When an insured with disability insurance can’t work because of a medical condition and is under the care of a doctor, even a specialist, you would think that they should feel safe that their long term disability claim will be approved. However, even where the insured is impaired and meets the policy definition of being unable to perform the material and substantial duties of his/her occupation, another factor could work to frustrate this insured’s ability to collect benefits.
A person’s refusal to undergo surgery that they deem to be risky or potentially not worth the potential benefit could be the lynchpin that a disability insurance company uses to defend a refusal to pay benefits.
Here’s an example: a surgeon who has been working with a degree of pain for several years becomes incapacitated by the level of pain, which is caused by the repetitive motions of surgery. The surgeon and the treating orthopedic surgeon both are of the firm belief that if the surgeon has surgery, any potential benefits from the procedure will be undone by a return to work.
If the success rate of the surgery is limited and the potential for post-op complications from surgery are high, the surgeon may decline to undergo the procedure. At that point, the long term disability insurance company may point to the provision in the contract that says the claimant has made a voluntary choice to remain disabled, rather than repair the disabling condition, and therefore does not qualify to receive benefits.
Not all policies contain language that can support this argument, but many do. Thus a provision that states that Regular Care of a Physician means care “at such intervals and frequencies as will tend to lead to a cure, alleviation or minimization of the condition causing your incapacity” or where the language can be interpreted to require an insured to follow a recommendation for surgery.
There have been numerous long-term disability cases that turn on this issue, and a strong legal defense is necessary to counter the argument which is advanced by insurers.
The challenges to filing for disability insurance benefits are usually a surprise to insureds. The disability insurance model is a completely different economic model than health or home insurance, with denials and terminations a routine response to even the most obvious legitimate claims.
If you are contemplating filing a claim and are concerned that this fact pattern may reflect your future, contact Frankel & Newfield today to discuss your situation. Navigating this particular issue with the help of experienced counsel could make all the difference. Call our office at 877-583-2524 to learn how we can help you.
