DISABILITY INSURERS PLAYING DOCTOR
An own-occupation disability policy generally provides that the covered person is totally disabled if they are unable to perform the essential functions of their occupation and is receiving medical care for the condition. Nevertheless, insurers are interjecting their own treatment course on the insured over the treatment prescribed by the treating physician.
In most policy provisions for own-occupation disability the insured must satisfy two medical provisions: 1.The disabled insured must have regular care and be attended by a physician and 2. The treatment prescribed is appropriate for the disabling condition.
It should be noted that most policies do not specify that the insured must undergo surgery or claim ending curative care in order to be eligible for benefits.
However, an insurer may try to require the insured to undergo carpal tunnel surgery instead of non-surgical, conservative doctor-prescribed treatments. Or an insurer might contend an insured with a back condition have surgery, even though non-surgical treatments can provide the insured with some relief.
Most courts, however, disagree. They have concluded that disability benefits in policies with the regular care provisions can bar the insurer from requiring the insured to undergo surgery or other curative treatment, or even the quality of the care as a stipulation to receiving benefits.
In Heller v. Equitable Life Assurance Society, the Seventh Circuit refused to allow an insurer to require a carpal tunnel release surgery in order for the insured to receive benefits due to the regular care provision. The court ruled that the regular care provision did not require the insured to more than have the condition regularly monitored by a physician to certify that the condition was disabling. The court found that because the insurer did not have a specific requirement of surgery for the condition that the insurer could not later add the surgery requirement as it would amount to unsuitable judicial involvement. As for policies containing the appropriate care provision, there is surprisingly little case law on the subject. Some courts have found that medical care is “appropriate” even if it was not the ideal, perfect or best possible treatment. Others have concluded that where the insured had two reasonable courses of treatment for his or her disability, the insurer has no right to complain that the insured chose one rather than the other.
In Morinelli v. Provident Life and Accident Insurance Company the insurer argued that the insured was receiving poor quality of care by their physician and presented evidence to support their assertion. The court held that “‘appropriate care’ does not require a qualitative evaluation of the care provided.” The court determined that “the insurer’s review of the nature of the care” received by the insured needs to be limited to “whether it is necessary and causally related to the alleged disability.”
And in Kottle v. Provident Life and Accident Insurance Company, the court found even care occurring by telephone for an insured who suffered from a panic disorder was appropriate.
The insurer needs to be cognizant of the legal ramifications of requiring that benefits be payable when the insured follows the insurer’s course of treatment and not the course of treatment prescribed by the insured’s physician. Whether or not surgery or another course of treatment may be beneficial to the disabled it cannot be forced upon them.
Tags: Long Term Disability Claim, Long Term Disability Claim Denial
Long Term Disability Claim Long Term Disability Claim Denial
