the disabled dentist: will you be able to collect on your disability insurance policy?

The Disabled Dentist:

Will You Be Able to Collect on Your Disability Insurance Policy?

Edward O. Comitz, Esq.

Scottsdale Spectrum6720 N. Scottsdale Rd., Ste. 150

Scottsdale, Arizona 85253480.998.7800

The Likelihood of Disability for Dentists

1 in 4 people will suffer a long-term disability during his or her career(Social Security Administration Fact Sheet, March 18, 2011)

For dentists, whose work involves musculoskeletal strain, this number is even higher

3 in 4 dentists suffer from musculoskeletal disorders(Institute of Dental Ergonomics)

Similar studies estimate the percentage of dental professionals suffering from general pain in the back, neck, shoulder or arm as high as 81 percent(Kristina Lynch, My back is hurting my practice, Part I, AGD Impact, Feb. 2006, agd.org/support/articles)

This results in nearly half of all dentists having to shorten their work hours at some time during their career(Curt Hamman, et al., Prevalance of carpal tunnel syndrome and median mononeuropathy among dentists, JADA, Feb. 2001, at 163)

Contributing and exacerbating factors to dentists’ disabilities

• Prolonged static postures• Constant forward bending• Repeated rotation of head, neck and trunk• Holding head forward• Repetitive motions• Forceful exertions• Mechanical stress• Vibrating instruments• Restrictive ambidextrous gloves


• The physical obstacles are unusually high for dentists, yet dentists are unfortunately quite vulnerable when it comes to having their disability claims denied


• Insurance companies know that proving up a musculoskeletal disorder, including its full occupational impact, is largely subjective


• Many insurance companies try to take advantage of the lack of objective proof, and variously assert that the legitimately disabled dentist is 1. malingering,2. making a lifestyle choice,3. unmotivated by work and/or dissatisfied

with work, or4. “embracing the sick role”

What to Look for in a Policy

Key Clause Interpretation• Complexity, ambiguity and confusion make

it easier to deny claims

• Disability provisions vary greatly in the language used, and coverage is often restricted by qualifying words and phrases

• Understand specific definitions of key policy terms so that you know what you are buying or what you already have

Key Clause Interpretation

Total Disability/Totally Disabled

1. Any occupation2. Specialty-specific own occupation3. Own-occupation4. “No work” own-occupation5. Conversion policy

Any occupation: Unable to perform the duties of any occupation for which the insured is reasonably qualified by education, training and experience


• You are injured and have your wrist fused, and logically cannot practice dentistry safely or effectively. Totally Disabled?


• You are injured and have your wrist fused, and logically cannot practice dentistry safely or effectively. Totally Disabled? No.


• You have had a heart attack and minimal exertion causes you to be out of breath. Totally Disabled?


• You have had a heart attack and minimal exertion causes you to be out of breath. Totally Disabled? Probably.

Specialty-specific own-occupation:

Unable to perform the material and substantial duties of the insured’s own occupation. If the insured practices in a recognized specialty, the insured’s occupation is that specialty.

Specialty-specific own-occupation: Unable to perform the material and substantial duties of the insured’s own occupation. If the insured practices in a recognized specialty, the insured’s occupation is that specialty.

• You were an oral surgeon working primarily on trauma and reconstruction cases at the time of disability. Because of a cervical herniation, you can no longer perform long surgeries without significant pain. You then start working three days a week in an orthodontic practice. Totally Disabled?

Specialty-specific own-occupation: Unable to perform the material and substantial duties of the insured’s own occupation. If the insured practices in a recognized specialty, the insured’s occupation is that specialty.

• You were an oral surgeon working primarily on trauma and reconstruction cases at the time of disability. Because of a cervical herniation, you can no longer perform long surgeries without significant pain. You then start working three days a week in an orthodontic practice. Totally Disabled? Yes.

Own-occupation: Unable to perform the material and substantial duties of the insured’s own occupation or occupations


• You have a fused wrist so you cannot work as a clinical dentist, and started teaching at the dental school. Totally Disabled?


• You have a fused wrist so you cannot work as a clinical dentist, and started teaching at the dental school. Totally Disabled? Yes.


• You have had cervical pain for several years and it seems to get worse every year. You used to work five days a week, but for the past three years you decided to take it easy on your neck and worked two days a week. You can’t do it anymore and want to file a disability insurance claim. For the past three years, you have been teaching a class at the local dental school. You also occasionally purchased homes, had them refurbished and sold them for a profit.

• Can you collect disability benefits if you stop working in clinical dentistry?


• You have had cervical pain for several years and it seems to get worse every year. You used to work five days a week, but for the past three years you decided to take it easy on your neck and worked two days a week. You can’t do it anymore and want to file a disability insurance claim. For the past three years, you have been teaching a class at the local dental school. You also occasionally purchased homes, had them refurbished and sold them for a profit.

• Can you collect disability benefits if you stop working in clinical dentistry?Probably not.


• What was your occupation at the time you filed your claim?Part-time dentistPart-time dental instructorPart-time real estate investor

• Dual or multiple occupation defense


• RULE: Be aware of your earning activities and how they may impact your disability insurance coverage under this definition

“No work” own-occupation: Unable to perform the material and substantial duties of the insured’s own occupation or occupations and not working in any occupation


• You were an oral surgeon working primarily on trauma and reconstructive cases at the time of disability. Because of a cervical herniation, you can no longer perform long surgeries without significant pain. You then start working three days a week in an orthodontic practice.

• Can you collect under this policy and keep your salary?


• You were an oral surgeon working primarily on trauma and reconstructive cases at the time of disability. Because of a cervical herniation, you can no longer perform long surgeries without significant pain. You then start working three days a week in an orthodontic practice.

• Can you collect under this policy and keep your salary?

No

Conversion policy: For the first five years, unable to perform the material and substantial duties of your occupation, and thereafter unable to perform the material and substantial duties of any occupation for which you are suited by education, training or experience

Conversion policy: For the first five years, unable to perform the material and substantial duties of your occupation, and thereafter unable to perform the material and substantial duties of any occupation for which you are suited by education, training or experience

• This is an own-occupation policy that converts to an any-occupation policy after five years.

Key Clause InterpretationOccupation

• The terms “occupation” or “occupations” are defined immediately prior to disability

• Therefore, you can unintentionally “modify” your occupation by: – limiting working hours or decreasing certain

duties prior to filing your claim– engaging in any other type of gainful work –

no matter how little you get paid

Choosing a Policy• Buy a policy when you are just

starting out

• Get “own-occupation” rather than “any occupation” coverage

• Check to see if the phrase “Total Disability” refers to “occupation” (singular) or “occupations” (plural)

Choosing a Policy• Buy a specialty rider

• Double check for exclusions/limitations

• Obtain a cost-of-living adjustment (COLA)

• Get the highest benefit amount you can afford

Industry History• The 1980s– Hungry for premium dollars

– Disability insurance companies decided that they should concentrate their efforts on marketing to and writing policies for professionals, particularly physicians and dentists

– It was actuarially determined that physicians and dentists were among the least likely to file claims

Industry History• The 1980s– Intense competition = extreme

liberalization of policy terms• Specialty specific • Objective proof of disability not required• No mental/nervous exclusions• COLA• Lifetime benefits• Premiums could not be raised• Non-cancellable

Industry History• Early 1990s– Interest rates plummeted

–Managed care = income decrease for doctors

– Increased claims led to high losses for insurers

Industry History• Late 1990s to Early 2000s– Because of the significant increase in

disability claims, insurance carriers began to highly scrutinize the terms of their policies and any claims made thereunder, utilizing novel and creative theories to deny benefits

– Collecting on disability policies became very difficult

Industry History• Late 1990s to Early 2000s

– Former medical director of UnumProvident blows the whistle

– The lawsuit alleged that “although [UnumProvident] employed various medical doctors for the ostensible purpose of providing needed medical guidance in reaching benefit decisions, the medical personnel were not truly utilized for that purpose. It was [UnumProvident’s] primary purpose and policy to deny disability claims.”

Industry History• Alleged Claim Termination

Strategies– Targeted policies issued on doctors– Instructed adjusters to make sure claims

files were documented in such a way as to prove whatever the company was saying

– Directed adjusters to destroy documents and shred sensitive papers

– Established weekly “roundtable” meetings

Industry History• Late 1990s to Early 2000s

– Judge tells Unum to “Obey the law”

–Media coverage of wrongdoing

Industry History• Today– Increased regulation and the pressures of a down

economy have put insurers in a precarious position

– The late 1990s and early 2000s were about cost-cutting; today, insurers are fighting just to survive

– Under the weight of these demands, insurance companies have more incentive than ever to deny or terminate claims, and they are continuing to do so – but much more creatively and stealthily

The Claims Process

Initial Claim FormsEvaluation

Further Investigation

Denied/Terminated

Approved1. Claimant’s Statement2. Occupational

Questionnaire3. Physician’s Statement4. Authorization

The Claims Process



Denied/Terminated

Approved1. Interview2. Medical evaluation3. Occupational

evaluation4. Financial evaluation5. Personal

investigation6. Continuing claim

forms

The Claims Process



Denied/Terminated

Approved

The Claims Process

The Claims Process• When to stop working

– Generally speaking, the best time to stop working is once your doctor recommends doing so

– You must then stop working right away

The Claims Process• Properly documenting claims– Consult a physician when you start

experiencing symptoms

– Thoroughly explain your symptoms

The Claims Process• Communicating with treating

physicians– Treating physician’s support can often

be critical

– Find a compassionate doctor that you like and who will spend time with you

The Claims Process• Communicating with treating

physicians– Do not discuss disability until you have

tried all reasonable treatment options and have still not gotten better

– Doctors don’t like hearing the phrase “disability claim” on a first visit

Claim Forms

The claim forms contain trick questions:

• Principal duties and percentage of time spent on each?

• Which particular duties are you unable to perform?

• Do you supervise others?

• Describe your typical daily schedule and activities?

The Claims Process• Communicating with claims

representatives– The interview• Ask that interview not be audio recorded• Bring a friend to take notes• Be careful of using words like “always” or

“never”• Don’t exaggerate


representatives– Future communications• Only talk when you are composed and ready

to take notes

–Written communication• Handle most of your communications with

the insurance company by mail rather than on the telephone


representatives– Interviewing your physician• Ask your doctors not to accept calls from

your insurance company and to send any questions in writing• Ask your doctor to let you know if questions

have been sent to him or her so you can answer them together

The Claims Process• Video surveillance

• Once you file your disability insurance claim, you will likely be videotaped or photographed by your carrier at some point in time.

• If you are engaging in any activities that you

claimed you could not perform and are caught on tape, your benefits will likely be terminated.

The Claims Process• Internet– Facebook and social media– Practice website– General search results

The Claims Process• Record requests

– Federal and state income tax returns for the past 5 years– W-2s , 1099s, and K-1s for the past 5 years– Collection and production reports– Profit and loss statements– Employment agreements– Practice sale agreements– List of procedures performed on a monthly basis– CDT codes broken down on a monthly basis– Malpractice insurance information– Dental board complaints– List of any lawsuits in which you have been involved

The Claims Process• Record requests – The insurer is looking for trends or

discrepancies:• Have you been losing money on your

practice? • What are your motives for filing a claim?• Are you earning income in other

occupations?• Have you actually stopped doing certain

procedures?• Is there any way to discredit you?

The Claims Process• “Independent” Medical Exams– The examiner is someone chosen and

paid for by your insurance carrier

– Because the “independent” medical exam is a tool used for denying disability benefits where possible, you should work to ensure that your rights are protected during this process

The Claims Process• “Independent” Medical Exams– Audiotape or videotape the exam

– Bring a witness to take notes of everything that is said and done

– If your witness is a doctor, that’s even better

The Claims Process• Delay and Attrition– Insurers have a duty to make prompt

decisions, so you should not have to tolerate undue delays

Customer # 40653917

The Claims Process• Delay and Attrition– Sometimes, the carrier will deny or

terminate your benefits, and invite you to send more information or appeal• Statute of limitations typically starts to run

when you receive a denial or termination letter• The statute of limitations for insurance bad

faith in Arizona is 2 years• RULE: If you receive a denial or termination

letter, consult with an attorney immediately

Customer # 40653917

Top Ten Mistakes Made When Filing Claims

Top Ten Mistakes

Failing to consult with a disability insurance attorney

1

Top Ten Mistakes

Misunderstanding the Definitions of “Disability” and “Occupation”

2

Top Ten Mistakes

Inadequate Documentation of Your Disability and its Occupational Impact

3

Top Ten Mistakes

Blindly Attending an Interview or IME

4

Top Ten Mistakes

Answering Questions on Claims Forms Too Quickly

5

Top Ten Mistakes

Inadequate Communication with a Treating Physician

6

Top Ten Mistakes

Modifying Own Occupation Prior to Filing Claim

7

Top Ten Mistakes

Ignoring the Possibility of Surveillance and Investigation

8

Top Ten Mistakes

Failing to Document Communications With Claims Representatives

9

Top Ten Mistakes

Tossing Out the Marketing Materials, Your Application and Policy

10

Policy Types1. Individual policies

2. Group policies

3. Employer-sponsored plans

Policy TypesIndividual• Purchased by individuals directly

from the carrier• Governed by state law • Set monthly benefit amount• Generally provide the best coverage

Policy TypesGroup or Association Policies• Made available to participants of

organizations, such as members of the American Dental Association

• Less expensive than individual insurance

• Can provide adequate benefits

Policy TypesGroup or Association Policies• Downsides:– The association or group can change the terms of

coverage any time– Almost always reduce the amount of your

benefits if you receive income from other sources– Often have exclusions or limitations for

mental/nervous conditions and conditions that are not objectively verifiable

– Applicable law can be from a jurisdiction that is less favorable

Policy TypesEmployer-Sponsored• Least expensive• Provide employees with disability insurance

based on a percentage of their base salary as part of the employer’s overall benefit package

• Almost always reduce amount of your benefits if you receive income from other sources

• Often have exclusions/limitations for mental/nervous conditions and conditions that aren’t objectively verifiable

• Governed by a federal statute called ERISA

ERISA

Employee Retirement Income Security Act of 1974

ERISA• Supposed to be for the protection of

employees

• Actually sponsored and endorsed by the insurance industry

• Very little leverage to ensure that your benefits are properly paid

ERISA: Negative Aspects• Must file appeal with insurance

company before going to court• No right to a jury trial; Bench trial in

federal court• Do not get to testify• The judge can only consider the

information you already sent to your insurance company and nothing else

ERISA: Negative Aspects• “Arbitrary and capricious” standard– If there was a single rational basis

supporting the insurance company’s decision, it must be upheld

• May only recover past due benefits, interest, discretionary award of attorneys’ fees

ERISA• Compare to an individual policy:–No appeal– Jury trial– Back benefits with interest– Attorneys’ fees– If the insurance company acted

unreasonably, you also get future benefits in a lump sum, emotional distress damages, and possibly punitive damages

ERISA• Broad applicability– Courts have extensively broadened the

parameters of ERISA to include even individual policies if there is even a remote connection to an employer or employer-sponsored plan

– If ERISA applies, it always applies

ERISA• How to avoid ERISA applying to your

policy– Purchase an individual policy– Do not allow the business to sponsor or

endorse the coverage in any way– Do not buy insurance from the same

company and at the same time as other owners or employees

– Do not agree to a group discount– Do not pay premiums through the

business

ERISA• How to avoid ERISA applying to your

policy– Paying premiums with post-tax income

is not determinative of whether ERISA applies

– Your agent will not be able to tell you with certainty whether ERISA applies

Policy Types1. Individual policies

2. Group policies

3. Employer-sponsored plans

Remedies for Wrongful Denial or Termination

Remedies• Breach of Contract

1. Purchased the insurance from the company

2. Disabled under the policy terms

3. Insurance company denied the claim in violation of the policy

Remedies• Bad Faith

Arizona Law: The insurance company has to act reasonably in the investigation, evaluation and processing of the claim

Remedies• Bad Faith: The insurance company cannot:

– Force you to go through needless adversarial hoops to achieve your rights under the policy

– Unfairly delay decisions on a claim– Impose requirements not in the policy– Misrepresent policy provisions– Attempt to influence the opinions of medical examiners– Use predictable or biased experts– Conduct abusive interviews– Destroy key documents– Lie about actions taken on a claim– Place its financial interests ahead of your interests

(Arizona Revised Statutes § 20-461)

• Bad Faith– The insurer cannot use its claims department

as a profit center

– The claims department is not there to balance the books

– The claims department is there to fairly and promptly investigate the claim, and if the claim is legitimate, it must pay on its promise

Edward O. Comitz, Esq.

6720 N. Scottsdale Rd., Suite 150Scottsdale, AZ 85253

www.disabilitycounsel.net480.998.7800

the disabled dentist: will you be able to collect on your disability insurance policy?

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