The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #8)
After submitting a claim for long-term disability benefits, it is important to keep in mind that your insurer will almost certainly conduct surveillance at some point (and many insurers use surveillance throughout the entire claim). Traditionally, insurers used private investigators and interviewers to conduct surveillance, but ever-advancing technology is providing insurers with even more tools to conduct surveillance, such as social media, online public record searches, and potentially GPS tracking, drones, stingrays, and other electronic methods of tracing your activities more closely and accurately than ever before (depending on whether lawmakers act to curb abuse of these new, emerging technologies).
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 be aware of the potential for surveillance:
MISTAKE NO. 8: Ignoring the Possibility of Surveillance
Insurers are likely to videotape or photograph physicians who have filed for disability insurance benefits. Physicians who engage in any activities that they claimed they could not perform and are caught on tape are likely to have their benefits denied and the contract could be terminated.
Action Step: Physicians should not compromise their policy benefits by submitting a fictitious claim.
If you are considering submitting a long-term disability claim, remember that modern technology enables insurers to harvest information about you from the internet, and remain wary of suspicious situations that may be the insurance company’s investigators using pretexting to obtain information about you (for example, “friend” requests from individuals that you do not personally know may be efforts to gain access to your social media accounts).
Excessive, unnecessary surveillance can rise to the level of bad faith, and too often these types of methods are misused to manufacture “evidence” that insurers take out of context to terminate (and/or delay) benefit payments. If you think your insurer may be misusing surveillance in your claim, you should talk to an experienced disability insurance attorney and he or she can evaluate whether or not the scope of the insurer’s investigation is appropriate.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
The 10 Biggest Legal Mistakes Physicians Make When Filing a Disability Claim (Mistake #9)
Many insurance companies tell physicians, dentist and other professionals who have filed a long-term disability claim that their claims will not be approved unless they can produce objective evidence of their disabling condition. While some policies do contain express provisions limiting coverage for subjectively diagnosed conditions, many policies do not. In fact, your policy may be less exacting and require only verifiable evidence of disability. Under such a policy, you may still be able to collect if you can show that the cumulative effect of your symptoms and limitations are disabling.
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 verifiable evidence of disability is important, even for subjective conditions:
MISTAKE NO. 9: Blindly Accepting that Subjectively Diagnosed Conditions Are Not Covered
Disability insurers often deny benefits by insisting that the insured’s subjective symptoms do not provide objective, verifiable evidence of disability. In many cases, there is no provision or contractual requirement mandating that the insured submit objective evidence of disability. Therefore, from the insured’s perspective, these insurance companies are merely trying to save money by generously interpreting policy language in favor of a claim termination. Notwithstanding the subjective nature of a particular condition, the insured may be able to secure benefits with ample evidence bearing on the extent and severity of his or her limitations, which is far more important than providing a definitive diagnosis.
Action Step: The severity and extent of the limitations are more important than an objectively verifiable diagnosis and must be fully communicated to a physician’s insurer.
If you are a physician or dentist suffering from a subjectively diagnosed condition, it is important to present your conditions and limitations in a precise and detailed fashion from the outset of your claim. At a minimum, this requires a supportive treating doctor who is willing to take the time to thoroughly document the extent and severity of your symptoms in your medical records.
To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.
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.
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.”
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
New York Times Exposes Biased and Incompetent “Independent Medical Examiners”
A New York Times article published March 31, 2009, exposes the biases and lack of competency of certain “independent medical examiners” used to deny disability claims. The article is available here.
ABC News: Man With MS Fights for Long-Term Disability Insurance
Good Morning America recently featured a story about an accountant from Florida, Chris Tucker, who had been diagnosed with Multiple Sclerosis by 11 doctors, having difficulty collecting his long-term disability insurance benefits from Standard Insurance Company because Standard’s doctor – who had never even met Mr. Tucker — did not believe there was sufficient evidence to support the MS diagnosis.
Chris Cuomo of Good Morning America investigates the story, and the issues surrounding doctors on insurance company payrolls, in the ABC News article below.
https://abcnews.go.com/GMA/TheLaw/gma-answers-man-ms-fights-long-term-disability/story?id=6689847
$60 Million Verdict Against Unum and Paul Revere
In Merrick v. Paul Revere, a Nevada jury returned a bad faith disability verdict against Unum and Paul Revere in the amount of $60 million. The prior jury had returned a verdict of $11.65 million, but Unum appealed and a new trial was ordered. The second trial focused on the proper punishment for Unum and Paul Revere, based on an alleged longstanding scheme to improperly deny and terminate legitimate disability claims. Like Nevada, many states (including Arizona, California, Pennsylvania, Florida, New Mexico, Montana and Vermont) have viable “bad faith” laws that allow claimants to sue in court for extra-contractual damages, including punitive damages.
