AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent
Disability insurance attorney Edward O. Comitz and Michael Vincent had their article Can Your Disability Insurer Dictate the Terms of Your Care? published in the Winter edition of AzMedicine, the publication of the Arizona Medical Association. The article is excerpted below.
Can Your Disability Insurer Dictate the Terms of Your Care?
By Edward O. Comitz, Esq. and Michael Vincent
Imagine that you are a surgeon who has submitted a disability insurance claim after failed cataract surgery left you with halos, starbursts, and even temporary blindness under bright lighting. While you are dedicated to your profession, you realize that continuing to operate on patients puts them in danger. Your disability insurance company, however, will not pay your claim. It insists that you can keep performing surgeries, alleviating any occupational hazards by wearing sunglasses and using matte-finish instruments in the operating room. This scenario may sound absurd, but it is an actual example of some of the difficulties faced by many doctors seeking legitimate policy benefits. Fortunately, the surgeon in question had the common sense to cease performing surgeries rather than follow her insurer’s suggestions. Her decision did affect her financially, as benefits were denied for almost two years, and only paid after litigation ensued.
Insurance company treatment mandates are commonplace and based on their interpretation of the terms of your policy. In some cases, the insurance company goes so far as to demand surgery, invading your privacy and leaving you with the choice of either undergoing an operation involuntarily, bearing all of the medical risks and financial costs yourself, or waiving your right to collect disability insurance benefits. The decision can be difficult, but understanding your rights and obligations beforehand can help alleviate much of the worry.
Whether or not insurers can legally condition payment of your disability insurance benefits upon you following their suggested treatments depends on the specific terms in your policy. The various policy types fall into three general categories: “regular care” policies, “appropriate care” policies, and “most appropriate care” policies.
The oldest policies typically contain provisions conditioning benefits on being “under the regular care and attendance of a physician.” These “regular care” policies provide the most protection for insureds, as courts have repeatedly found that these provisions only create a duty for the insured to undergo regular monitoring by a physician to determine if the disability persists. Even if a proposed surgery is usually successful and very low risk, an insurance company cannot force it upon you. Under a policy requiring only regular care, courts will not enforce any particular course of treatment, no matter how vehemently an insurance company objects. Continue reading “AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent”
How to Get a Copy of Your Disability Insurance Policy
Many of the questions surrounding a disability insurance claim depend on the language in your policy. Thus, the first step to a successful disability claim is getting a copy of that policy. Though it is always important to keep a copy of your disability insurance policy and any related documents, sometimes policyholders forget to do so, they lose the document, or the papers become accidentally damaged.
The simplest way to get a copy of your policy is to call or send a letter to your insurance company directly. You can search for your disability insurer’s phone number and address on the Arizona Department of Insurance website. The insurer may require you to pay a minor fee, but they will send you a copy.
Once you receive your copy, check to make sure it is actually yours and that no pages are missing or damaged. If you have questions about the provisions in the disability insurance policy or filing a claim for benefits, you can bring your copy to a disability insurance attorney who can help interpret it and guide you through the disability claims process.
What is a Reservation of Rights?
When a disability insurance company is fighting a claim, it will often agree to pay benefits – but with a “reservation of rights.” What is a reservation of rights and how can it impact a legitimate disability claim?
When an insurer pays a disability claim under a reservation of rights, it is essentially providing a provisional payment. Though the insurance company may be sending you a check, it is not admitting that it actually has any liability under the policy. Instead, it is “reserving the right” to stop paying your disability claim if it can find evidence to deny it later. Once the company denies your disability claim, they can also demand you to repay them whatever proceeds they have distributed to you.
This practice is good for the insurance company, as it buys it extra time to investigate – and often later deny – a claim without putting it at risk of violating the laws against undue delay in payment. However, because the insurance company can still investigate the claim and then demand full repayment at any moment, the reservation of rights provides no peace of mind for the policyholder. Fortunately, a disability insurance attorney can protect you from this uncertainty by properly presenting your claim and thoroughly monitoring the insurance company’s actions to reach a beneficial result.
Don’t Toss the Policy: Important Documents for a Disability Insurance Claim
If you are a doctor, dentist, or other professional considering filing a long-term disability claim, there are some key disability insurance documents to collect and keep in order to properly understand and document your claim, including:
1. Your disability insurance policy
2. The insurance application
3. Notes or letters from meetings with the insurer’s sales agents
4. Notes of telephone conversations with your insurance company employees
5. Letters to and from your insurance company
6. Emails to and from your insurance company
7. Medical records
8. Billing records from your practice
9. A daily pain journal, if necessary
Make sure to keep all of your disability insurance papers and notes in an organized file, and if you have to file a claim, contact an experienced disability insurance attorney who can help you interpret your policy, present your claim, and communicate with your insurer.
Disability Insurance Bad Faith: Different States – Part 6 (Texas)
The latest installment in our series of blog posts outlines the insurer bad faith law of Texas. Previous posts covered similar laws in Arizona, California, Colorado, Nevada, and New Mexico.
The Texas statutes and bad faith tort law are closely related. An insurance company’s bad faith gives rise to a violation of the Deceptive Trade Practices-Consumer Protection Act and Texas Insurance Code. If an insurance company has not acted in bad faith, it cannot be liable under the statutes. Ultimately, a private individual whose disability insurance claim was unfairly denied can bring an action against the insurance company under either the statute or the state tort law.
The Statute: Tex. Ins. Code Sec. 541.060
The Rules: It is considered by law to be an unfair or deceptive act or practice for an insurance company to engage in the following unfair settlement practices:
- Misrepresenting a material fact or policy provision to the person making the claim.
- Failing to bring about a fair, prompt, equitable settlement when the disability insurer’s responsibility to pay has become reasonably clear.
- Failing to provide a claimant with a prompt and reasonable basis, grounded in the policy or the applicable law, or the denial of the claim or a settlement offer.
- Failing to affirm or deny coverage or submit a reservation of rights.
- Refusing a settlement offer on the basis that other coverage may be available, except as specifically provided in the claimant’s policy.
- Refusing to pay a disability insurance claim without conducting a reasonable investigation.
- Undertaking to enforce a full and final release of a claim from a policyholder when only a partial payment has been made, unless the payment is a compromise settlement of a doubtful or disputed claim.
The Standard: A disability insurance company is liable for bad faith if it knew or should have known that it was reasonably clear that the claim was covered. An insurance company cannot escape bad faith liability merely by failing to investigate a claim so that it can contend that its obligation to pay was never reasonably clear.
Disability Insurance Bad Faith: Different States – Part 5 (New Mexico)
Over the past several days, we have been outlining the different standards that apply from state to state in determining whether a disability insurance company has acted in bad faith in wrongly denying a claim. Previous posts have outlined the standards for Arizona, California, Colorado, and Nevada. Today we look at the bad faith law of New Mexico.
New Mexico created a statute governing insurance company practices, called the Trade Practices and Frauds Act, in order to promote ethical settlement practices within the insurance industry. Anyone who has suffered damages as a result of a violation of that statute by a disability insurance company can bring an action to recover his or her damages. A policyholder can also bring a suit based on the same wrongful conduct under New Mexico’s tort law.
The Statute: N.M. Stat. § 59A-16-20
The Rules: Any and all of the following practices by an insurance company are defined as unfair and deceptive practices and are prohibited:
- Falsely representing pertinent facts or policy provisions relating to coverages at issue to insured.
- Failing to acknowledge and act reasonably promptly upon communications with policyholders.
- Failing to have reasonable standards in place for prompt disability claim processing and investigation.
- Failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted.
- Not attempting in good faith to come to prompt, fair and equitable settlements of claims in which the disability insurance company’s liability has become reasonably clear.
- Compelling insureds to institute a lawsuit to recover amounts due under their policy by offering substantially lower amounts than those ultimately recovered when the insureds have made claims for amounts reasonably close to the amounts they ultimately recover at trial.
- Attempting to settle a disability claim for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed ads accompanying or made part of a disability insurance application.
- Trying to settle claims on the basis of an application that was altered without the policyholder’s knowledge or consent.
- Delaying the investigation or payment of claims by requiring unnecessary, duplicative information.
- Failing to promptly provide an insured a reasonable explanation of the basis the insurance company relied on to deny a disability claim.
In our next blog post about Insurance Bad Faith, we will outline the standards that apply in the State of Texas.
Disability Insurance Bad Faith: Different States – Part 3 (Colorado)
In this series of blog posts, we have been outlining the first-party insurance bad faith law of Arizona, California, and other states. Today’s post examines the bad faith law of Colorado.
Although the Colorado statute regarding unfair or deceptive acts or practices provides for state regulation of insurance companies and not for private lawsuits for damages, an insured can still bring a bad faith action against a disability insurer under Colorado tort law. Nevertheless, in determining whether an insurance company’s delay in paying benefits or its denial of disability benefits was reasonable, the court or jury can consider evidence that the insurer’s conduct violated the Unfair Claims Settlement Practices Act statute.
The Statute: Col. Rev. Stat. § 10-3-1104
The Rules: An insurance company must:
- Not misrepresent pertinent facts or policy provisions.
- Acknowledge or act reasonably promptly upon communications.
- Adopt and implement reasonable standards for the prompt investigation of claims.
- Conduct a reasonable investigation based upon all available information before refusing to pay a disability insurance claim.
- Affirm or deny coverage within a reasonable time.
- Attempt in good faith to effectuate prompt, fair, and equitable settlement of claims in which liability has become reasonably clear.
- Not compel insureds to institute litigation to recover amounts due under their policies by offering substantially less than the amounts ultimately recovered in legal actions brought by the insureds.
- Not attempt to settle a claim for less than the amount that a reasonable person would have believed he or she was entitled to based upon the insurer’s advertising or policy application materials.
- Not delay investigation or payment by requiring submission of multiple forms containing substantially the same information.
- Promptly provide a reasonable explanation of the basis in the policy or law for a claim denial or compromise settlement offer.
The Tort Law Standard: Disability insurance companies can be liable for first party bad faith if they act unreasonably and with knowledge of or reckless disregard of their unreasonableness.
In our next post, we will review the insurance bad faith standards for the State of Nevada.
Disability Insurance Bad Faith: Different States – Part 2 (California)
In this series of posts, we are outlining what constitutes insurer bad faith from state to state. Our previous post outlined Arizona’s standards, and today, we look at the bad faith law of California.
In California, the Unfair Trade Practices Act of the Insurance Code statute dealing with unfair claims settlement practices is merely a codification of its bad faith law. A policyholder can bring a suit in California against its disability insurance company under the tort law, but not under the statute itself.
The Statute: Cal. Ins. Code § 790.03(h)
The Rules:
An insurance company’s duties include the following:
- To investigate disability claims thoroughly.
- To not deny coverage based on unduly restrictive policy interpretations.
- To use standards it knows are improper to deny disability claims.
- To not unreasonably delay processing or paying claims.
- To give as much consideration to the insured’s interests as it does to its own.
An insurance company is not allowed to:
- Misrepresent pertinent facts or policy provisions.
- Fail to acknowledge or act reasonably promptly on communications about a disability insurance claim.
- Fail to adopt and implement reasonable standards for prompt claims investigation.
- Fail to make a decision on coverage within a reasonable time after a policyholder has submitted complete proof of loss.
- Tell claimants the company always appeals arbitration awards in favor of claimants to get them to accept lowball settlement offers.
- Not attempt to make prompt, fair, and equitable settlements in which it has become reasonably clear that the disability insurance company must pay a claim.
- Force an insured to litigate to recover under the policy by offering an unreasonable settlement.
- Delay investigation or payment of claims by requiring an insured to submit multiple forms containing the same data.
- Withhold a reasonable explanation of the basis relied on in the insurance policy for the denial of a disability claim or for the offer of a compromise settlement.
- Directly advise a disability claimant not to obtain the services of a lawyer.
- Deceive a claimant as to the statute of limitations that applies.
The Tort Law Standard: A disability insurer can be found to have acted in bad faith if it withholds benefits unreasonably and without proper cause, whether or not the insurance company had a conscious awareness of wrongdoing or intent to harm the policyholder.
Disability Insurance Bad Faith: Different States – Part 1 (Arizona)
When a disability insurance company wrongly denies a disability claim in Arizona, it can be subject to a suit for bad faith. What constitutes insurer bad faith varies from state to state. Over the next several days, we will be outlining the first-party insurance bad faith law of Arizona and nearby states.
In many states, an insurance company can be held liable for its wrongful conduct in two ways: (i) under the tort law of the state or (ii) under a state statute. Though tort law and the statute usually overlap somewhat, they are sometimes meant to create separate and distinct causes of action. The tort law makes the insurance company pay damages to a private policyholder, while a violation of the statutes can often lead to either a suit by a private policyholder or charges brought by the state.
Arizona Insurance Bad Faith Law
The Arizona Unfair Claim Settlement Practices Act was intended to give the state Department of Insurance, headquartered in Phoenix, Arizona, guidelines for determining whether an insurer’s procedures and practices occur with such frequency as to indicate an unacceptable general business practice. This statute does not allow an individual to bring a lawsuit based solely on its provisions.
However, dentists and physicians can bring an action under the state’s tort law. Under Arizona insurance law relating to disability claims, the core of the duty of good faith and fair dealing is that the insurer must act reasonably towards its insured, giving equal consideration in all matters to the insured’s interest.
The Statute: A.R.S. §20-461. Unfair claim settlement practices.
The Rules: An insurance company’s duties include the following:
- To act reasonably in handling the claim.
- To not misrepresent facts of policy provisions to avoid paying benefits.
- To reasonably interpret contract provisions.
- To not take unreasonable legal positions.
- To not impose requirements on the insured that are not contained in the policy.
- To properly investigate the claim.
- To treat the policyholder fairly and honestly at all times.
- To give as much consideration to the insured’s interests as it does to its own.
- To make claims decisions without regard to profitably.
- To not attempt to influence the opinions of independent medical examiners.
- To not destroy or alter documents to conceal evidence of claim handling.
- To not lie about actions taken on a claim.
The Tort Law Standard: An insurer can be liable for bad faith if there is an absence of a reasonable basis for denying benefits of the policy and the disability insurance company had knowledge or a reckless disregard of the lack of a reasonable basis for denying the claim.
If you have concerns that your disability insurance claim has been denied in bad faith, an experienced Arizona disability can help you determine if you have a lawsuit to file against your insurer.
Ed Comitz Named a Top Lawyer by North Valley Magazine and Avvo
Disability insurance attorney Edward Comitz has been named a Top Lawyer by North Valley magazine. North Valley magazine chose Mr. Comitz as a top lawyer in recognition of his superb rating on Avvo. North Valley magazine will feature Mr. Comitz as a Top Lawyer in the October/November issue.
Our disability insurance attorneys provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff, Sedona, Lake Havasu City, Prescott, and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.
Disability Claim Investigation:
What Can My Insurer Do In Arizona?
What your disability insurance company can do when it is investigating an Arizona claim for disability benefits largely depends on your specific circumstances and the language in your policy. However, there are some common tactics that Arizona courts will often allow – and some they will not.
What the disability insurance company can do
- Audit your tax returns and billing records
- Review your medical files
- Use a private investigator to conduct video and photograph surveillance
- Look at your public Facebook profile and pictures
- Follow you on Twitter
- Order an Independent Medical Exam
- Have an insurance company doctor opine about your disability
- Ask for a Functional Capacity Evaluation
- Contact your treating physician
- Schedule face-to-face interviews with you
- Interview your family, friends, co-workers and employees
- Demand precise quantifications of your time spent 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 in your 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 often skirt the limits of what they can legally do. If you think your insurer might be acting in bad faith, contact an experienced Arizona disability insurance attorney to protect your disability benefits.
An Inside Look at Insurer Surveillance
Insurers often spy on insureds in an attempt to “catch” them appearing non-disabled. Traditionally, insurers have hired private investigators to videotape insureds in their daily routines. More recently, disability insurers have begun to use Facebook and other social media as a one-way mirror for electronically peeping into an insured’s private life. Old-fashioned stakeouts and video surveillance are alive and well, however. Because it is so easy to misconstrue even a few seconds of video footage, all insureds need to be aware of the possibility for surveillance.
A recent article written by the insurance industry and aimed at insurers exposes the way insurers regard surveillance. Though the article cites a private investigator as saying that surveillance is the “unbiased documentation of a person’s activities,” the reality is anything but. Disability insurers will hire PIs to watch a claimant for days, and then purport that a single fifteen-second clip of the insured watering his outdoor plants, for example, is evidence of a fraudulent claim. They fail to understand the reality: Disability means unable to perform occupational duties, not absolute and perpetual helplessness. What does the insurer do with this video evidence? In their own words, “[impeach] the claimant, ultimately minimizing the value of his claim.”
Even if your insurer has obtained video surveillance, an experienced disability insurance attorney can place the video in its proper context—not just the five second clip that the insurer wants to show. Surveillance is another reason why it is important to consult with an attorney should you need to file a disability insurance claim.
How Specific is Your “Own Occupation”?
We have discussed many times the importance of an “own occupation” disability insurance policy. Such policies provide benefits if the insured is unable to perform the substantial and material duties of his own occupation, rather than requiring that the insured be unable to perform any occupation anywhere. But how specific is your own occupation?
John Simon, an environmental trial lawyer with a national practice, became disabled after an automobile accident. Pain in his legs made sitting, standing, and driving difficult. He had hand tremors, and pain medication caused a cognitive decline. He was diagnosed with regional pain syndrome and post-traumatic stress disorder. Yet Prudential Insurance only paid benefits for a year before terminating Simon, claiming that law was a sedentary profession and that there was no proof that he was incapable of performing his “occupation.”
As the District Court found in its decision, Simon “was no ordinary lawyer.” He was able to establish that his national environmental law practice required extensive travel by air and automobile, including carrying heavy files. Simon spent most of his time outside of the office developing a client base, litigating, lecturing on environmental law, and serving on a government commission.
Most of Simon’s practice was originating clients for the firm rather than performing extensive legal work on each case. During his disability period, his bonuses from the firm actually increased—from his fee sharing for bringing in new clients. Thus his bonuses reflected past rather than present efforts. Though the insurer pointed to Simon’s increasing compensation as evidence of his ability to practice law, it failed to investigate the nature of that compensation.
The court found that Prudential failed to consider the functional requirements of Simon’s particular work activities. It held that all of the factors weighed in favor of concluding that Prudential’s termination of benefits was arbitrary and capricious. John Simon had his disability benefits reinstated.
This case is an excellent example of how important it is to ensure that a disability claim is properly presented to the insurance company. All too often, disability insurers attempt to misclassify insureds’ occupations as to scope or type of duties. It may be necessary, as it was in this case, to litigate to force the insurer to recognize its obligations under the disability insurance policy. Thus, if you are filing a disability insurance claim, it is important to consult with an experienced disability insurance attorney.
A Case Study in Benefit Denial
We frequently emphasize how important it is to consult with a disability insurance law firm before filing a claim. But what about at the moment when you realize that you’re too sick to work? It is vitally important to consult with a disability insurance attorney specializing in disability law as soon as possible. A recent case in which the insured was denied disability benefits illustrates the importance of consulting with an attorney from the very beginning of your illness. There are often clauses in your disability policy which require up-front strategic planning to preserve your claim. In the below case study in benefit denial, the insured found himself possibly covered by two plans but ultimately unable to collect from either.
Paul McKay was employed beginning in 1999 as an attorney at U.S. Xpress, which provided a long-term disability plan to its employees. Prior to January 1, 2004, this plan was provided by Unum. On that date, U.S. Xpress switched disability insurance providers to Reliance. Insurance coverage was supposed to be uninterrupted with employees retaining continuous disability insurance, and in fact it was. But McKay fell between the cracks due to disparate language in the policies.
During his employment, McKay developed significant cervical spine problems, and he eventually underwent surgery in June 2003. Unfortunately between September through December 2003, his condition continued to worsen. At that point he had severe cervical and lumbar disc disease, was frequently absent, and his medication made mental concentration more difficult. His last day of work at the office was December 19, 2003. He intended to work from home during January 2004, but there was no evidence that he was able to do so. U.S. Xpress continued paying McKay his usual salary until January 16 and then fired him on January 19, 2004.
McKay filed a disability claim with Unum (the insurer prior to January 1, 2004) for disability benefits, contending that he was disabled under the policy. Unum denied the claim. The court affirmed the denial. The problem for McKay was that his Unum policy contained a clause requiring a 20% loss in monthly earnings as a qualifying condition for disability benefits. Unum successfully argued that through December 31, 2003, McKay had not had any loss of earnings as U.S. Xpress had in fact paid him his full salary into January 2004. McKay argued that he may have received his salary but he was incapable of earning it. The court followed the plain language of the policy and regardless of whether McKay earned his keep in December, found no loss and ruled that he was ineligible for benefits.
Reasonably enough, McKay rationalized that if Unum wouldn’t cover him, then he must be covered by Reliance (who took over on January 1). He filed a claim with Reliance, only to discover that Reliance’s policy had two important but often-overlooked requirements: To be eligible for insurance without the usual 60-day waiting period (which would have started coverage on March 1), McKay had to be “actively at work” as of January 1 and his disability had to begin on or after January 1. Reliance denied the claim, asserting that McKay wasn’t “actively at work” because he was not working full-time (at least 33 hours per week) as of January 1. Recall that McKay had attempted to establish his eligibility under Unum by arguing that he had suffered a loss in earnings in December because after December 19 he wasn’t actually earning—just receiving—his salary. McKay’s statements, which had been made in support of his Unum claim, were outrageously used by Reliance to deny him benefits under Reliance’s plan.
The injustice gets worse. As a second reason for denying the claim, Reliance argued that since McKay had asserted a December disability date to Unum, had left the office after December 19, and had since received Social Security disability benefits based on a December 2003 disability date, McKay’s disability began before January 1. Thus, he was ineligible for benefits under Reliance’s plan. The court agreed with Reliance’s reasoning.
On appeal, the Circuit Court affirmed the lower court’s rulings. The Court noted that “McKay argues that because U.S. Xpress maintained uninterrupted LTD insurance coverage during the time period in which he sustained his disability, he must be covered by one of the two policies. McKay’s argument, while somewhat logical, is incorrect. Whether he is covered by either Unum or Reliance, or both, turns on the terms of each policy.” (emphasis added). And so it ends. Paul McKay, who was always “covered” by long-term disability insurance, turned out to not be covered at all. He receives no benefits from either policy, thanks to a coincidence of timing. Each insurer used his statements to the other to deny coverage, leaving him in a no-win scenario.
What can be done differently? Paul McKay should have immediately consulted a disability insurance attorney as soon as he suspected that he might become too ill to work. The attorney could have examined the policies and the upcoming switch in coverage and worked with Paul to develop a strategy to preserve his claim, such as resigning in December and immediately applying for benefits. This case underscores the importance of coordinated planning with an experienced disability insurance attorney.
What Happens If Your Plan Description Doesn’t Match Your Policy’s Terms?
Many people aren’t used to reading insurance policies. With their legal clauses, insurer-defined terms, and dry content, understanding them can be a challenge for insureds. For these reasons, disability insurers provide plain English summaries of their disability policies, both for marketing purposes and as a guide to benefits. But what happens if you rely upon the plan description in filing a disability claim only to be told that the actual policy language precludes your claim? Your insurer wouldn’t be alone in exploiting a situation where your plan description doesn’t match your policy’s terms.
In the recent case of Weitzenkamp v. Unum Life Insurance Company, the Seventh Circuit Court of Appeals addressed such a discrepancy in a disability insurance policy and plan description. Susie Weitzenkamp was diagnosed with fibromyalgia, chronic pain, anxiety, and depression—all self-reported symptoms. Her summary plan description listed a twenty-four month restriction on disabilities due to mental illness and substance abuse. What the summary failed to mention, however, was that the policy also had a twenty-four month cap on benefits for disabilities primarily based on self-reported symptoms. Ms. Weitzenkamp suddenly found her benefits abruptly terminated.
On appeal, the Circuit Court noted that a summary plan description is intended to be a “capsule guide [to the plan] in simple language.” The relevant law required that the summary include “the plan’s requirements respecting eligibility for participation and benefits” and “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.” Because the summary failed to mention this important policy provision denying benefits for self-reported symptoms, it violated federal law. The court prohibited Unum from relying upon the policy provision in denying Ms. Weitzenkamp’s claim, reinstating her past benefits though still leaving her to prove her ongoing eligibility under the merits of the policy.
This case illustrates but a portion of the complexity in disability insurance cases. What can physicians do to protect themselves? It is important to thoroughly understand both your actual policy and the insurer’s marketing literature. Physicians should retain all insurer-provided materials from both before and after the purchase of their policy, and consult with an experienced disability insurance attorney should they need to file a claim.
How Can You Play by the Rules if You Don’t Know Them?
When filing a disability insurance claim, it’s critical that you consult with an experienced disability insurance attorney. While we have previously discussed the importance of understanding the specific definitions assigned to terms in a disability policy, the interpretation of a policy depends upon more than its internal definitions. State law may assign particular definitions or restrictions to ambiguous terms, or may invalidate certain types of clauses as against the state’s public policy. Insureds are often unaware of this substantive body of case law that shapes the interpretation of their policy—and ultimately determines their claim’s outcome. This means that a disability insurance policy’s benefits vary from state to state. An experienced disability insurance attorney is familiar with the laws of your state and how courts will interpret the language of your policy.
Two unrelated physician disability cases, one occurring in California and the other in Georgia, serve as an excellent example of how state laws vary. Both contained virtually identical facts as to the physician’s disability and the language of the insurance policies, yet the courts arrived at opposite outcomes. In each case, the physician indisputably suffers from carpal tunnel syndrome (CTS) that leaves him unable to practice medicine, with all parties agreeing that the CTS had developed over a career of repetitive hand motions.1 Each physician’s disability insurance policy provides for benefits lasting until age sixty-five for disability due to sickness, and lifetime benefits for disability due to injury.2 The question in both cases was: Is carpal tunnel syndrome a sickness or an injury? Both physicians’ policies defined “injury” as “accidental bodily injury occurring while this policy is in force.”3 However, the courts diverged as to whether carpal tunnel syndrome that had developed over a number of years was an “accidental bodily injury.”
The California court found that the physician had not suffered an “injury” under the policy because his carpal tunnel syndrome was not an “accidental bodily injury.”4 California case law has stated that an accidental bodily injury requires a sudden event causing an identifiable injury. In other words, California places the focus of “accidental” on the cause or means of the result, not on the result itself. Because the long development of the carpal tunnel syndrome did not manifest identifiable harm as it occurred, the U.S. District Court for the Central District of California, relying upon prior California court decisions, concluded that the physician had not experienced an accidental bodily injury under the policy. Therefore, the injury provision of the policy did not apply, and the California physician was entitled to his benefits under the sickness provision only until age sixty-five.
In Georgia, on the other hand, the Georgia Supreme Court decided that “accidental bodily injury” meant a bodily injury that was unexpected, but could have arisen from a voluntary act.5 Following prior Georgia court decisions, the court thus placed the focus of “accidental” on the result itself, not on its cause or means of the result6—the opposite of the California approach. It held that “an unexpected physical injury that disables the insured is covered as an ‘injury’ under this policy.”7 The court noted that, as here, a person could suffer a series of small traumas over an extended period that ultimately resulted in a bodily injury that was disabling, and such injuries were “accidental bodily injuries.”8 Applying this standard, the court held that the physician’s carpal tunnel syndrome was an accidental bodily injury under the policy. Therefore, the physician had experienced an “injury” within the policy’s terms, and the Georgia physician was entitled to his benefits under the injury provision for his lifetime.
The antipodal outcomes of these two cases illustrate the complexities and subtleties that occur when interpreting a disability insurance policy. Do you know how your state interprets your policy’s provisions? Insureds who are considering filing a claim on their policy should not attempt to navigate the insurer’s claims process, policy definitions, and the law on their own. An experienced attorney specializing in disability insurance law can ensure that insureds have an equal footing with their insurer should there be any legal disputes regarding a policy.
Our attorneys provide legal representation to protect the disability benefits of medical and dental professionals nationwide and throughout metropolitan Phoenix, Scottsdale, Tucson, Flagstaff, Sedona, Lake Havasu City, Prescott, and Yuma. We provide disability income claim advice, assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.
Disability Claims by Diagnosis
According to a survey conducted by the Council for Disability Awareness (“CDA”), a non-profit organization that attempts to educate the American public about disability and its financial impact, the most common causes of new long-term disability claims in 2010 are musculoskeletal/connective tissue injuries and cancer and neoplasms. The most common causes of existing long-term disability claims are musculoskeletal/connective tissue injuries, problems with the nervous system, and cardiovascular/circulatory disorders.
The Importance of Your Treating Physician’s Notes
Physicians filing a disability insurance claim often underestimate the complexity of the process. Unlike health insurance, which pays one-time reimbursements for services provided, disability insurance claims are ongoing and expensive. The disability insurer heavily scrutinizes each claim for disability benefits it receives, including looking at the records of treating physicians.
Insurers carefully examine every claim form and your treating physician’s notes for any information that can be used to deny the disability claim. It is important that these records are complete and descriptive in the insured’s diagnosis, symptoms, and functional limitations. Unfortunately the pressures of a modern medical practice mean that physicians spend less time treating patients and more time filling out paperwork. What should be detailed evaluations of a patient’s history and limitations often become abbreviated notes cobbled together from several doctors. As an article in the New York Times noted, “A doctor’s note turns into a cut-and-paste collage instead of an accurate and personalized narrative of illness; and documentation becomes an electronic and potentially dangerous version of the game ‘Telephone.’”
Insureds thus cannot rely upon merely being treated by their physician; they must take an active role in ensuring that their physician adequately documents their disability, its nature, and most importantly, the resulting functional limitations. Treating physicians’ notes often lack sufficient description of what the insured can and cannot do—and the insurer will be happy to fill in the missing information in its favor. Treating physicians need to use language such as “incapable of performing his occupation” as part of detailed narrative statements describing the insured’s condition. Insureds must work with their disability insurance attorney and treating physician to properly present their claim, and the foundation begins with a detailed treatment narrative.
Disability Insurer Unum Group Said to Have Been in Talks with Sun Life Financial
Bloomberg Businessweek reports that the nation’s largest disability insurance company, Unum Group, was in private talks earlier this year about a potential takeover by Sun Life Financial, Inc. Sun Life, Canada’s third-largest insurer, said in November 2009 that it wanted to expand its presence in the U.S. significantly with an acquisition.
A source for the Wall Street Journal said that the talks broke down in January, but Unum may still be open to approaches. The source also reported that Unum and Sun Life officials couldn’t agree on deal terms and governance.
Following the breakdown in the talks, Unum announced a $1 billion buyback of stock over 18 months.
Patrick T. Stanley: Newest Member
We are delighted to announce that Patrick T. Stanley has been elected a Member.
Mr. Stanley is an experienced trial lawyer with a substantial background in state and federal courts, as well as arbitration proceedings. He has extensive experience in motion practice, appellate practice, jury and bench trial, arbitration and injunctive relief. He is particularly experienced in litigating first-party insurance bad faith, including disability insurance and professional liability coverage, and healthcare litigation.
In addition to his litigation background, Mr. Stanley also assists with the practice management needs of healthcare professionals. He provides consultation and representation in regulatory compliance matters, non-compete and anti-solicitation agreements, disability claim advice, employment contracts, personnel and human resources issues, employee disciplinary actions, independent contractor and managed care agreements, state licensure issues and collections.
Mr. Stanley is ranked “Excellent” by Avvo, which rates and profiles over 90% of licensed attorneys in the U.S. based on research, client reviews, lawyer disciplinary histories and peer endorsements. Mr. Stanley has been named a “Top Attorney” by Arizona Business Magazine(Healthcare) and Ranking Arizona (Commercial Litigation).
Mr. Stanley is admitted to practice in state court in Arizona and Florida, as well as the United States Court of Appeals for the Ninth Circuit and the United States District Court for the Districts of Arizona and the Southern and Northern Districts of Florida. He has also been admitted pro hac vice in United States District Courts in California and Alaska.
Mr. Stanley received his B.A. in History from the University of Kansas and earned his law degree, cum laude, from the University of Arizona. Since then, in addition to his busy practice, Mr. Stanley has authored or co-authored articles on a number of topics relating to both disability insurance and transportation law.
