Reducing the risk of having to fight for disability benefits requires understanding the terms of your disability insurance policy from the beginning, carefully and thoroughly filling out the application, and ensuring accuracy and consistency in your claim packet and subsequent filings. As the saying goes, the best defense is a good offense, and the best way to avoid litigation is to file the disability claim correctly the first time.
Although filing a successful disability claim is not easy, it is the ideal. Unfortunately, insurance companies have a strong incentive to increase their bottom lines and often they practice aggressive tactics in improper attempts to justify the denial or termination of even a wholly legitimate disability claim. If your disability claim has been terminated or denied, it can seem overwhelming or hopeless to try to reverse the decision. In the event of a denial or termination, many insureds know they can sue their disability insurer and go to trial. Yet, even if you are ultimately successful in a lawsuit, litigation can sometimes drag on for years. While a lawsuit is pending, you’ll not only have legal expenses, but will also not be receiving disability benefits (and likely not be in a position to work to offset your expenses, due to the nature of your disability or your policy’s language). There are, however, some alternative options that can be attractive to both parties that policyholders may not be aware of, namely mediation and lump sum settlements.
All too often we see legitimate disability claims denied or terminated, with the insurance company refusing to reconsider their position. If your disability claim is terminated, the company knows that it wields a lot of power over the denied individual, including the power of money, the power of time, the power of institutional knowledge, and the power to tolerate litigation. In other words, insurers calculate that spending money on even protracted litigation will end up being cheaper than continuing to pay disability benefits, and they know that many claimants will just give up and go away if they draw out court proceedings long enough.
While this might sound bleak, there can be alternatives to a full-fledged lawsuit that culminates in a trial (and potentially drawn-out appeals). One such method is mediation. Mediation is where the parties to a lawsuit meet with a neutral third party in an effort to settle the case.
For the most part, mediators are retired judges, or active or retired attorneys. The mediator reviews the case file and then meets with both parties, seeking to facilitate discussions between the parties and try to find common ground in order to reach an acceptable compromise. Because mediation is not binding, the mediator’s recommendation and any subsequent agreement between the parties is not final until the parties memorialize it by putting all the agreed upon terms in writing and signing the document.
Often the insurance company will offer to draft the agreement so they can have control over what the agreement says, and so it is important to stay engaged in the process even after the mediation has ended, in order to ensure that the parties’ agreement is accurately documented. The settlement agreement itself is a very important document, so you should be sure to take the time to carefully review it before signing, to be sure it encapsulates all the agreed upon terms.
It is also important to keep in mind that mediation typically does not result in a full restoration of disability benefits nor is not always successful. The non-binding nature of mediation means that if the insurance company low-balls and refuses to budge in its offer, the claimant may need to just walk away and resume litigation.
Lump Sum Settlement
Another way of avoiding trial is through negotiating a lump sum settlement. This typically occurs outside of the mediation setting, but sometimes requires the filing of a lawsuit before the insurance company is willing to come to the table. When this happens, your insurer agrees to buy out your disability insurance policy and you release your right to collect disability benefits under your policy and your insurer from any obligation to you. The buyout amount will be your disability insurance policy’s “present value” (i.e. the amount of money you could invest upon receipt, based on a determined interest rate, and end up with the same amount of money you would have received in disability benefits at the end of your policy), discounted by a percentage that is negotiated by the parties.
A buyout can be an attractive offer and can occur at any stage of the litigation process. A lump sum buyout could even be a preferable alternative to having disability benefits reinstated, as you would no longer have to deal with your insurer. Your disability benefit payments would cease being on hold pending the outcome of a trial and you could invest the lump sum in order to provide for your and your family’s future. In addition, unlike monthly disability benefits, the lump sum settlement you receive would be inheritable and available to be passed on to your heirs, should something happen to you.
There are, however, certain drawbacks to a lump sum buyout, including the fact that you and your disability insurers cannot accurately predict the future of the market with 100% certainty, so the calculations will only be a best estimate. If you are healthy and have lifetime benefits, you could also receive more money cumulatively over time if you were to stay on claim. So, while attractive, especially when faced with litigation, the pros and cons must be carefully weighted when considering lump sum buyouts during the litigation process.
We often see claimants who face the loss of their disability benefits simply give up and accept a denial, daunted by the thought of protracted litigation. While litigation may sometimes be the most advisable way to get benefits, and possibly punitive damages, there are other avenues to explore, advisably with the help of a disability insurance attorney, that can end in your retaining at least some of the disability benefits you stand to lose completely when an insurance company denies your disability claim.
The answer depends on what your disability policy says. Many people don’t realize that their disability insurance policy may limit their ability to receive disability benefits if they move out of the country. If you’ve ever wondered why claims forms ask for your updated address, one of the reasons might be that your disability policy contains a foreign residency limitation, and your insurance company is trying to figure out if they can suspend your disability benefits.
Foreign residency limitations allow disability insurance companies to stop paying benefits under your policy if you move out of the country. These limitations may be especially relevant if you have dual citizenship, you want to visit family living abroad, or you plan to obtain medical care in another country. A foreign residency limitation may also affect you if your disability insurance policy allows you to work in another occupation and you have a job opportunity in another country that you want to pursue. For instance, if you are a dentist and can receive disability benefits while working in another occupation, your insurance company may suspend your benefits if the opportunity you pursue is in another country.
Foreign residency limitations benefit disability insurance companies in several ways. By requiring you to remain mostly in the country while receiving benefits, these limitations simplify the payment process and reduce the possibility that insurers will need to communicate with doctors in other countries to manage your claim. They also make it easier for insurance companies to schedule field interviews and conduct surveillance of you to find out if you have done something that could be interpreted as inconsistent with your claim.
While these limitations are not included in every disability insurance policy, it is important to check if your policy—or a policy you are considering purchasing—contains a foreign residency limitation, because it could limit your ability to collect benefits later on.
Foreign residency limitations vary by policy. Here is an example of one foreign residency limitation from a Guardian policy:
Limitation While Outside the United States or Canada
You must be living full time in the 50 United States of America, the District of Columbia or Canada in order to receive benefits under the Policy, except for incidental travel or vacation, otherwise benefits will cease. Incidental travel or vacation means being outside of the 50 United States of America, the District of Columbia or Canada for not more than two non-consecutive months in a 12-month period. You may not recover benefits that have ceased pursuant to this limitation.
If benefits under the Policy have ceased pursuant to this limitation and You return to the 50 United States of America, the District of Columbia or Canada, You may become eligible to resume receiving benefits under the Policy. You must satisfy all terms and conditions of the Policy in order to be eligible to resume receiving benefits under the Policy.
If You remain outside of the 50 United States of America, the District of Columbia or Canada, premiums will become due beginning six months after benefits cease.
This limitation highlights several details you should look for if your disability policy contains a foreign residency limitation, including the length of time you can spend in another country before your insurance company will suspend your disability benefits, whether you can resume receiving disability benefits if you return to the country, and when you will have to resume paying premiums if your insurance company suspends your disability benefits. Another important consideration is the effect a foreign residency limitation will have on your policy’s waiver of premium provision. Under the policy above, premiums will continue to be waived for six months after benefits are suspended. However, your disability insurance policy may have a different requirement regarding payment of premiums, so it’s important to read your policy carefully.
Here is an example of another foreign residency limitation from a different Guardian policy:
Foreign Residency Limitation
We will not pay benefits for more than twelve months during the lifetime of this policy when you are not a resident of the United States or Canada.
This limitation contains much less detail than the first limitation. For instance, it does not clarify how suspension of disability benefits will affect waiver of premium. If your disability policy contains a foreign residency limitation that does not discuss waiver of premium, you should look to your policy’s waiver of premium provision to find out when premiums will become due after disability benefits are suspended. The policy above also defines foreign residency differently than the first policy. At first glance, it may seem that you can continue to receive disability benefits any time you leave the country for twelve months or less. What the policy actually says, though, is that the insurance company will only pay benefits for twelve months that you are out of the country at any time you are covered by the policy. So, if you have received disability benefits for twelve months while living in another country—even if those months were spread out over several years—your insurance company will not pay benefits in the future unless you are in the United States or Canada.
As you can see, foreign residency limitations vary among disability policies. If you are thinking about leaving the country, it is important to read your disability insurance policy carefully first so that you understand how leaving the country may affect your ability to recover disability benefits.
Ed Comitz’s Continuing Education course “Disability Insurance Roulette: Why is it So Hard to Collect on My Policy” is now available through Dentaltown. This CE is an electronically delivered, self-instructional program and is designated for 2 hours of CE credit. In this course, Ed discusses why it is so difficult for dentists to collect disability benefits and how to avoid the most common mistakes made by dentists when filing disability claims. Ed also covers the key provisions to look for in disability insurance policies and provides an overview of the disability claims process. Finally, the course discusses how disability insurance claims are investigated and administered, and identifies common strategies used by insurance companies to deny claims.
Information on how to register can be found here.
For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.
In a previous post, we discussed the importance of how your disability insurance policy defines the key term “total disability,” and provides several examples of “total disability” definitions. The definition of “total disability” in your policy can be good, bad, or somewhere in-between when it comes to collecting your disability benefits.
Disability insurance policies with “true own occupation” provisions are ideal. Here’s an example of a “true own occupation” provision:
Total disability means that, because of your injury or sickness, you are unable to perform one or more of the material and substantial duties of your Own Occupation.
Under this type of provision, you are “totally disabled” if you can’t work in your occupation (for example, you can no longer perform dentistry). This means that you can still work in a different field and receive your disability benefits under this type of disability insurance policy.
Insurance companies often try to make other disability insurance policies look like true own occupation policies, and include phrases like “own occupation” or “your occupation,” but then tack on additional qualifiers to create more restrictive policies.
One common example of a restriction you should watch out for is a “no work” provision. Although these provisions can contain the phrase “your occupation” they only pay total disability benefits if you are not working in any occupation. Here’s an example from an actual policy:
Total disability means solely due to injury or sickness,
- You are unable to perform the substantial and material duties of your occupation; and
- You are not working.
As you can see, under this type of provision, you cannot work in another field and still receive disability benefits. This can be problematic if you do not have sufficient disability coverage to meet all of your monthly expenses, as you’re not able to work to supplement your income.
A “no work” provision is something that is relatively easy to recognize and catch, if you read your policy carefully. Recently, we have come across a definition of “total disability” that is not so easy to spot, but can dramatically impact you ability to collect benefits. Here’s an example, taken from a 2015 MassMutual policy:
OWN OCCUPATION RIDER
Modification to the Definitions Section of the Policy
Solely for the Monthly Benefits available under this Rider, the definition of TOTAL DISABILITY is:
TOTAL DISABILITY – The occurrence of a condition caused by a Sickness or Injury in which the Insured:
- cannot perform the main duties of his/her Occupation;
- is working in another occupation;
- must be under a Doctor’s Care and
- the Disability must begin while this Rider is In Force.
At first glance, this looks like a standard “own-occupation” provision—in fact, it is entitled “Own Occupation Rider.” But if you take the time to read it more closely, you’ll notice that the second bullet point requires you to be working in another occupation in order to receive “total disability” benefits.
Obviously, this is not a disability insurance policy you want. If you have a severely disabling condition, it may prevent you from working in any occupation, placing you in the unfortunate position of being unable to collect your disability benefits, even though you are clearly disabled and unable to work in any capacity. Additionally, many professionals have limited training or work history outside their profession, so it can be difficult for them to find alternative employment or transition into another field—particularly later in life.
These “work” provisions appear to be a relatively new phenomenon, and are becoming increasingly more common in the newer disability insurance policies being issued by insurance companies. It is crucial that you watch out for these “work” provisions and make sure to read both the policies definition of “own-occupation” and “total disability.” While many plans contain the phrase “own-occupation”, including this example, they often aren’t true own-occupation policies and you shouldn’t rely on an insurance agent to disclose this information. Oftentimes, your agent may not even realize all of the ramifications of the language and definitions in the disability insurance policy that they are selling to you.
Lastly, you’ll also note that this particular provision was not included in the standard “definitions” section of the disability insurance policy, but was instead attached to the policy as a “rider,” making it even harder to spot. It’s important to remember that many definitions and provisions that limit disability coverage are contained in riders, which typically appear at the end of your policy. Remember, you should read any disability insurance policy from start to finish before purchasing.
Many disability claimants suffering from chronic, intense pain are surprised and disheartened when their reported pain levels are received with skepticism by their insurance company. Since pain is a subjective feeling, treating doctors typically ask patients to self-report their pain on a scale of 0-10, so that they can diagnose and treat the pain. Unfortunately, most insurance companies are unwilling to accept self-reported pain levels and will often try to downplay the severity of the claimant’s pain, citing a lack of objective evidence.
Recently, researchers have developed a technology called functional MRI scans, or fMRIs, for short, which may provide a new way to objectively verify the existence of pain. In this post, we will examine this technology and discuss how it might be used in the context of disability claims.
What is an fMRI?
fMRI scanning is a noninvasive technique used by doctors to map and measure brain activity. More specifically, fMRIs are used to measure and observe increases in MR signal caused by neural activity in the brain. The fMRI data is then analyzed to determine which parts of the brain were active during the scan. The data is then compared to known neurological signatures, or “biomarkers,” to determine if there are any correlations between the neural activity in the brain and the symptoms reported by the patient (such as chronic pain).
The Use of fMRI Scans to Prove Pain
Recently, a number of companies and researchers are focusing on using fMRI scans to produce objective evidence of pain. For instance, Dr. Joy Hirsch, a professor at the Yale School of Medicine, claims to have developed a test that is capable of distinguishing real, chronic pain from imagined pain.
fMRI scans are also now being used to support the cases of claimants in disability cases. For example, a woman in New York recently used an fMRI scan to convince her insurer, after two years of litigation, that her disability claim never should have been denied. An fMRI scan was also recently used in the case of Carl Koch, a truck driver from Arizona who suffered severe burns when the hose of his tanker broke loose and sprayed him with molten tar. Mr. Koch visited Dr. Hirsch, who used functional brain mapping to conclude that Mr. Koch’s pain was real. When the judge ruled that Dr. Hirsch’s testimony would be admissible at trial, the case settled for $800,000 – an amount ten times higher than the company’s original offer.
What the Skeptics Say
The use of fMRI scans to prove pain remains controversial. Some critics argue that the techniques being used in litigation have little support in existing publications. Others, such as Tor Wager, a professor of psychology and neuroscience at UC Boulder, contend that the sample size in available studies is too small. Proponents of fMRI refute both of these claims, arguing that a number of credible studies support the validity of their methods.
The Future of fMRI Scans in Disability Cases
It’s easy to see how fMRI scans could prove useful in a disability claim. For example, many dentists suffer from musculoskeletal disorders, particularly in their spines, that cause chronic, debilitating pain. However, as noted above, these types of claims can be particularly difficult, because many insurance companies refuse to accept a claimant’s self-reported pain levels and limitations. Co-workers, family, and friends can provide statements describing how the dentist’s pain is affecting his performance at work and his quality of life, but once again, insurance companies will typically similarly claim that such statements are “objectively verifiable” evidence of the pain. Sometimes a cervical or lumbar MRI can identify potential causes for the pain, and/or a functional capacity exam (FCE) can help document the limitations the pain is causing—but these types of reports are also commonly challenged by insurance companies intent on denying benefits.
In such a case, an fMRI scan illustrating the doctor’s pain might serve as an additional, objectively verifiable method of establishing the existence of chronic pain. Whether or not insurance companies are willing to accept fMRIs as reliable evidence of pain remains to be seen, and will likely depend, in large part, on how willing courts are to accept fMRIs as admissible evidence of pain. If, in the future, this technology continues to develop and become more precise, and courts and juries demonstrate a willingness to accept fMRIs as proof of pain, fMRIs may eventually be enough to convince insurance companies to accept legitimate disability claims without ever setting foot in a courtroom.
- UC San Diego Sch. of Med., What is fMRI?, available at http://fmri.ucsd.edu/Research/whatisfmri.html.
- Sushrut Jangi, Measuring Pain Using Functional MRI, The New England Journal of Medicine, available at http://blogs.nejm.org/now/index.php/9863/2013/04/10/.
- Steven Levy, Brain Imaging of Pain Brings Success to Disability Claim, EIN Presswire (June 29, 2016), available at http://www.einpresswire.com/article/333249721/brain-imaging-of-pain-brings-success-to-disability-claim.
- Kevin Davis, Personal Injury Lawyers Turn to Neuroscience to Back Claims of Chronic Pain, ABA Journal (Mar. 1, 2016), available at http://www.abajournal.com/magazine/article/personal_injury_lawyers_turn_to_neuroscience_to_back_claims_of_chronic_pain.
Ninth Circuit Determines That Persons Who Can’t Sit for More than Four Hours Can’t Perform Sedentary Work
In a previous post, we summarized the five exertion levels (sedentary work, light work, medium work, heavy work, and very heavy work), as defined by the Dictionary of Occupational Titles (DOT), and discussed why they matter in the context of disability claims. Essentially, these exertion levels function as broad classifications that are used to categorize particular jobs and occupations. The physical requirements under each exertion level increase as you move up from level to level, with sedentary work requiring the least physical exertion and very heavy work requiring the most physical exertion.
If you have an “own occupation” policy, these exertion levels will likely not come into play, because the terms of your policy will require your insurer to consider the particular duties of your specific occupation, as opposed to the broader requirements of the various exertion levels. However, if you have an “any occupation” policy, which requires you to establish that your disability prevents you from working in any capacity, your insurer will likely seek to determine your restrictions and limitations at the outset of your claim, using claim forms or possibly a functional capacity evaluation (FCE). Once they have done so, they will then likely seek to fit you into one of the five exertion levels listed above and have their in-house vocational consultant provide them with a list of jobs that you can perform given your limitations.
Not surprisingly, your insurer will generally try to fit you into the highest category possible, and then argue that you can perform all of the jobs at that exertion level, and all jobs classified at a lower exertion level. Typically, someone suffering from a disabling condition can easily establish that they cannot perform medium, heavy, or very heavy work, so, in most cases, the insurer will be trying to establish that you can perform light work, or sedentary work, at the very least.
As you might expect, one of the key differences between sedentary and light work is that sedentary work mostly involves sitting, without much need for physical exertion, whereas light work involves a significant amount of walking and standing, in addition to other physical requirements, such as the ability to push or pull objects and the ability to operate controls. Given the low physical demands of sedentary work, it can often be difficult to establish that you cannot perform sedentary work. This can be problematic, because there are many jobs that qualify as sedentary work. However, if you have a disability that prevents you from sitting for extended periods of time, the very thing that makes sedentary work less physically demanding—i.e. the fact that you can sit during the job—actually ends up being the very reason why you cannot perform sedentary work.
While this is a common sense argument, many insurance companies refuse to accept it and nevertheless determine that claimants who cannot sit for extended periods of time can perform sedentary work. However, the Ninth Circuit Court of Appeals recently held in Armani v. Northwestern Mutual Life Insurance Company that insurers must consider how long a claimant can sit at a time when assessing whether they can perform sedentary work.
Avery Armani was a full-time controller for the Renaissance Insurance Agency who injured his back on the job in January 2011. He eventually stopped working as a result of the pain from a disc herniation, muscle spasms, and sciatica. Multiple doctors confirmed that Avery was unable to perform the duties of his job, which required him to sit for approximately seven hours per day. In July 2011, Northwestern Mutual classified Avery’s occupation as “sedentary” and approved his claim under the “own occupation” provision of his employer-sponsored plan.
Despite regular statements to Northwestern Mutual from his doctor that he could only sit between two and four hours a day and must alternate between standing and sitting every thirty minutes, Avery’s disability benefits were terminated in July 2013. Northwestern Mutual’s claims handler identified three similar positions in addition to Avery’s own position that he could perform at a “sedentary” level, and determined that his condition no longer qualified as a disability under his policy.
When his benefits were terminated, Avery sued Northwestern Mutual. After several years, his case ultimately reached the Ninth Circuit Court of Appeals. In resolving the case, the Ninth Circuit held that an individual who cannot sit more than four hours in an eight-hour workday cannot perform “sedentary” work that requires “sitting most of the time.” In reaching its conclusion, the Ninth Circuit cited seven other federal courts that follow similar rules, including the Second Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the District of Oregon, the Central District of California, the Northern District of New York, the Southern District of New York, and the District of Vermont.
While this case is not binding in every jurisdiction, it does serve to reinforce the common sense argument that a claimant who cannot sit for extended periods of time due to his or her disability cannot perform sedentary work. Additionally, though this rule was created in the context of a disability insurance policy governed by ERISA, the court did not qualify its definition or expressly limit its holding to cases involving employer-sponsored policies. Accordingly, in light of this recent ruling, it would be reasonable to argue that a court assessing an “own occupation” provision of an individual policy should similarly consider whether sitting for extended periods of time is a material and substantial duty of the insured’s occupation. If it is, and the insured has a condition that prevents him or her from sitting for more than four hours of a time—such as deep vein thrombosis (DVT) or chronic pain due to degenerative disc disease—then the insured arguably cannot perform his or her prior occupation and is entitled to disability benefits.
In short, the Armani case is noteworthy because its reasoning could potentially be applied to not only ERISA cases, but also disability cases involving individual policies and occupations—such as oral surgeon, endodontist, periodontist, attorney, accountant, etc.—that require the insured to sit for long periods of time in order to perform the occupation’s material duties. It will be interesting to see if, in the future, courts expand the Armani holding to cases involving individual policies outside of the ERISA context.
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 4
Care Dictation Provisions
Throughout this series of posts we’ve addressed the increasingly restrictive medical care provisions in disability insurance policies. In Part 1, we discussed the evolution of the care standard and its effect on an insured’s ability to collect disability benefits and control their own medical treatment. In Part 2 we looked at the “regular care” standard, which places no obligation on the insured to undergo any unwanted medical treatment. In Part 3 we looked at the “appropriate care” and “most appropriate care” standards, which require much more vigilance on the part of policyholders, because they must be prepared at any time to establish that the treatment they are receiving is justified under the circumstances. In this final post, we are going to look at the most aggressive and intrusive language that has been adopted by disability insurance companies in an effort to dictate the care of their policyholders.
Here is an example of a very strict care provision, taken from a Great West disability insurance policy:
Regular Care of a Physician means personal care and treatment by a qualified Physician, which under prevailing medical standards is appropriate to the condition causing Total Disability or Residual Disability. This care and treatment must be at such intervals as will tend to lead to a cure, alleviation, or minimization of the condition(s) causing Total Disability or Residual Disability and which will lead to the Member’s return to the substantial and material duties of his own profession or occupation or maximum medical improvement with appropriate maintenance care.
Clearly, this provision was designed with one goal in mind: to give the insurer nearly unlimited power to scrutinize a policyholder’s course of treatment, including the ability to insist that any given procedure is necessary to cure or minimize the disability and maximize medical improvement. It is easy to see how a disability insurer might invoke this provision to assert its control over the medical decision making of their policyholder and use the leverage of disability benefit termination and claims denial to dictate their treatment.
Imagine that you are a surgeon with a herniated disc in your cervical spine, and that your policy contains the provision cited above. Your insurer insists that a fusion of the surrounding vertebra is the procedure most likely to alleviate your disability. Your doctor disagrees, recommending a more conservative course of treatment, such as physical therapy, modified activity and medication, such as muscle relaxants. Your doctor also warns you that if you have the surgery, you will experience reduced mobility and risk adjacent segment degeneration. However, your disability benefits are your only source of income. Fearing a claim denial, you agree to the procedure despite your doctor’s concerns. This results in a no-lose scenario for the disability insurer.
The best case scenario, from your insurer’s perspective, is that the surgery (for which you bore all the risk both physically and financially) is successful and you are no longer disabled. At worst, the procedure fails and the insurer merely has to pay the disability benefits it was obligated to pay to you in the first place. For you, however, an unsuccessful procedure can mean exacerbation of your condition, increased pain, and prolonged suffering. It is therefore vital that you understand your rights under your disability insurance policy.
Insurers are risk-averse by nature, and disability insurance is no different. Modern disability insurance policies, and particularly the medical care provisions, are designed to minimize the financial risk to the insurer. Disability insurers place an enormous burden on claimants to prove that their course of treatment meets the rigorous standards in their policy. Though stringent policy language can make it significantly more difficult to obtain the disability benefits you are entitled to, it does not strip you of your right to make your own medical decisions.
In order to preserve your medical autonomy in the disability claims process, you must become familiar with the details of your disability insurance policy before filing a disability claim. Understanding the terms of your disability insurance policy—including the care provision in your policy—is critical to successfully navigating a disability claim. You need to be familiar with your policy’s care requirements from the outset, so that you can communicate effectively with your physician to develop a plan of treatment that you are comfortable with and that comports with the terms of your disability insurance policy.
Even if you have a basic understanding of your rights under your disability insurance policy, it can be daunting to deal with an insurer that is aggressively seeking to dictate your medical care. In some cases, you may be forced to go to court to assert your right to make your own medical decisions—particularly if your policy contains one of the more recent, hyper-restrictive care provisions like the Great West provision above. Insurers know this, and they also know that most claimants are in no position to engage in a protracted court battle over whether they are receiving appropriate care. However, simply submitting to the medical mandates of your insurer to avoid the stresses and costs associated with litigation can have drastic consequences, depending on the nature of the medical care you are being asked to submit to. If you should find yourself in this difficult position, you should contact an experienced disability insurance attorney. He or she will be able to inform you of your rights under your disability policy and help you make an informed decision.
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 3
“Appropriate Care” and “Most Appropriate Care”
In this series, we are looking at the different types of care provisions disability insurers insert into their policies so that they can later argue that they have a right to dictate the terms of your medical care. In Part 1, we discussed how many policyholders do not even realize that their disability insurance policy contains a care provision until the insurance company threatens to deny their claim for failure to obtain what the insurer perceives as sufficient medical care. We also discussed how care provisions have evolved over time to become more and more onerous to policyholders. In Part 2, we looked at one of the earliest and least stringent care provisions—the “regular care” provision—in detail.
In this post, we will be looking at a stricter care provision—the “appropriate care” provision. Here is an example of a typical “appropriate care” provision:
“Appropriate Care means you are receiving care by a Physician which is appropriate for the condition causing the disability.”
Disability insurance carriers implemented this policy language to allow their claims handlers and in-house doctors to weigh in on the type and quality of care their policyholders receive. As you’ll remember from Part 2 of this series, “regular care” provisions only required policyholders to be monitored regularly by a physician. Thus, under a “regular care” provision, as long as the policyholder was seeing a doctor, the insurer could not scrutinize or direct his or her treatment. Only by changing the policy language could they hope to have greater influence over the medical decisions of their policyholders.
This prompted disability insurers to add the additional requirement that the care must be “appropriate.” But what is “appropriate?” If you are suffering from cervical spinal stenosis, you likely have several reasonable treatment options available to you. For example, your physician might recommend physical therapy, but also indicate that you would be a candidate for more invasive treatment, such as steroid injections. If you have an “appropriate care” provision, does that mean that your disability insurer gets to decide which treatment you receive?
When presented with this question, most courts determined that “appropriate care” limits the insurer’s review of its policyholder’s care to whether it was necessary and causally related to the condition causing the disability. Courts also held that “appropriate” care does not mean perfect care or the best possible care—it simply means care that is suitable under the circumstances. Thus, if physical therapy, steroid injections, and surgery are all suitable treatments for cervical stenosis, most courts agree that your insurer cannot deny your disability claim or terminate your benefits based upon your decision to undergo a course of treatment they view as less effective than another.
In response to these cases, disability insurers again modified their policy language and created the “most appropriate” care provision. Here is an example of what a “most appropriate” care provision looks like:
“[You must receive] appropriate treatment and care, which conforms with generally accepted medical standards, by a doctor whose specialty or experience is the most appropriate for the disabling condition.”
This change places significant restrictions on a claimant’s autonomy not only because it limits the type of physician the claimant may choose, but because it restricts the claimant’s medical care to a singular “appropriate” course of treatment.
These types of provisions can make collecting disability benefits extremely difficult. For example, take the experience of Laura Neeb, a hospital administrator whose chemical sensitivity allergies became so severe that they rendered her totally disabled. After one of her doctors—Dr. Grodofsky—concluded that she had no identifiable allergies, Ms. Need sought another opinion from Dr. William Rea, founder of the Environmental Health Center in Dallas, Texas. Dr. Rea concluded that Ms. Neeb’s hypersensitivity to chemicals was so severe that she was “unable to engage in any type of work,” and required extensive treatment to manage the condition. Ms. Neeb’s insurer, Unum, nonetheless denied the disability claim. The court ultimately held that Ms. Neeb failed to obtain the “most appropriate care” by treating with Dr. Rea, agreeing with Unum that Dr. Grodofsky’s conclusions were correct.
Ms. Neeb’s case illustrates just how restrictive the “most appropriate care” provision can be. It places the burden squarely on the policyholder to show that their chosen course of treatment and treatment provider are most appropriate for their condition. If your disability insurance policy contains a “most appropriate care” provision, it is essential that you find a qualified, supportive treatment provider who is willing to carefully document your treatment and the reasoning behind it. You do not want to place yourself in a position where you cannot justify the treatment you are receiving and must choose between an unwanted medical procedure and losing your benefits.
In the final post of this series, we will discuss the hyper-restrictive care provisions appearing in disability insurance policies being issued today and the serious threats they pose to patient autonomy.
 617 N.W.2d 777 (Mich. Ct. App. 2000)
 Sebastian v. Provident Life and Accident Insurance Co., 73 F.Supp.2d 521 (D. Md. 1999)
 Neeb v. Unum Life Ins. Co. of America, 2005 WL 839666 (2005).
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 2
If you are a doctor or dentist and you bought your individual disability insurance policy in the 1980s or 1990s, the medical care provision in your policy likely contains some variation of the following language:
“Physician’s Care means you are under the regular care and attendance of a physician.”
This type of care provision is probably the least stringent of all the care provisions. If your disability insurance policy contains a “regular care” provision, courts have determined that you are under no obligation to minimize or mitigate your disability by undergoing medical treatment. In other words, you cannot be penalized for refusing to undergo surgery or other procedures—even if the procedure in question is minimally invasive and usually successful.
Let’s look at an actual case involving a “regular care” provision. In Heller v. Equitable Life Assurance Society, Dr. Stanley Heller was an invasive cardiologist suffering from carpal tunnel syndrome who declined to undergo corrective surgery on his left hand. Equitable Life refused to pay his disability benefits, insisting that the surgery was routine, low risk, and required by the “regular care” provision of Dr. Heller’s policy. The U.S. Court of Appeals disagreed, and determined that the “regular care” provision did not grant Equitable Life the right to scrutinize or direct Dr. Heller’s treatment. To the contrary, the Court held that “regular care” simply meant that Dr. Heller’s health must be monitored by a treatment provider on a regular basis.
Unfortunately, the Heller case didn’t stop insurance companies from looking for other ways to control policyholders’ care and threaten denial of benefits. For instance, some disability insurance providers argued that provisions requiring policyholders to “cooperate” with their insurer grants them the right to request that a policyholder undergo surgery. Remarkably, when insurers employ these tactics, they are interpreting the policy language in the broadest manner possible–even though they know that the laws in virtually every state require that insurance policies be construed narrowly against the insurer.
Why would insurance companies make these sorts of claims when it is likely that they would ultimately lose in court? Because insurance companies also know that even if their position is wrong, most insureds who are disabled and/or prohibited from working under their disability policy cannot handle the strain and burden of protracted litigation. They know that if they threaten to deny or terminate disability benefits, many insureds will seriously consider having surgery—if only to avoid the stress and expense of a lawsuit. Unfortunately, this can lead to insureds submitting to unwanted medical procedures, despite having no legal obligation to do so.
As time went on, and more and more courts began to hold that “regular care” simply meant that the insured must regularly visit his or her doctor, Unum, Great West, Guardian, and other insurers stopped issuing policies containing that language. Instead, disability insurers started to insert “appropriate care” standards into policies. In the next post, we will discuss this heightened standard and how disability insurers predictably used it as a vehicle to challenge the judgment of policyholders’ doctors, in a renewed effort to dictate their policyholders’ medical care.
 Casson v. Nationwide Ins. Co., 455 A.2d 361, 366-77 (Del. Super. 1982)
 North American Acc. Ins. Co. v. Henderson, 170 So. 528, 529-30 (Miss. 1937)
 Heller v. Equitable Life Assurance Society, 833 F.2d 1253 (7th Cir. 1987)
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 1
Imagine that you are a dentist suffering from cervical degenerative disc disease. You can no longer perform clinical work without experiencing excruciating pain. You have been going to physical therapy and taking muscle relaxers prescribed by your primary care doctor, and you feel that these conservative treatments are helping. Like most dentists, you probably have an “own occupation” disability insurance policy. You are certain that if you file your disability claim, your insurer will approve your claim and pay you the disability benefits you need to replace your lost income and cover the costs of the medical treatment that has provided you with relief from your pain and improved your quality of life.
You file your disability claim, submit the forms and paperwork requested by the insurer, and wait for a response. To your dismay, your disability insurer informs you that its in-house physician has determined that the treatment prescribed by your doctor was inadequate. Your insurer then tells you that you should have been receiving steroid injections into your cervical spine, and tells you that if you do not submit to this unwanted, invasive medical procedure, your disability claim could be denied under the “medical care” provision in your policy.
You were not aware that such a provision existed, but, sure enough, when you review your policy more carefully, you realize that there is a provision requiring you to receive “appropriate medical care” in order to collect disability benefits. You think that your insurer is going too far by dictating what procedures you should or should not be receiving, but you are afraid that if you don’t comply with their demands, you will lose your disability benefits, which you desperately need.
This is precisely the sort of scenario presented to Richard Van Gemert, an oral surgeon who lost the vision in his left eye due to a cataract and chronic inflammation. Dr. Van Gemert’s disability insurance policies required that he receive care by a physician which is “appropriate for the condition causing the disability.” After years of resisting pressure from his insurers to undergo surgery, Dr. Van Gemert finally capitulated. Once Dr. Van Gemert received the surgery, you might expect that his insurer would pay his claim without further complaint. Instead, Dr. Van Gemert’s insurer promptly sued him to recover the years of disability benefits it had paid to him since it first asserted that he was required to undergo the surgery.
Unfortunately, “appropriate care” provisions, like the provision in Dr. Van Gemert’s policy, are becoming more and more common. The language in such provisions has also evolved over time, and not for the better. In the 1980s and 1990s, the simple “regular care” standard was commonplace. In the late 1990s and into the 2000s, insurers began using the more restrictive “appropriate care” standard. And, if you were to purchase a policy today, you would find that many contain a very stringent “most appropriate care” standard.
These increasingly onerous standards have been carefully crafted to provide disability insurers with more leverage to dictate policyholders’ medical care. However, there are several reasons why your insurance company should not be the one making your medical decisions. To begin, if you undergo a surgical procedure, it is you—and not the insurance company—who is bearing both the physical risk and the financial cost of the procedure. Perhaps you have co-morbid conditions that would make an otherwise safe and routine surgical procedure extremely risky. Perhaps there are multiple treatment options that are reasonable under the circumstances. Perhaps you believe conservative treatment provides better relief for your condition than surgery would. These are decisions that you have a right to make about your own body, regardless of what your disability insurer may be telling you.
In the remaining posts in this series, we will be looking at the different types of care provisions in more detail, and how far insurance companies can go in dictating your care in exchange for the payment of your disability benefits. We will also provide you with useful information that you can use when choosing a disability insurance policy or reviewing the policy you have in place. In the next post we will be discussing the “regular care” standard found in most policies issued in the 1980s and early 1990s.
 See Provident Life and Accident Insurance Co. v. Van Gemert, 262 F.Supp.2d 1047 (2003).
As we have discussed in previous posts, musculoskeletal disorders are very common among dentists due to the repetitive movements and awkward static positions required to perform dental procedures. Unum, one of the largest private disability insurers in the United States, recently released statistics showing an increase in the filing of musculoskeletal disability claims over the past 10 years.
According to Unum’s internal statistics, long term disability claims related to musculoskeletal issues have risen approximately 33% over the past ten years, and long term disability claims related to joint disorders have risen approximately 22%. In that same period of time, short term disability claims for musculoskeletal issues have increased by 14%, and short term disability claims for joint disorders have risen 26%.
This trend may lead to Unum directing a greater degree of attention towards musculoskeletal claims as the volume of these claims continues to increase. Musculoskeletal claims are often targeted by insurance companies for denial or termination because they are easy to undercut—primarily due to the limitations of medical testing in this area. For instance, it can be difficult to definitively link a patient’s particular subjective symptoms to specific results on an MRI, and other tests, such as EMGs, are not always reliable indicators of the symptoms that a patient is actually experiencing. Insurers also typically conduct surveillance on individuals with neck and back problems in an effort to collect footage they can use to deny or terminate the claim. While such footage is usually taken out of context, it can be very difficult to convince the insurance company (or a jury) to reverse a claim denial once the insurer has obtained photos or videos of activities that appear inconsistent with the insured’s disability.
As we have noted in a previous post, Unum no longer sells individual disability insurance policies, so its disability insurance related income is now limited to the premiums being collected on existing policies. Because benefit denials and termination are the primary ways insurers like Unum can continue to profit from a closed block of business, and musculoskeletal claims are on the rise, Unum may begin subjecting this type of claim to even higher scrutiny.
In the last post, we discussed the facts of the court case Massachusetts Mutual Life Insurance Company v. Jefferson. In that case, the court was asked to determine whether a clinical psychologist whose license had been suspended was entitled to disability benefits. In this post, we will discuss how the court ultimately ruled, and go over some takeaways from this case.
The Court’s Ruling
As explained in the last post, the key question was whether Dr. Jefferson’s legal disability (i.e. the suspension of his license to practice psychology) happened before the onset of Dr. Jefferson’s factual disability (i.e. his depression). In the end, the court determined that Dr. Jefferson was not entitled to disability benefits for the following reasons:
- Dr. Jefferson’s claim form stated that he was not disabled until April 29, 1990, which was two days after the licensing board revoked his license.
- Although Dr. Jefferson later claimed that his depression went as far back as May 1989, the court determined that such claims were inconsistent with:
- Jefferson’s representations to the licensing board that he was a “highly qualified and competent psychologist”;
- The fact that Dr. Jefferson had been consistently seeing patients up until the day his license was revoked; and
- The fact that Dr. Jefferson had scheduled patients during the month following the licensing board’s hearing.
Thus, under the circumstances, the evidence showed that Dr. Jefferson’s was not entitled to benefits because his legal disability preceded his factual disability.
Dr. Jefferson’s case provides a good example of the challenges that can arise in a disability claim if the claimant has lost his or her license. Here are some of the major takeaways from this case:
Be Precise When Filling Out Claim Forms. The date you list as the starting date of your disability can be very significant. Take your time when filling out claim forms, and make sure that the date you provide is accurate and consistent with the other information you are submitting with your claim forms. It is always a good idea to double check everything on the form at least once after you have completed it, to make sure that you did not make a mistake.
Recognize that Your Claim Will Not Be Evaluated in a Vacuum. Other proceedings—such as board hearings—can directly impact your disability claim. You should always assume that anything you say in such a proceeding will at some point end up in front of the insurance company. This is particularly problematic when, as in Dr. Jefferson’s case, the goals of the other proceeding are inconstant with the goals of the disability claim. In such a situation, you may have to decide which goal is more important to you. An experienced disability insurance attorney can help you assess the strengths and weaknesses of each available option so that you can make an informed decision.
Do NOT Engage in Activities that Place Your License in Jeopardy. Losing a license that you worked hard for several years to obtain is not only emotionally devastating, it can severely limit your options going forward. Even if you have a disability policy, it is very difficult to successfully collect on a disability claim if your license has been revoked or suspended. Once again, if you find yourself in Dr. Jefferson’s position, you should talk with an experienced attorney who can help you determine what your available options are, if any.
 104 S.W.3d 13, 18 (Tenn. Ct. App. 2002).
In the last post, we discussed the distinction between “factual” and “legal” disability and why that distinction matters. In this post, we will begin looking at a court case involving “factual” and “legal” disability. Specifically, in this post we will begin looking at the facts of the case and the test that the court applied. In Part 3, we will see how the court ultimately ruled.
In the case of Massachusetts Mutual Life Insurance Company v. Jefferson, the court assessed whether Dr. Jefferson—a clinical psychologist—was entitled to disability benefits. Here are the key facts of the case:
- From October 1987 to February 1989, Dr. Jefferson had an affair with a former patient.
- When Dr. Jefferson’s wife found out about the affair, she filed a complaint with Dr. Jefferson’s licensing board.
- During the hearings in front of the licensing board, Dr. Jefferson argued that he was a competent psychologist, and that he should be permitted to continue to see patients.
- On April 27, 1990, the licensing board permanently revoked Dr. Jefferson’s license to practice psychology, effective as of May 15, 1990. On appeal, a chancery court reduced the permanent revocation to an eight year suspension ending on May 15, 1998.
- Up until the day his license was revoked, Dr. Jefferson continued to see patients and schedule future patients.
- On October 1, 1990, Dr. Jefferson filed a claim under his disability policy, claiming that he was disabled due to “major depression.”
- On his claim form, Dr. Jefferson listed the beginning date of his disability as April 29, 1990. Later on, Dr. Jefferson attempted to submit evidence that he had been depressed as early as May 1989.
The Court’s Test
As a threshold matter, the Court determined that the suspension of Dr. Jefferson’s license was a “legal disability” and assumed for the sake of argument that Dr. Jefferson’s “major depression” was a “factual disability.” As explained in Part 1 of this post, courts generally hold that disability policies only cover factual disabilities, not legal disabilities. However, the court’s decision becomes more difficult when a claimant like Dr. Jefferson has both a legal disability and a factual disability.
Although different courts approach this situation in different ways, here is the test that the court came up with in Dr. Jefferson’s case:
- Step 1: Determine which disability occurred first.
- Step 2: Apply the following rules:
- Rule # 1: If the legal disability occurred first, the claimant is not entitled to benefits.
- Rule # 2: If the factual disability occurred first, the claimant is entitled to benefits, if the claimant can prove the following three things:
- The factual disability has medical support.
- The onset of the factual disability occurred before the legal disability.
- The factual disability actually prevented or hindered the claimant from engaging in his or her profession or occupation.
In the next post, we will discuss how the court decided this case. In the meantime, now that you have the key facts and the court’s test, see if you can guess how the court ultimately ruled.
 104 S.W.3d 13, 18 (Tenn. Ct. App. 2002).
In the next few posts we will be looking at the distinction between “factual” and “legal” disability. In Part 1, we will discuss the difference between a factual and a legal disability, and why that distinction matters. In Parts 2 and 3, we will look at an actual court case involving “factual” and “legal” disability.
What is “Factual Disability”?
Factual disability refers to incapacity caused by illness or injury that prevents a person from being physically or mentally able to engage in his or her occupation. This is the type of disability that most people think of in connection with a disability claim.
What is “Legal Disability”?
Legal disability is a broad term used to encompass all circumstances in which the law does not permit a person to engage in his or her profession, even though he or she may be physically and mentally able to do so. Here are some examples:
- Revocation or suspension of a professional license;
- Surrendering a professional license as part of a plea agreement or to avoid disciplinary action; and
- Practice restrictions imposed by a licensing board.
Why the Distinction Matters
In sum, someone with a “factual disability” is mentally or physically unable to engage in their profession. In contrast, someone with a “legal disability” is not allowed to engage in their profession. Courts have repeatedly held that disability insurance policies provide coverage for factual disabilities, but not for legal disabilities.
If a claimant has both a factual and legal disability, things become more complicated. In the next few posts, we will look at an example of how one court determined whether someone with both a factual and legal disability was entitled to benefits.