By Mark F. Seltzer, Esq.
The fact is that disability insurance companies are becoming more aggressive in attempting to find ways to not pay claims. All provisions of your disability insurance contract must be satisfied in order to make the company obligated to pay you benefits.
The definition of either total or residual disability typically contains a second condition, which not only has to be met in order for you to receive your disability income, but which is fast becoming a weapon in the company’s arsenal used to attack claims. I am referring to the physician’s care provision, or the issue of “appropriate care.”
You must be under the care of a “physician” when on claim. Although, this is usually generic as to health care providers, your contract will contain a specific definition of “physician.” Whereas older policies generally required the need to be under the “care” or “regular care and attendance” of a physician, the contract language ultimately changed to physician’s care which is “appropriate” for the condition causing the disability.
So, what’s all the fuss about, you ask? The answer is really quite simple. It’s all about the company that you look to for benefits, controlling your medical care and its focus, and therefore controlling your claim.
In the older policies, as long as you are under the care of a “physician” and unable to perform the material and substantial or important duties of your “own occupation,” you satisfied the basic definition of total disability. If the policy contained “regular care” language, it then required regularity of treatment from a time sequence perspective. Initially, when “appropriate care” was required, the companies looked to the type of disabling condition, the type of care, and lastly, the caregiver, to make sure that the care was consistent with that condition. If the insured was under the care of a doctor specializing in treating the disabling condition and was compliant with that treating doctor’s treatment program, the “care” provision was satisfied and therefore, the treatment was “appropriate.”
However, as the “new age” rolled in, the companies began to become more aggressive in dictating treatment. They now have their internal consultants and “experts” review the care being given a disabled-insured, and then they determine whether it is “appropriate” or not, irrespective of, and sometimes contrary to, successful treatment protocols adhered to by disabled-physicians.
Essentially, the companies try to dictate what they determine is “standard of care” as being “appropriate care” for the disabled-insured no matter what the language in the policy requires. While everyone who is disabled wants the best care under the circumstances, and wants to get well, or at least increase their level of function as a result of their medical care, the disability insurance company has no right to demand more care than is required to satisfy its own policy language. Nor do they have the right to demand that the focus of that medical treatment be to return a disabled physician back to work, (unless required per the policy), but, they’ll try to make treatment rendered specifically at returning the insured to his/her “own occupation” part of the “appropriate care” formula, anyway. Most companies ask the treating doctor that question every month on the attending physician statement form they require to be filled out. The more they control the medical care, the more they control the claim. And that is what it’s all about really – liability and duration.
The “appropriate care” argument was just that until the Court gave the companies some fuel for their fires. A lead case on this point was the 1987 Federal Court case of Heller v. Equitable. Heller suffered a disability as a result of carpal tunnel syndrome. Heller’s policy contained the “regular care and attendance” provision. In Heller, the Court reiterated the “majority view” that unless there is a specific “contractual requirement” to do so, the insured was not required to obtain medical treatment in order to “minimize his disability.” Therefore, despite the fact that Heller refused surgery, the company was obligated to continue to pay for Heller’s disability based upon carpal tunnel syndrome.
However, in the 2000 Federal Court case of Provident v. Henry, the question was whether invasive surgery is required as part of “appropriate care.” Henry refused the carpel tunnel surgery. The major difference between Henry and Heller is the care provision in the policies. Henry’s policy contains the “appropriate care” provision. Heller’s policy contains the “regular care and attendance” provision. In Henry, the Court held that . . . “the appropriate care provision does not merely state the insured must be under doctor’s care. It provides [that] the insured must receive from a doctor the appropriate care for his condition. The only reasonable interpretation of this clause is that it imposes a duty on the insured to seek and accept appropriate care for his disabling condition.” The issue of whether or not the surgery was appropriate was a question for the jury; however, the case was settled before it got there.
What the Court will probably look at, in a case where surgery has been recommended by a treating doctor, is whether the surgery is an accepted, safe, low risk procedure with a high probability of success. Invariably, the company will argue that under those circumstances that surgery is absolutely “appropriate,” therefore requiring the insured to undergo the procedure or risk the termination of benefits. You need to be well aware of this developing area in considering how to deal with this issue and in making informed treatment decisions.
The point here to remember, in addition to the above, is that no matter what care provision your policy contains the company will try to equate it with “appropriate care.” The companies have been trying to push the envelope for years arguing that regular care really means appropriate care, anyway.
What should you do?
I always advise my clients to be proactive and inclusive. Make sure your treating providers are the highest degreed, highest qualified, and most specialized doctors specific to your disabling condition. Always consider everything your health care providers recommend as part of your treatment program. You must have a well-based medical position when choosing alternatives that are available. Stay ahead of their agenda. You will be in the best case scenario by considering the best possible care and you will be protecting yourself from the imposition of the company which aims to control your claim.
Mark F. Seltzer, Esq, is an attorney practicing in Philadelphia, Pa. representing physicians and professionals with disability insurance claims.