possible, bring a friend or family member to the IME. Not only can your friend provide moral support, but they will also serve as a witness to the exam.
- Take notes. If possible, take notes during the IME to remember what testing was performed or what types of questions were asked. When you leave, write down your impressions and any issues you think you need to follow-up on.
- Be cooperative and open. Be patient and polite with the doctor. Answer questions in a straight-forward and truthful manner, and if you do not understand something, let the doctor know. While you should be cooperative, this does not mean you need to do anything that causes you pain or injury. You know your body and limitations best, so if something the doctor asks you to do will cause you pain, let him or her know.
- Discuss your symptoms fully and honestly. Do not minimize your symptoms and do not be afraid to complain. It is important that your pain levels and other symptoms are documented as accurately and thoroughly as possible.
- Connect your symptoms to your job duties. Make sure you discuss how all of your conditions impact your ability to practice safely and effectively. Give specific examples of how the conditions interfere with your practice (e.g., you cannot sit or stand for long periods without pain; you cannot manipulate dental instruments due to numbness in the fingers, etc.).
After the IME:
- Get a copy of the report. After the exam, contact your insurer to ask for a copy of the IME report. Review the report and compare it to your notes and recollection of the IME. If anything needs to be clarified or there are any inconsistencies, contact your attorney and/or disability insurer as soon as possible.
If you have been scheduled for an IME, you may want to get an experienced disability insurance attorney involved. An attorney can protect your rights during the IME process by finding out what the disability policy requires, limiting the test to certain parameters, studying the examiner’s credentials, recording the exam, accompanying you to the exam, and reviewing the final report for accuracy.
It’s no secret that dentistry is hard work, requiring concentration, precision, visual acuity, depth perception, and quick reaction time if there is an emergency situation . In prior posts, we have discussed how, as a result of these demands of the profession, musculoskeletal conditions are all too common in dentists, and often lead to dentists needing to file disability insurance claims. Similarly, a dentist who undergoes changes to his or her vision, whether via injury or disease, faces the very real possibility that he or she may need to step away from practicing dentistry early. In fact, one study showed that sight disorders were the second most common reason dentists asked for help (34.7% in females, 32% in males), and the same study showed that sight disorders were recorded in 45.7% of the female dentists participating in the study and 48.5% of the male dentists, with eye injuries being the most common reported reason for seeking help.
Some eyesight injuries/impairments experienced by dentists may occur on the job, through physical hazards (radiation, artificial light) or chemical hazards (dental materials, including amalgam and dental cement particles, equipment, disinfectant, etc.). Diseases of the eye are also not uncommon as one ages, and older dentists may find it increasingly challenging to effectively practice when faced with an eye disease, especially during procedures that require a significant degree of hand-eye coordination (e.g. root canals, crown procedures, etc.).
Some of the most common eye conditions in adults include age-related macular degeneration, cataracts, central retinal vein occlusion, retinopathy (due to diabetes), macular edema, glaucoma, and retinal tears and detachments. Many of these conditions can cause symptoms that can limit a dentist’s ability to practice safely and effectively (e.g. blurred vision, floaters, halos around lights, double vision, difficultly seeing in low or bright light, etc.), and over times some can even result in partial or total blindness. In addition, there are several lesser-known genetic eye conditions that can have equally devastating effects on a dentist’s ability to safely practice, including retinitis pigmentosa, choroideremia, Best disease, and cone rod dystrophy, among others.
Whether sight impairment and/or vision loss occurs through a common or rare disorder, vision problems are often slowly degenerative and progressive. In some instances, there may be ways to acceptably compensate for the vision impairment, whereas in other instances the impairment can be severe enough that it is obviously disabling. However, like other slowly progressive conditions, there is often a significant gray area between these two extremes that can be difficult to navigate if you do not have an understanding of how the disability claims process works. Dentists facing a progressive eye condition must carefully (and constantly) balance the need to keep their practice running, support their families, and continue the job they love against their duty to keep their patients safe and the risks of board complaints and/or malpractice lawsuits.
As a result, we’ve often seen dentists try to continue working even after a serious diagnosis by reducing their hours and/or the types of procedures they perform; however, doing so can hurt your chances to collect under a future disability claim, as this can undercut the severity of a claim and re-define the job duties, potentially making it much harder to establish total disability under the terms of your policy. Because of this, if you are a dentist with an eye condition that could potentially be disabling in the future, it is a good idea to have someone who is familiar with the claims process (like an experienced disability insurance attorney) evaluate your situation and start preparing a transition plan so that, if things progress to the point where you do have to file a claim, you are prepared.
These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a physician do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.
Mayo Clinic, www.mayoclinic.org
National Eye Institute, https://nei.nih.gov
U.S. National Library of Medicine, https://ghr.nlm.nih.gov
Retina International, http://www.retina-international.org
American Academy of Ophthalmology, https://www.aao.org
American Society of Retina Specialists, https://www.asrs.org
 Dhanya Muralidharan, Nusrath Fareed, & M. Shanthi, Musculoskeletal Disorders among Dental Practitioners: Does It Affect Practice?, Epidemiology Research International, Vol. 2013, Article ID 716897 (2013)
 Marin Vodanovic, Slavica Sovic, & Ivan Galic, Occupational Health Problems and Dentists in Croatia, Acta Stomatol Croat., 2016 Dec; 50(4): 310-320
As a dentist, you probably have purchased at least one disability insurance policy, and you probably sought out “own occupation” coverage. However, in our experience, many dentists do not understand what their policy actually says or realize that there are several variations of “own occupation” policies. Additionally, many of the newer disability policies being sold to dentists have particular requirements and “rules” that must be followed in order to qualify for benefits.
Our latest article with Dentaltown Magazine discusses some of these pitfalls and explains why it is important to know what your policy says before filing a claim. Read the full article at Dentaltown today.