Editors Note: This is Part II in a two-part series. Read Disability Insurance Claims: Protecting Your Asset (Part I)
Welcome back from, what was hopefully, a nice summer vacation and a long intermission from Part I of my Article published in the July/August edition of FYI by the Pennsylvania Chiropractic Association. Let’s get back to reality. . .
Now that you understand some of the history and background that preceded your current need for your disability insurance benefits, and the fact that these policies are unique contracts that must be satisfied every month, while you are on claim, in order to obligate your disability insurance company to pay you benefits, it is now time to understand some of the issues that may arise and the strategies and defenses that may be employed against you by your disability insurance company when considering your claim.
Essentially, this is all about your Company finding a way not to pay. And, if it has to pay, figuring out a way to either shorten the duration of your claim or to reduce the monthly benefit payment. The Company will often develop a “perception” of reality position contrary to your reality and engage in the “re-engineering” of your claim in view of ERISA, Company-friendly court decisions and precedents, and the multitude of tools and strategies at its disposal.
The first thing that the Company will look to, in considering your Claim, is whether or not it is possible to avoid paying you without even considering the merits of your claim. The Company will try to make use of two important provisions in your Policy to which I have referred in Part I of this Article: the Pre-existing Condition and Incontestablity Clauses. The Company may additionally challenge coverage or eligibility in LTD Policies depending upon the qualifying factors that need to be satisfied such as full-time employee status. Obviously, if there is no coverage or you are not eligible, the Company will not pay you benefits.
Dual Occupation/Residual Disability
Your own-occupation is determined at the time that you become disabled, not at the time you took out the policy. The occupational component is a very complicated issue and one that is a haven for Company “re-engineering” tactics. The Company will always attempt to define your occupation or occupations in its own best interest. This allows the Company to potentially conclude that you are engaged in multiple occupation and therefore not disabled under the policy or that you are residually disabled, instead of totally disabled, which would obligate it to pay partial disability instead of total disability benefits. Payment of residual disability benefits instead of total disability benefits not only usually reduces the monthly benefit but it also might serve to reduce the duration of the claim. In addition, the monthly proof of loss requirements become much more invasive and comprehensive.
Treating Physician Rule
Under ERISA, some Federal Courts gave deference to the opinions of treating physicians as opposed to opinions of physicians considering the claim on behalf of the Company. Unfortunately, the U.S. Supreme Court determined, in the case of Black & Decker v. Nord, that deference cannot be given to treating physicians’ opinions. However, opinions of treating physicians remain extremely important and must be addressed by the Company.
As I refer to in Part I of this Article, in order to establish that you are disabled under your policy, you must also satisfy the Physician’s Care requirement contained in the definition of either residual or total disability. The word “physician” is usually generic. However, it sometimes requires the care-giver to have a doctorate degree. Whether the actual language is “regular care,” “regular care and attendance,” or “care which is appropriate for the condition causing the disability,” the Company will usually consider that appropriate care is required. The Company will scrutinize any care received in order to attempt to develop a position that care is inappropriate. The point is that when considering alternatives in physician = s care, you must make sure that all decisions are well-founded medically.
Legal or Social Disability
You must be factually disabled, per the policy, in order to obligate the Company to pay you benefits. In other words, you must be suffering a disabling medical condition. Legal Disability occurs when you are prevented from practicing chiropractic as a result of loss of licensure, criminal charges, etc. Social Disability is the inability to practice as a result of social concerns. The Company will always consider these issues as a potential defense to liability under the policy.
The Company will often employ its team of investigators in order to attempt to develop information to discredit your claim. It will do this by way of field representatives, surveillance, “Independent” Medical Examinations or other investigative tools which will attempt to show discrepancies and inconsistencies in your claim or between activities which you say you can perform and those which you are actually performing.
The Company will often request or require unending amounts of information in order to make the claims process too overwhelming or invasive, at a time when you are most vulnerable, in order to get you to back out of the process or in order to argue that it does not have enough information to consider your claim and thereby avoid payment.
I don’t want to leave you with the false impression that I have been able to provide you with all the important policy provisions or strategies and defenses in these limited articles. DI and LTD Policies can be lengthy and are very complicated documents replete with complex issues. I cannot emphasize strongly enough the importance of having a full understanding of your contract and its provisions, which need to be satisfied in order to obligate your disability insurance company to pay you benefits. The fact of the matter is that when you file a claim, and look to your Company for payment, you become a liability instead of an asset. Your disability insurance company, as a result of that financial reality, has developed sophisticated strategies and techniques in order to attempt to defeat your claim. At a time in your life, as a disabled chiropractor, when you are probably least able to fight that “resistance,” you will have to present your claim in the face of all the issues and defenses that will likely be present or raised during the claims process. You will need to anticipate the Company’s strategies in advance of their employment. Your claim, which you have filed or intend to file, may ultimately be your largest asset. This is your house, protect it as such. Don’t let your Company “manipulate” your claim.
The Law Firm of Mark F. Seltzer & Associates, P.C. nationally represents Chiropractors, Physicians, Healthcare Practitioners and Professionals in disability insurance claims and cases. The firm is located at 1515 Market Street, Suite 1100, Philadelphia, PA 19102 and can be contacted a (888) 699-4222 or at www.seltzerlegal.com.