Protecting Yourself in the IME Process: Make Lists and Take Notes
In our series of suggestions for handling an Independent Medical Examination (“IME”), we have already discussed getting a disability insurance attorney involved, knowing the disability policy requirements, and completing the intake forms. Here are today’s tips:
Make lists and bring them to the IME doctor. Don’t be afraid to bring information with you to help answer questions from the IME doctor. Some examples are a timeline of your symptoms—i.e., when they started, when they got worse, etc.—or a list of all your medications so you don’t accidentally forget one. If you have photos or videos showing certain injuries or symptom flare-ups, consider bringing those along as well.
Take notes. This will make sure that your recollection of the IME is recorded along with the doctor’s recollection. Your notetaking should start when you arrive at the IME provider’s office, as your time in the waiting room is often part of the final IME report.
For instance, IME doctors will often report something like, “The patient sat for half an hour before my exam completing the paperwork without any apparent discomfort.” If you take notes before the IME to memorialize how long you sat in the waiting room, if anyone was watching you fill out the paperwork, if you had to stand to stretch, etc., you will be able to show the insurance company whether the doctor’s statement is accurate.
If possible, take notes during the IME as well, so that you can remember exactly what testing was performed and what types of questions were asked.
When you leave the IME, take a few minutes to immediately jot down your impressions and any issues you think you need to follow up on with your disability insurer or attorney.
Protecting Yourself in the IME Process: Intake Forms
Up next in our series of tips for disability insurance policyholders being asked to undergo an Independent Medical Examination (“IME”):
Complete intake forms in advance. When you go to the IME, the doctor will most likely ask you to complete intake forms, including questionnaires outlining all of your symptoms and medical history. If you are stressed or hurried, you may forget to include something that could support your claim for disability insurance benefits. But if you have the forms in advance, you can answer each question carefully and accurately without leaving anything out. Consider asking (or having your lawyer ask) if you can have the forms beforehand to save time once you arrive.
Also review our prior tips on getting a disability insurance attorney involved and reviewing the disability policy requirements.
Protecting Yourself in the IME Process: Reviewing the Policy
In this series, we are outlining some tips for claimants facing an Independent Medical Examination (“IME”). Yesterday, we wrote about getting a disability insurance attorney involved. Today, we’ll explain another important step:
Make sure the exam is required by the disability insurance policy. This is another step where it is beneficial to have an attorney involved to review your disability policy. Most disability insurance policies do have a provision that allows the company to have you submit to an Independent Medical Examination or Physical Examination. However, sometimes those provisions aren’t totally clear on exactly what types of examinations are allowed.
For instance, here is a typical disability insurance policy provision that your insurer might cite to tell you that you have to undergo an IME:
At our expense, we can have a physician of our choice examine you as often as reasonably required while your claim is continuous.
This provision states that the examination should be conducted by a “physician.” Do you have to submit to a Functional Capacity Evaluation with a physical therapist? The provision also states the examination should be “reasonably required.” Has that qualification been met?
Here is another typical provision:
We shall have the right to have you medically examined at our expense when and as often as we may reasonably require while you claim to be disabled under this policy.
This provision says that you have the right to be “medically examined.” Does that mean you can only be examined by a medical doctor? Do you have to undergo a neuropsychological evaluation with a Ph.D.? Again, has the qualification that the examination be “reasonably required” been met?
These are the kinds of questions you may want to get answered before you agree to the exam.
In the next post, we’ll talk about the IME intake forms.
Protecting Yourself in the IME Process
As we have discussed before, disability insurance claimants are often asked to submit to “independent” medical examinations (“IME”) with a doctor chosen by the insurance company.
IMEs are a source of anxiety for many insureds, especially because they are often a first step towards termination of a disability claim. Fortunately, there are some steps you can take to help ensure that you are treated fairly.
Over the next few days, we will outline some general tips on dealing with IMEs. Keep in mind that these tips are no substitute for the advice of a disability insurance lawyer who knows the specifics of your situation. Hence, today’s tip:
Get your attorney involved. If you don’t have a disability insurance lawyer to help you with your claim, now is a good time to seek some advice. Oftentimes, insurance companies use IMEs to try to show that you aren’t entitled to disability benefits anymore. A lawyer can help protect your rights during the IME process by, among other things, finding out what the disability policy requires (and doesn’t require) and discussing those requirements with your insurer. If you aren’t sure how to find the right lawyer, consider our Questions to Ask When Choosing a Disability Insurance Attorney.
For Doctors, Risk of Relapse Can Cause Total Disability
Because of the high-stress nature of their occupations and their ready access to pharmaceuticals, both physicians and dentists are at high risk of developing substance abuse issues. In a recent disability insurance case, Colby v. Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan, the United States Court of Appeals for the First Circuit recognized the challenges that doctors can face when they are disabled due to substance dependence.
The insured in this case, Dr. Colby, was a partner in an anesthesiology practice. Like many anesthesiologists, she kept a demanding schedule, working 60 to 90 hours per week. In 2004, her colleagues discovered that she had been struggling with chemical dependence after she was found sleeping or unconscious on a table in the hospital. She tested positive for Fentanyl, an opioid used in her practice.
This led to the revelation that Dr. Colby had been self-administering opioids, and had become addicted. Shortly thereafter, Dr. Colby entered inpatient substance abuse treatment. As of January of this year, Dr. Colby had not resumed using Fentanyl.
When her drug dependence first came to light, Dr. Colby filed a claim with her disability insurer. Even after completing her treatment, Dr. Colby feared that returning to the anesthesiology environment, where Fentanyl (along with many other drugs) was easily accessible, would lead to her relapsing. However, the insurance company denied her claim for disability benefits. The insurer argued that she had been discharged from substance abuse treatment, and that although she was still under a doctor’s care and feared a relapse, “a risk for relapse is not the same as a current disability.”
Ultimately, the Court of Appeals disagreed. Judge Selya explained:
In our view, a risk of relapse into substance dependence—like a risk of relapse into cardiac distress or a risk of relapse into orthopedic complications—can swell to so significant a level as to constitute a current disability.
As this case demonstrates, doctors struggling with substance dependence should be cognizant of the fact that their occupation puts them at higher danger for relapse, and may contribute to their total disability from practicing. If you are facing this situation, it’s important to talk to your treating providers, disability insurance attorney, and disability insurer about how your work environment affects your risk of relapse.
Review the entire Colby opinion here.
Pima County Medical Society Publishes Ed Comitz and Karla Thompson’s Article Re Surveillance in Disability Insurance Claims
The January 2013 edition of Sombrero, the publication of the Pima County Medical Society, features an article by disability insurance attorneys Edward O. Comitz and Karla Baker Thompson. The article, “Surveillance Misuse in Claims Investigations,” reviews some of the ways in which evolving technology has led to overly intrusive surveillance of claimants by insurance companies.
Among the surveillance techniques being utilized are stakeout operations, tailing (sometimes using a “decoy” investigator), pretexting (obtaining your personal information under false pretenses), and GPS and cell phone tracking. For example, some private investigators use a stingray, which is a cell phone tracking device that operates as a miniature cellular tower from inside of the PI’s vehicle. The device enables an investigator to connect to a claimant’s cell phone, even when it’s not in use, and, after taking measurements of the phone’s signal strength, triangulate its location. Since most people tend to carry their cell phones at all times, the device then allows the investigator to track the insured’s movements remotely.
The law surrounding some of these intrusive surveillance techniques, which have been made possible by modern technology, is not yet settled, and it is important that anyone on claim with their disability insurance carrier remain vigilant to the possibility of surveillance at all times, regardless of whether a human being is conducting the surveillance. Long gone are the days when surveillance was only conducted by someone with a camera sitting in a car outside an insured’s home.
When Are Internal Insurer Memos Discoverable?
The recent 9th Circuit case Stephan v. Unum Life Insurance provides new guidance on when an insurance company’s internal documents may be discoverable.
Mark Stephan, a resident of California, suffered a bicycle accident that injured his spinal cord, rendering him quadriplegic. He filed for total disability benefits under his employer-sponsored Unum disability insurance policy, which was part of a plan governed by ERISA.
Mr. Stephan’s policy required Unum to pay him a benefit equal to a percentage of his pre-disability earnings. When Unum calculated how much Mr. Stephan was earning, it included his monthly salary, but not his annual bonus. This allowed Unum to calculate a much lower earnings rate—and thus a much lower amount that Unum had to pay in disability benefits.
Mr. Stephan sued Unum, seeking to overturn its benefit determination. After the trial court found in Unum’s favor, Mr. Stephan appealed, and the 9th Circuit Court of Appeals examined his case. Continue reading “When Are Internal Insurer Memos Discoverable?”
Case Study: What Does “Material and Substantial” Mean?
In 2007, the Georgia Court of Appeals had to address this question in Pomerance v. Berkshire Life Insurance Company of America. 654 S.E.2d. 638 (2007). Alan Pomerance was an obstetrician/gynecologist with four disability insurance policies from Berkshire. These policies provided own-occupation coverage, meaning that “total disability” was defined as “your inability to perform the material and substantial duties of your occupation.”
Dr. Pomerance’s occupational duties included delivering babies, surgeries, C-sections, office visits, making hospital rounds, and being on call. After being diagnosed with a degenerative knee condition, Dr. Pomerance filed a total disability claim with Berkshire, explaining that he could no longer stand for long period of time, so he couldn’t perform deliveries and hospital surgeries, be on call, or assist in the emergency room. Because of his disability, Dr. Pomerance was forced to restrict his practice solely to wellness office visits, which included patient exams, counseling, nonsurgical care, and minor biopsies, but none of his other former duties.
Berkshire declined to pay Dr. Pomerance total disability benefits, arguing that he was only partially disabled because he could still perform one of his “substantial” duties, i.e., office visits. Dr. Pomerance contacted Berkshire and objected to its determination, but Berkshire still refused him total disability benefits. Dr. Pomerance filed suit against Berkshire, claiming breach of contract and bad faith refusal to pay the amounts owed. Continue reading “Case Study: What Does “Material and Substantial” Mean?”
Nearly 1 in 5 Americans Have a Disability
Almost one in five people in the United States have a disability, according to the new U.S. Census Report Bureau that was just released today. The disability report was released to coincide with the 22nd Anniversary of the Americans with Disability Act, which is tomorrow. Here is some of the highlights from the disability report cited from the U.S. Census Bureau’s disability news release:
- 56.7 million people, 19 percent of the U.S. population, had a disability in 2010. And more than half of these disabilities were reported as severe.
- People in the oldest age group — 80 and older — were about eight times more likely to have a disability as those in the youngest group — younger than 15 (71 percent compared with 8 percent). The probability of having a severe disability is only one in 20 for those 15 to 24 while it is one in four for those 65 to 69
- About 8.1 million people had difficulty seeing, including 2.0 million who were blind or unable to see.
- About 7.6 million people experienced difficulty hearing, including 1.1 million whose difficulty was severe. About 5.6 million used a hearing aid.
- Roughly 30.6 million had difficulty walking or climbing stairs, or used a wheelchair, cane, crutches or walker.
- About 19.9 million people had difficulty lifting and grasping. This includes, for instance, trouble lifting an object like a bag of groceries, or grasping a glass or a pencil.
- Difficulty with at least one activity of daily living was cited by 9.4 million noninstitutionalized adults. These activities included getting around inside the home, bathing, dressing and eating. Of these people, 5 million needed the assistance of others to perform such an activity.
- About 15.5 million adults had difficulties with one or more instrumental activities of daily living. These activities included doing housework, using the phone and preparing meals. Of these, nearly 12 million required assistance.
- Approximately 2.4 million had Alzheimer’s disease, senility or dementia.
- Being frequently depressed or anxious such that it interfered with ordinary activities was reported by 7.0 million adults.
- Adults age 21 to 64 with disabilities had median monthly earnings of $1,961 compared with $2,724 for those with no disability.
- Overall, the uninsured rates for adults 15 to 64 were not statistically different by disability status: 21.0 percent for people with severe disabilities, 21.3 percent for those with nonsevere disabilities and 21.9 percent for those with no disability.
To read the disability news release, click here.
Applying California’s Total Disability Standard
Under California law, “the term ‘total disability’ does not signify an absolute state of helplessness but means such a disability as renders the insured unable to perform the substantial and material acts necessary to the prosecution of a business or occupation in the usual or customary way. Recovery is not precluded under a total disability provision because the insured is able to perform sporadic tasks, or give attention to simple or inconsequential details incident to the conduct of business.” Erreca v. Western States Life Ins. Co., 19 Cal.2d 388, 396 (1942). Thus, a disability claimant may be “totally disabled” in California despite being physically capable of performing some occupational duties. However, California courts are generally chary to find total disability if a disabled claimant continues working after filing for disability benefits, notwithstanding his physical limitations, and when the income generated from that work is substantially the same as it was before becoming disabled.
Hecht v. Paul Revere Life Ins. Co. offers a good illustration of this. In Hecht v. Paul Revere Life Ins. Co., an executive owner of a successful retail clothing business in Southern California filed for disability benefits with his disability insurance company, Paul Revere, after a car accident resulted in his suffering from neck pain and upper and lower back pain. Although the disability claimant was President and Owner, he involved himself with significant portions of laborious tasks such as lifting, loading and unloading merchandise and climbing ladders. After the accident, he could no longer perform the physical labor.
The disability claimant argued he was “totally disabled” under his disability insurance policy because he could no longer perform the physical labor aspect of his work in “the usual or customary way” as he did pre-disability. The California court agreed that he could no longer perform the physical labor; however, it concluded that such was not a “substantial and material” aspect necessary to the prosecution of his business. In reaching this conclusion, the California court found persuasive the fact that the disabled claimant continued to work every day, notwithstanding his physical limitations, and that the income generated from his contributions to the business was substantially the same as the income pre-disability. Applying Erreca’s “total disability” standard, the California court said:
He has proven by his own actions that he is able to perform “substantial and material acts necessary to the prosecution of a business,” that he is doing more than “sporadic tasks,” and that he is performing more than “simple or inconsequential details incident to the conduct of business.
Therefore, for the purposes of the disability insurance policy, he could not be considered “totally disabled.”
In California, what constitutes “substantial and material acts necessary to the prosecution of a business” is a fact-intensive inquiry. In this case, the facts favored the disability insurance company because the disabled business executive was still capable of performing some occupational duties post-injury, and his participation in these occupational duties generated significant income. When total disability cases involve disabled doctors and disabled dentists, however, they may not be so black-and-white (for an example, check out this blog post). In part, this is because the success of doctor and dental practices depends almost exclusively on a doctor’s or dentist’s ability to perform certain physical acts, such as drilling a hole in a patient’s tooth or performing surgery; this is quite different than the physical demands required of the disability claimant in the California case above. Additionally, injuries deemed less crippling in other fields could have a more substantial impact on medical and dental professionals whose highly specialized skills require greater precision to ensure patient safety.
Thus, even though the California standard for “total disability” is the same across the board, it applies differently to different professions. For this reason, when you file for disability benefits, you should seek a disability insurance attorney who has experience representing clients within your own occupation.
Disability Insurers Revamping Consumer Image
Many healthcare providers, some of whom also offer disability insurance such as Aetna and Cigna, have introduced elaborate marketing campaigns this past year in an effort to change their image, according to Tanzina Vega of the NY Times. These insurers want to be perceived as consumer-friendly healthcare companies, rather than merely insurance providers. The timing of the major shift in marketing makes sense as speculation increases over the pending U.S. Supreme Court decision on the Affordable Care Act. If the Supreme Court upholds the individual mandate, which would require millions of uninsured Americans to purchase insurance, then the market will expand considerably. Therefore, a favorable ruling would enable insurers like Aetna and Cigna to target the uninsured Americans directly, instead of marketing health care packages to employers.
But even if the individual mandate in the Affordable Care Act is struck down, Vega says that many insurers will likely continue their direct-consumer marketing campaigns. Why? Many healthcare providers believe their future economic success largely depends on their ability to market directly to the consumer. Therefore, they will continue designing, marketing and selling insurance packages tailored to individuals, the end consumer.
Although the NY Times article focuses primarily on marketing campaigns of healthcare providers, we may see a similar, albeit less dramatic shift in the way disability insurance companies market their products as well. Disability insurance companies are already focusing on the end consumer because, like healthcare providers, they believe that future economic success depends on their ability to reach people directly. Furthermore, it makes sense that disability insurers would implement similar marketing strategies as healthcare providers because often times the health insurance companies are also disability insurers, like Aetna and Cigna.
But actions often speak louder than words. Although disability insurers may try to alter their marketing strategies to reposition themselves as consumer-friendly companies, there likely will not be a corresponding shift in the way they treat disabled professionals when handling disability claims. Unfortunately, their own financial interests too often trump those of disabled persons.
Private Investigators “Pretexting” to Deny Disability Claims
Private investigators hired by disability insurance companies pretext to acquire your personal information from others. They do this by pretending to be someone else (often you), contacting people you know, and then probing them for your sensitive information. Pretexting is not only deceptive and unprincipled, but it may also be illegal. Private investigators engage in this conduct to produce evidence that will enable insurance companies to deny your disability insurance claim.
The Gramm-Leach-Bliley Act specifically addresses pretexting as it pertains to obtaining personal information from financial institutions. Many private investigators believe the scope of the Act is limited to pretexting with financial institutions only, therefore, they assume other pretexts—those not involving contacts with your financial institution—are legal. This is a misconception, however, according to Joel Winston, the Associate Director of the FTC, Division of Financial Practices. In an interview with PI Magazine, Winston clarifies the scope of the Act:
First, we should dispel the misimpression, if there is one, that the pretexting provisions of [the Gramm-Leach-Bliley Act] only apply if the pretexter is getting “financial information.” Actually, what the statute says is if you are getting any personal, non-public information from a financial institution or the consumer, that is covered by the statute.
(emphasis added). Winston also answers other questions about pretexting as they relate to private investigators. Although the Q-A session is mainly designed to illuminate private investigators of legal fences surrounding the practice of pretexting, it is also an excellent source of information for those who fear they might become victims of unlawful pretexts, or for people who want to learn more about the illegality of pretexting.
To view the article click here.
Report Says Insurance Software Unfair to Disabled Insureds
Many large insurance companies use claims software that enables them to “low-ball” consumers and manipulate claims payments, according to a new report from Consumer Federation of America. This software may also enable insurance companies to more easily deny disability insurance claims.
The report examines Colossus, injury evaluation software widely used in the insurance industry. According to the report, Computer Sciences Corporation (“CSC”) developed the software and originally marketed it to insurance companies as a cost-saving product. The marketing campaign changed quickly, though, as companies became concerned that the word “savings” would expose them to litigation—injured consumers could argue the so-called “savings” were actually a result of unjustifiably low claims offers. The “savings” concept was familiar to insurance companies, but according to the report, CSC never mentioned the “savings” word when it presented the software to the California Department of Insurance.
Even though CSC changed the marketing semantics, it did not modify Colossus in any important way. The report shows how insurance companies manipulate the software to achieve significant savings. These “savings” are actually the result of computer-generated “low-ball” claims offers and payments to consumers, according to the report.
To read Consumer Federation of America’s the full report click here.
Insurance Bad Faith: Private Investigators and Their Surveillance Practices
Insurance companies often will hire a private investigator to aid in terminating disability insurance claims. Ostensibly, the purpose of a private investigator is to expose dishonest individuals of fraudulent disability insurance claims. A private investigator may even advertise as a “Disability Insurance Fraud Specialist.” All too often, however, insurance companies and their investigators are not seeking to expose fraud, but to manufacture it. They produce “evidence” only to aid in denying disability insurance claims—even wholly legitimate ones. They do so because there is a strong financial incentive to deny disability insurance claims.
Our firm has dealt with these insurance companies and their private investigators time and again. We know how they operate and how to prepare our clients. We have developed a short list of basic information about private investigators so you can know what to expect:
- When are they watching? In a previous post, we noted the five most popular times for disability surveillance: (1) holidays, (2) birthdays, (3) weekends, (4) activities claimant listed in insurance company’s activity log; and (5) near the end of fiscal quarters.
- Who are they? Typically, private investigators are just as the name indicates – private people from private companies. Disability insurance companies contract with these private companies to conduct surveillance on disability claimants.
- What are their surveillance methods? Particular tactics will vary depending upon the private investigator, the disability insurance company and the disability claimant. However, many methods are common across the board. Basically, the private investigator will inconspicuously follow a disabled claimant with a video-capturing device as the disabled claimant undergoes day-to-day activities. If the private investigator has difficulty locating the disabled claimant, the investigator may use different tactics, such as pretexting, stake-outs or tracking devices, to locate and track the claimant. Our last blog post describes these other tactics in detail.
Private Investigator Surveillance Methods and Terms
Private investigators use a variety of tactics to produce evidence that may be used to deny your disability insurance claim. Below is a list of different private investigator surveillance methods and terms.
Disability Surveillance – refers to the monitoring, recording and documenting of activities or behavior of another. In the disability context, this surveillance is called sub rosa surveillance. Sub rosa, a Latin phrase which translated means “under the rose,” denotes the secretive and clandestine nature of private investigator actions.
Disability Stake outs – according to Shannon Detective Service, Inc.—a private investigation company whose client list includes Arizona Counties Insurance Pool, CNA Commercial Insurance, Danielson Insurance, Farmers Insurance, Federated Mutual Insurance Company, Hartford Insurance, Insurance Company of the West, Liberty Mutual Insurance, Nationwide Insurance, Progressive Insurance, Seabright Insurance Company, Sedgwick Claims Service, Travelers Insurance and Westfield Insurance—this is a stationary surveillance method by which a private investigator documents and records a claimant’s activities. The hallmark feature of a stake out is that the private investigator does not move or follow the disabled claimant. In a typical stake out operation the private investigator may station in front of your home or office and record you as you come and go. The goal of the stake out is to produce evidence that will enable the insurance company to deny your disability insurance claim. An ABC News story shows how an insurance company successfully denied a doctor’s disability claim with evidence produced during a stake out.
Disability Pretexting – the Federal Trade Commission (FTC) defines pretexting as “the practice of getting your personal information under false pretenses.” Private investigators are engaging in illegal conduct when they use pretexting to obtain your personal information from a financial institution. See 15 U.S.C. § 6801, et seq.
Here’s an example of how this works: someone pretends to be you and calls your bank. The person claims to have forgotten your checkbook, account number, social security number or other sensitive information. He then tries to get this information from the bank. Such conduct constitutes pretexting and violates federal law. Id.
Although private investigators claim to use only “appropriate” pretexting methods, methods which are not illegal per se, these are the same techniques which are used to facilitate identity theft and consumer fraud. Check out the FTC website for more information about pretexting and how you can protect yourself.
Disability Tracking Devices and GPS – this area of the law is still evolving. In a recent Supreme Court case, United States v. Jones, the Court held that attaching a GPS device to a vehicle constitutes a “search” under the Fourth Amendment; therefore, law enforcement officials need a warrant before installing the device. 132 S. Ct. 945, 949 (2012). Although the Court did not address the attachment of GPS devices in the private investigation context, its decision largely turned on the physical trespass involved in attaching a GPS device to another person’s vehicle. Id. The Court stated:
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
Id. Therefore, this ruling may be used to argue against private investigator installations of GPS devices since such installation would also constitute a physical trespass. Private investigation companies, such as Shannon Detective Services, Inc. (SDS), are now looking how to bypass the physical trespass issue altogether through implementation of other technologies that do not require physical attachment. Here are two examples of other technologies cited from the SDS website:
- Disability stingrays (a device that can triangulate a cell phone signal to locate a user) will become popular in the future as a way to skirt around the new GPS laws for law enforcement.
- Disability ping of cell phones (by accessing a user’s cell phone GPS chip) will also fill the gap created by GPS legislation since the FCC has mandated GPS chips to be installed in all new cell phones by 2018.
Your Most Valuable Financial Asset
What is your most valuable financial asset? According to Chicago Tribune columnist, Gregory Karp, for most people “the answer isn’t in their golden eggs, but in the goose that laid them.” That is, their most valuable financial asset is not their car, house or retirement account, but their ability to make money.
When you suffer from long-term or short-term disability, you will likely be unable to continue working and, therefore, will lose your most valuable financial asset – your ability to earn money. For many Americans without disability insurance, this financial blow can be devastating.
For this reason, in his article entitled Disability Insurance Primer, Karp stresses the importance of long-term disability insurance and provides a basic overview of what disability insurance is, what it is not, and how to find an appropriate plan. The article is a good source for those seeking disability insurance or looking to change their current disability benefits plan.
Ed Comitz, disability insurance attorney in the greater Phoenix area, Tucson, and Flagstaff, also provides answers to frequently asked disability insurance questions. For example, in his blog post, Disability Insurance Policies: Which type do you own?, Mr. Comitz describes fundamental differences between individual, group and employer-sponsored disability insurance policies. In another post, How to Get a Copy of Your Disability Insurance Policy, Mr. Comitz explains the process of obtaining a copy of your policy from the insurance company. Finally, in How Specific is Your “Own Occupation”?, Mr. Comitz provides understanding about key terms within your policy and how insurers may try to classify these terms in a way to deny your disability insurance claim.
May 2012 is Disability Insurance Awareness Month
It is once again Disability Insurance Awareness Month, and while the insurance companies may like to celebrate by encouraging people to purchase disability insurance, we’d like to take this opportunity to repeat some information from one of our previous blog posts regarding what your disability insurer can and can’t legally do in Arizona if you file a claim.
What your disability insurance company can do
- Audit your billing records and tax returns
- Review your medical files
- Use a private investigator to conduct photographic and video surveillance
- Look at your public Facebook profile and photos
- Follow your tweets on Twitter
- Order an Independent Medical Exam
- Have their doctor opine about your disability
- Ask for a Functional Capacity Evaluation
- Contact your treating physician
- Schedule in-person interviews with you
- Interview your friends, family, co-workers and employees
- Demand precise quantifications of how you spent your time in every professional activity pre- and post-disability
- Pay your claim under a reservation of rights
What the disability insurance company cannot do
- Impose requirements on you that are not contained in your insurance policy
- Attempt to influence the opinions of independent medical examiners
- Misrepresent policy provisions
- Conduct abusive interviews
- Unfairly delay a decision on your claim
- Fail to conduct a timely, adequate investigation of your disability claim
- Destroy key documents
- Lie about actions taken on a claim
- Place their financial interests ahead of your contractual rights
- Force you to litigate by offering an unreasonably low lump-sum buyout
When it comes to claims investigation, disability insurance companies sometimes skirt the limits of what they can legally do. If you believe your insurance carrier might be acting in bad faith, contact an attorney to protect your disability benefits.
Unum Plays Semantic Games in Denying Benefits for a “Heart Attack”
We have previously blogged that even Unum’s U.K. CEO agrees that Unum’s policies contain confusing language. Recently, Unum took advantage of its unclear disability policy language — in this case, a policy containing the layman’s term “heart attack” — to deny benefits to the widower of a policyholder who had died, in medical terms, of “atheroscopic coronary artery disease.”
Annette Frie’s disability insurance policy from Unum stated that a $30,000.00 benefit would be paid to her spouse if she were to die from a “heart attack.” However, because “heart attack” is not a medical term likely to be used on a death certificate, her husband Jim Frie suspects Unum deliberately used that term on its policy in order to deny claims by splitting semantic hairs.
When Mr. Frie submitted his claim, Unum sent him a letter offering its condolences but denying the claim on the basis that it “didn’t meet the definition of the specified illness covered by the policy.” The medical examiner who had signed Mrs. Frie’s death certificate then sent two letters to Unum explaining that Mrs. Frie’s coronary artery disease had caused the heart attack. In response, Unum denied the claim two more times.
The Minnesota State Commerce Department subsequently opened an investigation, but when Mr. Frie became impatient with the pace of the state’s investigation, he contacted FOX-9 investigators. Within 24 hours of being contacted by the news station about their investigation to expose this “fist-pounding outrage,” Unum called Mr. Frie with the news that the decision had been made to pay the claim.
Even commonly-used words and phrases can take on unexpected meanings within the context of a disability insurance policy, so it is important to consult an experienced disability insurance attorney to interpret the policy language when filing a claim.
Even Unum CEO Admits Their Insurance Policy Language Is Confusing
As we have blogged many times, even seemingly straightforward terms like “total disability” or “appropriate medical treatment” in your disability insurance policy may have different meanings in the context of a disability insurance claim than they do in everyday English. In a video posted on YouTube, Jack McGarry, CEO, Unum UK, is surprisingly candid in addressing how their insurance policy language is confusing.
Insurance is so confusing, in large part because we’ve made it that way, the insurance companies. We use acronyms instead of words, we use lingo instead of language. We’ve made it easy for us to communicate with each other, but we’ve made it very, very difficult for consumers to understand what we’re saying, and we need to change that.
[Consumers] are confused by our products, they don’t understand the choices, they don’t understand the coverage, and one of the reasons they don’t understand it is because the language we use to describe it, they find it confusing, and a little scary, so we’re partnering with Plain English to help simplify the language we use to describe what we do so everybody can understand it.
While Unum is apparently taking steps to clarify the language in its policies in the United Kingdom, it is of little help to American insureds who purchased policies written in language that is, in the words of Unum’s UK CEO, ”very, very difficult for consumers to understand.” The help of an experienced disability insurance attorney to interpret the language of your policy can be critical in ensuring you receive the benefits to which you are entitled.
