New Jersey Disability Lawyer Blog

Bonny Rafel was invited by the president of the New Jersey Dental Association to present a lecture on disability insurance for the dentist at the recent annual conference in Atlantic City, NJ, June 4, 2009. She presented an overview of the types of insurance, including business overhead insurance, which provides for the payment of your expenses while disabled, buy out insurance, which insures for the potential that you may become disabled and your dental practice may have to buy out your ownership interest in the business, and individual disability insurance providing income benefits should you become unable to perform the material duties of your occupation. She warned against a common tactic by insurance companies to seek out a "dual occupation" scenario.

Dual occupations in the disability context most often arise when the insurer claims its policyholder is not disabled since he can still perform important aspects of his other occupation. The insurer argues that the insured had two or more occupations at the time the insured claims to be disabled, and because the insured remains able to work full time in one of those occupations, the claimant is not entitled to benefits. This is often a fabrication of fancy wordsmithing the occupational duties of a single occupation into another.

An insurance company may claim the dentist or doctor really had two occupations, one working as a surgeon or dentist, and another, keeping office hours, and running his medical practice.

Here, the submission of detailed records and an overview of the duties of the occupation which cannot be performed is key to a successful claim. However, she cautioned that often the insurance company sends authorizations for the unwary claimant to sign which then entitles the company to investigate his entire financial status, including obtaining credit card records, personal investment details and other data that is not relevant to the claim and invasive of the claimant's privacy.

"As long as the information is relevant to the claim, you should provide it, but when it crosses the threshold into private matters," she suggested, "do not provide this data because once in the insurance company's file, it is no longer protected under HIPPA or from disclosure to the public."

She offered her services to dentists in attendance, who then sent their disability policies for her to review to examine the level of income protection the dentist has purchased and whether this "investment" is "likely to pay off" should disability strike.

For the ninth year in a row, on June 15, 2009, Bonny Rafel was an invited speaker for the American Conference Institute, who sponsored its annual conference focused on Disability Insurance Claims to an audience filled with insurance industry folk and claimants counsel. She presented a lecture on "IMEs, FCEs and Medical and Vocational Experts: Interpreting and Utilizing Testimony and Exam Results to Prove or Refute Disability". Her central focus was to refute an outdated trend in the law and explain why disability insurance companies must adhere to their fiduciary duty to fairly handle claims.

For the past five years, insurers have repeatedly attempted to rely on their own in-house medical reviewers, vocational assessors, and peer reviewers to rebut the opinions of the treating physicians. Comfortable under the blanket of the US Supreme Court case of Black & Decker Disability Plan v. Nord, 538 U.S. 822; (2003), companies concluded that as long as there was some support for their conclusions, the court would not give the treating doctors' views overwhelming weight. However, the need to present concrete evidence to rebut the conclusions of treating doctors remains a theme which continues to undermine any lasting impact of Nord. Courts almost universally recognize that a physician who has developed a long-term clinical analysis of the claimant should have the most insight to the claimant's condition.

Who has the final say as to a claimant's functional limitations? Is it the treating doctor, the insurance employee medical consultant or the physician who performs a single examination? How much weight will the court apply to a vocational assessment? Suspected company or examiner bias against finding a claimant disabled has become a key factor when reviewing support for a denial and is greatly influenced by a recent US Supreme Court case of MetLife Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008).
As long as the treating doctor keeps detailed records of his patient's condition, notes restrictions and limitations and bases his opinions on an accumulation of medical data and clinical evaluations, his views on functionality should carry great weight.

Another topic worth mentioning is whether an IME should have been performed before a claim is denied. Lately, many courts have concluded that IMEs should have been performed either due to the complexity of the medical condition, or in light of strong disagreement between the paper reviewers and the treating doctors. There are many cases in which the court faults the companies for not having an IME when there are conflicting opinions regarding the functionality of the claimant. A recent case demonstrates that an IME was needed. In Schwarzwaelder v. Merrill Lynch & Co., Inc., 2009 U.S. Dist. LEXIS 19451 at *36 (W.D. Pa. Mar. 9, 2009) MetLife selectively considered the available evidence, relying upon the paper-reviewers over more detailed and consistent reports from the claimant's three treating/evaluating physicians. The court noted that this practice was troubling, particularly as Metlife had discretion to supplement the medical evidence with an independent medical evaluation ("IME"), but elected to forego other personal evaluation of Plaintiff's mental health.

You can learn more about long term disability denials and how to succeed with appeals of insurance company decisions by going to her website.

New Jersey Disability lawyer Bonny Rafel was a featured speaker and moderator at the American Law Institutes' ABA Web Seminar on Disability in a Down Economy. A group of experienced attorneys recognized as the top in their field of long term disability, discussed vocational, occupational issues and medical problems that commonly arise in disability claims to an audience of 60 listeners. Highlights included analysis of current case law, trends in the industry, how to prepare a claim based on medical conditions related to illnesses such as chronic fatigue syndrome, fibromyalgia, multiple sclerosis, parkinson's disease and other maladies.

Ms. Rafel discussed how disability insurance companies deny claims by ignoring valid, reliable evidence provided by the disabled and under valuing statements of friends, family and treating doctors. Ms. Rafels' focus on insurance company misleading medical examinations and the limits of "functional capacity examinations" were discussed and court battles analyzed.

Continue reading "Disability Claims in a Down Economy, ALI ABA Web Seminar May 22, 2009" »