If your disability claim has been denied or your disability benefits have been terminated, you may be considering filing a lawsuit against your disability insurer, and may be wondering if you have to publicly disclose your name and medical condition in order to so. You may be concerned that filing a lawsuit disclosing your condition could prompt future potential employers to decide not to hire you, in the event that you recover and seek to return to work in your profession. And if your disabling condition is a mental condition, you may (understandably) simply be concerned about the details of your condition being shared with strangers in a public forum.
While, ultimately, whether or not you can remain anonymous in a lawsuit will depend on the particular law of your jurisdiction, a recent case involving Unum suggests that if an insurance company can force you to disclose your name in court filings, it will, even if there is no real basis for doing so (other than, of course, to cause you embarrassment, in the hopes that you will drop your case.
In A.G. v. Unum Life Ins. Co., the claimant worked at a well-known, national law firm prior to her disability. She suffered from a mental health condition and was concerned that publicly disclosing this in court filings could deter law firms from hiring her in the future, should she recover from her condition and attempt to return to work. Because of this, she simply used her initials when she filed her case, and didn’t disclose her full name. In response, Unum filed a motion asking the court to compel her to disclose her full name in the publicly filed court documents.
Because the case was filed in Oregon, the Court applied the Ninth Circuit’s multi-factor test for determining whether a claimant can proceed anonymously. Prior cases applying this test had essentially determined that, in order to proceed anonymously, the claimant had to show a reasonable fear of physical harm. In light of these cases, the Court felt it had no choice but to require A.G. to disclose her name, because (among other things) the harm that she feared was economic and emotional, not physical.
What is perhaps more significant about this case is the fact that the Court also found that Unum failed to show that it would have suffered any prejudice to its case if A.G. had been allowed to stay anonymous. The Court pointed out that Unum obviously already knew A.G.’s full name from the claim forms and medical records that already existed in Unum’s file, and concluded that Unum had made “no showing that [A.G.] proceeding by initials impairs its ability to defend against the allegations.”
Unfortunately, for A.G., this ultimately didn’t matter much, because under the Ninth Circuit’s test, the party wishing to remain anonymous had the burden of proving that the risk of harm was substantial (in addition to showing that the prejudice to the other party was outweighed by this risk). So, in the end, A.G. had to face the unenviable choice of either disclosing her condition publicly or dropping her claim against Unum.
Situations like this are, unfortunately, not uncommon. Insurance companies view claims (and related litigation) as a war of attrition. They know that they have more time, money and industry knowledge than most insureds (particularly insureds who are not represented by counsel) and they also know that there is a social stigma that surrounds mental health diagnoses that can be used to their advantage. For this reason, many insurers aggressively target mental health claims or claimants who are well-known in the community (such as physicians, dentists, and lawyers) because they know that some claimants will choose to drop their claim (or settle for substantially less then they are entitled to) when faced with the prospect of having their mental or physical health publicly disclosed in court proceedings or at trial.
 A.G. v. Unum Life Ins. Co., No. 3:17-CV-01414-HZ, 2018 WL 903463 (D. Or. Feb. 14, 2018).
Chronic pain is often difficult to diagnose and treat. Consequently, those who suffer from chronic pain typically must also deal with a significant amount of stress, due to repeated failed treatments, numerous medical appointments, interruption of work and enjoyable activities, and the inability of their friends or family to understand their physical limitations. This can, in turn, cause or worsen depression. When depression occurs alongside chronic pain, it can make dealing with and treating the pain even harder.
Chronic Pain Disorders Associated with the Co-Occurrence of Depression
While mental health conditions, including depression, can often be disabling in and of themselves, they are unfortunately also quite common in those suffering from chronic pain. Depression is more likely to co-occur with certain conditions, such as:
- Back Pain
- Neck Pain
- Joint Pain
Studies show that rates of depression are high in residents and medical students (15%-30%) than rates in the general population, and the risk of depression continues throughout a physician’s career. According to a British study, 60% of dentists reported being anxious, tense, or depressed.
Dentists, doctors, and other medical professionals place extreme amounts of pressure on themselves because the stakes of their professions are so high. In addition to perfectionism and self-criticism, other predictors of depression in doctors include: lack of sleep, stressful interactions with patients and staff, dealing with death, constant responsibility, loneliness, and making mistakes.
Often practitioners work through both chronic pain and psychiatric disorders for some time before acknowledging their disability or seeking adequate treatment. In the case of depression, this can be due in part to the social stigma that surrounds it. For all of these reasons, depression may go undiagnosed or seem less of an immediate concern to those suffering from chronic pain. However, if you are experiencing symptoms of depression and chronic pain, studies show that it is important to treat both, because chronic pain can become much more difficulty to treat if the depression is allowed to progress unchecked.
Chronic Pain and Depression—Worse Together
Facing a long-term or permanent disability can trigger depression—this is especially understandable for doctors or dentists who have put years into medical school and establishing their careers, only to become disabled and have to step away from a profession that has become a significant part of their identity. Depression can also precede chronic pain. For example, several studies have examined the link between depression before the onset of back-pain.
Regardless of which came first, together they are formidable to treat. Major depression is thought to be four times greater in people with chronic back pain than those in the general population, and studies show that individuals suffering from both chronic back pain and depression experienced a greater degree of impairment than those with either depression or back pain alone.
Treatments for Depression
Focusing solely on pain management can prevent both the patient’s and treating physician’s ability to recognize that a psychiatric disorder is also present. Yet, even with correct diagnoses, both issues can be difficult to treat together. For instance, those who suffer from both chronic pain and mental illnesses can have a lower pain threshold as well as increased sensitivity to medication side-effects. Some treatments that have proved successful in addressing depression in those with chronic pain include:
- Cognitive-behavioral therapy (CBT)
- Psychodynamic therapy (talk therapy)
- Relaxation or meditation training
Symptoms of Depression
- Little interest or pleasure in doing things
- Feeling down, depressed, or hopeless
- Trouble falling asleep or sleeping too much
- Feeling tired or having little energy
- Poor appetite or overeating
- Trouble concentrating
- Feeling bad about yourself, or that you are a failure or have let yourself or others down
- Thoughts that you would be better off dead, or hurting yourself in some way
Chronic pain sufferers who recognize any of the above-referenced symptoms in themselves should talk to their doctor to address these serious issues.
 Robert P. Bright, MD, Depression and suicide among physicians, Current Psychiatry, April 10, 2011.
 William W. Deardorff, PHD, ABPP, Depression Can Lead to Chronic Back Pain, Spine-health.com, Oct. 15, 2004, http://www.spine-health.com/conditions/depression/depression-can-lead-chronic-back-pain.
 William W. Deardorff, PhD, ABPP, Depression and Chronic Back Pain, Spine-health.com, Oct. 15, 2004, http://www.spine-health.com/conditions/depression/depression-and-chronic-back-pain.
 Celeste Robb-Nicholson, M.D., The pain-anxiety-depression connection, Harvard Health Publications, http://www.health.harvard.edu/healthbeat/the-pain-anxiety-depression-connection.
 Anxiety and Depression Association of America, Chronic Pain, https://www.adaa.org/understanding-anxiety/related-illnesses/other-related-conditions/chronic-pain.
In today’s pharmaceutical market there are countless prescription drugs marketed to people suffering from disabling conditions, and many of these drugs promise breakthrough relief not offered by their competitors. Individuals suffering from chronic pain and mental health disorders such as anxiety, PTSD, depression and bipolar must often take potent drugs for prolonged periods of time to get relief from their symptoms. But the search for relief can be incredibly frustrating – every person responds differently to the same drugs, and oftentimes powerful side effects can overshadow any relief.
For an individual suffering from the chronic and disabling pain brought on by severe spinal stenosis, there are several forms of treatment available – many of which are non-invasive. If other non-invasive treatments are unsuccessful, suffering through the side effects of several drugs in search of relief can be demoralizing. Powerful opioids can cause severe nausea, vomiting, dizziness, and/or constipation in certain individuals. The compounding effects of trying several different drugs can have a significant effect on one’s physical and mental health.
Recently, however, a genetic testing company has developed a simple test that will help countless individuals avoid dealing with unwanted side effects while cycling through different medications in their quest for relief.
Genesight has developed breakthrough genetic tests for both narcotic analgesics (pain medications) and psychotropic medications (treating mental health disorders). By taking a simple cheek swab, the company is able to analyze your DNA and determine which medications are match for your specific genetic profile. A clinical study of Gensight’s testing and analysis showed that patients were twice as likely to respond to the recommended medication.
This testing will likely be welcome news among those for whom relief is elusive. For many individuals suffering from disabling conditions, medications are very rarely the magic bullet that brings complete relief. Symptoms may be so severe that no drug will ever be one hundred percent effective. More often, relief means alleviation of one’s symptoms just enough to get through the day without interminable pain or crippling anxiety while suffering only the more mild side effects. Genesight’s testing may offer hope for these individuals – people who will likely never be able to return to their previous career or their own occupation, but are in search of just enough relief from their symptoms to lead and enjoy a normal life.
Dentistry is not an easy profession. The clinical aspects of dentistry are physically and emotionally demanding. Performing repetitive procedures and holding static postures for prolonged periods of time can leave dentists feeling mentally drained, sore and fatigued. And given the frequent exposure to patient anxiety and the need for precision when performing dental procedures, it is not uncommon for dentists themselves to develop anxiety about causing pain to patients or making a mistake when performing a procedure.
The other aspects of dentistry are no less challenging. Many dentists work long hours, which makes balancing work, family, and other responsibilities difficult. Other stressors include difficult and uncooperative patients, dissatisfied patients, finances, business problems, collecting payments, paperwork/bureaucracy, time pressure, cancellations, no-shows—the list goes on and on. And that is not even taking into consideration major stressors, such as staff issues, board complaints, audits, and malpractice lawsuits.
When presented with these difficulties, dentists can become anxious and depressed. Some even seek out mood altering drugs and/or begin to abuse alcohol, in an effort to alleviate the stress.
Thankfully, there are resources available where dentists can turn to for help. Most dental associations have a subcommittee or group designed to provide confidential help to dentists struggling with emotional, mental and/or substance abuse issues.
For example, the Arizona Dental Association (AzDA) has a group called the Dentists Concerned for Dentist Committee (DCD). The DCD is a group of fellow dentists who work with other dentists to help them with substance abuse problems, with an emphasis on “cure and return to practice.” When the DCD is contacted, everything remains strictly confidential, and the State Board is not notified. As explained by the DCD, “[t]here should be no grief or shame in seeking help.” Accordingly, DCD records are “sealed and cannot be accessed by anyone.”
If you are a dentist in Arizona struggling with substance abuse, or you know a dentist who is, consider contacting the AzDA so that a referral can be made to the DCD. You can find the contact information for the AzDA here.
If you live outside Arizona, consider contacting your local dental association to see if it has a similar program.
Remember, it’s ok to ask for help.
“When Life Feels Just Too Hard,” INSCRIPTIONS, Vol. 30, No. 8 (August 2016) at p. 24.
In Part 1 of this post, we started looking at a case involving a mental disability claim where the court reversed Unum’s claim denial under ERISA de novo review. In Part 2, we are going to look at how the same court determined the extent of claimant’s disability benefits.
Turning back to the Doe case we examined in Part 1, after the court reversed the denial, the parties could not agree on the amount of benefits the claimant was entitled to. In previous posts, we have discussed how many disability insurance policies have a mental health exclusion that limits recovery to a particular period—usually 2-3 years. Unfortunately for our claimant, he had such a provision in his disability policy, which provided that his “lifetime cumulative maximum benefit period for all disabilities due to mental illness” was “24 months.”
Not surprisingly, Unum invoked this provision and asserted that it only had to pay benefits for a 24 month period. The court agreed, for several reasons:
- To begin, the policy defined “mental illness” as “a psychiatric or psychological condition classified in the [DSM], published by the American Psychiatric Association, most current at the start of disability.” All of claimant’s conditions (major depression, OCD, ADHD, OCPD, and Asperger’s) were classified in the DSM-IV.
- Claimant attempted to assert that his disability was not a “mental illness” because it was “biologically based.” Id. While this type of argument had been accepted by some other courts, the court in Doe determined that it was not convincing in this particular instance because the claimant’s policy expressly defined “mental illness” as a condition classified in the DSM-IV. The court also noted that DSM-IV itself notes that “there is much ‘physical’ in ‘mental’ disorders and much ‘mental’ in ‘physical’ disorders” Id.
- Accordingly, the court concluded that because the policy was “concerned only with whether a condition is classified in the DSM,” whether claimant’s conditions had “biological bases” was “immaterial.”
Thus, even though the Doe claimant was successful in obtaining a reversal of the claim denial, in the end, he only received 24 months of benefits due to the mental health exclusion.
If you are purchasing a new disability insurance policy, you will want to avoid such exclusions where possible. If you have a mental disability and are concerned about your chances of recovering benefits, an experienced disability insurance attorney can look over your policy and give you a sense of the likelihood that your disability claim will be approved, and the extent of the disability benefits you would be entitled to.
 See Doe v. Unum Life Ins. Co. of Am., No. 12 CIV. 9327 LAK, 2015 WL 5826696 (S.D.N.Y. Oct. 5, 2015).
In a previous post, we have discussed how ERISA claims are different from other disability claims. We have also looked at an ERISA case involving “abuse of discretion” review. However, there is another type of review under ERISA—“de novo” review. Unlike abuse of discretion review, under de novo review, the court assesses the merits of the disability claim without affording any deference to the insurer’s decision. Whether your claim is governed by abuse of discretion review or de novo review will depend on the terms of your plan. An experienced disability attorney can look at your disability insurance policy and let you know which standard will apply.
In this post, we will be looking at two things. First, we will be looking at a case where the court reversed the denial of disability benefits under de novo review. Second, we will be looking at some of the issues that commonly arise in mental health disability claims. In Part 1, we will be looking at the initial determination made by the court regarding whether the claimant was entitled to disability benefits. In Part 2, we will be looking at how the court determined the amount of disability benefits the claimant was entitled to.
In Doe v. Unum Life Insurance Company of America, the claimant was a trial attorney with a specialty in bankruptcy law. After several stressful events, including his wife being diagnosed with cancer, claimant started experiencing debilitating psychological symptoms. The claimant was ultimately diagnosed with anxiety, major depression, obsessive compulsive disorder (OCD), attention deficit hyperactive disorder (ADHD), obsessive compulsive personality disorder (OCPD), and Asperberger’s syndrome. He filed for long term disability benefits, but the insurer, Unum, denied his claim. The court reversed Unum’s claim denial under de novo review, for the following reasons:
- First, the court found the opinions and medical records of the claimant’s treatment providers to be “reliable and probative.” Id. More specifically, the court determined that claimant’s conditions fell within the expertise of the treating psychiatrist and that the psychiatrist’s conclusions were corroborated by neuropsychological testing.
- Second, the court determined that the opinions provided by Unum’s file reviewers were not credible or reliable. The court noted that while Unum’s in-house consultants claimed that the neuropsychological testing did not provide sufficient evidence of disability, the single outside independent reviewer hired by Unum concluded the opposite and determined that there was no evidence of malingering and that the tests were valid.
- Finally, the court rejected Unum’s argument that claimant’s psychiatrist should have provided more than a treatment summary. The court determined that this was “a problem of Unum’s own making,” because the evidence showed that Unum expressly stated in written correspondence that it was willing to accept a summary of care letter in lieu of the claimant’s original medical records.
Stay tuned for Part 2, where we will look at how much benefits the claimant actually ended up receiving.
 No. 12-CV-9327 LAK, 2015 WL 4139694, at *1 (S.D.N.Y. July 9, 2015).
Smartphones are getting smarter, and the desire for convenience and streamlined administration is at an all-time high. We have taken a look at how Skype doctors could potentially influence your medical treatment, but what if your smartphone could predict depression without the help of a medical professional? A new app claims to be able to identify people who are at a higher risk for depression.
The Purple Robot
The “Purple Robot” is an app in development at Northwestern University. While it isn’t available to the public yet, the app was able to identify 87% of participants who were determined to be at risk of depression. How? By tracking GPS data that showed how much users moved between their regular locations. The more users moved, the less likely they were to be considered at-risk.
The Purple Robot also could detect 74% of higher-risk participants by figuring out who used their phone the most for texting, playing games, and checking social media. Talking on the phone more frequently, on the other hand, was not indicative of a greater chance of depression. Unfortunately, there wasn’t enough data, probably due to the small number of participants in the study, for researchers to determine the effectiveness of the app using both GPS and phone usage trends.
Pros and Cons?
Currently, this app only can tell you if you have an above-average chance of having depression and cannot diagnose it. While it certainly could help people to recognize if they need to see their doctor to discuss their potential depression, it could also potentially incorrectly identify you for being at risk. The test in the study used a low cutoff score, so it may have identified people for being at risk when they actually weren’t.
The Purple Robot is still in testing, and its developers at Northwestern University are planning on including more data, such as how long people talk on the phone and who they talk to, into the analysis. They are also encrypting the data, which provides some peace of mind for those who are concerned about data leaks.
Even if the app is changed to become more accurate, the GPS capabilities may be a turn-off for some people. Especially due to the hype surrounding multiple recent data hacks, having your GPS location at risk is definitely something to consider before using this app.
Since this app has not been revealed to the public, we don’t know quite what effect it would have on the disability insurance claims process. We do, however, recommend that you are cautious about the apps that you use that involve your health, especially if you think you may eventually have to file for disability.
We would also advise that you speak with your doctor if you think that you may be depressed. While these apps may assist you in realizing that you need to seek help, they aren’t yet able to substitute for diagnosis from a medical professional.
Protecting the Protectors: Depression, Medical Professionals, and the Conflicts Involved with Under-reporting
Today we’re taking a closer look at how depression can affect doctors and dentists, their practices, and the way they file for disability insurance. We examine how the medical community’s approach toward mental health is perhaps preventing some doctors from reporting illness, and how this changes a doctor’s ability to obtain adequate treatment and secure disability insurance benefits.
Depression and anxiety are undeniably prevalent among physicians and dentists. For instance, a study in Australia showed that the rates of depression in doctors is four times higher than the general population and in a British study, 60% of dentists surveyed reported being anxious, tense, or depressed.
Simply looking at the daily life of doctors, and comparing that to the risk factors for depression shows some striking connections between the two. Some of the risk factors associated with depression (as outlined by the Mayo Clinic) include being overly self-critical, having serious or chronic illness and dealing with traumatic or stressful events. Interestingly, these are many things that doctors and dentists struggle with; indeed, probably more often than the average person. Doctors and dentists have to be self-critical because if they aren’t, lives could be at stake. In addition, doctors and dentists often suffer from chronic illness and pain due to the physically and emotionally taxing nature of their work. Worrying about patients, running a practice, and working long hours are all part of the job description for the average doctor.
While physicians and dentists commonly have symptoms of depression, they often don’t report their issues due to the stigma of mental health issues within the medical community. Lay people look to doctors and dentists as the paragon of health, and physicians take the same approach: while their patients are characterized by their illness, physicians are supposed to be the ones who cure them. While the general populace’s approach to mental illness has improved greatly over time (we no longer lock people in tiny jail cells simply because they are mentally ill), the negative stigma attached to depression and anxiety in the medical and dental community is still present. In the Australian study noted above, half of the respondents reported thinking that they were less likely to be appointed to a new position if they had a history of mental illness, and 40% admitted thinking less of doctors that have a history of depression or anxiety.
Nevertheless, it is important for doctors to recognize whether they exhibit signs of mental illness. Aside from needing to be mindful of their own health and well-being, doctors are responsible for the health and well-being of their patients, too. Physicians and dentists both are in the unique position that a mistake that they make at work could endanger a life. Attempting to work through depression and anxiety symptoms that impair the doctor’s ability to provide responsible patient care could lead to a malpractice suit. Perhaps the solution to this issue is a re-evaluation of the medical community’s approach to mental illness. While that seems like a large task to take on, it starts with each individual doctor either seeking treatment for mental health, or supporting those that do.
For physicians, states have programs in place called Physician Health Programs (PHPs) that are supposed to support the health, including mental health, of medical licensees. A PHP is advertised as a way to get the help one needs, while avoiding disciplinary action such as a loss of license. Physicians should be aware, however, that PHPs are often connected to the licensing boards, and non-compliance with the PHP can lead to disciplinary action. For example, in Arizona, while the PHP is operated by an independent agency, it does have a formal contractual relationship with the state licensing board.
Today we’re profiling another popular insurer that issues private disability policies to dentists and physicians: MetLife.
Company: Metropolitan Life Insurance Company, a.k.a. MetLife.
Location: New York, NY.
Associated Entities: MetLife, Inc. (parent company), General American Life Insurance Company, New England Life Insurance Company.
Assets: MetLife, Inc. held over $885 billion in assets as of May 2014, according to Forbes.
Notable Policy Features: One thing to watch out for in MetLife disability insurance policies is a limitation on benefits for mental disorders and/or substance use disorder. Under the Limited Monthly Disorders and/or Substance Use Disorders provision of some MetLife policies, policyholders are only entitled to a total of 24 months of benefits for any mental or substance abuse disorder, such as depression, panic disorder, post-traumatic stress disorder (PTSD), bipolar disorder, and alcohol abuse or dependency. The 24 month limitation is cumulative. So, for example, if you have depression that disables you for 23 months, then start suffering from disabling alcohol dependency later in your life, you would only have one month of benefits still available to you.
Claims Management Approach: In its 2013 Annual Report, MetLife, Inc. reported that “unfavorable morbidity experience in our individual income disability business resulted in a $6 million decrease in operating earnings.” In other words, in 2013, more private disability insurance policyholders experienced disabling illnesses or injuries than in years before, and that hurt MetLife’s profits. In these situations, where an insurer is facing increased liability for disability benefit payments, we often see that insurer put additional resources towards managing disability claims. In this way, the insurer can spend extra time and effort looking for ways to deny or terminate disability claims, with the goal of limiting its liability.
In our experience, one way that MetLife attempts to dispose of claims as quickly as possible is by ordering surveillance early on in the claim. While some companies will wait until they have received more information before starting surveillance, MetLife has started following and videotaping claimants within weeks of the claim being filed.
With respect to its medical investigation, we have found that MetLife often follows a similar strategy to MassMutual’s. The insurer will often attempt to have its own medical personnel schedule “peer-to-peer” telephone consultations with claimants’ treating physicians, with the aim of catching the treating physician off guard and persuading them into saying their patient isn’t disabled. However, we have found that, in certain circumstances, MetLife can be amenable to submitting medical questions to the treating doctor in writing instead. That way, the treating doctor can more carefully consider the issues, without feeling pressured or put on the spot.
These profiles are based on our opinions and experience. Additional source(s): MetLife’s 2013 Annual Report; Forbes.com