Bonny G. Rafel announces that she recently convinced US Life to reinstate the Business Overhead Insurance benefits to her client, an orthopedic surgeon, after denying benefits on the basis that he can still perform the duties of an orthopedist in an office based setting. The insurance policy was issued through the American Medical Association, and provides important business overhead expense insurance coverage to doctors who become unable to perform the material and substantial duties of their occupation due to disability. The company determined that the doctor was not totally disabled but only residually disabled, which did not obligate them to pay the benefits. Ms. Rafel argued that the specialty practice of her orthopedic surgeon client was conducting surgery and his inability to perform this crucial task qualified him for benefits, even though he could continue with his office practice and his income may not be affected.
Dental Disability Insurance- A Worthwhile Investment?
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.
Rafel Lectures on Long Term Disability Trends, including ERISA
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).
Disability Claims in a Down Economy, ALI ABA Web Seminar May 22, 2009
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.
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