Believe it or not, the summer is already more than half over. With all of us thinking about when it is going to be our turn to “hit the beach”, you, the disabled physician, don’t want those words to apply to your claim with your Disability Insurance Company, as if it were “D-Day” at Normandy.
The simultaneous crash of our stock, financial, and real estate markets and the significant long term recession in which we are currently mired, have likewise had a significant and adverse financial impact on your Disability Insurance Company. As a result of this “new economy”, you can expect an even more difficult time getting your claim for benefits accepted and even if accepted, honored by your Disability Insurance Company for the duration of your disability. I have on several occasions, written about the continuum of creative and evolving strategies employed by Disability Insurance Companies in order to challenge, reduce or refute claims. The current economic climate certainly hasn’t changed that trend and, if anything, has caused a reactive paradigm shift from a business standpoint. Your “new economy” Disability Insurance Company is more demanding, more difficult to satisfy, and more aggressive than ever in the way it considers claims.
With that background in mind, it is now easier for you to appreciate the fact that it is no “day at the beach” when it comes to getting your “subjective” claim paid. Even before the market meltdowns, the Disability Insurance Companies consistently targeted what they termed “subjective” claims. That’s because “subjective” conditions, by their very nature, are largely based upon self-reported symptoms, such as pain, which make them much easier for the Companies to discredit or refute than “objective” claims. So it makes sense that the claims most vulnerable to your Disability Insurance Company’s aggressive “new economy” claims tactics and strategies are the most vulnerable claims, “subjective” claims.
So what do the Disability Insurance Companies consider “subjective” claims? These are claims for conditions which are usually based upon self-reported symtomatology which include psychiatric conditions, Chronic Fatigue Syndrome, Fibromyalgia, Somatoform Disorders and the like. These are conditions for which there may not be “objective” testing or testing which your Disability Insurance Company will likely argue is unreliable, not generally accepted by the entire medical community, or otherwise inherently based upon subjectivity.
To make matters worse, the Disability Insurance Companies often include specific language in their contracts targeting “subjective” claims. For example, it is common in Long Term Disability policies to find 24-month benefit limitation provisions for “mental/nervous” claims (psychiatric claims) and/or “self-reported” claims. These provisions are oftentimes broadly applied by the Disability Insurance Companies using “caused to or contributed to by” language contained in the limitation provisions of their policies, by which the Companies may sweep other “non-subjective” conditions under the limitations’ “umbrella.”
Your Company may very well argue that ultimately it will not pay your claim because you have failed to provide it with “objective” medical documentation. Your Company may take this position regardless of whether or not your policy actually requires “objective” medical documentation. Under a “discretionary” application of the proof of loss provision of an LTD policy, or otherwise, a Disability Insurance Company may have a basis for this position. However, under Individual Disability Income Policies, with “own-occupation” language, which are held by most physicians, proof by “objective” medical documentation is generally not required. Unfortunately, you don’t have it quite “made in the shade” yet, because the Courts have ruled all over the place on this issue, notwithstanding the policy requirements or disabling condition.
Your Disability Insurance Company may simply deny a claim for lack of “objective” evidence even when the condition, such as Fibromylagia, cannot be objectively determined. As a matter of law, the Court’s have held however, that an ERISA administrator’s reliance on the lack of “objective” evidence in an LTD claim is “arbitrary and capricious”, reversing the Company’s adverse decision, where the claimant’s illness or sickness could not be objectively determined. As the Sixth Circuit has aptly stated in an ERISA action: “As many courts have observed, pain often evades detection by objective means.” Brooking v. Hartford Life & Accident Ins. Co., 167 Fed. Appx. 544, 549 (6th Cir. 2006). The law however is not consistent on this issue and will vary from circuit to circuit.
Even if your Disability Insurance Company accepts that you have a condition which is either “objective,” or otherwise not subject to a limitation or exclusion under your policy, this does not necessarily mean that your Company will be “shore” to accept liability and pay your claim. A Disability Insurance Company may accept that you have a condition, but may argue that such condition lacks the severity to prevent you from performing the material and substantial duties of your own occupation. In other words, your Company may attack the “subjectiveness” which is inherent in every condition, including “objective” conditions.
Your Disability Insurance Company may attempt to obtain information in order to refute severity by attacking subjectiveness in many ways. As I have written before, Disability Insurance Companies have an arsenal of tools, weapons and Company manpower at their disposal to attempt to “beach” your claim.
Surveillance is especially insidious in cases involving “subjective” claims or when used to challenge the “subjective” component of “objective” claims. One of the problems with documenting or otherwise establishing the severity component, is the nature of pain. Even in a disabling condition, the pain which a disabled physician experiences will usually be inconsistent. There very well may be a variance from day to day in the degree of pain that is experienced or even the area of the body where it is experienced. Pain is seldom constant. Likewise, in mental/nervous conditions the degree and severity of mental “pain”, psychiatric distress or debility is rarely constant. A disabled physician may have “good days” and “bad days.” Even though your disabling condition may disable you from performing your specialty, your ability to perform various other activities may very well vary from time to time depending on a multitude of factors. The problem is that the mission of surveillance is to generally develop information consistent with increased activity and increased level of function, as opposed to documenting “severity.” A Disability Insurance Company will invariably assess and use this information in considering and paying claims.
These are just a few of the difficulties faced by disabled physicians suffering from “subjective” conditions. Although these claims can be more difficult to get your Disability Insurance Company to accept, it’s not yet time to “wave” goodbye to your benefits. It is critical that your claim be presented and maintained in the strongest, most favorable way, in order to heighten the likelihood of obligating your Company to pay you benefits. This includes providing the most authoritative documentation possible. The claims process will not be a “day at the beach”, but by having your claim thoroughly prepared and submitted to your Disability Insurance Company you can prevent yourself from getting a nasty burn.
Mark F. Seltzer, Esquire is the founder of the Law Firm of Mark F. Seltzer & Associates, P.C., representing 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 at (888) 699-4222 or at www.seltzerlegal.com.