You Have To Know How

Don’t expect a disability insurance company to spend a lot of time analyzing a claim which appears to be clearly deniable on its face. We all know insurance companies are not in the business of paying, especially if they find what appears to be a clear exclusion to hang their denial on.

We recently took on an appeal from a Unum denial for an emergency room doctor who had suffered from glaucoma for years.

Having made full disclosure to the insurance carrier of his glaucoma condition when he bought the policy in 1993, Unum issued the policy, but inserted an exclusion to cover the possibility of his glaucoma condition causing him to become disabled. Our client had accepted this reasonable restriction, believing he could rely on treatment and medication to keep his glaucoma in check.
His policy exclusion read:

“The insured is not covered for any loss resulting from either or both eyes, except by the following table of benefits on form 809 attached.”

In 2006, the doctor suffered some optic nerve damage from Sarcoidosis, resulting in some minor visual loss, but was able to continue working as an emergency room physician.
In 2008, our client underwent coronary bypass surgery after which he noticed a marked loss of vision. This loss of vision was attributed to postoperative hypotension which diminished the flow of blood to his optic nerve and resulted in ischemic optic nerve damage.

Being no longer able to work because of his vision problem, the doctor filed a long term disability claim. Unum took the position that his loss of vision was caused by his eyes and was therefore clearly excluded under the policy. Unum paid for the 12-month exclusion period and then refused to pay for further long term disability benefits. Unsurprisingly, Unum took the position that the loss “…resulted from either or both eyes…”

Why should Unum or any other insurance company look further under these conditions? Usually when talking about the eyes, we are talking about “seeing” or vision. If the doctor’s claim was based upon loss of vision, end of story as far as an insurer is concerned. Why look further if the exclusion seems to mean the insurer doesn’t have to pay?

When the case came to us, we reviewed carefully the language of the exclusion. Then we carefully examined the doctor’s medical history and found that his loss of vision was not caused by his “eye or eyes”, but was caused by damage to his optic nerve which is not part of the eye. So, if the doctor’s loss of vision was not caused by his “eye or eyes”, it is not excluded and the disability policy should pay in full according to its terms.

So, what at first blush would seem to be a slam dunk for the insurer turns out to be a slam dunk for our client if he can get the insurance company to see it his way. Although the claim had been denied, we appealed to Unum on behalf of the claimant, offering proof that his occupational disability was not caused “by his eyes” but was caused by his optic nerve ischemia, the optic nerve not being part of his eye.
This condition was no different from a vision impairment caused by a blow to the head which damaged the optic nerve and caused a loss of vision.

Before filing the appeal we gathered the appropriate medical reports and set forth our arguments in what we thought was a clear and cogent manner, particularly pointing out that the exclusion had been written into the policy by the insurance company so that under the law, any question about its meaning would be interpreted against the insurer.

After reviewing this appeal, (copy of which is available on request), Unum reversed its earlier rejection of the claim and now has agreed to pay benefits.
It’s tough to lead an insurer to water, let alone make it drink, following denial of a claim which an insurer believes is clearly excluded by its policy language.

Luckily for our client, experience, research and a narrowly focused analysis made it happen.

Sometimes, we love what we do!




Fairy Godmothers, Anyone?

If you are one of those who still believes the private health insurance industry is there to protect your interests you probably still believe in fairy godmothers, because you are really going to need a fairy godmother when you are sick or injured and the insurance company has to cough up cash.

For a thorough and detailed exposition on the motivations and tactics of disability income insurance carriers such as UnumProvident and Paul Revere, you should read the opinion of U.S. District Court Judge James C. Mahan in Merrick v. Paul Revere Life Insurance Company, et als, 594 F. Supp 2nd 1168 (D. Nerv. 2008).  It is a clear and convincing scorecard of the ways in which the insurance companies hit their policyholders, especially when they are down.

In the carefully worded, detailed opinion, by Judge Mahan, he finds that the reprehensible conduct of these insurance companies has garnered them “…hundreds of millions if not more…” in benefit dollars at the expense of physically, mentally, emotionally and economically vulnerable individuals (their policyholders).

The judge, after hearing all of the evidence presented by both sides, obviously concluded that the reprehensible conduct toward the clearly disabled plaintiff in the case was “…not the result of accident or inadvertence, but was part of a widespread corporate plan or scheme to augment profits through wrongful conduct targeted at disabled policyholders…”.

He went on to declare that the only conclusion he could draw after hearing all of the evidence and weighing the credibility of witnesses for both sides is that the defendants, Unum and Paul Revere, “…engaged in a widespread corporate plan, and conscious course of conduct firmly grounded in established company policy, to disregard the policyholder-plaintiff’s rights and the rights of tens of thousands, if not hundreds of thousands of other policyholders…”

The detailed and thoughtful decision by Judge Mahan puts the lie to opponents of health care reform. The system isn’t functioning for those most in need for it to function fairly, those whose health requires a claim to be made. When you are sick or injured, you are not at your fighting best – and that’s when the insurance sharks start their “delay and deny” act.

If our health system is ever to work properly, insurance companies will have to take seriously their obligations to policyholders and go beyond corporate profits only, “first, last and always”. Insurers will have to give fairness and “peace of mind” to policyholders who will then actually get what they paid for without the unconscionable “scorched earth” policy in regard to claims.

Only those who still believe in fairy godmothers can really believe that anything but government health reform is big enough to force such a change for the better.