Comitz | Beethe Attorney Ed Comitz Posts CE Course on Dentaltown

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.

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Edward Comitz Named as an Arizona Business Leader in Healthcare Law

Edward O. Comitz, the head of the healthcare and disability insurance law practice at the Scottsdale law firm of Comitz | Beethe, has been selected as an Arizona Business Leader in the area of Healthcare Law.  According to the editor in chief, Arizona Business Magazine made its final selections from a pool of over 5,000 of “the best and brightest Arizona business leaders in healthcare, real estate, construction, education, banking, financial services and law.  Over the course of more than two dozen meetings, that list of 5,000 leaders under consideration was pared down to about 500 names, which the selection panel considered to be the most influential leaders in their industries, broken down into categories.”

Other Arizona leaders named in 2015 include U.S. Senator John McCain, Phoenix Mayor Greg Stanton, and sports executive and former owner of the Phoenix Suns, Jerry Colangelo.

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, Summer Associate at Comitz | Beethe, 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”

Working with Disability Claim Managers
– Know Your Rights and Be Vigilant

Even though disability insurance companies have a duty under Arizona law to give your interests equal consideration to their own, insurers rarely act for the policyholder’s benefit.   Claims benefit managers are frequently taught how to approach disability claimants to get a desired result, usually a denial or termination of disability benefits.  From our years of experience with the disability insurance industry, we have learned some of the tactics claims personnel use.  The following is a list of strategies to beware of.  Though not every disability claim manager engages in these practices, it is always a good idea for claimants to be vigilant in order to protect their rights under their policy.

  • Treating claims like a unit of production.  Disability insurance companies often don’t care to know how being disabled and filing for benefits affects you personally.  Don’t expect that they will understand or be sympathetic to the personal toll the entire process takes on a claimant, especially a doctor or dentist who has spent years in study and practice to achieve professional success.  To disability insurers, each claim is a unit of production being channeled towards an end goal.
  • Misinterpreting policy provisions.  Disability insurance claims managers are not lawyers, and just like most people, often have trouble properly interpreting complicated insurance policies.  For example, claims personnel might inform an insured that her claim is an “any occupation” policy when in fact it is an “own occupation” policy.
  • Claiming rights that don’t exist under the policy.  Claims managers will also frequently indicate that the disability insurance company can make claimants do certain things or provide certain information that is not actually required under the individual policy.  For instance, an insurer might tell a claimant he needs to complete a detailed daily activity report, when there is actually no such requirement to do so in his policy.  Make sure you know what your policy does and does not actually allow.
  • Acting like your friend.  Employees of disability insurance companies often try to act like your friend or partner in the process, when they are actually channeling your disability claim towards denial or termination of benefits.  Often, claims managers will call an insured for a friendly chat, all the while peppering the insured with seemingly innocuous questions meant to provide evidence for claim denial.  Policyholders should understand the questions being asked, and not get distracted by the congeniality of the caller.
  • Sending “field investigators” to talk about your claim. Another common practice in the disability insurance industry is to schedule an in-person interview in the claimant’s home with a “field investigator.”  These interviewers will spend hours asking about your symptoms and activities in excruciating detail, taking copious notes and even asking to photograph you.  What they may not make clear is that the field investigator has no authority over the disposition of your claim.  Rather, he or she is a private investigator hired by your insurance company to gather evidence against your claim and provide a starting point for surveillance.

The best way to make sure that these claims management practices aren’t used to take advantage of you when making a claim for disability benefits is to enlist a disability insurance attorney who knows the tactics used and how to guard against them.  Nevertheless, every insured should understand their insurance company’s approach to claims management and be cautious in their interactions with claims management personnel.

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.

Insurance Bad Faith: Different Standards for Different States – Part 7 (Washington)

A disability insurance company may be subject to a lawsuit for bad faith when it wrongly denies a claim.  There are differences from state to state in what constitutes insurer bad faith. In previous posts in this series, we outlined the standards of ArizonaCaliforniaColorado, NevadaNew Mexico, and Texas.  In today’s post, we outline the bad faith law of Washington.

Insurance companies who use unfair claim settlement practices can be found to have committed bad faith under Washington’s tort law or under the Washington Consumer Protection Act.  According to Washington law, an insurance company’s violation of the consumer protection statute constitutes an automatic unfair trade practice violation, and also a breach of the duty of good faith and fair dealing. If a policyholder brings a claim under the Consumer Protection Act, he or she will have to show economic (monetary) damages, but if he or she brings a tort bad faith claim, the injury need not be economic and can include emotional distress or other personal injuries.

The Statutes: R.C.W. 48.01.030 and Wash. Admin. Code § 284-30-330

The Rules: Washington regulations define the following as unfair or deceptive practices for settlement of insurance claims:

  • Misrepresenting pertinent facts or policy provisions.
  • Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
  • Refusing to pay claims without conducting a reasonable investigation.
  • Failing to affirm or deny coverage within a reasonable time after fully completed proof of loss documentation has been submitted.
  • Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.
  • Compelling an individual disability claimant to initiate or submit to litigation, arbitration, or appraisal to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in such actions or proceedings.
  • Attempting to settle a claim for less than the amount to which a reasonable person would have believed he or she was entitled by reference to written or printed advertising material accompanying or made part of an application.
  • Asserting to a disability insurance claimant that the company has a policy of appealing arbitration awards in favor of insureds for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration.
  • Delaying the investigation or payment of claims by requiring a first party claimant or his or her physician to submit a preliminary claim report and then requiring subsequent submissions which contain substantially the same information.
  • Failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
  • Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.
  • Failing to expeditiously honor drafts given in settlement of claims.
  • Failing to adopt and implement reasonable standards for the processing and payment of claims after the obligation to pay has been established—normally within 15 business days after receipt by the insurer or its attorney of properly executed releases or other settlement documents.
  • Negotiating or settling a claim directly with any claimant known to be represented by an attorney without the attorney’s knowledge and consent.

The Tort Law Standard:  An insurance company’s actions can be considered bad faith if its breach of the insurance contract was unreasonable, frivolous, or unfounded.

Insurance Bad Faith: Different Standards for 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 ArizonaCaliforniaColorado, 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.
The Tort Law Standard:  A disability insurance company that fails to pay a claim has acted in bad faith where its reasons for denying or delaying payment on the disability claim are frivolous or unfounded.

In our next blog post about Insurance Bad Faith, we will outline the standards that apply in the State of Texas.

Spy Cam Placed on Disabled Man’s Neighbor’s Property by Insurance Company

Dana Fredericks, who filed a disability claim at with Accident Fund Insurance Company of America due to his back problems, says that his insurer placed a spy camera on the private property of his neighbor in order to conduct surveillance on him.  The outraged neighbor, Ron Guzanek, reports that private investigators pretended to be cable workers and cut a clearing in his hedgerow while installing the sizable camera.   Guzanek, who says the camera was placed on his private property on a private road without his consent, notified the Oakland County Sheriff’s Department.

The spy camera—which had short-circuited and was billowing smoke—was removed by the fire department and remains in the custody of the Sheriff’s Department, despite the assertions of Accident Fund Insurance Company of America that the company and its private investigators had complied with all laws.  The insurance company is conducting an internal review into the matter.

While not all insurance companies will go to illegal lengths in order to spy on their insureds, this story is a reminder to anyone with a disability claim to be aware that at any time your insurance company may be conducting surveillance upon your activities.

Local television coverage of the Addison Township, Michigan spy cam incident can be viewed here.

Insurance Bad Faith: Different Standards for Different States – Part 3 (Colorado)

In this series of blog posts, we have been outlining the first-party insurance bad faith law of ArizonaCalifornia, 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.

Insurance Bad Faith: Different Standards for 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.

Insurance Bad Faith: Different Standards for Different States – Part 1 (Arizona)

When a disability insurance company wrongly denies a claim, 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 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, a private insured can bring an action under the state’s tort law.  Under Arizona tort 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.

September is National Pain Awareness Month

September has been designated as National Pain Awareness Month in order to call attention to the need for research into treatment options to alleviate the suffering of an estimated 75 million Americans.

While no one in chronic pain needs an awareness month to be reminded of his pain, he may need assistance in convincing his disability insurance carrier of his inability to continue working in his condition.  Not only can pain turn a previously enjoyable job into a daily agony, but chronic pain often results in sleeplessness, irritability, and difficulties with memory and concentration.  All of these effects of pain—and the side effects of the medications taken to control the pain—can make an occupation not only difficult or impossible to perform, but in the case of a doctor or dentist, the loss of concentration could be dangerous to a patient.

When pain is chronic and is reaching the point that it is too disabling to be able to continue in your profession, it is important to seek the guidance of an experienced attorney specializing in disability insurance law before filing a claim to ensure that your medical prognosis and treatment is appropriately documented and to interpret the provisions of your disability insurance policy.

Disability Claim Investigation:
What Can My Insurance Company Do?

What your disability insurance company can do when it is investigating a claim for disability benefits largely depends on your specific circumstances and the language in your policy, but there are some common tactics that Arizona courts will often allow – and some they will not.

What the disability insurance company can do

  1. Audit your tax returns and billing records
  2. Review your medical files
  3. Use a private investigator to conduct video and photograph surveillance
  4. Look at your public Facebook profile and pictures
  5. Follow you on Twitter
  6. Order an Independent Medical Exam
  7. Have an insurance company doctor opine about your disability
  8. Ask for a Functional Capacity Evaluation
  9. Contact your treating physician
  10. Schedule face-to-face interviews with you
  11. Interview your family, friends, co-workers and employees
  12. Demand precise quantifications of your time spent in every professional activity pre- and post-disability
  13. Pay your claim under a reservation of rights

What the disability insurance company cannot do

  1. Impose requirements on you that are not in your policy
  2. Attempt to influence the opinions of independent medical examiners
  3. Misrepresent policy provisions
  4. Conduct abusive interviews
  5. Unfairly delay a decision on your claim
  6. Fail to conduct a timely, adequate investigation of your disability claim
  7. Destroy key documents
  8. Lie about actions taken on a claim
  9. Place their financial interests ahead of your contractual rights
  10. 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 a disability insurance attorney to protect your disability benefits.

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.

The disability insurance attorneys at Comitz | Beethe 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.

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.