THE PHYSICIAN DISABILITY INSURANCE LEGAL BLOG
This blog is designed as a resource for physicians whose insurance carriers have wrongfully denied their disability insurance claims or attempted to stop paying benefits.
It is part of our firm's commitment to service to keep medical professionals (and others) apprised of industry, regulatory and legislative changes. If you would like more information about our firm or the timeliness/impact of disability insurance denials on doctors in particular, please feel free to visit our disability insurance attorney website at http://www.disabilitycounsel.net/.
Disability insurance attorneys Comitz | Beethe will have an exhibitor’s booth at the upcoming Arizona Osteopathic Medical Association’s (AOMA) 32nd Annual Fall Seminar at the Hilton Tucson El Conquistador on November 10, 2012. Physicians attending the conference are welcome to stop by our booth for informational brochures and to talk with an attorney regarding their questions regarding their disability insurance policies and what to expect when filing a claim.
Comitz | Beethe is a business partner of the Arizona Osteopathic Medical Association.
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 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.
A disability insurance policy may condition a doctor’s disability benefits upon his consent to receive “appropriate” medical treatment, which may include surgery, according to the California court in Provident Life & Accident Ins. Co. v. Henry.
In Henry, a disability insurance company, Provident Life, sued its insured, a disabled podiatric surgeon, after he did not comply with its demands to undergo carpal tunnel syndrome release surgery. Provident Life argued that the “appropriate care” provision in the disabled doctor’s disability insurance policy required him to submit to surgery. The appropriate care provision stated that in order to receive disability benefits the insured must also “receiv[e] care by a Physician which is appropriate for the condition causing the disability.” Provident Life argued that carpal tunnel syndrome release surgery was appropriate in this case because (1) other more conservative treatments had failed, and (2) the surgery was a low-risk procedure (3) that had the potential of curing the doctor’s disability thereby enabling him to practice again.
The disabled doctor disagreed with Provident Life’s interpretation of the appropriate care provision. He argued that, absent explicit policy language alerting an insured of a potential obligation to submit to surgery, Provident Life could not demand he undergo surgery.
Thus, the issue before the California court was whether or not an appropriate care provision may condition benefits upon a disability claimant’s consent to undergo surgery. The California court held that it may. An appropriate care provision may “create a duty to submit to appropriate medical treatment which, in some circumstances, may include a surgical procedure.” In this case, the California court concluded that there was a triable issue whether or not carpal tunnel syndrome release surgery could be considered “appropriate care” under the circumstances; therefore, the parties would present the issue at trial for the jury to decide.
Most, if not all disability insurance policies contain an appropriate care provision. California courts consistently construe these provisions to include a potential requirement to submit to surgery when doing so is “appropriate” (for another, example of how California courts may construe an appropriate care provision, read this blog post). However, what is “appropriate” is arguable in almost every case. If your disability insurance company is threatening to withhold your disability benefits on the condition that you submit to surgery, you should contact a disability insurance attorney.
Many disabled physicians making a claim for disability benefits have asked our disability insurance attorneys whether they can treat themselves rather than spend additional time and money on another physician. The answer is no.
Most disability insurance policies contain provisions which require disability claimants to be under the continued care of a physician. Thus, even if a disabled doctor knows exactly what is wrong and how to be treated, the disabled doctor still must seek treatment from another physician in order to comply with the provisions of his or her disability insurance policy. Typically, this means the disabled doctor will need to meet with a physician every three to four months (or six, depending on your disability insurance policy) to assess the doctor’s disability. Failure to do this may enable a disability insurance company to deny or terminate disability benefits.
If you have any questions about specific provisions in your disability insurance policy, or if you have questions about your medical treatment, contact one of our disability insurance lawyers. We are happy to provide you with appropriate guidance to ensure you continue receiving disability benefits.
In our previous post, we looked how one California court analyzed the interpretation of “total disability” as applied to a gynecologist’s claim for disability benefits. In this post, we look at another California case, Gross v. UnumProvident Life Ins. Co., which has similar facts and addresses substantially the same issue: whether an orthopedic surgeon is “totally disabled” as defined by the disability insurance policy. Here, however, the California court engages in a much more fact-intensive analysis.
In Gross v. UnumProvident Life Ins. Co. an orthopedic surgeon, whose complications from diabetes rendered him unable to continue performing surgeries, sued his insurer, Paul Revere Life Insurance Company, after it denied his claim for disability benefits. Paul Revere denied his disability insurance claim because it determined he was not “totally disabled” as defined by his disability insurance policy. The Paul Revere disability insurance policy defined total disability as follows:
“Total Disability” means that because of Injury or Sickness:
a. You are unable to perform the important duties of your occupation; and
b. You are under the regular and personal care of a Physician.
Thus, to determine whether the disabled orthopedic surgeon was “unable to perform the important duties of [his] occupation,” the California court engaged in a factual analysis of the three major duties the orthopedic surgeon performed pre-disability: (1) surgical duties; (2) medical-legal duties; and (3) in-office orthopedic duties. For each of the three categories, the California court asked “first, whether they were important duties of his occupation at the time he became disabled, and second, whether he is unable to perform them post-disability.”
1. Surgical duties
It was uncontested here that, as a result of his disabling condition, the orthopedic surgeon was no longer able to perform surgeries. However, the facts demonstrated that the surgeon only spent about 5-8 hours per week, 13% of his pre-disability time, performing surgery. Because the amount of practice time dedicated to surgical duties was limited, Paul Revere argued that surgical duties did not constitute an “important duty” to satisfy the disability insurance policy’s definition of total disability. The California court agreed: “Plaintiff’s inability to perform his surgical duties, standing alone, is insufficient to render him totally disabled.” Therefore, it proceeded with the analysis of the other two duties.
2. Medical-legal duties
Paul Revere argued that the orthopedic surgeon was not totally disabled because he was still able to perform his medical-legal work post-injury, and that this was an important duty. The facts demonstrated that the orthopedic surgeon dedicated approximately 15-25% of his work time performing Independent Medical Examinations (IMEs) and other medical-legal related work; he continued doing this work after filing for disability benefits. Although the surgeon spent a considerable portion of his time performing medical-legal duties, the California court found persuasive the fact that only 1.6% of the orthopedic surgeon’s patients were medical-legal related and the amount of income earned from the IMEs was very little. Consequently, the California court concluded that medical-legal duties did not constitute an “important duty” under the disability insurance policy.
3. In-Office Patient Care
Thus, “whether Plaintiff remains able to perform in-office patient care is the crucial issue in determining whether Plaintiff is totally disabled.” Here, the California court found a triable issue of fact as to whether the disabled orthopedic surgeon could still perform his in-office care duties. Therefore, the issue would need to be determined by a jury.
However, in order to provide guidance to the parties, the California court explicated the legal backdrop under which the analysis should proceed. It explained that “one is unable to perform an important or material and substantial duty if she is unable to perform that duty ‘in the usual or customary way.’” (citing Erreca). Moreover, since the disability insurance policy was an own occupation policy, meaning that coverage would be provided if the orthopedic surgeon was unable to perform the duties within his own occupation as opposed to any occupation, “usual or customary way” would be determined by examining the ordinary practices of the orthopedic surgeon in his office pre-disability.
This case provides an illustration of the legal analysis a court will undertake to determine whether or not a disability claimant is totally disabled under California law. As the case demonstrates, what constitutes a material or substantial duty may turn on the amount of time and effort a disabled doctor put toward a particular duty’s accomplishment pre-disability; the financial aspect of an occupational duty, although not dispositive, may also come into play to determine materiality.
Significantly, much of the data the California court relied upon to determine the issue of materiality was provided by the disabled orthopedic surgeon when he first filed his claim for disability benefits. Therefore, it is important to understand and fill out all of this information accurately when you file for disability benefits. Even small mistakes can have a devastating impact on your chances of recovery because they could alter the way your disabling condition is defined by a disability insurer or a court. For this reason, you should meet with an experienced disability insurance attorney to discuss the best way to present your occupational history on your disability insurance claim as this information may ultimately be relied upon by a court to determine your eligibility for benefits.
Under California law, an insured claiming coverage under an insurance policy has the burden of proving entitlement to such coverage. See Royal Globe Ins. Co. v. Whitaker, 181 Cal.App.3d 532, 537, 226 Cal.Rptr. 435, 437 (1986). Therefore, in the disability insurance context a claimant must demonstrate that his disabling condition is one covered under the disability insurance policy. Disputes often arise when the parties to the contract disagree over the meaning of key terms in the policy, which may result in denied disability benefits.
In Dym v. Provident Life and Acc. Ins. Co., for example, a dispute arose between a disabled gynecologist and his disability insurance company, Provident Life, when Provident denied his disability claim on the basis that the doctor was not “totally disabled” as defined by the disability insurance policy and California law. The policy defined total disability as follows:
Total Disability or totally disabled means that due to Injuries or Sickness:
1. you are not able to perform the substantial and material duties of your occupation; and
2. you are receiving care by a Physician which is appropriate for the condition causing the disability.
your occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree and license, we will deem your specialty to be your occupation.
Prior to an automobile accident, the gynecologist routinely examined patients and scheduled and performed major surgeries as part of his occupation. After the accident, the gynecologist filed for disability benefits with Provident Life, claiming he was totally disabled within the meaning of the policy because he could no longer perform most of these surgeries. Provident Life, on the other hand, contended the doctor was not totally disabled because, although he could not perform most of the occupational surgeries, he was still capable of performing other minor surgeries, which he had, in fact, continued performing after the accident. Thus, the issue for the court to decide was whether or not the gynecologist was “totally disabled” as defined by the policy.
The California court held that the gynecologist was not totally disabled within the meaning of the disability insurance policy, and therefore it permitted Provident Life’s denial of disability benefits. Even though California courts construe ambiguous policy language against the disability insurer, here the court did not find a construction of “total disability” favorable to the disabled gynecologist – it reasoned that the meaning of “total disability” was not ambiguous. Furthermore, the court was persuaded that because the gynecologist was capable of performing some surgeries, even though not the most significant ones, he was capable of performing “the substantial and material duties of [his] occupation.”
This case may have been decided differently had the disabled gynecologist not attempted to prematurely return to work post-injury. Indeed, the court’s decision turned largely on the fact that the gynecologist continued performing surgeries after he became injured. Unfortunately, many disabled doctors and other professionals prejudice their chances of recovery because they want to get back to work as soon as possible. Often they ignore the advice of a treating physician so they can get back to doing what they love, despite being physically unfit for work. Doing so, even if you are in fact totally disabled, may be fatal to your case. Additionally, returning to work when you are unfit to practice is unsafe for patients and may be a violation of physician ethical duties. For these reasons, it is important to consult with an experienced disability insurance lawyer prior to filing a claim with your disability insurance company for disability benefits.
In Arizona, although a formal doctor-patient relationship does not exist between an Independent Medical Examination (IME) doctor and a disability claimant, the IME doctor may still be liable if he fails to exercise reasonable care while administering the IME. Ritchie v. Krasner, 221 Ariz. 288, 294 (Ct. App. 2009).
This was held in Ritchie v. Krasner. The dispute in this case arose between relatives of the decedent, Jeremy Ritchie, and several physicians, including Jeremy’s IME doctor. Jeremy suffered a severe back injury while at work, which made him unable to continue working. In order to receive compensation for the period when he could not work, Jeremy was required to undergo an IME. Prior to the IME, Jeremy signed a notice, which stated:
It is very important that you realize that no Doctor/Patient relationship exists between you and Dr. Krasner. . . . This is done to insure that all findings will be neutral, and that the evaluators are completely independent and not involved in your disability claim or source.
The IME doctor failed to diagnose Jeremy with a spinal cord compression. Instead, the IME doctor advised Jeremy to go back to work. Unfortunately, the condition of Jeremy’s spinal cord compression worsened and eventually Jeremy had to be hospitalized for further treatments. This time, though, the doctors diagnosed spinal cord compression; but because it went unattended for eight months following the IME, part of Jeremy’s spinal cord was permanently damaged, leaving him in considerable pain.
Jeremy’s family sued the IME doctor, alleging the IME doctor misdiagnosed Jeremy’s medical condition—a deviation from the standard of care which a physician owes a patient. This negligence, they contended, increased Jeremy’s risk of injury and contributed to his ultimate death. The IME doctor, on the other hand, argued that he did not owe Jeremy a duty to exercise reasonable care because, as the signed agreement indicated, no formal doctor-patient relationship exists between IME doctors and their IME patients; therefore, even if he was negligent in treating Jeremy, he could not be liable.
The Arizona court disagreed with the IME doctor, holding that “even absent a formal doctor-patient relationship, a doctor conducting an Independent Medical Examination (“IME”) owes a duty of reasonable care to his or her patient.” Id. Therefore, the signed notice which recognized an absence of a doctor-patient relationship was deemed irrelevant.
The duty of care imposed on IME doctors is not uniform nationwide. In fact, in some jurisdictions IME doctors do not have a legal duty of care toward their IME patients. See Smith v. Radecki, 238 P.3d 111 (Alaska 2011). Additionally, the standard of care may be lower for an IME doctor compared to that of a treating physician. Therefore, even if you undergo an IME, you should still receive treatment and care from your own doctor who you trust.
Disability insurance claimants should also understand that IME doctors are hired and paid by disability insurers, so they may not be looking after your best interests during an IME. And if the law holds IME doctors to a lower standard of care, this may afford them greater flexibility to render opinions that favor disability insurance companies—even when these opinions are not completely accurate. Therefore, if you have filed for disability benefits, you should seek an attorney who will closely scrutinize the IME process to make sure your evaluation is administered appropriately.
Disability insurance plans include different policy provisions that determine benefit payments based on whether your disability was caused by sickness or accidental injury. As we have previously discussed, the difference in benefits payments under the sickness and accident provisions is substantial. For example, a typical disability insurance plan provides that benefits for disability caused by “sickness” are payable for 24 months, whereas benefits for disability caused by “accidental injury” are payable for life. Therefore, how the disability insurer defines the cause of disability (sickness vs. accident) significantly affects the amount of disability benefits you are entitled to receive. Disputes often arise over which classification is appropriate when insurers try paying benefits under the sickness provision for 24 months rather than for life.
In a California case, McMackin v. Great Am. Reserve Ins. Co., a highway patrol officer sued his disability insurance company, Great American, after it misclassified his disability as one resulting from sickness rather than accidental injury. 22 Cal. App. 3d 428 (1971). While lifting heavy cartons of citation forms at work, the officer experienced sharp pain and numbness in his back. The pain progressively worsened until it became so severe that he was unable to continue working, so the officer filed for disability benefits. Because the officer had an extensive history of back injuries, Great American concluded these pre-existing medical problems were the cause of the sharp pain and numbness in his back, not the act of lifting heavy containers at work. Accordingly, it refused to pay the officer disability benefits for life under the “accidental injury” provisions of his plan, but instead classified the injury as one resulting from sickness.
By paying the officer’s disability benefits under the sickness provision, Great American would only pay for 24 months. The officer sued and argued that Great American wrongfully categorized his injury—that his disability resulted from accident, not sickness.
The California court agreed. In this landmark case, the California court held that a pre-existing disease or infirmity does not relieve an insurer from liability under the accident provision of a disability plan, so long as the accident is the proximate cause of disability. Here, the court required Great American to pay disability benefits for life under the accident provision because substantial evidence demonstrated that the heavy lifting was the cause of the officer’s disability. Therefore, the officer’s pre-existing back problems did not relieve Great American from paying disability benefits under the accident provision.
This California case is important because it explains the law surrounding accident vs. sickness; it also provides an illustration of how disability insurance companies distort favorable contractual provisions to pay disabled persons less than they deserve. Unfortunately, the distinction between what constitutes accident and what constitutes sickness can be so fine that some courts still struggle distinguishing. This can result in improper outcomes for unprepared disability claimants. For these reasons, you should consult with an experienced disability insurance lawyer when you file a disability claim.
Disability insurance companies may try to classify your disability claim as one resulting from “sickness” rather than “accident” or “injury.” The difference matters because most disability insurance policies include separate sickness and accident provisions that affect limits of disability payment.
For example, a typical disability insurance policy may stipulate that if your disability is caused by accident or injury, then you are eligible to receive monthly payments from the time of your disability for life. But if, on the other hand, your disability results from sickness rather than accident or injury, then you may only be eligible to receive disability payments until you are 65 years old. Insurance companies may often times define these terms ambiguously, if at all, so they can wrap the “appropriate” definition around your disability claim.
A recent case from the Central District of California, August v. Provident Life & Accident Ins. Co., illustrates how disability insurance companies try to manipulate these terms in ways to terminate disability insurance claims. 772 F. Supp. 2d 1197 (C.D. Cal. 2011). In this case, a disabled doctor sued Provident Life when it denied him accidental disability benefits. The doctor injured his neck when he fell skiing. The injury made it impossible for him to continue working. When he originally filed the disability insurance claim he marked the claim as accidental injury rather than sickness. Provident Life, however, coded his claim as a sickness claim; therefore, without the disabled doctor’s knowledge, Provident Life scheduled termination of his disability payments.
Ten years later, Provident Life notified the disabled doctor that some disability benefits would terminate on his 65th birthday rather than continue for life, per the sickness provision of his contract. Even though the disabled doctor originally marked his claim as “accidental” and even though he had submitted to Provident Life 26 progress reports, wherein he indicated his injury as “accident” rather than “sickness,” Provident Life attempted to terminate his disability benefits by classifying his skiing accident as a sickness claim rather than accident claim.
Fortunately, Provident Life’s attempt to short-end the disabled claimant failed. Provident Life was estopped from asserting the disabled doctor’s claim was based on sickness rather than accident because it failed to fully inform the disabled doctor of his benefits, coverage, time limits and other provisions when he filed his claim. Instead it waited until ten years after payment began. The court in California said, “[we find] incontrovertible evidence that [Provident Life]’s dilatory conduct caused Plaintiff to suffer a disadvantage and that [Provident Life] should not be permitted to exploit the disadvantage they inflicted on Plaintiff.”
Disability insurance companies often try to capitalize on your policy misunderstandings and mistakes. As the above case demonstrates, they also try taking advantage even when you understand your policy provisions and make no mistakes when filing a claim. Disability insurance companies can be relentless, but the obstacles they impose are not insurmountable. When faced with a possible disability insurance claim, it is important you consult with an experienced attorney so you can understand your policy and take control over your financial future.
A new study by The State Farm Center for Women & Financial Services at The American College indicates women have a higher risk of suffering both physically and financially from disability than men. One statistic in the study shows women are twice as likely as men to suffer from arthritis, which is the leading cause of disability among adult Americans. Another indicates that women (18 percent) are more likely than men (12 percent) to express concern about the impact a disability would have on their current financial situation.
Mary Quist-Newins, director of The State Farm Center for Women and Financial Services at The American College, commented: “Our research revealed a great need for people, especially women, to be better educated about the risk of disability, and to be better prepared for the potentially devastating impact that a disability can have on their lives and families.”
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 and assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.