The Importance of Advocacy in the Disability Claim Process
By: Patrick T. Stanley, Esq.
Many doctors have purchased disability insurance policies to protect their income in the event they are not able to work. Although purchasing adequate insurance is a critical first step in protecting you and your family from unforeseen disability, collecting benefits under the policy can be another matter.
The Reality of Disability Insurance and Physician Claims
Disability insurance companies are under increasing financial pressure on several fronts. Claim numbers and costs have increased as the American population ages. At the same time, insurance company investment yields have been uncertain as interest rates remain at record lows. Many disability insurance companies have stopped writing individual disability insurance policies altogether. Others have tightly limited the benefits permitted under the policies. For example, many insurance policies now require objective medical evidence of disability, impose restrictions on the duration of certain types of claims and limit benefit amounts.
For insurance policies that have already been issued, though, the only way insurance companies can cut costs is through more aggressive strategies designed to reduce their claim liability by denying or terminating benefits. Claims made by physicians present particularly attractive targets for disability insurance companies for a number of reasons.
First, because of their incomes, physicians usually have much higher benefit amounts and more liberal policy provisions than the general population. Therefore, the insurance companies can often save more money by terminating one physician’s claim than they can by terminating several other claims. Insurance companies also know that even if they must spends tens, or even hundreds, of thousands of dollars to justify a decision to terminate a claim, they can save money in the long run on a high dollar claim.4] As a result, insurance companies are often willing to invest in costly and invasive tactics like video surveillance, independent medical examinations, functional capacity evaluations and medical peer reviews to determine whether there is a basis to deny benefits.
Insurance companies also understand the psychological toll that filing a disability claim can take on doctors. Physicians have spent many years training for their profession, and often try to work as long as possible before filing a claim. This frequently results in a physician unknowingly prejudicing his or her ability to recover under a disability insurance policy when it becomes impossible to keep working. For example, a physician may reduce the number of hours he is working, stop performing certain types of procedures altogether or shift to working in a more administrative capacity, which can change the criteria the physician must meet in order to establish his disability.
Additionally, insurance companies often rely on the social stigma attached to the concept of disability, as well as their policyholders’ unfamiliarity with the law. Many doctors equate disability with a state of total helplessness, and may be reluctant to file a claim for disability benefits because they do not think of themselves as disabled, and do not want others to perceive them as helpless. In fact, under most policies sold to physicians, the insurance company is contractually obligated to pay benefits as long as the doctor is unable to perform the “substantial and material duties” of his or her specialty. Therefore, doctors can often qualify as being totally disabled within the meaning of a disability insurance policy, yet still live active lives, and in some cases even continue working in a new field.
Obstacles in the Disability Insurance Process
The disability insurance process should be simple. Ideally, you would simply fill out a straightforward claim form, outlining the medical condition causing your disability, submit a statement from your doctor verifying the severity of your disability, and receive the income protection for which you have spent years paying premiums.
In reality, the process is weighted against claimants from the beginning and can be daunting. The insurance companies expect that the convoluted nature of the process will cause some attrition as doctors choose not to pursue valid disability claims, rather than attempt to navigate the claims process. Many other doctors will make mistakes during the process that will allow the company to justify denying or limiting the benefits available under the policy. The following are some of the potential obstacles you may face in filing a claim:
- Complicated Policy Language. Disability insurance policies are complicated and can vary greatly from one company to another, and even within the same company, depending on when the policy is issued. Most doctors, and even many lawyers who are unfamiliar with disability insurance policies, may not fully understand how the provisions should be read together or how the policies will be applied. If you do not know your rights and obligations under your disability insurance policy, you can unknowingly waive your ability to collect some of the benefits to which you might otherwise be entitled. For example, many disability insurance policies are marketed to doctors as being “own occ” policies, meaning that they pay a total disability benefit as long as the doctor is unable to work in his own occupation. However, some policies provide that the doctor is only totally disabled if he is unable to work in his own occupation and not working in another occupation. If a doctor stops practicing clinical medicine, but resumes working in another field, no matter how unrelated, he could lose his total disability benefit.
- Confusing and Misleading Claim Forms. The forms the insurance company requires in connection with a claim are often convoluted and contain trick questions that the insurance company can use in a way you never intended. For example, a claim form may ask you to list all of your job duties and apportion the percentage of your day typically spent doing each of those duties. Since no day is typical in modern medical practice, this is often impossible. However, the insurance company will take your answer and use it to determine whether you can perform some of the listed job duties on at least a part time basis. If it can, the insurance company may only pay residual, or partial, disability benefits.
- Undue Delays. Most states, including Arizona, require that claim decisions be made in a timely manner, usually within thirty days of receiving sufficient information to make a decision on the claim. In many cases, the insurance company will draw this process out for several months by requesting information that has little, if any, relevance to the claim. For example, after you submit the initial claim forms, the insurance company will often request your tax returns, CPT codes, profit and loss statements, and other financial data on a piecemeal basis. You may be understandably reluctant to provide this information, since it has no bearing on whether you are able to continue practicing medicine within your specialty. However, even if you do provide it to the insurance company, the company will then delay its decision until it has had an opportunity to review the new information.
- Field Interviews. In most cases, an insurance company will send a field interviewer, usually a private investigator, to your home to speak with you about your claim. Ostensibly, the insurance company will tell you the private investigator just wants to better understand your claim. However, these visits, which are often unannounced, are also used as reconnaissance for future surveillance, to look for discrepancies with the answers on your claim forms and to try to ferret out additional information that can be used against you.
- Surveillance. If you file a disability insurance claim you will almost certainly be under surveillance. There is nothing inherently wrong with the insurance company conducting surveillance. However, the surveillance footage is often misused or taken out of context to suggest that a doctor is capable of doing more than he has reported to the insurance company. Additionally, surveillance can cross the line to the point where it becomes harassing, and sometimes dangerous, as private investigators follow you to try to create a justification to terminate your claim.
- Peer to Peer Calls. This tactic involves an insurance company’s in-house medical consultant contacting your doctors directly to discuss your condition, restrictions and limitations. The insurance company’s consultant will often try to pressure your doctor into agreeing with an overly optimistic assessment of your condition, and will send a “summary” of the call, in which the consultant subtly, or in some cases not so subtly, misrepresents the substance of the call. The insurance company then uses the consultant’s report both to justify its claim decision and to drive a wedge between you and your doctor.
The Role of the Advocate in The Disability Insurance Process
The above examples should not dissuade you from purchasing disability insurance. To the contrary, disability insurance is a crucial tool to help you protect yourself in the event of an unforeseen disability. However, they do highlight some of the challenges you may face when you submit your claim.
The advocate’s role in the disability process is to help you navigate through these obstacles and help re-balance the scales so that claims are administered fairly, in accordance with the terms of the insurance policy. After all, insurance claims personnel each handle hundreds of claims every year, and have experienced analysts, field investigators, medical consultants and lawyers at their disposal. Most doctors, on the other hand, typically have no previous experience dealing with disability insurance, and it can be overwhelming to face a billion dollar industry by yourself.
Additionally, when you become disabled, your focus is often on getting better, not filling out forms or meticulously documenting your disability. Many times, particularly if you become disabled due to a musculoskeletal problem or a traumatic injury, you may also be distracted by constant pain. Therefore, the advocate will ease your burden by serving as the point of contact between you and the insurance company, respond to any requests for information and limit the interaction you must have with company.
Often, simply having an experienced attorney involved with your claim will deter insurance companies from engaging in some of the more egregious practices, and eliminate their ability to engage in others. In our practice, for instance, we typically restrict the insurance companies’ access to our clients’ physicians, require that any field interviews take place in our office, review requests from the insurance company for financial information to determine whether it is necessary, and ensure that the insurance company is provided with the information it needs to make a decision in a timely and fair manner, among other things.
However, every case presents its own unique set of challenges, and advocates may take different approaches depending on your particular set of circumstances. The best thing you can do if you are facing a potentially career-ending disability is to speak with an advocate early in the process, before you file a claim, to maximize your chances of receiving the benefits you will need.
* Patrick T. Stanley, Esq. is a shareholder practicing in the Healthcare Law and Disability Insurance Practice Sections at Comitz | Beethe. Mr. Stanley has extensive experience in disability insurance coverage and bad faith litigation, primarily representing medical and dental professionals. Comitz | Beethe has offices in Scottsdale, Arizona and Salt Lake City, Utah.
The information in this article has been prepared for informational purposes only and does not constitute legal advice. Anyone reading this article should not act on any information contained therein without seeking professional counsel from an attorney. The author and publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.
 See 2014 Long Term Disability Claims Review, Council for Disability Awareness (accessed 12/30/14); http://www.disabilitycanhappen.org/research/CDA_LTD_Claims_Survey_2014.asp.
 See Search for Yield Has Insurers Running to Alternatives, Reuters, June 2, 2014 (accessed 12/30/14).http://www.reuters.com/article/2014/06/02/us-usa-insurance-yield-analysis-idUSKBN0ED21D20140602.
 For example, Unum Group, the parent company of Unum, Paul Revere Life Insurance and Provident Life and Accident, and the largest disability insurer in the United States, stopped writing individual policies in 2006.
 See Why is it So Hard to Collect on My Disability Insurance Policy?, Edward O. Comitz, AOMA Digest 2008.
 See The Injured Dentist: Is Your Work Ethic Hurting You and Your Patients?, Edward O. Comitz and Patrick T. Stanley, Inscriptions, 2013.
 See Attorneys’ Multi-Case Battle With Hartford Insurance Over Use of Surveillance Video and Intimidation Tactics To Deny Disability Claims Featured on Good Morning America, Mass Media Distributions, LLC. http://www.mmdnewswire.com/disability-insurance-law-group-7847.html.