DENIED

Feb. 1, 2004
Think you're protected in case of an accident or long-term illness? Think again. The author's ongoing battle to obtain disability benefits is a cautionary tale about choosing the right coverage — and how to fight when your carrier denies a claim.

by Dr. Brian Weiss

What happens when you hear the unwelcome news from your disability insurance carrier that you won't be receiving any benefits?

We dentists are vulnerable to a multitude of "minor" injuries that can prevent us from practicing our profession and earning a living. Slip in your bathtub — and your career could be over.

You pay your disability premiums and hope you will never need the coverage. Then you become disabled and hope that your carrier honors its end of the deal. Sounds like a crapshoot, doesn't it?

My story

I was diagnosed with Sero Negative Arthritis (I had never heard of it either). The disease, among other symptoms, causes tendons to tear. I underwent shoulder surgery in 1985, and my orthopedic surgeon expected me to be out of dentistry for six months. However, I came back within four. My disability insurance carrier, Connecticut Mutual Insurance, paid my claim until I returned to dentistry.

In 1990, I underwent another shoulder surgery. Again, Connecticut Mutual paid my benefits, and I again recovered more quickly than expected. In 1993, I underwent a third surgery on the same shoulder. Again, I came back within four months, and again I filed for disability. This time — Disability benefits denied.

What happened? As with the previous two surgeries, physical therapy began the day after surgery and continued for three times per week for three to four months. Surgeons' orders: No lifting and no arm extension; therefore, no dentistry for six months. Now, it's hard to keep a practice together when you are not treating your patients. With that motivation, I pushed hard through my physical therapy and I was able to salvage most of my practice. Then — surprise! — Massachusetts Mutual refused to honor their disability policy.

Why did my carrier deny the disability claim after paying benefits for the first two surgeries? I investigated and found out that my carrier, Connecticut Mutual, had been taken over by the colossus Massachusetts Mutual Insurance. They decided that I could still function as an "administrator" (their term) even if I could not do dentistry. In other words, I could talk to and examine my patients but not treat them. This was sufficient for Mass. Mutual. Would that be good enough for you?

The claims officer who had handled my first two claims with Connecticut Mutual was still there but was now an employee of the new owner. He told me he was embarrassed by the company's actions, and he was not handling my claim.

As for my surgeries: Both of my doctors are world-class practitioners. Athletes fly from all over to see Dr. James Andrews at his Sports Medicine Institute. Dr. Joseph Zuckerman is the Chief of Orthopedic Surgery at Hospital for Joint Diseases. After each surgery, I was in a sling for a month. I was unable to even lift or use my arm at all. I took Vicodin for pain for one month post-surgically. The only pain worse than pre-operative was post-surgical pain. Could (or should) a dentist treat anybody in that condition?

Can your carrier do this to you? Yes! You probably purchased the "Own Occupation Rider" with your plan (at extra expense) so you know you are covered. Wrong! I also have the Own Occupation Rider. Mass. Mutual claims that my occupation changed to that of administrator.

You and I know that our occupation is dentistry. Yes, we all have paperwork and other administrative tasks that we perform, but we earn our living diagnosing dental disease and performing clinical treatment.

I've had two more shoulder surgeries. Massachusetts Mutual has refused to pay both times. They have copies of the attending surgeon's statement, which clearly states that I could not perform clinical dentistry.

I filed suit against Mass. Mutual in 1994. We've had depositions, discovery and settlement conferences but have not gone to trial yet.

Mass. Mutual sent a Private Investigator to interview an ex-employee of mine. The P.I. hinted that Mass. Mutual suspected, six years after my operation, that I was never really disabled! This is years after they had received the hospital reports from my surgeon.

Mass. Mutual also filed a motion in court in the year 2000 to dismiss my lawsuit because they wanted to look at my appointment book pages from 1993 and 1994 and I did not have them. Why would any dentist hang on to his old appointment book? That's not a legal document. Only the chart is a legal record of treatment. And, as required by law, I had kept my dental charts. I explained that every state dental board requires dentists to keep charts (seven years is the mandated length of time in New York). Yes, my appointment book had patients scheduled until the day I became disabled. Obviously, those appointments were cancelled or rescheduled when I went into surgery. The judge dismissed part of my claim because I had "destroyed evidence" (they called it "spoiliation"). How's that for getting squeezed by the legal system?

Mass. Mutual sent claims investigators to my office. I invited them to look at all my charts. They refused. They demanded that I produce computer production records for the period of my disability. They noted that I had done recall exams on patients. I explained that I am a right-handed dentist, but I could hold a mirror in my left hand for a clinical exam. I could diagnose but not treat. Then they noted that I had done some fillings in the last month of my disability before I returned to practice full-time. Get this: Mass. Mutual says my policy pays only in the event of "total disability." So it was all or nothing. But as any doctor knows, the patient goes from being totally disabled to partial recovery to complete recovery (hopefully). I was forced to struggle through doing a few simple fillings myself even though it hurt like hell.

Are you sweating? You should be. Mass. Mutual says the fact that I performed any dentistry at all casts doubt on whether I was ever disabled. So, your carrier can simply ignore your physician's reports. I should add that Mass. Mutual never asked me to be examined by their physician. Were they afraid their own handpicked physician would confirm my disability?

It gets worse. Mass. Mutual has demanded my corporate and personal tax returns and financial statements. Your carrier can look at all of your finances. You are virtually naked before both the court and the guys you are suing.

My original claim in 1994 was for only $45,000 in disability benefits. So far my legal fees are over $100,000. That's why Mass. Mutual has been using so many stalling tactics to keep increasing my legal bills. They can afford the legal fees — can you?

A movie called "The Rainmaker" showed a patient in need of a life-saving treatment. His insurance carrier rejected his claim, and the patient died. His grieving mother sued the carrier, and in the trial they subpoenaed the carrier's CEO. Under oath, he admitted that his company rejected most claims the first time around. Many policyholders simply gave up because they were too poor to hire an attorney. Only the claimants who hired an attorney and went through the claims appeal process got someone to look at their claims. Frightening how Hollywood resembles real life.

So what does this mean to you? You've paid your premiums for years. You get hurt or sick. You file a claim. You worry that your practice will fall apart. First you hemorrhage money until your policy's waiting period is over. The carrier makes you fill out a list of all of your business expenses (itemized with photocopies of all bills) for every month that you are disabled. Then they demand to see your tax returns, both personal and from your professional corporation or partnership. Next, your physician has to verify what medical procedures you've gone through and make a guess about when you will recover.

Now I've already told you that your carrier can hire a private investigator to question anybody who ever knew you (including disgruntled ex-employees). We can all accept that insurance carriers need to verify information, but in my case they waited six years to investigate — and found nothing. That smacks of something more sinister than honest verification.

I wrote this article to let my colleagues know that we can fight the bad guys and win. However, this victory comes with a price tag: In New York State — and others — plaintiffs who win against an insurance carrier cannot recoup their legal fees. In others words, you can lose money even when you win the case. That's because of the insurance lobby in your state legislature.

What do you do?

Not every carrier is dishonest. While I cannot tell you which carrier to use for your insurance needs, hopefully you know to be wary of Mass. Mutual. My lawsuit asks for punitive damages based on bad faith and breach of contract by Mass. Mutual. When I win, the verdict will repay me for all the monies I paid in legal fees and the interest for the years that Mass. Mutual dishonestly withheld my benefit payments. Mass. Mutual has treated me like I was one of these phony guys who go out on disability with "phantom" injuries that cannot be medically verified, like whiplash. We certainly understand any carrier verifying the legitimacy of a disability claim. Mass. Mutual clearly knew my claims were legitimate from the beginning. According to the guts of my lawsuit, that's breach of contract and bad faith.

I look forward to sitting before a jury. They will learn about a disability carrier that tried to grind me down for nine years and refused to honor its contract with me. They will hear expert testimony that I was unable to practice dentistry solely due to my physical condition. The jury will read my policy's "Own Occupation Rider." I have never "changed" my occupation.

I have written several letters to the CEO of Mass. Mutual so he has been kept fully informed. When he is subpoenaed to testify, he will have to admit that Mass. Mutual's actions were deliberate and with full knowledge of the facts of my claim. My attorney says that strongly reinforces our claim of Bad Faith and Breach of Contract. I believe that will be very persuasive.

So what do I suggest? Before you sign up for any disability coverage, ask your colleagues who have such coverage about their experiences with the carrier. Get hard information about carriers that have settled claims with dentists you know.

Now, we dentists have to take a giant step and stop behaving like lambs led to slaughter. We must protect our entire profession and ourselves. We need to set up an unbiased central source of information to weed out those carriers that don't deal honestly with their policyholders. Unethical insurance carriers can prolong claims processing, harass dentists and their staff members and ultimately deny legitimate claims. Worst of all, these same "bad boys" of the insurance industry can escape any responsibility to pay for huge legal costs involved in fighting and beating them.

Dentists have the means to cooperate in a joint venture whereby we treat every dishonest claim denial as if it were happening to each of us — because it really is. Consider that we can fund (with a modest contribution) a panel that will review a case when it appears that the carrier is denying or even delaying a legitimate claim.

Examine the insurance policy minutely. Your disability contract can affect your earnings for the rest of your life. It is imperative that your attorney read your policies and riders before you pay any premiums. Also, don't be lulled into the belief that your insurance agent can influence the outcome of a court case. The agent who sold me my disability policy is a friend. He's protested to Mass. Mutual to no avail.

We are fortunate to have publications like Dental.Economics that try to keep our profession informed of pertinent and important developments that affect us.

We should also dialogue openly with the ADA to determine where they can help guide and implement essential programs. Dentists should become politically active so that we can examine and change the state laws that allow insurance carriers to escape any responsibility to pay for the legal costs involved in fighting them. In short, we must become a force, a potent lobby that fights to be treated fairly by our carriers and ensures that we are equally fair in submitting valid, honest claims. And, most importantly, we must provide a steady stream of information to all dentists, physicians, and other health care professionals advising them of every denial of disability claims by every carrier.

It would be practical and inexpensive to set up a Web site where every professional can report problems with legitimate claims along with the name of the carrier. For a modest contribution, such a registry will save us considerable money and aggravation by unmasking those carriers who are playing fast and loose with our disability insurance.

This information will also provide firm ground for addressing our concerns to our legislators. In the very near future, all of our colleagues will be made aware of concrete plans to further these programs.

As I researched this subject, I uncovered shocking examples of premeditated corporate policies to deny legitimate claims. They are not rejecting claims by accident — it's company policy! Some of these cases are reaching the courts and juries are making awards to victims who have been subjected to the injustices that I've described. One jury awarded $36 million (yes, million!). The CBS News program, "60 Minutes" featured the recent case of a physician against his disability carrier. In future articles, I will detail many of those victories won by the "victims." We can win if we work together to help each other with our court battles and our need to reach our lawmakers.

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