As a dentist, any injury or condition affecting your physical, mental, or emotional well being can have a dramatic impact on your ability to practice without exacerbating the situation. Your head, neck, shoulders, back, spine, arms, wrists, fingers, legs, ankles, and feet are particularly susceptible to career-affecting issues. When this occurs, many individuals, in an effort to continue practicing, modify the procedures they perform to alleviate pain or reduce stress.
Eventually, however, a persistent problem can interfere with your ability to safely perform your substantial and material duties as a dentist or oral surgeon. The good news is that you probably bought a long-term disability insurance policy back when you were still in dental school. You probably have been paying premiums over the years without giving the matter a second thought.
Let’s say your doctor prescribes potentially addicting medication and tells you that if you continue repeating the motions you are performing, you will eventually wind up having to submit to risky surgery or worse. And so, with your physician’s support, you file for long-term disability. Eventually, your claim is approved, and you begin receiving monthly benefits.
The claim representative informs you of more good news. You can still practice dentistry as long as you stay within a maximum number of hours set forth in your coverage. You can do this, you are told, because your policy contains a “residual disability benefit” that permits you to continue your work and still provides you with a monthly benefit.
Many policies have a provision for “residual” or “partial” disability benefit. This may seem like a good deal. You can receive your full policy benefit and, at the same time, keep your practice, enjoying your life’s work. Furthermore, the amount of your benefit is determined by a formula that, depending on how much you earn, can equal the amount of your total disability benefit.
This is a good thing, right?
Wrong. This is where the problems begin.
Partial Versus Total Disability
If you are unable to perform your substantial and material duties in their normal and customary manner, and with reasonable continuity, you are qualified under an “own occupation” policy in many states, to be categorized as totally disabled, not residually disabled. This can make a difference of over a million dollars in the benefits you will eventually receive. Why?
First, depending on how much you earn in a modified regimen, you will be subject to the application of a formula, which, as inflation occurs, reduces your benefits far below the amount for total disability.
Second, if you modify your practice to continue working, that can change the definition of your own-occupation under the terms of the policy. Therefore, if your condition worsens, you may no longer be insured for the same occupation you were originally insured for. You might only be insured if you become unable to perform your new duties.
Third, many policies provide lifetime benefits for total disability, but only benefits to age 65 for residual disability. With even a relatively modest monthly benefit, this can amount to a difference of more than $2 million over the life of the policy.
Insurance companies hope that you are so happy to receive your residual benefit while being able to perform some of your duties that you won’t notice these differences until it is too late. And if you don’t contest this classification in a timely manner, the statute of limitations can run out, preventing you from raising these issues later on.
What can you do to protect yourself?
If an insurance company does this and it can be proven that its conduct was unfair or unreasonable, you may be able to recover not only the benefits you were entitled to, but also any additional losses, including attorney fees and emotional distress damages that you suffered as a result.
Mr. Bourhisis the founder of the Bourhis Law Group. He represents claimaints in disability insurance, homeowners insurance, and business insurance disputes. He has written dozens of articles on insurance law, disability coverage, and bad faith. He has been published in the San Francisco Chronicle and the LA Times and has been featured on 60 Minutes. He was lead counsel on Hangarter, McGregor, and dozens of precedent-setting and record verdicts and settlements in long-term disability and insurance bad faith cases. He earned his JD from Boalt Hall, University of California, Berkeley.
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