Disability Insurance: Will it Be There When You Need it? Choosing Policies, Pursuing Benefits and Litigating Claims Ed Comitz, Esq.

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1 Disability Insurance: Will it Be There When You Need it? Choosing Policies, Pursuing Benefits and Litigating Claims Ed Comitz, Esq., Comitz Beethe I. The Likelihood of Disability for Dentists a. 75% of dentists suffer from musculoskeletal disorders that affect quality of practice life (Institute of Dental Ergonomics) b. More than 40% of dentists have to shorten work hours at some time during their career because of pain (Hamman, Prevalence of carpal tunnel syndrome and median mononeuropathy among dentists, JADA) c. Contributing and exacerbating factors to dentists disabilities II. Industry History a. Pre-1990: Competition leads to liberal policy terms b. Early 1990s: Increased claims strain insurers c. Late 1990s to Early 2000s: Bad faith comes to light i. Formal medical director blows the whistle on UnumProvident s bad faith practices Claim Termination Strategies 1

2 i Judge tells Unum Obey the Law iv. Targeted Multistate Market Conduct Examination v. Verdicts Against Unum vi. Media exposure d. Today: The current climate III. Evaluating Disability Insurance Policies a. Policy Types and Implications i. Individual Group i Employer-Sponsored b. ERISA Employee Retirement Income Security Act of 1974 i. Implications Courts have extensively broadened the parameters 2

3 i Disability carriers have increasingly used ERISA s loopholes to their advantage iv. How to avoid ERISA applying to your policy c. Key Clause Interpretation i. Contra proferentem Disability/Disabled 1. Disability does not necessarily mean the same thing it does in other contexts 2. Determining legal disability 3. Common definitions of disabled in individual policies a. Any occupation b. Own occupation i. Specialty riders Challenges in proving disability under ownoccupation provision 3

4 c. Modified own occupation d. Loss of earned income e. Social Security definition i Occupation 1. Definition 2. Dual Occupation Defense 3. When occupation is defined iv. Partial vs. Total Disability v. Regular and Appropriate Care of a Physician d. Oral Modifications e. Written Modifications 4

5 IV. Choosing a Policy a. When to purchase b. Own-occupation coverage c. Benefit amount d. Exclusions e. COLA f. Elimination period V. Current Industry Practices a. Market conditions and corporate culture affect claim determinations b. Common rationales for claim denial or termination c. Surveillance i. Video 5

6 Internet i Other public records d. Record Requests e. Interviews f. Independent Medical Exams g. Other Exams and Testing h. Delay and Attrition i. Medical File Reviews j. Attempts to Dictate Terms of Care k. Extra-Contractual Demands i. What does the policy actually require? Cooperation clause and insurer requests 6

7 l. Applicability of ERISA VI. Remedies for Wrongful Denial or Termination a. Breach of Contract b. Bad Faith i. Arizona Law What insurance companies cannot do c. Damages VII. The Claim Process a. When to Stop Working b. Properly Documenting Claims for Benefits c. Completing Claim Forms d. Communicating with Treating Physicians i. When to discuss the claim 7

8 Explaining your condition i Attending Physician s Statements e. Communicating with Claims Representatives i. Verbal communication Written communication 1. Advantages of written over verbal communication 2. Claim Letter Example: Interpreting boilerplate language i Recordings iv. Ex parte contacts with your physician f. Special Issues i. Subjective Conditions Practice Transitions i Board Complaints and Licensure Issues 8

9 VIII. Top Mistakes Made When Filing Claims a. Misunderstanding the definitions of disability and occupation b. Inadequate documentation of the claim review process c. Blindly attending an IME d. Believing all mental or subjective conditions are excluded or subject to limitations e. Inadequate communication with a treating physician f. Quantifying time g. Ignoring the possibility of surveillance h. Tossing out the application, policy, and claims documents IX. Hiring an Attorney a. When to consult an attorney b. How to choose an effective disability insurance attorney c. Do I have to file a lawsuit? d. Ongoing payments vs. lump sum buyouts i. Ongoing payment 1. Advantages 2. Disadvantages 9

10 Lump Sum Buyout 1. Advantages 2. Disadvantages X. Case Studies a. Dr. A wanted to make sure she was protected in case of disability, so throughout her working career, she purchased eight separate policies from different disability insurance companies. She developed a thriving clinical practice. Though she practices cosmetic dentistry, she has occasionally performed other general clinical services, so she advertises a very broad range of services on her practice website. Last year, she had to let a long-time employee go after he started creating an unmanageable amount of interpersonal conflict in the office. Unfortunately, she and the ex-employee are no longer on speaking terms. Now, midway through her successful career, she has started experiencing chronic pain and severe spinal issues. She is dedicated to her practice, so she has continued working, but decreased her hours more and more over the past six months. She has now decided to stop working and file for disability. She is planning on selling her practice, and has met with a practice broker and explained that she will be leaving dentistry because of her disability. Potential Issues: b. Dr. B has an individual own-occupation policy. He pays the premiums through his dental practice, of which he is the sole owner. He has been practicing for years, and shares his love of dentistry by publishing numerous articles in the ADA Journal and occasionally serving as a guest lecturer for the local dental school. He has a busy practice with a large patient base, and inevitably has had two board complaints disputing his fees filed in the past two years. He gets along well with everyone in his office; in his Facebook photos from last month s Christmas party, he is seen dancing and laughing with the staff. He has suffered from rheumatoid arthritis in his wrists for years, but was able to control the condition enough to 10

11 continue practicing. Now, however, his pain and limitations have made it so he can no longer continue. He has just filed a disability claim with his insurer. Potential Issues: c. Dr. C, a surgical dentist practicing for four years, was recently diagnosed with severe back problems, including disc degeneration that causes extreme pain. Her pain is a constant distraction, and she cannot function in daily activities without high doses of pain medication. The narcotic medication alleviates her symptoms somewhat, but it makes her groggy, disoriented, and unable to focus. Due to her pain and fears of patient safety, she has ceased practice and filed for disability benefits under her individual policy. In several telephone conversations, her claims analyst has suggested that Dr. C should undergo surgery for her condition. Additionally, the insurance company has scheduled an Independent Medical Examination with a physician specializing in spinal disorders. Potential Issues: 11

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