Ed Comitz Presenting Course “Disability Insurance: Will It Be There When You Need It?” at Western Regional Dental Convention on Friday April 4 and Saturday April 5, 2014
Attorney Ed Comitz will be giving a presentation called “Disability Insurance: Will It Be There When You Need It? Choosing Policies, Pursuing Benefits and Litigating Claims” on April 4th (Course Code F08) and April 5th (Course Code S06) at 8:30 a.m. at the Western Regional Dental Convention in Phoenix, Arizona. The course is worth three CE credits for dentists who attend. Registration information is available on the Western Regional Dental Convention’s website.
We are also an exhibitor at the dental convention. Please feel free to stop by our Booth 537 (directly across from the Internet Cafe) if you have questions about your disability insurance policy or claim.
How Long Do I Have to Formally File My Claim?
You have finally come to the realization that working through the pain and limitations of your disability is no longer in your best interests. Continuing to work is not an option for you, so you have decided to make a long term disability insurance claim. How long do you have to file your claim? Does it have to be on the day that you become disabled, or can it happen a couple months down the road? The answer to that question is: it depends.
Insurance companies will try and exploit every option available to deny a claim for disability insurance benefits. One method they utilize is to put strict requirements on how and when an insured must give notice to the company of their disability and what that notice must contain.
The first place to start looking to determine your insurance company’s requirements is the insurance policy itself. Look through the policy index or headings for a section similar to “Notice of Claim.” This section lets you know how much time is available to file a disability claim with the company. Continue reading “How Long Do I Have to Formally File My Claim?”
Unum Bases Its Decision to Deny Benefits on Surveillance of the Wrong Person
A recent disability insurance case from the Southern District of California, Barbour v. Unum Life Insurance Company of America, 803 F. Supp. 2d 1135 (S.D. Cal. 2011), illustrates yet another way in which insurers sometimes improperly use surveillance to deny or terminate policyholders’ claims. In this instance, Unum (parent company of Paul Revere, Provident, and UnumProvident) actually based its decision to deny a claimant benefits on surveillance footage of the wrong person.
Patricia Barbour was insured under a group disability insurance plan through her job as a school principal. Ms. Barbour filed a claim under her policy due to “severe right quadrant abdominal pain—inflammation small intestines,” for which she had undergone two hernia surgeries, with serious complications. She and her physician explained to Unum that her condition restricted her from driving, walking or standing, and sitting for extended periods of time, and that she was totally disabled from performing hers or any other occupation. Ms. Barbour also reported that she used a cane, and that she needed her mother’s help for her daily activities.
As typically occurs, Ms. Barbour’s claims consultant at Unum retained a private investigator to perform three days of surveillance on Ms. Barbour.
Continue reading “Unum Bases Its Decision to Deny Benefits on Surveillance of the Wrong Person”
Provident Loses the Battle Over Discovery of Employee Compensation and Bonus Information Tied to the Denial of Insurance Benefits.
In previous posts entitled “Why Is It So Hard To Collect On My Disability Insurance Policy?” and “Does Your Unum Claims Handler Have a Personal Financial Incentive to Deny or Terminate Your Disability Claim?”, we reviewed a leading reason behind insurance companies denying disability insurance claims: claims managers often receive incentives, including bonuses, depending on the amount of money they save the company. For the claims department, saving the company money is frequently achieved by denying the claims of existing customers who are receiving disability insurance benefits. This conflict of interest is a probable basis for denial or termination of many legitimate disability claims.
A recent discovery decision by the United States District Court, N.D. California in Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013) comes as a major win for those with legitimate disability claims. There, Doctor Dana Welle injured her left arm in a bike accident. After multiple surgeries, she was diagnosed with ulnar neuropathy and left medial epicondylitis. This condition gave her pain and weakness in her left arm that impacted her ability to safely care for her patients. After Provident Life Insurance (a Unum company) had paid almost three years of disability insurance benefits to Ms. Welle, the company denied her benefits.[1]
In her suit against Provident, which claimed bad faith denial of her benefits, Dr. Welle alleged that Provident’s “incentive structure was based on performance, and performance may be measured, in terms of resolution of claims, including her own.”[2] Dr. Welle requested Provident to produce “any and all documents that reflect, refer or relate to bonus awards, including but not limited to the performance rating and percent of bonus awarded” to claims managers and claim handlers.[3]
Provident objected to the request because, as they argued, it was overly broad and sought to obtain information that was private, proprietary and confidential. The Court overruled Provident’s objections and allowed the discovery. The Court reasoned that the information she sought in her requests “speaks to whether her claim was improperly denied and whether Provident encourages bad faith practices.”[4]
The Court further reasoned that Dr. Welle had shown compelling need for the documents that related to the bonuses of those involved in adjusting her disability insurance claim, and that the information was “highly relevant to her bad faith claim.”[5] The Court disagreed with Provident’s concern with the request being overly broad because it only requested bonus and performance related information of specific individuals. The Court also disagreed with Provident’s defense that discovering the information would breach the employees’ privacy rights, or that the information was proprietary and confidential, because Dr. Welle had already stipulated to a confidentiality agreement and protective order that covered the entire proceeding.[6]
Thus, the Court allowed discovery of the employees’ bonus and performance related compensation documents. Though this is not the end of Dr. Welle’s fight to receive her legitimate disability insurance benefits, it is a major step in helping her get the ammunition she needs to assure her of future benefits under the policy.
[1] Welle v. Provident Life & Accident Ins. Co., 2013 WL 5663221 (N.D. Cal., Oct. 17, 2013).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
Firm Named #1 Healthcare Law Firm
We are excited to announce that our firm has been named Arizona’s #1 Healthcare Law Firm by Ranking Arizona: The Best of Arizona Business.
Ranking Arizona publishes the results of an annual poll of the Arizona business community. Residents are asked to share their opinions of the best products, services and people in the state, including who they would recommend doing business with. We were selected as the state’s top healthcare law firm for its work representing physicians and dentists, including its handling of disability insurance claims for healthcare professionals.
The firm was also named as one of the top 5 Arizona law firms with 20 or fewer attorneys, the top 5 commercial litigation firms, and the top 10 real estate law firms.
Physicians and Dentists With Parkinson’s Disease:
The Condition, Its Occupational Impact and Disability
Introduction
Among the most devastating degenerative medical conditions is Parkinson’s disease, which currently affects 6.3 million people worldwide. While certain genetic conditions and environmental triggers may increase susceptibility to the disease, it is impossible to accurately predict who will develop it.
For healthcare professionals (physicians and dentists) diagnosed with Parkinson’s disease, the disease can be career-ending as symptoms become more severe. This post will provide a brief overview of Parkinson’s disease; explain the limitations the condition may create and how this could impact a professional career; and provide a solid base of information for anyone struggling with the prospect or process of filing a disability insurance claim.
Background
Every year, there are approximately 60,000 new diagnoses of Parkinson’s disease, a condition affecting the nervous system, motor control, and brain chemistry. Recent improvements in treatments, including exciting therapies involving “reprogramming” skin cells to behave like stem cells, act as small steps toward a solution, but there is currently no cure for Parkinson’s disease. Sufferers often go undiagnosed for many years, and because of the progressive nature of the illness, it can cause a slow deterioration in ability to function normally in day-to-day life.
Disease Progression
After the initial diagnosis and into early stages of Parkinson’s disease, symptoms may seem manageable and typically include fatigue, tremors, joint pain, and anxiousness.
As the disorder progresses, it is common to experience stiffness, lack of coordination, and slower movement. Everyday tasks such as getting dressed, shaving, writing, and brushing teeth can become strained, and there is a high susceptibility to falls and related injuries due to disturbed sense of balance.
Once Parkinson’s disease reaches advanced stages, affected individuals sometimes lose the ability to walk, speak, and properly care for themselves. Since Parkinson’s disease is a disorder of the nervous system, it can result in chemical changes within the brain, causing individuals to experience symptoms involving disruption of mental clarity, altered judgment, anxiety, or depression. In effort to control challenging symptoms, sufferers often go through the frustrating experience of experimenting with new medications, which can also produce unpleasant side effects.
Medical Professionals Diagnosed with Parkinson’s Disease
It is understandably difficult to grasp the frustrating new limitations that go along with Parkinson’s disease, as symptoms sometimes come and go, progressing gradually over time. Doctors who have been diagnosed with the illness may be tempted to continue practicing as usual, despite their worsening symptoms. Unfortunately, the reality is that the slightest side effect, such as tremor or delayed reaction time could potentially have life-altering consequences for practitioners or their patients. Should a doctor be sued for medical malpractice post-diagnosis, a jury could be convinced that the doctor should not have been practicing due to the nature of the illness, regardless of whether or not it was a factor in the incident. The dichotomy between lifelong work ethic and patient safety is what makes Parkinson’s disease so devastating to physicians and dentists – considering the amount of time, energy, and money invested into a professional career, there is a reasonable hesitancy to take a step back.
When to File a Disability Insurance Claim
Early Parkinson’s disease symptoms mimic other more common ailments, often causing the condition to go undiagnosed for lengthy periods of time; furthering the problem, no one test is able to confirm a diagnosis of Parkinson’s disease. Individuals undergoing the diagnosis process frequently experience a trial-and-error scenario, and symptom improvement with specific medications is often the litmus test for whether or not a person truly has the disease. These factors make it very difficult to determine when a disability insurance claim should be filed – when filed too soon, there may not be substantive proof of disability, but waiting too long could leave a practitioner exposed to liability.
A common mistake for sufferers of Parkinson’s disease is the attempt to modify work schedules and regular work duties with the progression of symptoms. Despite the fact that these measures are taken to avoid the risk of injury to the affected doctors or to their patients, the impact of this decision on future disability claims is substantial. A practitioner will typically perform fewer procedures, take on more management duties, and scale back hours over a period of time until working is no longer an option. The modification of one’s scope of practice and work hours can make it extraordinarily difficult, if not impossible, to collect future disability benefits, as insurance companies define a practitioner’s occupation (and ability to receive benefits) based on the work done at the time he or she becomes totally disabled. In short, this means that as one modifies his or her duties and hours, he or she is modifying both position and capability in the eyes of a disability insurance company to something less than that of a full time clinical practitioner. Keeping this in mind, it is best to explore the possibility of filing a total disability insurance claim as soon as possible after diagnosis, and it is prudent to speak with an attorney who is well-versed in filing disability claims.
Summary
Parkinson’s disease has had a personal impact on the lives of our staff, and we are no strangers to how difficult it can be to deal with long-term medical issues. Perhaps the most important step in accepting and understanding Parkinson’s disease is taking the time to get the help you need. Seek the support of family, friends, and professionals to help you cope with the changes ahead.
Additionally, understand that knowledge is power. Parkinson’s disease can have a major impact on finances, relationships, work, time, and various other aspects of daily life. Educating yourself about the future and what to expect, including when to file a disability insurance claim, will help you to feel more prepared and able to face challenges as they arise.
Understanding Residual Disability Benefits: Are They Worth The Cost? Part 2 – Prior Monthly Income
In the first post in this series, we identified the basic formula disability insurers use to calculate residual (partial) disability benefits. Now, we will examine how each of the components of that formula can change, depending on the insurer, and how those changes can affect the calculation of residual disability benefits, beginning with Prior Monthly Income (alternatively called Prior Earnings or Prior Net Monthly Income, depending on the insurer).
Prior Monthly Income, broadly speaking, is the baseline against which any loss of income is measured. If you are pursuing a residual disability claim, it is in your best interest to have the highest Prior Monthly Income possible. However, many doctors who file disability claims have conditions that are both chronic and progressive, like degenerative disc disease, which cause a slow, steady decline in productivity, and thus in earnings, for years before they ever make a claim for disability benefits. In addition to lowering the Prior Monthly Income, this can cause other problems with a disability claim, as discussed in our recent article on residual disability claims.
ABC News Investigates
CIGNA’s Disability Claims Handling Practices
UPDATE: Since this story was originally posted in 2008, the insurance regulators of Maine and Massachusetts initiated targeted market conduct examinations of CIGNA’s disability claims handling practices. The concerns raised by Maine and Massachusetts prompted the insurance commissioners of Connecticut and Pennsylvania to also open market conduct examinations and for the California Insurance Commissioner to reopen his previous examination of CIGNA. In 2013, the examinations resulted in fines against the CIGNA companies, corrective actions being required in its handling of disability claims, and for CIGNA to reevaluate certain claims that were denied or terminated. Information on the CIGNA Multi-State Regulatory Settlement Agreement can be found here.
ABC News/Good Morning America‘s investigation by Chris Cuomo into CIGNA disability claim denials has uncovered some disturbing stories. In the video above, claimants describe some of the hardships they have been forced to endure due to denials of their claims or unreasonable delays in having their claims paid.
One breast cancer survivor, who eventually was paid on her claim with the assistance of a disability insurance attorney, describes her two-year ordeal with CIGNA as a “daily, eight-hour job just to fulfill the information that CIGNA was requesting.” The tactic of wearing down a disabled claimant with repeated requests for documentation that has already been provided multiple times — thereby deliberately delaying payment of the claim — is called “slow walking” by some in the industry. While CIGNA denies engaging in this practice, many claimants who are already emotionally and physically vulnerable due to their disability will eventually quit pursuing benefits to which they are entitled in this battle of attrition that is widespread in the disability insurance industry. In this situation, it is often necessary for a claimant to retain the services of an attorney, not only to take on legal issues with the insurance company but also to shoulder the burden of the excessive and repetitive requests for documentation.
Other claimants in Chris Cuomo’s GMA piece describe (a) three years of fighting CIGNA for their benefits, all the while sinking deeply into debt and losing everything; (b) being caught between a rock and a hard place when told by an employer that he could not return to work due to his disability, but simultaneously having CIGNA deny disability benefits; (c) purchasing insurance to protect herself and her family, only to have her business destroyed, savings depleted and fighting to keep her family home when benefits were denied or delayed.
Another of the claimants profiled, Ursula Guidry, a young wife and mother with advanced breast cancer, initially had her benefits paid by CIGNA, but after awhile, they terminated her benefits and told her she could return to work full-time. Eventually CIGNA settled the claim with her. She passed away three months later. As her husband says, it is tragic that her last year on earth was spent being in a panic over financial issues and fighting an unethical insurance company instead of enjoying as much time as possible with her husband and children.
CIGNA did not respond to GMA re any of the specific claimants profiled, but their Chief Medical Officer stated they pay 90% of disability claims filed and that the majority of their customers are satisfied.
How to Tell if an IME Doctor is Really Independent
At some point during many disability insurance claims, the claimant is compelled to undergo a so-called Independent Medical Examination, or “IME”. The purpose of the IME is supposedly to have an uninterested, unbiased doctor examine you to verify whether your condition truly makes you totally disabled under your disability insurance policy’s terms. However, IMEs are often used as yet another tool for the insurance company to attempt to deny or terminate your claim for disability benefits.
Though IMEs are labeled “independent”, the doctors performing them are almost always selected and paid by the insurance company. Further, many of the IME providers are used over and over again by the same companies. IME doctors that depend on the insurance industry for their livelihood have a strong incentive to give the insurance companies results they desire–medical opinions that support the denial or termination of your disability claim.
Continue reading “How to Tell if an IME Doctor is Really Independent”
Can My Disability Insurance Company Contact My Employer?
We previously posted about the breadth of authorization forms that disability insurers request you sign at the beginning of your claim for disability insurance benefits. These forms allow your insurance company not only to obtain medical records and other relevant information, but also to contact your employer to discuss your specific job duties, among other things.
This can be unsettling as you may not want your employer to know about your medical condition, or you may fear what your employer might say that could jeopardize your disability claim. Unfortunately, there is little that you can do to stop the interview from occurring, but you can prepare yourself and your employer beforehand.
Most policies require that, in order to be considered “Totally Disabled,” you must be unable to perform the material and substantial duties of your occupation, and be under the regular care of a physician. Accordingly, your insurance company needs to ascertain your important occupational duties.
If you can still perform some of your important occupational duties, though not all of them, you will not be considered “Totally Disabled” under most policies. It is important, therefore, to anticipate that your insurer will contact your employer so that you can ensure that only accurate and relevant information is communicated.
There is a critical difference between important occupational duties, and those that are merely incidental. Duties that encompass only a small percentage of your time are incidental or peripheral duties and not part of your regular profession. It is therefore improper for your insurance company to consider these duties when determining your eligibility for disability benefits.
For example, a licensed dentist who works 90% of the time treating patients and 10% of the time on administrative duties is regularly engaged in chair dentistry for purposes of an own- occupation disability insurance claim. Administrative work such as overseeing office staff, paying bills or attending continuing education classes are merely incidental to his material and substantial duties as a full-time dentist.
By focusing on insignificant duties, and getting your employer to sign off on those duties as important parts of your regular occupation, your insurance company will have made it much more difficult for you to collect your rightful benefits. While this is an unscrupulous practice, it often occurs and produces an unfair result. Considering each and every incidental duty and allowing a finding that you are Totally Disabled only if you are unable to perform each and every one of those duties is a nitpicking approach that would equate Total Disability with utter helplessness. Obviously, that is not the type of coverage that you purchased, nor what had been marketed to you at the point of sale.
To ensure that your employer does not provide misinformation to your insurance company during the interview, here are some tips:
Prepare an Occupational Description: Prepare an occupational description listing your important duties and have your employer sign off on it. Then provide the occupational description to your insurance company at the beginning of your claim. By reviewing this document with your employer, it will be less likely that your insurance company will be able to focus on the irrelevant, incidental duties of your job.
Explain How Your Policy Works to Your Employer: Let your employer know that you have an occupation-specific policy that entitles you to benefits if you cannot perform the important duties of your job. Further explain that your occupational description is intended to outline your important duties, and other duties you may perform are merely incidental. This way, you are focusing your employer on what’s relevant and preparing him or her for the interview.
Being prepared and vigilant at the beginning of your claim increases the likelihood that you will be paid the disability insurance benefits that you deserve.
Understanding Residual Disability Benefits: Are They Worth The Cost? Part 1 – The Basics
Disability insurers often market “residual disability” or “proportionate disability” benefits to doctors as an added benefit of a disability insurance policy. “Residual disability” is industry parlance for a partial disability and the residual disability benefit is typically attached as a rider to an individual disability policy.
Doctors pay additional premiums for these residual disability riders, so it is important for them to determine whether the benefit they are receiving is worth the price they are paying. This series will explain each component of the residual disability benefit, examine how residual benefits differ between insurance companies and identify some of the problems associated with residual disability claims.
Residual disability is generally defined as a condition that either prevents a doctor from working as long as he previously did or one that prevents a doctor from performing all of the duties he previously did. The insurance company will pay the claim on a pro rata basis, based on what it determines to be the doctor’s loss of income.
The formula for calculating residual disability benefits varies from company to company, but it typically begins with a calculation of the doctor’s pre-disability “prior monthly income” (PMI). The insurer will next examine the doctor’s “current monthly income” (CMI), for every month in which the doctor claims to be disabled. Then, the insurer subtracts the current monthly income from the prior monthly income and divides the result by the prior monthly income. That ratio is then multiplied by the maximum benefit amount (MBA) to arrive at the residual disability benefit. The formula can be illustrated as follows:
(PMI – CMI)/PMI x MBA = Residual Disability Benefit
While this is the general rule, each insurer defines prior and current monthly income differently, which can result in the same doctor with the same financial information receiving widely different benefit amounts from different insurers. To further complicate matters, some insurers will have different minimum and maximum loss of income amounts. Some examples of the differing loss of income requirements include:
- Berkshire/Guardian: Requires a minimum 15% loss of income before any benefits are payable, only pays actual loss of income thereafter.
- Northwestern Mutual: Requires a minimum 20% loss of income before any benefits are payable, pays full MBA if there is a loss of 80% or more.
- Unum/Provident/Paul Revere: Requires a minimum 20% loss of income before any benefits are payable, pays full MBA if there is a loss of 75% or more.
- MetLife: Requires a minimum 20% loss of income before any benefits are payable, pays full MBA if there is a loss of 80% or more.
Even with policies issued by the same insurer, residual disability riders have changed over time. The loss of income requirements in your policy may be different than these, depending on when it was issued. If you are in a situation where you are contemplating filing a disability claim, whether for total or residual benefits, make sure you obtain a copy of your policy and review it carefully to understand the benefits to which you may be entitled.
Authorization Forms: What Information Are You Releasing to Your Disability Insurer?
Whenever you file a claim for benefits with a disability insurance company, you will be asked to complete numerous forms. One of these forms is always a HIPAA-compliant Authorization. This form is titled differently depending on the insurer in question, for instance:
-
- Authorization to Obtain Information (Guardian/Berkshire)
- Authorization for Release and Disclosure of Health Related Information (Sun Life)
- Authorization (MetLife, Unum, Northwestern Mutual)
- Authorization for Release of Personal Health and Other Information (Principal)
- Authorization for Release of Personal Health-Related Information (MassMutual)
Claimants often sign the Authorization with little more than a quick glance, unaware of the broad power they are giving their insurer to investigate nearly every aspect of their lives. This may seem like an exaggeration, but take a look at this paragraph from an actual Authorization form required by one of the leading disability insurers for doctors and dentists.
Many claimants think that the Authorization simply allows the insurer to collect medical records. However, this Authorization, like those we typically see from other disability insurers, lets the company request all kinds of documents from all kinds of people and agencies. It also allows various company representatives to speak directly with numerous people in a claimant’s life. Let’s examine what you would authorize by agreeing to this one paragraph:
Medical History Misstatements On A Disability Policy Application Can Void The Policy In The Future
Under Pennsylvania law, as affirmed by the Third Circuit Court of Appeals, insurance companies can legally void a disability insurance policy if the insured has made fraudulent misstatements about their past mental or medical history. This is known as “rescission” and is a common tactic insurance companies use to avoid paying claims. In Sadel v. Berkshire Life Insurance Company of America, 473 Fed.Appx. 152 (2012), pharmacist Michael Sadel (“Sadel”) owned two pharmacies in Philadelphia. In 2002, Sadel underwent treatment with Linda May, a clinical social worker, for abuse of prescription narcotics. Sadel continued treatment, in individual and group therapy sessions, through 2006. In 2005, Sadel purchased disability insurance from Berkshire Life Insurance Company of America (“Berkshire”), whose parent company is Guardian, but did not disclose his past drug use or treatment for various mental or emotional disorders to Berkshire when completing the disability insurance coverage application. This could have been due to an ambiguous question on the application form. For example, if the question had asked if Sadel had been or was under the care of a medical doctor, he may not have understood that this also includes care for mental or emotional disorders.
In January of 2007, Sadel lost several fingers on his left hand during a robbery at one of his pharmacies. When treated for the injury, Sadel admitted his past drug use to emergency room workers so that they would not administer drugs to him that would cause a relapse. In February of 2007, Sadel exercised an option to purchase a Future Increase Option policy with Berkshire, which increased his disability insurance coverage. Sadel returned to work at his two pharmacies, but stopped working after an incident at his pharmacy in June of 2007, in which a customer approached him from behind and said “stick ‘em up.” During the incident Sadel said his life flashed before his eyes and he realized he could no longer work at the pharmacy. Sadel put his pharmacies up for sale, and notified Berkshire, in August of 2007, of his intent to claim disability benefits under his Berkshire disability insurance policies.
After receiving Sadel’s notification, Berkshire sent Sadel several forms to fill out, and obtained Sadel’s emergency room medical records documenting the robbery incident and treatment. Berkshire also received a report and chart prepared by Linda May, where she indicated that she had treated Sadel for narcotics abuse from 2002 through the time he purchased the original disability insurance coverage with Berkshire. In June of 2008, Berkshire notified Sadel that they had found inconsistencies with his medical records and the insurance policies. Berkshire informed Sadel, in November of 2008, that they were still reviewing the validity of his policies.
Sadel filed suit against Berkshire in January of 2009, alleging bad faith and breach of contract, and sought money damage for the unpaid disability income benefits. Berkshire counterclaimed for rescission of his disability insurance policies, alleging that Sadel had made fraudulent statements on his disability insurance coverage applications. Berkshire was able to make this counterclaim because the disability insurance benefits contract specifically stated that the policy could be voided due to fraudulent misstatements during the application process. Berkshire was successful in District Court, and Sadel appealed to the Third Circuit.
Though Sadel tried to justify his application statements by arguing that he was doing well when he filled out the initial disability insurance application, and that his drug abuse was a small matter which he dealt with in a matter of weeks, Sadel did not prevail in his Berkshire disability claim. The Third Circuit Court upheld the Pennsylvania District Court’s ruling that Berkshire had not acted in bad faith. In fact, the Third Circuit agreed with the District Court finding that Sadel had “knowingly provided fraudulent misrepresentation on his disability insurance applications . . . and he [could not] establish bad faith on the grounds that Berkshire lacked a reasonable basis to deny him benefits.”
This Pennsylvania case is important because it shows that inaccurate or fraudulent statements on a long term disability insurance coverage application, though undiscovered at the time of purchasing disability insurance, will likely come to light when the insured tries claim disability insurance benefits under their policy. Thus, for the insured, when in doubt about what to disclose on long term disability insurance application forms, it is better to err on the side of caution and always disclose your medical history. Insurance purchasers should also keep a copy of the application, which is considered part of the disability insurance policy that will be delivered with the final executed policy to the inured. Furthermore, when filing an insurance claim it is important to have a disability insurance attorney review not just the policy, but the application as well, to see if there are potential problems to claiming the benefits of a disability insurance policy.
The Injured Physician: Is Your Work Ethic Hurting You and Your Patients?
Disability insurance attorneys Edward O. Comitz and Patrick T. Stanley recently had their article “The Injured Physician: Is Your Work Ethic Hurting You and Your Patients?” published in the Winter 2013 edition of AzMedicine, the quarterly publication of the Arizona Medical Association.
In the article, Mr. Comitz and Mr. Stanley review some of the unintended consequences, both professional and personal, of a physician continuing to work through adversity, and the potential impact on his or her disability insurance coverage. For example, a physician who has modified his practice or work schedule in an effort to accommodate a disability may effectively change his occupational definition as it is defined in his “own occupation” disability insurance policy, making it difficult, if not impossible, to collect benefits when they are most needed.
The article also analyzes some of the pitfalls of “residual disability” or “partial disability” riders, such as the manner in which the insurer will determine the amount of benefits paid and differences in how long the insurance company is required to pay benefits.
The Arizona Medical Association periodically updates its website with recent editions of AzMedicine, or you may contact our office to obtain a copy of the full article and/or to speak with a disability insurance attorney.
Attorney Ed Comitz Interviewed by The Street re Disability Insurance
Scottsdale attorney Edward O. Comitz was recently consulted by the popular financial website The Street regarding his thoughts on whether it’s a good financial decision to purchase an individual disability insurance policy. Based on the high premiums and his experience as an attorney who specializes in assisting sick or injured claimants with obtaining the individual disability insurance benefits to which they are entitled, Mr. Comitz advised that, with the exception of medical professionals such as dentists and surgeons – for whom even a minor injury can be career-ending – disability insurance is not a good investment unless you are also prepared to incur the costs of hiring an attorney if your claim is denied or terminated.
Disability Insurer MassMutual Opens West Coast Center in Phoenix, Arizona
Disability insurer Massachusetts Mutual Life Insurance Company aka MassMutual Financial Group has for the first time in its 162-year history opened a West Coast business center. The new 60,000 sq. ft. center is located on Black Canyon Highway near the I-17 and Peoria Avenue in Phoenix, Arizona and will employ as many as 400 people. Arizona Governor Jan Brewer and Phoenix Mayor Greg Stanton were among those on hand for the ribbon-cutting ceremony of the facility on October 16, 2013.
MassMutual CEO Roger Crandall told the Arizona Republic that the new Phoenix center will primarily serve customers and policyholders in the Western U.S., allowing for faster expansion and also mitigating operational risks to the company through diversification of the location of its resources and staff. During Superstorm Sandy, we blogged about the temporary shutdown of many of the disability insurance companies located on the East Coast, including MassMutual, Unum Group/UnumProvident, The Hartford, New York Life, and Berkshire Life/Guardian Life. With locations now in Arizona as well as Massachusetts, the company may be able to avoid a situation where its call center and other operations, such as issuance of disability benefit checks, are suspended due to a natural disaster.
MassMutual employs approximately 6,700 persons nationwide, including nearly 3,500 at its Massachusetts headquarters, which is currently in the midst of a major renovation. Roughly 25 employees have been transferred from MassMutual’s headquarters to the Phoenix facility and an additional 70+ employees, who were a part of The Hartford’s Retirement Plans business prior to its $400 million acquisition by MassMutual in September 2012, will become a part of MassMutual’s Phoenix staff. To round out its staff, MassMutual has announced plans to hire an additional 200-250 employees in the Phoenix, Arizona area.
According to the Arizona Republic, MassMutual has approximately 25,000 clients in Arizona and parts of New Mexico holding roughly $4 billion dollars in insurance coverage. While we are hopeful that MassMutual’s Phoenix facility will bring improvements to MassMutual’s disability insurance claims service, we would also advise disability claimants that having an additional 400 MassMutual local employees could also mean increased and potentially intrusive surveillance.
Guardian Life Insurance Offers Student Loan Protection Program
Guardian Life Insurance Company of America, parent company of Berkshire Life Insurance Company of America, recently launched a new program offering medical and dental professionals insurance for student loans in the event of total disability. This program, which can pay up to $2,000 per month in student loan payments is available to those with advanced degrees – including those in the dental and medical industries – and to new and future practitioners for whom this kind of protection can seem quite appealing. Understanding that most graduates will begin practicing with an increasingly heavy debt load, Guardian represented the program as a simple preventative solution – but will this “win-win” policy be there when you need it?
Statistically speaking, 1 in 4 people will suffer a long-term disability during his or her career, and claimants are responsible for proving disability prior to receiving benefits. Because insurance companies are notorious for employing a number of tactics to “disprove” a disability and avoid paying claims (including subjecting claimants to “independent” medical exams, conducting video surveillance, and otherwise causing undue delays), it is critical that you understand your policy before you buy. As Guardian Life Insurance states, only those who are deemed totally disabled will benefit from this new student loan insurance policy. We expect that claims under these policies will be highly scrutinized, just as they would be with a traditional disability insurance claim. Those considering purchasing disability insurance or filing a disability claim should consult with an attorney to ensure they are prepared with the best possible policy in the event of a disability.
Disability Insurance Q&A: How Should Doctors Approach Their Treating Physicians About a Disability Claim?
Question: How should doctors approach their treating physicians about a disability claim?
Answer: Your treating physician’s support can often be critical to getting your claim approved. A hurried, uninterested physician may not have time to devote to your claim. In addition, fully discussing your condition with a professional, compassionate treating physician will help ensure supportive medical records. When to discuss your potential claim with a physician is an important timing issue. Also, when the time comes to speak to the treating physician about the claim, a disabled dentist or doctor should ensure that the treating physician understands the definition of “disability” under the insurance policy, so that he or she can accurately opine as to the inability of the doctor or dentist to work.
Some of our previous blog posts on this important issue are available here and here.
Pennsylvania and California Market Conduct Examinations of Guardian Life Insurance Company/Berkshire Life Insurance Company
Pennsylvania: On February 28, 2013, the Commonwealth of Pennsylvania Insurance Department issued a report on its Market Conduct Examination of Guardian Life Insurance Company during the period of January 1 – December 31, 2010. Guardian Life Insurance Company is also commonly known by the name of its subsidiary Berkshire Life Insurance Company of America and is one of the nation’s largest providers of disability insurance.
While Pennsylvania’s market conduct examination reviewed both Guardian health insurance and individual disability insurance in order to ensure compliance with Pennsylvania laws and regulations, for purposes of this blog we will only summarize the Insurance Department’s findings relating to Guardian/Berkshire’s individual disability insurance claims handling.
The claims review portion of the Market Conduct Examination consisted of reviewing Berkshire’s claim manuals and reviewing the claim files for any inconsistencies which could be considered discriminatory, specifically prohibited by statute or regulation or unusual in nature. The Department of Insurance noted 17 violations and further noted that Berkshire’s claims handling documents did not adhere to the examination because their procedures had changed during the examination period but the prior records were not retained. “The company indicated to the department that when new claim procedures or manuals are updated, the prior editions are not retained.” In this digital age, it is difficult to understand why prior records could not and would not be retained.
The Department of Insurance also raised a Department Concern that, “[Berkshire] should implement guidelines and standards to avoid any potential discriminatory action in the processing and handling of claims relevant to reservation of rights and advance payment.”
Finally, the Pennsylvania Department of Insurance found Guardian/Berkshire in violation of the regulation that “every insurer shall completion investigation of a claim within 30 days after notification of a claim . . . If the investigation cannot be completed within 30 days, and every 45 days thereafter, the insurer shall provide the claimant with a reasonable written explanation for the delay and state when a decision on the claim may be expected.”
California: On October 19, 2009, the California Department of Insurance issued a report regarding the results of its limited desk examination of the claims, rating, and underwriting practices of Berkshire Life Insurance Company of America during the period of May 1, 2008 through April 30, 2009. The Department of Insurance found that Berkshire was in violation of California Code of Regulations § 2695.6(b) which requires that “All licensees shall provide thorough and adequate training regarding the regulations to all their claims agents. Licensees shall certify that their claims agents have been trained regarding these regulations and any revisions thereto…” Berkshire Life responded that it did not certify that its claims adjusters had received the required training in accordance with California law but stated that instead their adjusters are trained on a “one-on-one basis.” Berkshire was asked whether it intended to take appropriate action in all jurisdictions where applicable and responded that it would implement corrective actions.
Disability Insurance Q&A: Why Do So Many Doctors’ Claims Get Denied, and How Can a Law Firm Help?
Question: Why do many doctors’ disability claims get denied, and how can a law firm help?
Answer: Doctors’ and dentists’ disability claims can be expensive for insurance companies to accept. The troubled economy and the rising number of disability claims filed by healthcare professionals have led to financial hardship. This strain on resources creates an incentive for insurance companies to deny medical professionals’ claims. Thus, many insurers closely scrutinize the terms of doctors’ and dentists’ policies in order to find ways to deny disability insurance benefits, as the long-term financial benefit to the insurance company is significant.
Our firm has years of experience in cases in which disability benefits have been rescinded based on alleged misrepresentation or non-disclosure in the original policy application. We also have a strong history of prosecuting cases in which benefits have been denied based on the insurance company’s insistence that a dentist’s or doctor’s “subjective claim” doesn’t provide objective evidence of disability.
Further information on our law firm’s services and what you can expect when filing a disability claim is available on our website at this link.
