Northwestern Mutual Offers Insight Into How Disability Insurers Interpret and Apply “Own Occupation Coverage”
Northwestern Mutual Life Insurance—a major provider of disability income insurance for physicians and dentists—has just launched a new website, the “Disability Income Insurance Knowledge Center,” which it claims will help policyholders understand the terms of their “own occupation” disability insurance coverage.
“Own occupation” policies are often marketed by disability insurers as allowing physicians and dentists to receive their full disability insurance benefit, while at the same time working in another occupation, as long as they can no longer practice medicine or dentistry. Some disability insurance policies further specify that the insured’s specialty will be considered his “occupation” for purposes of “own occupation” coverage. Under these disability policies, as they are frequently marketed, an insured could receive his full benefit, even if he is still working as a physician or dentist, as long as he is disabled from his former specialty.
As an example, a neurosurgeon who develops a hand tremor may still be a capable doctor, but he can no longer perform surgery. Since he can no longer perform the principal medical duty of neurosurgery (i.e., surgery), it would be logical to conclude that he would be disabled from his occupation as a neurosurgeon. However, Northwestern’s new website has an interactive “Fact or Fiction” quiz in which it offers its interpretation as to how these “own occupation” provisions should be interpreted. Northwestern’s conclusions are gross oversimplifications that fail to consider the nuances of a disability claim, and ignore differences in policy language and the manner in which the policies have been interpreted under Arizona law. These oversimplifications appear designed to dissuade individuals with legitimate disability claims from pursuing their remedies. Nevertheless, they offer a glimpse into how disability insurers often view an insured’s occupational duties. Some samples from the “quiz” include the following statements:
Statement: If I could not perform my principal medical duty, the one that’s my “bread and butter,” I’d be considered totally disabled under an “own occ” policy.
Northwestern Mutual: FICTION. “To be totally disabled under traditional ‘own occ’ disability income insurance definitions, you would have to be unable to do ALL of your principal duties.”
Depending on the terms of his “own occupation” policy, an Arizona physician or dentist may be totally disabled if he cannot perform any substantial part of his ordinary duties in his usual and customary manner. In one major case, an invasive cardiologist was no longer able to perform invasive procedures—a substantial part of her original duties—but continued work in non-invasive cardiology and geriatrics. The jury found her totally disabled under her “own occupation” policy and held that her insurer had denied her disability insurance claim in bad faith. It then awarded her $84.5 million.
This statement also reflects an important issue in interpreting these policies – while countless words and phrases are defined, the phrase “principal duties” is generally not defined. Taking advantage of this fact, insurers often attempt to transmute incidental duties, such as staff oversight or pre- and post-operative patient consultation, into principal duties, without any justification for doing so. If insurers were permitted to do this, as Northwestern suggests, it would render “own occupation” coverage illusory since, absent a catastrophic injury, the insurer would always be able to find that the insured could perform some duty of his prior occupation. Fortunately, Arizona courts do not permit insurers to classify all duties as “principal duties.” As one Arizona court noted “[f]ew specialty occupations could survive such piecemeal scrutiny. If separated into an hour-by-hour analysis, only asking the question whether these tasks are also performed in a more general setting, specialists who choose to continue to work in a more general practice after becoming disabled from their specialty could never qualify for total disability benefits, although the policy specifically allows for this.” Continue reading “Northwestern Mutual Offers Insight Into How Disability Insurers Interpret and Apply “Own Occupation Coverage””
The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #10)
Many physicians, dentists and other professionals who purchase disability insurance do not pay much attention to the policy and related documents once their application has been submitted and approved. Because of this, many of the professionals we consult with cannot find their policies when it comes time to file a claim, and many professionals are surprised to learn what their policies say, because they didn’t read them carefully when they first received them.
Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains why you should keep copies of all of your insurance documents:
MISTAKE NO. 10: Tossing Out Application, Policy, and Claims Documents
From the time of application forward, physicians should keep copies of everything (including notes from meeting with the insurer’s sale representative or agent, the policy application, and the policy itself). If the sales representative provided a letter or verbal representation that the physician jotted down, those notes can go a long way if the insurer says that the policy says something different. Similarly, information that the physician provided on the application may have a bearing on his or her reasonable expectations at the time of purchase.
Action Step: Physicians should keep all of the disability insurance papers and notes in an organized file.
If you end up losing your policy, you do have a right to request a duplicate copy from your insurer. However, it can take several weeks for insurers to process these requests, and your insurer may also use the request as an opportunity to interview you before you know what your policy says, and before you have a chance to speak with a disability insurance attorney about your claim.
Depending on your condition and the progression of your symptoms, if you don’t keep a copy of your policy, you may also be forced to decide whether you are going to file a claim without a complete understanding of what your policy says. This is not a position you want to be in, and it is therefore best to keep all of your policy documents so that you have them on hand if you need them.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
Insurers Use High-Pressure “Return to Work” Programs to Terminate Disability Insurance Benefits
A personal return to work plan can be useful and empowering when it is the product of careful consideration between a disability insurance claimant, his doctor, and his attorney.
In the hands of a disability insurer, however, a return to work strategy is simply a means of beefing up the bottom line by pushing a claimant to give up his benefits and return to work before it’s safe.
To compound the problem, insurers increasingly market their return-to-work pressure methods to employers who seek to minimize disability-related absenteeism, dubbing the relationship a “strategic partnership.” Prudential, a major provider of disability insurance policies, offered its approach at the annual Disability Management Employer Coalition (DMEC) Conference in San Diego. In describing its methods, Prudential argued that “[s]ome disability absences are driven by subjective feelings about work,” a problem best solved by “an environment that breeds commitment.” Unum, one of the nation’s largest disability insurance providers, has given similar presentations, including one on strategies for managing employees’ chronic pain conditions—callously titled “A Pain in the Workplace.”
The unfortunate outcome is that the claimant faces pressure from both her employer and her insurer to return to work prematurely, often on a “trial” basis—a decision that can lead to forfeiture of benefits, aggravation of medical problems, and other complications.
Consult your doctor and a reliable, knowledgeable attorney before you consider returning to work, even for a “trial” period. The effect on your benefits and health could be profound.
Look Who’s Lurking Around Your Facebook Page: Your Insurance Company!
The detailed information many people reveal about themselves on popular social networking sites such as Facebook, Twitter, and MySpace has caught the attention of the insurance companies. Insureds with disability claims should be alert to their insurance company potentially using this investigation/surveillance tool and should think twice before posting photos and information about their daily lives that could be misconstrued and used against them. Marilyn Lewis has written an interesting article on Insure.com about the future of insurance companies investigating their insureds online not only in order to determine rates for home, auto and life insurance, but to conduct surveillance on insureds with claims.
Disabled Doctor Wins Fight Against Unum Life
On June 11, 2010, Salient News reported on a disabled doctor who prevailed against Unum in court to receive disability insurance benefits to which he was entitled. The attorney for the doctor discussed the tactics used by the insurance company:
Unum has shown a long-standing pattern of denying occupation specific policies focusing on denying high earning professionals such as doctors, lawyers, chiropractors and the like. Unum uses its own appeal process to unjustly prejudice and deny valid and deserving claims.
Unum Profits While Ailing Workers “Gut it Out”
In an interview with Andrew Frey of Bloomberg Businessweek, Unum Group CEO Thomas Watjen said that the economic slump has resulted in fewer disability claims being filed, with workers suffering from lower back pain, nervous conditions and other “more discretionary” conditions more likely to “gut it out” than they would in better economic times.
You can’t make a windfall on these products. It’s not like you can go on claim and make an enormous amount of money.
While workers are gutting it out, Unum has reported five straight quarterly profit increases.
Why Is It So Hard to Collect on My Disability Insurance Policy?
Attorney Ed Comitz’s article, Why Is It So Hard to Collect on My Disability Insurance Policy? Avoiding Mistakes when Filing a Claim, was published by Whitehall Management in its May/June 2010 Newsletter magazine. The article explains why dentists and other healthcare professionals have such a difficult time collecting disability insurance benefits and advises against some common mistakes often made when filing a claim.
Colorado Bill Aims to Prevent Unum-like Denials
In an April 1, 2010 article appearing on lawyersandsettlements.com, Gordon Gibb reports:
With an eye towards preventing the kinds of practices once employed by Unum over the years and under a variety of names, including First Unum, Unum Insurance and Unum Provident, the Colorado Senate in early March passed a bill that would prohibit the payments of bonuses or financial incentives by insurance companies to adjusters who deny or delay meritorious claims or medical care.
. . .
The legislation was proposed to protect consumers from past and current practices of insurance companies that put profit over the welfare of their policyholders. A number of documented examples were provided, including the exposure of $18 million in bonus payments by Unum to insurance adjusters to deny long-term disability and various other claims.
It was reported that Senate Republicans refused to support the legislation, claiming that the bill was unnecessary and that no evidence demonstrative of such practices existed. This, in spite of a widely distributed report from “60 Minutes,” the investigative unit of CBS that provided stunning evidence of such practices.
In a broadcast aired November 17, 2002 the late Ed Bradley conducted interviews with a number of adjusters who worked for Unum Provident. They all stated unequivocally that adjusters were offered financial incentives to close claims.
UPDATE MAY 17, 2010: Colorado Governor Bill Ritter signed Senate Bill 76 into law. The bill’s sponsors, Sen. Carroll and Rep. Primavera are quoted in the Governor’s Press Release as follows:
“Wrongful denials and delays of medical claims have been the top complaints against insurance companies for five years running,” Sen. Morgan Carroll said. “Senate Bill 76 protects consumers from insurance companies actually paying financial incentives to encourage denial of those claims and prohibits companies from putting profits over people’s health.”
“The only thing worse than being sick and having your health care coverage canceled, is the idea that some claims-employee on the other end of a phone was given a bonus to make that decision,” said Rep. Primavera. “This bill is so obviously the moral and right thing to do.”
The Insurer Who Spied on Me – ABC News Investigation
Good Morning America recently reported on The Hartford going too far in their surveillance of some people with disability insurance claims, then unfairly cutting off benefits based on the video surveillance.
Read the full article here: The Insurer Who Spied On Me
Disability Insurance Policies: Which type do you own?
The type of disability insurance policy you have can affect the disability benefits you receive and the legal rights to which you are entitled. Below is an overview of the basic types of disability insurance policies.
Individual Disability Insurance:
As the name suggests, individual disability insurance policies are purchased by individuals directly from the carrier and provide long-term disability benefits in the event of sickness or injury. Individual polices fall into two categories: “general” and “occupational.” A “general” disability policy insures against sickness or injury that precludes the insured from performing all work while an “occupational” policy provides relief if the insured cannot perform the material and substantial duties of his or her own occupation. Thus, an “occupational” policy will provide greater coverage to the insured, who will be entitled to benefits even if he or she is able to engage in another occupation. Individual policies usually provide coverage in set amounts, e.g., $5,000 per month, rather than as a percentage of the insured’s salary.
Group Disability Insurance:
Group disability insurance polices are made available to participants of organizations, such as members of the American Medical Association. Unlike most individual policies, group policies typically confer benefits calculated as a percentage of the insured’s base salary, usually from 50-75%. These policies may limit the maximum amount of disability benefits payable, e.g., no more than $5,000 per month, regardless of base salary. Further, group policies often reduce disability benefits when the insured receives income from other sources such as Social Security disability benefits or worker’s compensation.
Employer-Sponsored Disability Insurance:
Employer-sponsored disability insurance policies are typically the least expensive policies and are similar to the “group” policies described above, providing employees with disability insurance based on a percentage of their base salary as part of the employer’s overall benefits package. Unlike group policies, however, employer-sponsored policies are governed by the Employee Retirement Income Security Act of 1974 (ERISA), which has significantly affected the administration and litigation of disability insurance claims. Unfortunately, ERISA deprives insureds of significant rights to which they would normally be entitled under state law. These include the right to a trial by jury and the possibility of punitive damages where the carrier has acted unreasonably or maliciously.
Has My Disability Insurer Acted in Bad Faith Under Arizona Law?
Under Arizona insurance law, the relationship between a disability insurance company and its policyholder/insured is a special relationship giving rise to heightened duties not ordinarily found in other contractual agreements. Rawlings v. Apodaca, 151 Ariz. 149, 163, 726 P.2d 565, 579 (1986); Dodge v. Fidelity & Deposit Co., 161 Ariz. 344, 346-47, 778 P.2d 1240, 1242-43 (1989). Arizona courts further recognize that a disability insurance company’s duties to its insured are non-delegable and that an insurer remains liable for actions taken by a delegate (like reinsurers and third-party claim administrators) who take over disability claims and act in bad faith:
[A]n insurer who owes the legally imposed duty of good faith to its insureds cannot escape liability for a breach of that duty by delegating it to another, regardless of how the relationship of that third party is characterized. Clearly, an insurer may seek assistance by delegating performance of its duty of good faith to non-servants through whatever organizational arrangement it desires. In doing so, however, the insurer cannot give this delegate authority to deprive its insureds of the benefit of the insured’s bargain. If the insurer were allowed to delegate the duty itself, an injured insured would have no recourse for breach of the duty against either the insurer, from whom the duty is owed, or its delegate, with whom the insured has no contractual relationship. Such a result would render a cause of action for breach of the duty virtually meaningless. Thus, we hold that, although an insurer may delegate the performance of its duty of good faith to a non-servant, it remains liable for the actions taken by this delegate because the duty of good faith itself is non-delegable.
Walter v. Simmons, 169 Ariz. 229, 238, 818 P.2d 214, 223 (Ct. App. 1991) (citations omitted) (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. Mendoza, 2006 WL 44376, at *12 (D. Ariz. Jan. 5, 2006) (“Insurers cannot escape their duty of good faith and fair dealing by delegating tasks to third-parties . . . .”) (citing Walter).
To establish a claim for bad faith, the a dentist or physician must show: (1) that the insurer acted unreasonably in the investigation, evaluation or processing of his/her claim; and (2) that the insurer acted knowingly or with reckless disregard as to the reasonableness of its actions. Leavey v. Unum/Provident Corp., No. CV-02-2281-PHX-SMM, 2006 WL 1515999, at *3 (D. Ariz. May 26, 2006); Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 238, 995 P.2d 276, 280 (2000); Acosta v. Phoenix Indem. Ins. Co., 214 Ariz. 380, 153 P.3d 401, ¶ 13 (Ct. App. 2007). Intent can be inferred from the defendant’s conduct. Services Holding Co. v. Transamerica Occidental Life Ins. Co., 180 Ariz. 198, 207, 883 P.2d 435, 444 (Ct. App. 1994) (noting that “the intent requirement of the second element [of a bad faith claim] can be established by conduct”). Moreover, an insurer can be held liable in insurance bad faith for the distinct acts of misconduct discussed on our Homepage, regardless of whether the insured’s claim is even paid. As the Zilisch court held:
The carrier has an obligation to immediately conduct an adequate investigation, act reasonably in evaluating the claim, and act promptly in paying a legitimate claim. It should do nothing that jeopardizes the insured’s security under the policy. It should not force an insured to go through needless adversarial hoops to achieve its rights under the policy. It cannot lowball claims or delay claims hoping that the insured will settle for less. Equal consideration of the insured requires more than that.
196 Ariz. at 238, 995 P.2d at 280; see also Leavey, 2006 WL 1515999, at *5 (noting that “reasonable jurors could conclude that defendants acted unreasonably in their evaluation and processing of Plaintiff’s claim,” despite the fact that the insurer never missed a payment).
Disability insurance companies’ duties include the following:
To not impose requirements on the insured that are not contained in the policy.
To treat the insured fairly and honestly at all times.
To not try to gain an unfair advantage over the insured. To give as much consideration to the insured’s interests as its does to its own.
To make claims decisions without regard to profitability. To not attempt to influence the opinions of independent medical examiners.
To not destroy or alter documents to conceal evidence of claim handling.
To not lie about actions taken on a claim.
To act reasonably in handling the claim.
To not misrepresent facts or policy provisions to avoid paying benefits.
To reasonably interpret contract provisions.
To not take unreasonable legal positions.
Each of the foregoing duties remain the liability of the primary insurer and are non-delegable as noted above.
If you think that your Arizona disability claim has been denied in bad faith, a disability insurance attorney can help you determine what legal claims you might have against your insurer.
Ed Comitz – My Own Story
Living an active lifestyle has always been important to me. It was not until I suffered a severe neck and head injury that I wondered if I would ever be able to enjoy sports or be active again.
Within months of my injury, I began experiencing constant, agonizing pain in my neck and shoulder, lost manual dexterity and fine manipulation skills with my left hand, and had difficulty moving, all of which caused a precipitous decline in the quality of my life. I felt physically distressed – as if I were constantly being injured.
MRI’s revealed two large disc protrusions. From there, I embarked on a year-and-a-half journey of treatment options without success: sports medicine, physical therapy and rehabilitation programs, consults at the Mayo Clinic and throughout the country, surgical consults, multiple epidural injections (interlaminar and transforminal), facet injections, trigger point injections, massage, chiropractic, traction, Ibuprofen and muscles relaxers. Despite my unrelenting commitment to get better, my condition unfortunately progressed to the point where the entire left side of my body was enormously tense, including my hip, leg and foot. I started losing proprioception in my foot and ambulated with an irregular gait, and my functionality was becoming worse by the day.
This was enormously shocking. I then consulted with another neurosurgeon and had more MRIs, which now revealed possible spinal cord involvement. I was admitted to Barrow Neurological Institute, where I underwent a multi-level discectomy and fusion. I have spent over a year rehabilitating and the process has been self-revealing, always too slow, but with significant progress over time. I now enjoy skiing, playing tennis, hiking, biking, swimming and jogging in moderation. While I have improved exponentially since the surgery, I still have limitations and struggles, and know that my condition can be aggravated if I do not take very good care of myself.
Most of my clients are physicians and dentists, and many have conditions similar to mine. As an attorney, I can keep working – if I drop a pen or get a cramp in my side, I can take a break or stretch, then resume working. If I were a medical professional, though, I would not be able to sustain positioning for long periods of time, each and every day, and would be concerned about patient safety.
I am strongly committed to my clients and practice, am sympathetic to physical limitations and restrictions that others may not fully understand, and use my experience to provide my clients with the results they deserve. My firm provides representation to professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff and Yuma.
Too Sick to Work? They Disagree
In the February 10, 2010 edition of SmartMoney Magazine, Brad Reagan writes:
Once employees go on disability, critics say, insurers today are more likely to require hour-long chats on the phone, hound patients for medical updates and push them back to work as soon as possible—often clashing with doctors who think the workers need more recovery time. “These claims are now managed, whereas they used to just be monitored. It can be very intrusive,” says Terry Smith, a principal in Mercer’s health and benefits practice.
To be sure, the disability battle is complex . . . . In 2004 and 2005, insurer Unum Group agreed to pay $24 million in fines to various state regulators over its handling of disability claims. In addition, the company agreed to review previously denied claims between 1997 and 2004—and ultimately reversed 42% of them in the patient’s favor.
. . . In 2004 and 2005, insurer Unum Group agreed to pay $24 million in fines to various state regulators over its handling of disability claims. In addition, the company agreed to review previously denied claims between 1997 and 2004—and ultimately reversed 42% of them in the patient’s favor.
Solid Record With All Major Disability Insurance Carriers
Our Firm and its attorneys have resolved cases with all of the leading disability insurance companies and third-party administrators in the country, including, among many others: Berkshire, Boston Mutual, CIGNA, Disability Management Services (“DMS”), Disability Reinsurance Management Services (“DRMS”), Equitable, First Unum, Great-West Life and Annuity Insurance Company, Guardian, The Hartford, Integrated Disability Resources, Jefferson Pilot, Liberty Mutual, Lincoln Financial, Mass Mutual, Met Life, Monarch, New York Life, Northwestern Mutual Life, Paul Revere, Penn Mutual, Provident, Prudential, Reassure America Life Insurance Company, Reliance, Royal Maccabees, Standard, Swiss Re, and Unum (formerly UnumProvident). We have also litigated and resolved cases against third-party vendors of insurance companies, including Behavioral Medical Interventions (BMI) and PsyBar.
Planning for Possible Health Problems: How Much Disability Insurance Should You Have?
As Chris Clark writes in a DoctorPlanning.com article “Planning for Possible Health Problems: How Much Disability and Long-Term Care Insurance Should You Have?”, health problems are one of the most common reasons people retire before they intended. But knowing how much and which disability and long-term care coverages to purchase can be complicated. Disability attorney Ed Comitz provides some advice in Mr. Clark’s article:
Edward Comitz, an attorney who leads the health and disability insurance practice for a Phoenix law firm, recommends buying individual policies instead of the typically cheaper group ones, because employer-sponsored plans are subject to employment-law restrictions that include limits on jury awards if a claimant ends up in court fighting for benefits.
And don’t pay the premiums from the practice, he says, because an individual policy could be characterized as a group one if the practice is paying the bills.
A Disability Insurance Q-and-A
Phoenix and Tucson-area disability attorney Ed Comitz recently responded to some common disability insurance questions for the Pima County Medical Society’s January 2010 issue of Sombrero. He answers questions doctors and other healthcare professionals often ask, such as, “What is the difference between ‘own occupation’ and ‘any occupation’ in disability insurance?” and “Why do so many doctors’ claims get denied, and how can a law firm help?”
Ed Comitz Interviewed For
PHYSICIANS PRACTICE Magazine
Columnist for the Chicago Tribune and freelance writer Janet Kidd Stewart interviewed Ed Comitz regarding his advice for physicians when purchasing disability insurance policies. The interview focused on physician disability claims, issues with coverage, the types of physician policies available, and examples of situations where physicians have been denied coverage. Purchasing the right policy is the first step in risk avoidance. Ms. Kidd Stewart’s article, “Planning for Possible Health Problems – How Much Disability and Long-Term Care Insurance Should You Have?” appeared in the January 2010 issue of Physicians Practice magazine.
Disability Benefits Terminated Due to Facebook Photos
The Canadian Broadcasting Corporation has reported that Nathalie Blanchard, who had been on long-term disability leave from her job at IBM due to depression, had her benefit payments terminated after she posted photographs of herself on Facebook that depicted her vacationing, having fun at Chippendale’s and enjoying her birthday party. Her insurer, Manulife, confirms that it uses Facebook as a tool for investigating its insureds. Ms. Blanchard contends that her doctor advised her to engage in fun activities to combat depression. The story is a reminder to insureds to be aware of insurance company surveillance. The CBC’s full article can be read here: http://www.cbc.ca/news/canada/montreal/depressed-woman-loses-benefits-over-facebook-photos-1.861843
Ed Comitz Publishes in Anesthesiology News
Anesthesiology News (AN), the best-read publication in anesthesiology (according to Kantar Media, Media Chek®/FOCUST), is mailed monthly to all 43,983 anesthesiologists and anesthesiology residents in the United States, and offers extensive coverage of over a dozen major clinical meetings affecting the specialty. Disability insurance attorney Ed Comitz recently published his article, Disability Insurance and the Specialized Anesthesiologist, in AN. The article focuses on the ability of subspecialized anesthesiologists to collect on their own-occupation disability insurance policies despite working in a new sub-specialty.
