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Working Through Pain: How Chronic Conditions Affect Dentists by Edward O. Comitz, Esq. and Patrick T. Stanley, Esq.

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Ask any dentist, and nearly all of them will say that they have gone to work even though they don't feel well. Some may have gone to work with a run-of-the-mill cold, extreme pain, or something in between.

It often seems ingrained in the culture of dentistry to work through pain, injury or illness. Organizational psychologists use the term "presenteeism" to define this situation, and it isn't surprising that it affects so many dentists, especially given the long hours and inflexible schedules that are frequently the norm in modern dentistry.

Especially with chronic, slowly progressive medical conditions, such as degenerative disk disease, nerve disease, or repetitive use injuries, many dentists attempt to work through their pain. In order to continue working, a dentist might reduce his or her hours, or start referring out certain types of procedures. Some dentists with presenteeism try to avoid patient care, shifting their attention to administrative work in the practice instead. What many don't realize is that the renowned work ethic of the dental community ends up being a boon for disability insurers.

Companies that market policies to dentists know that dentists will keep on working through pain, leading the insurers to sell dentists attractively-priced policies with high monthly benefits.

While presenteeism has become ingrained in dentistry, this attitude can have negative consequences in a dentist's professional and personal life. Many chronic conditions, especially musculoskeletal issues, progress slowly, and thus the decisions that a dentist with these conditions makes when he or she first starts having difficulty can have repercussions lasting well into the future. These repercussions can extend not only to the dentist's physical health, but to his or her professional fulfillment, finances, and personal liability, as well. In our experience, there are three main categories of doctors who tend to experience the negative effects of presenteeism:
  1. Dentists who continue with their practice even though they have physical limitations;
  2. Dentists who limit their practice to work around their limitations without filing a disability insurance claim; and
  3. Dentists who limit their practice to work around their limitations and file a disability claim after doing so.
Making any one of these decisions can lead to a dentist being unable to make a living and unable to collect disability insurance benefits, or worse. In order to fully understand why these decisions can have such a negative impact, we'll explore how we normally see each course of action develop.

Working with physical limitations
A dentist would never knowingly place a patient at risk, but at the same time, a doctor suffering from a medical condition may not realize quite how limiting that condition is. In situations like this, dentists sometimes try to continue to practice as normal, even though doing so could lead to patient injury. If a patient were to be injured in this scenario, even if the patient's injury were not due solely to the dentist's medical condition, this could lead to professional liability. Any malpractice attorney would be quick to make the argument that the dentist should not have been practicing on the patient in the first place.

Of course, this can lead to a lawsuit in which the dentist, his or her practice, and the office at which the procedure was involved could all be liable for damages, including punitive damages. At the same time, there is the possibility that the malpractice carrier won't provide full coverage for damages awarded. Often, malpractice policies and state laws prevent an insurer from paying an award of punitive damages or covering acts that resulted from gross negligence or intentional misconduct. The malpractice insurer may find that the dentist was aware, or should have been aware, that he or she was unfit to practice, and therefore deny coverage—leaving the dentist open to personal liability.

Even in the absence of litigation, an injured patient may file a complaint with the board, which can result in the loss or revocation of a dentist's license and, in turn, the loss of employment. The end effect may be to essentially force the dentist out of practice, whether or not he or she wants to leave.

Further exacerbating the dentist's issues, his or her disability insurer can then assert that the loss of license was due to a "legal" disability instead of the medical disability that caused the legal issue in the first place. The disability insurer will then deny any claim based on the idea that the license suspension or revocation, instead of the original medical problem, is what caused the dentist to stop working.

Thus, if a dentist with a medical condition continues to work even though he or she shouldn't, this can lead to personal liability to a patient, a lack of financial means to pay the judgment, a loss of license and inability to legally practice, and finally, an incapacity to collect his or her disability insurance benefits.

Decreasing workload and procedures before filing a disability insurance claim
Even if a dentist takes the precaution of limiting or changing his or her practice or schedule to avoid committing malpractice, the consequences can still be significant in other ways. The dentist may be physically limited and thus work fewer hours or perform fewer procedures until there is no option other than to file a claim for disability insurance benefits. However, when dentists modify their practices, it can become extremely difficult—and often impossible—to collect disability insurance benefits.

The crux of the problem is that reducing hours and limiting procedures effectively changes the definition of the dentist's "occupation." The typical disability insurance policy sold to dentists and physicians is an "own-occupation" policy. Under this type of policy, the dentist can collect benefits if he or she is unable to perform the substantial and material duties required of his or her specific position—his or her "occupation." These policies state that the "occupation" is defined as "the occupation in which you are regularly engaged at the time you become totally disabled." Therefore, if a dentist gradually decreases the hours worked and procedures performed, he or she has essentially changed the occupational definition from a full-time clinical dentist to something considerably less.

To provide an example, a dermatologist with a nerve disease may first discontinue doing laser surgery because he doesn't have the steady hand required for that sort of procedure. As the condition worsens, this dermatologist may cut his hours back to part-time, then stop performing chemical peels, then stop doing diagnostic tests, and so on, until the dermatologist is only performing screenings, consultations, or perhaps administrative work. If at that time the dermatologist files a claim, his occupational definition may be modified to "a dermatologist who works part time, three days a week, mostly performing consultations; in charge of overseeing associate dermatologists and staff; duties are more similar to a practice owner/manager." Since the dermatologist slowly decreased his responsibilities before filing a disability insurance claim, he would potentially find it difficult to prove that he is totally disabled from this less taxing, less time-consuming occupation.

The pitfalls of "partial disability"
"Residual disability" or "partial disability" riders are often offered in disability insurance policies. On the surface, this coverage may seem like it would be good for individuals with chronic and progressive medical conditions, due to the fact that the disability insurer will pay benefits if the dentist can only work part-time. This would presumably allow the dentist to decrease his or her practice while maintaining the baseline occupational definition as a full-time dentist. However, the residual disability benefit is not always as advantageous as it initially seems.

As one example, if a dentist claims partial disability, it gives the insurer an opportunity to ask for extensive financial records under the guise of looking into the exact extent to which the claimed medical disorder has diminished the dentist's income. The insurance company will typically request copious financial and business records, including:
  • Profit and loss statements
  • CDT codes
  • Balance sheets
  • Employment agreements
  • Tax returns, and more.
The claims personnel will review each of these documents in detail in search of any possible non-medical reason for a loss in income. If an insurer is able to prove that there is another potential explanation for the dentist's drop in earnings, it will be able to deny the claim.

If and when the disability insurance company accepts a claim, the amount paid is based on how much the company thinks the claimant should be working, as opposed to how much he or she is actually working. Thus, if a dentist is only making 50 percent of her pre-disability earnings, but the insurers believe that she can make 75 percent, the insurance company will decrease how much benefit she receives proportionally.

Another way the residual disability benefit can help the insurer more than the policyholder is its maximum benefit period, which, more often than not, is shorter than the maximum benefit period for total disability claims. While a claim for total disability benefits could potentially be payable for life, a residual disability benefit could be payable for a maximum of 60 months or to age 65, depending on the policy. If an insurer can categorize a claim as residual, this could save the company a lot of money due to the decreased amount of time that it would have to pay.

Even if the dentist does eventually stop working, we've found that very few residual disability claims ever turn into total disability claims, primarily due to the insurers' close inspections of the additional records required to maintain a residual claim. The dentist will be left without any coverage because insurers will seek to continue paying the smallest fraction of the benefits that they can until the maximum benefit period runs out.

What now?
Often, we see an overlap of two or more of these categories, which makes things much more complicated. For example, a dentist could continue working with a disability that puts a patient at risk, then react to this risky position by limiting procedures, before finally examining the possibility of collecting disability insurance benefits. Exacerbating this issue, the dentist won't seek legal advice until after a claim is denied or terminated, which exponentially increases not only the risk of an unfavorable result, but also the time, effort and expense of getting the claim back on track.

What's the best thing to do when a medical condition starts interfering with your practice? Before you file a disability insurance claim or alter your work schedules in any way, consult an attorney with knowledge and experience in this area. While it is certainly admirable to have a strong work ethic and to soldier on through hardship, it is imperative that dentists understand and address their limitations, as well as the rights given to them under a disability insurance policy, as quickly as possible.

Note: The information in this article does not constitute legal advice and is useful for informational purposes only. One should not act on any information without seeking professional counsel from an attorney after reading this article. The author and publisher will not be held responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.



Edward O. Comitz leads the Health and Disability Insurance Practice Section at Comitz Beethe in Scottsdale, Arizona. Comitz primarily represents medical and dental professionals in overturning denials of their disability claims, and therefore has much experience in disability insurance coverage and bad-faith litigation. To learn more about disability insurance claims, please visit Disabilitycounsel.net.

Patrick T. Stanley practices in the Health and Disability Insurance Practice Section at Comitz Beethe as a shareholder. Through working with Mr. Comitz on a number of issues, he has represented both medical and dental professionals in their fight to procure and retain disability insurance benefits.


Dentaltown Magazine
April 2024
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