The disability insurance law practice of Frankel & Newfield represents dentists, endodontists, orthodontists, periodontists, oral and maxillofacial surgeons, and others in the dental profession. Disability insurance companies prefer to sell individual, employee benefit and association disability policies to dental professionals based on their high earning ability and long career span. Those two factors make dentists (and other medical professionals) attractive sales targets for those selling disability insurance policies. But selling disability policies and paying out on claims are two very different things.
There are a number of issues germane to the dental disability claim.
Very often, policies are sold to dentists suggesting that their occupation will be defined as occupation specific (own occupation). However, what is not communicated to dentists when the policies are sold is that the occupation will be considered at the time of disability, as opposed to the time of underwriting. Accordingly, sometimes dentists can be viewed as having a “dual occupation” which can be quite damaging to one’s efforts to secure total disability benefits. A seminal case concerning dentists is Shapiro v. BerkshireLife Insurance. Dr. Shapiro owned his dental practice and nearly all of his time was devoted to chairside patient treatment, and only 10% of his time concerned “managing” the business side of the practice. He owned an “own occupation” disability insurance policy with Berkshire Life.
The policy defined disability as “the inability to perform the materials and substantial duties of your occupation.” Dr. Shapiro filed a claim for long term disability insurance benefits, suffering from osteoarthritis and spondylosis of the elbow, neck and other joints, but Berkshire Life advised Dr. Shapiro that he was only partially disabled. Their reasoning was, while he could not practice chair side dental services, he could still conduct administrative and managerial tasks, which Berkshire Life claimed was the second of his “dual occupations.” Thus, while disabled from practicing dentistry, it was claimed by Berkshire Life that he remained able to perform his other “occupation” that of an administrator. However, he spent the vast majority of his working time performing chair side dentistry, and the claimed administrative time was de minimis and incidental to his material duties as a dentist. Dr. Shapiro won the case in Federal Court, and Berkshire Life appealed.
The Second Circuit Court of Appeals agreed with the lower court decision, based on the amount of time that Dr. Shapiro devoted to clinical practice when contrasted with the de minimis nature of the administrative functions. How much time is devoted to administrative tasks, including management, administrative and marketing tasks needs to be kept in mind when preparing a disability claim. The Court in Shapiro v. Berkshire did open the door to the dual occupation issue, however, noting that in some cases, “a medical entrepreneur’s administrative and managerial responsibilities may well become the material and substantial duties of the insured’s occupation.”
Thus, it is critical in the case of a dentist who owns a practice with other practicing dentists, or one who owns numerous facilities, to consider the level and extent of their managerial responsibilities, so that the dual occupation issue does not come into play and cause an otherwise compensable total disability claim to become a partial disability or potential a non-compensable claim altogether.
Dentists are particularly susceptible to disability insurance claims due to the manner in which their work is typically performed. The need to maintain a static position for long periods often leads to significant cervical issues, and many insured dentists suffer disability as a direct result of the manner in which they practice dentistry. Another issue we are seeing involving dentists with long term disability insurance claims is the insurers’ efforts to create a more ergonomic work environment for the dentist in an effort to undercut a claim for total disability benefits.
We have seen insurers offering suggestions for how a dentist should practice, ranging from changing his/her scheduling of patients to keep from performing long procedures consecutively, to utilizing assistants more frequently, to changing the manner in which they are performing procedures ergonomically. These potential issues are rife with danger for the dentist pursuing their long term disability insurance claim on their own. One must be careful in how they address the insurers at every stage of the claim, but should be particularly wary of any ergonomic suggestions or efforts to influence the manner in which a dentist runs his/her practice.
We have successfully represented scores of dentists with long term disability insurance claims, often getting involved at the outset of the process, or even before a claim has commenced, to assist with counseling them as to an orderly transition of their practice while preserving their disability claim support. We have become involved in situations where insurers are seeking an in depth evaluation of a dentists vocational issues, exploring their CDT production as well as their earnings, and we have interfaced on behalf of various clients who have been required to attend physical examinations with insurer selected doctors as well as Functional Capacity Evaluations (FCEs), and Upper Extremity FCEs.
When a client is faced with a request for an examination or evaluation, we expend energies and efforts to protect their rights throughout the process, to ensure that any examination or evaluation is conducted with integrity, and where our client is protected from harm by virtue of the examination, as well as work to protect them from biased physicians in the pockets of the insurance companies. We regularly interface with representatives of the insurance companies when they seek to conduct “field visits” whereby they look to interview our clients in person or via phone.
Our client, a 55 year old Prosthodontist disabled by carpal tunnel syndrome, was being paid disability benefits for just under two years when his benefits were terminated. The policy mandated that the insured be receiving regular physician’s care which is appropriate for the condition causing his disability. The insurer claimed that appropriate care includes further surgical care under the circumstances, due to the low risk and high probability of success.
However, our client had already undergone surgery for carpal tunnel syndrome, and the first surgery was completely unsuccessful. He did want to have a second surgery. The insurance company terminated his benefits and wanted to compel him to have a second surgery. We were retained to get his benefits back. We provided evidence and support that there was no guarantee that a second surgery would be any more successful than the first. The insurer reinstated benefits and our client has been on claim ever since.
Our client, a 52 year old, was tinkering with his motorcycle when he felt a sharp, searing pain. He had severed his finger. Having sustained a traumatic amputation at the mid-portion of his middle phalanx on his dominant hand, he was unable to perform the material and substantial duties of his occupation as an endodontist. The claims adjuster attempted to seek to have him retrained to hold his dental/surgical equipment in another way so he could return to work and so the insurance company could stop paying benefits. We were successful in rebutting this utterly absurd and outrageous notion by the insurer. He has been on claim for the past ten years.
Our client, 37 years old, had severe carpal tunnel syndrome from his years practicing dentistry. He had undergone numerous carpal tunnel release surgeries without success. Knowing that he was not going to be able to continue to practice, he engaged Frankel & Newfield to help him navigate the disability process, while strategizing the sale of his practice and timing of his claim. During the disability claim process, we were able to overcome several efforts by his insurer to find support for a claim termination. These tactics included trying to rely upon a physical examination, and a subsequent upper extremity Functional Capacity Evaluation (FCE).
We were successful in rebutting those reports, securing further claim support from our client’s treating doctor and attacking the validity of the findings from these evaluations. He continues to be paid by his disability insurance companies. Frankel & Newfield has had extensive experience representing members of the dental profession. We understand in great detail how dental practices work, whether they are single or multi-doctor offices. This in-depth knowledge of the business and practice aspects of the dental field allows us to be very effective in negotiations and litigation against disability insurance companies.
Secrets the Disability Insurance Companies Don't Want You to Know!