This course discusses why it is so difficult for dentists to have their disability claims accepted and how to avoid the most common mistakes made by dentists when filing disability claims. This course will also cover key provisions to look for in disability insurance policies, and will provide an overview of the disability claims process.

1. The Disabled Dentist:
Will You Be Able to Collect on Your Disability Insurance
Policy?
Edward O. Comitz, Esq.
Scottsdale Spectrum
6720 N. Scottsdale Rd., Ste. 150
Scottsdale, Arizona 85253
480.998.7800

2. The Likelihood of
Disability for Dentists

3. 1 in 4 people will suffer a long-term
disability during his or her career
(Social Security Administration Fact Sheet, March 18, 2011)
For dentists, whose work involves
musculoskeletal strain, this number is
even higher

4. 3 in 4 dentists suffer from
musculoskeletal disorders
(Institute of Dental Ergonomics)
Similar studies estimate the percentage of
dental professionals suffering from general
pain in the back, neck, shoulder or arm as
high as 81 percent
(Kristina Lynch, My back is hurting my practice, Part I, AGD Impact, Feb. 2006,
agd.org/support/articles)

5. This results in nearly half of all dentists
having to shorten their work hours at
some time during their career
(Curt Hamman, et al., Prevalance of carpal tunnel syndrome and median mononeuropathy
among dentists, JADA, Feb. 2001, at 163)

6. Contributing and exacerbating factors
to dentists’ disabilities
• Prolonged static postures
• Constant forward bending
• Repeated rotation of head, neck and trunk
• Holding head forward
• Repetitive motions
• Forceful exertions
• Mechanical stress
• Vibrating instruments
• Restrictive ambidextrous gloves

7. Contributing and exacerbating factors
to dentists’ disabilities
• The physical obstacles are unusually high
for dentists, yet dentists are unfortunately
quite vulnerable when it comes to having
their disability claims denied

8. Contributing and exacerbating factors
to dentists’ disabilities
• Insurance companies know that proving
up a musculoskeletal disorder, including
its full occupational impact, is largely
subjective

9. Contributing and exacerbating factors
to dentists’ disabilities
• Many insurance companies try to take
advantage of the lack of objective proof,
and variously assert that the legitimately
disabled dentist is
1. malingering,
2. making a lifestyle choice,
3. unmotivated by work and/or dissatisfied
with work, or
4. “embracing the sick role”

10. What to Look for in a Policy

11. Key Clause Interpretation
• Complexity, ambiguity and confusion make it
easier to deny claims
• Disability provisions vary greatly in the
language used, and coverage is often
restricted by qualifying words and phrases
• Understand specific definitions of key policy
terms so that you know what you are buying
or what you already have

12. Key Clause Interpretation
Total Disability/Totally Disabled
1. Any occupation
2. Specialty-specific own occupation
3. Own-occupation
4. “No work” own-occupation
5. Conversion policy

13. Any occupation:
Unable to perform the duties of any
occupation for which the insured is
reasonably qualified by education, training
and experience

14. Any occupation:
Unable to perform the duties of any
occupation for which the insured is
reasonably qualified by education, training
and experience
• You are injured and have your wrist fused, and logically
cannot practice dentistry safely or effectively. Totally
Disabled?

15. Any occupation:
Unable to perform the duties of any
occupation for which the insured is
reasonably qualified by education, training
and experience
• You are injured and have your wrist fused, and logically
cannot practice dentistry safely or effectively. Totally
Disabled?
No.

16. Any occupation:
Unable to perform the duties of any
occupation for which the insured is
reasonably qualified by education, training
and experience
• You have had a heart attack and minimal exertion causes
you to be out of breath. Totally Disabled?

17. Any occupation:
Unable to perform the duties of any
occupation for which the insured is
reasonably qualified by education, training
and experience
• You have had a heart attack and minimal exertion causes
you to be out of breath. Totally Disabled?
Probably.

18. Specialty-specific own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation. If the insured practices in a
recognized specialty, the insured’s occupation
is that specialty.

19. Specialty-specific own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation. If the insured practices in a
recognized specialty, the insured’s occupation
is that specialty.
• You were an oral surgeon working primarily on trauma and
reconstruction cases at the time of disability. Because of a
cervical herniation, you can no longer perform long surgeries
without significant pain. You then start working three days a
week in an orthodontic practice. Totally Disabled?

20. Specialty-specific own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation. If the insured practices in a
recognized specialty, the insured’s occupation
is that specialty.
• You were an oral surgeon working primarily on trauma and
reconstruction cases at the time of disability. Because of a
cervical herniation, you can no longer perform long surgeries
without significant pain. You then start working three days a
week in an orthodontic practice. Totally Disabled?
Yes.

21. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations

22. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• You have a fused wrist so you cannot work as a clinical
dentist, and started teaching at the dental school. Totally
Disabled?

23. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• You have a fused wrist so you cannot work as a clinical
dentist, and started teaching at the dental school. Totally
Disabled?
Yes.

24. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• You have had cervical pain for several years and it seems to
get worse every year. You used to work five days a week, but
for the past three years you decided to take it easy on your
neck and worked two days a week. You can’t do it anymore
and want to file a disability insurance claim. For the past
three years, you have been teaching a class at the local dental
school. You also occasionally purchased homes, had them
refurbished and sold them for a profit.
• Can you collect disability benefits if you stop working in
clinical dentistry?

25. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• You have had cervical pain for several years and it seems to
get worse every year. You used to work five days a week, but
for the past three years you decided to take it easy on your
neck and worked two days a week. You can’t do it anymore
and want to file a disability insurance claim. For the past
three years, you have been teaching a class at the local dental
school. You also occasionally purchased homes, had them
refurbished and sold them for a profit.
• Can you collect disability benefits if you stop working in
clinical dentistry?
Probably not.

26. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• What was your occupation at the time you filed your
claim?
Part-time dentist
Part-time dental instructor
Part-time real estate investor
• Dual or multiple occupation defense

27. Own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations
• RULE: Be aware of your earning activities and
how they may impact your disability insurance
coverage under this definition

28. “No work” own-occupation:
Unable to perform the material and
substantial duties of the insured’s own
occupation or occupations and not
working in any occupation

29. “No work” own-occupation:
Unable to perform the material and substantial
duties of the insured’s own occupation or
occupations and not working in any occupation
• You were an oral surgeon working primarily on
trauma and reconstructive cases at the time of
disability. Because of a cervical herniation, you
can no longer perform long surgeries without
significant pain. You then start working three days
a week in an orthodontic practice.
• Can you collect under this policy and keep your
salary?

30. “No work” own-occupation:
Unable to perform the material and substantial
duties of the insured’s own occupation or
occupations and not working in any occupation
• You were an oral surgeon working primarily on
trauma and reconstructive cases at the time of
disability. Because of a cervical herniation, you
can no longer perform long surgeries without
significant pain. You then start working three days
a week in an orthodontic practice.
• Can you collect under this policy and keep your
salary?
No

31. Conversion policy:
For the first five years, unable to perform the
material and substantial duties of your
occupation, and thereafter unable to perform the
material and substantial duties of any
occupation for which you are suited by
education, training or experience

32. Conversion policy:
For the first five years, unable to perform the
material and substantial duties of your
occupation, and thereafter unable to perform the
material and substantial duties of any
occupation for which you are suited by
education, training or experience
• This is an own-occupation policy that converts to
an any-occupation policy after five years.

33. Key Clause Interpretation
Occupation
• The terms “occupation” or “occupations” are
defined immediately prior to disability
• Therefore, you can unintentionally “modify”
your occupation by:
– limiting working hours or decreasing certain
duties prior to filing your claim
– engaging in any other type of gainful work – no
matter how little you get paid

34. Choosing a Policy
• Buy a policy when you are just starting out
• Get “own-occupation” rather than “any
occupation” coverage
• Check to see if the phrase “Total
Disability” refers to “occupation”
(singular) or “occupations” (plural)

35. Choosing a Policy
• Buy a specialty rider
• Double check for exclusions/limitations
• Obtain a cost-of-living adjustment (COLA)
• Get the highest benefit amount you can
afford

36. Industry History
• The 1980s
– Hungry for premium dollars
– Disability insurance companies decided that they
should concentrate their efforts on marketing to
and writing policies for professionals, particularly
physicians and dentists
– It was actuarially determined that physicians and
dentists were among the least likely to file claims

37. Industry History
• The 1980s
– Intense competition = extreme liberalization
of policy terms
• Specialty specific
• Objective proof of disability not required
• No mental/nervous exclusions
• COLA
• Lifetime benefits
• Premiums could not be raised
• Non-cancellable

38. Industry History
• Early 1990s
– Interest rates plummeted
– Managed care = income decrease for doctors
– Increased claims led to high losses for
insurers

39. Industry History
• Late 1990s to Early 2000s
– Because of the significant increase in
disability claims, insurance carriers began to
highly scrutinize the terms of their policies
and any claims made thereunder, utilizing
novel and creative theories to deny benefits
– Collecting on disability policies became very
difficult

40. Industry History
• Late 1990s to Early 2000s
– Former medical director of UnumProvident blows the
whistle
– The lawsuit alleged that “although [UnumProvident]
employed various medical doctors for the ostensible
purpose of providing needed medical guidance in
reaching benefit decisions, the medical personnel
were not truly utilized for that purpose. It was
[UnumProvident’s] primary purpose and policy to
deny disability claims.”

41. Industry History
• Alleged Claim Termination
Strategies
– Targeted policies issued on doctors
– Instructed adjusters to make sure claims files
were documented in such a way as to prove
whatever the company was saying
– Directed adjusters to destroy documents and
shred sensitive papers
– Established weekly “roundtable” meetings

42. Industry History
• Late 1990s to Early 2000s
– Judge tells Unum to “Obey the law”
– Media coverage of wrongdoing

43. Industry History
• Today
– Increased regulation and the pressures of a down
economy have put insurers in a precarious
position
– The late 1990s and early 2000s were about cost-
cutting; today, insurers are fighting just to survive
– Under the weight of these demands, insurance
companies have more incentive than ever to deny
or terminate claims, and they are continuing to do
so – but much more creatively and stealthily

44. The Claims Process

45. Initial
Claim Forms
Evaluation
Further
Investigation
Denied/
Terminated
Approved1. Claimant’s Statement
2. Occupational Questionnaire
3. Physician’s Statement
4. Authorization
The Claims Process

46. Initial
Claim Forms
Evaluation
Further
Investigation
Denied/
Terminated
Approved
1. Interview
2. Medical evaluation
3. Occupational evaluation
4. Financial evaluation
5. Personal investigation
6. Continuing claim forms
The Claims Process

47. Initial
Claim Forms
Evaluation
Further
Investigation
Denied/
Terminated
Approved
The Claims Process

48. Initial
Claim Forms
Evaluation
Further
Investigation
Denied/
Terminated
Approved
The Claims Process

49. Initial
Claim Forms
Evaluation
Further
Investigation
Denied/
Terminated
Approved
The Claims Process

50. The Claims Process
• When to stop working
– Generally speaking, the best time to stop
working is once your doctor recommends
doing so
– You must then stop working right away

51. The Claims Process
• Properly documenting claims
– Consult a physician when you start
experiencing symptoms
– Thoroughly explain your symptoms

52. The Claims Process
• Communicating with treating
physicians
– Treating physician’s support can often be
critical
– Find a compassionate doctor that you like and
who will spend time with you

53. The Claims Process
• Communicating with treating
physicians
– Do not discuss disability until you have tried
all reasonable treatment options and have still
not gotten better
– Doctors don’t like hearing the phrase
“disability claim” on a first visit

54. Claim Forms
The claim forms contain trick questions:
• Principal duties and percentage of time spent on each?
• Which particular duties are you unable to perform?
• Do you supervise others?
• Describe your typical daily schedule and activities?

55. The Claims Process
• Communicating with claims
representatives
– The interview
• Ask that interview not be audio recorded
• Bring a friend to take notes
• Be careful of using words like “always” or “never”
• Don’t exaggerate

56. The Claims Process
• Communicating with claims
representatives
– Future communications
• Only talk when you are composed and ready to
take notes
– Written communication
• Handle most of your communications with the
insurance company by mail rather than on the
telephone

57. The Claims Process
• Communicating with claims
representatives
– Interviewing your physician
• Ask your doctors not to accept calls from your
insurance company and to send any questions in
writing
• Ask your doctor to let you know if questions have
been sent to him or her so you can answer them
together

58. The Claims Process
• Video surveillance
• Once you file your disability insurance claim,
you will likely be videotaped or photographed
by your carrier at some point in time.
• If you are engaging in any activities that you
claimed you could not perform and are caught
on tape, your benefits will likely be
terminated.

59. The Claims Process
• Internet
– Facebook and social media
– Practice website
– General search results

60. The Claims Process
• Record requests
– Federal and state income tax returns for the past 5 years
– W-2s , 1099s, and K-1s for the past 5 years
– Collection and production reports
– Profit and loss statements
– Employment agreements
– Practice sale agreements
– List of procedures performed on a monthly basis
– CDT codes broken down on a monthly basis
– Malpractice insurance information
– Dental board complaints
– List of any lawsuits in which you have been involved

61. The Claims Process
• Record requests
– The insurer is looking for trends or
discrepancies:
• Have you been losing money on your practice?
• What are your motives for filing a claim?
• Are you earning income in other occupations?
• Have you actually stopped doing certain
procedures?
• Is there any way to discredit you?

62. The Claims Process
• “Independent” Medical Exams
– The examiner is someone chosen and paid for
by your insurance carrier
– Because the “independent” medical exam is a
tool used for denying disability benefits where
possible, you should work to ensure that your
rights are protected during this process

63. The Claims Process
• “Independent” Medical Exams
– Audiotape or videotape the exam
– Bring a witness to take notes of everything
that is said and done
– If your witness is a doctor, that’s even better

64. The Claims Process
• Delay and Attrition
– Insurers have a duty to make prompt
decisions, so you should not have to tolerate
undue delays
Customer # 40653917

65. The Claims Process
• Delay and Attrition
– Sometimes, the carrier will deny or terminate
your benefits, and invite you to send more
information or appeal
• Statute of limitations typically starts to run when
you receive a denial or termination letter
• The statute of limitations for insurance bad faith in
Arizona is 2 years
• RULE: If you receive a denial or termination letter,
consult with an attorney immediately
Customer # 40653917

66. Top Ten Mistakes Made When Filing Claims

67. Top Ten Mistakes
Failing to consult
with a disability
insurance attorney
1

68. Top Ten Mistakes
Misunderstanding
the Definitions of
“Disability” and
“Occupation”
2

69. Top Ten Mistakes
Inadequate
Documentation of
Your Disability and
its Occupational
Impact
3

70. Top Ten Mistakes
Blindly Attending
an Interview or
IME
4

71. Top Ten Mistakes
Answering
Questions on
Claims Forms Too
Quickly
5

72. Top Ten Mistakes
Inadequate
Communication
with a Treating
Physician
6

73. Top Ten Mistakes
Modifying Own
Occupation Prior
to Filing Claim
7

74. Top Ten Mistakes
Ignoring the
Possibility of
Surveillance and
Investigation
8

75. Top Ten Mistakes
Failing to
Document
Communications
With Claims
Representatives
9

76. Top Ten Mistakes
Tossing Out the
Marketing
Materials, Your
Application and
Policy
10

77. Policy Types
1. Individual policies
2. Group policies
3. Employer-sponsored plans

78. Policy Types
Individual
• Purchased by individuals directly from the
carrier
• Governed by state law
• Set monthly benefit amount
• Generally provide the best coverage

79. Policy Types
Group or Association Policies
• Made available to participants of
organizations, such as members of the
American Dental Association
• Less expensive than individual insurance
• Can provide adequate benefits

80. Policy Types
Group or Association Policies
• Downsides:
– The association or group can change the terms of
coverage any time
– Almost always reduce the amount of your benefits
if you receive income from other sources
– Often have exclusions or limitations for
mental/nervous conditions and conditions that
are not objectively verifiable
– Applicable law can be from a jurisdiction that is
less favorable

81. Policy Types
Employer-Sponsored
• Least expensive
• Provide employees with disability insurance based
on a percentage of their base salary as part of the
employer’s overall benefit package
• Almost always reduce amount of your benefits if
you receive income from other sources
• Often have exclusions/limitations for
mental/nervous conditions and conditions that
aren’t objectively verifiable
• Governed by a federal statute called ERISA

82. ERISA
Employee Retirement
Income Security Act of 1974

83. ERISA
• Supposed to be for the protection of
employees
• Actually sponsored and endorsed by the
insurance industry
• Very little leverage to ensure that your
benefits are properly paid

84. ERISA: Negative Aspects
• Must file appeal with insurance company
before going to court
• No right to a jury trial; Bench trial in
federal court
• Do not get to testify
• The judge can only consider the
information you already sent to your
insurance company and nothing else

85. ERISA: Negative Aspects
• “Arbitrary and capricious” standard
– If there was a single rational basis supporting
the insurance company’s decision, it must be
upheld
• May only recover past due benefits,
interest, discretionary award of attorneys’
fees

86. ERISA
• Compare to an individual policy:
– No appeal
– Jury trial
– Back benefits with interest
– Attorneys’ fees
– If the insurance company acted unreasonably,
you also get future benefits in a lump sum,
emotional distress damages, and possibly
punitive damages

87. ERISA
• Broad applicability
– Courts have extensively broadened the
parameters of ERISA to include even
individual policies if there is even a remote
connection to an employer or employer-
sponsored plan
– If ERISA applies, it always applies

88. ERISA
• How to avoid ERISA applying to your
policy
– Purchase an individual policy
– Do not allow the business to sponsor or
endorse the coverage in any way
– Do not buy insurance from the same company
and at the same time as other owners or
employees
– Do not agree to a group discount
– Do not pay premiums through the business

89. ERISA
• How to avoid ERISA applying to your
policy
– Paying premiums with post-tax income is not
determinative of whether ERISA applies
– Your agent will not be able to tell you with
certainty whether ERISA applies

90. Policy Types
1. Individual policies
2. Group policies
3. Employer-sponsored plans

91. Remedies for Wrongful Denial or
Termination

92. Remedies
• Breach of Contract
1. Purchased the insurance from the company
2. Disabled under the policy terms
3. Insurance company denied the claim in
violation of the policy

93. Remedies
• Bad Faith
Arizona Law: The insurance company has
to act reasonably in the investigation,
evaluation and processing of the claim

94. Remedies
• Bad Faith: The insurance company cannot:
– Force you to go through needless adversarial hoops to
achieve your rights under the policy
– Unfairly delay decisions on a claim
– Impose requirements not in the policy
– Misrepresent policy provisions
– Attempt to influence the opinions of medical examiners
– Use predictable or biased experts
– Conduct abusive interviews
– Destroy key documents
– Lie about actions taken on a claim
– Place its financial interests ahead of your interests
(Arizona Revised Statutes § 20-461)

95. • Bad Faith
– The insurer cannot use its claims department
as a profit center
– The claims department is not there to balance
the books
– The claims department is there to fairly and
promptly investigate the claim, and if the
claim is legitimate, it must pay on its promise

96. Edward O. Comitz, Esq.
6720 N. Scottsdale Rd., Suite 150
Scottsdale, AZ 85253
www.disabilitycounsel.net
480.998.7800