Disability Claim Tips With Ed Comitz, Esq.
Disability Claim Tips With Ed Comitz, Esq.
This guide is intended as a practical resource for dentists who think they might want to file a disability claim. Check in regularly for new claim tips.
Edward Comitz

Claim Tip 12 - What is the "Dual Occupation" Defense, and Why Does it Matter?

9/1/2018 10:00:00 AM   |   Comments: 0   |   Views: 334

In this post, we’ll be taking a look at one of the common misconceptions dentists have about their disability policies.

If you have applied for disability insurance yourself, you know that part of the underwriting process involves you disclosing your profession (i.e. dentistry), and you may also be aware that the premiums for your policy are typically rated based upon your occupation at the time you apply for the policy. Most dentists also make a point to specifically ask for an “own occupation” policy that protects them if they can’t perform dentistry and, taking all of this together, many dentists naturally assume that their policy will pay benefits if they can no longer practice clinical dentistry (because that is the sole reason that they purchased the policy).

What many dentists don’t realize is that, in most policies, the definition of your “own occupation” is not expressly defined as clinical dentistry, or even dentistry. Rather, it is a malleable term that can change over time if you leave dentistry to pursue other employment. And, under some policies, the definition of “your occupation” can change even if you are still practicing dentistry, if you decide to take on other employment on the side.

To illustrate this, here is a sample definition of “regular occupation” taken from an actual policy:

Regular Occupation. The words “Regular Occupation” mean the occupation of the Insured at the time the Insured becomes Disabled. If the Insured is regularly engaged in more than one occupation, all of the occupations of the Insured at the time the Disability starts will be combined together to be the “Regular Occupation.

. . . 

If the Insured can perform one or more of the substantial and material duties of the Regular Occupation, the Insured is not Totally Disabled.

(Emphasis added.)

So, as you can see, under this policy, if you become disabled and file a claim, your occupation will be defined as a combination of every job you were engaging in at the time you became disabled. This is significant because most policies require you to establish that you cannot do the “material duties” of your occupation in order to qualify for total disability benefits, and if you have several jobs, the list of “material duties” will be much longer. And the longer the list of material duties, the easier it is for the insurance company to assert that you can still perform “one or more” of them.

We call this the “dual occupation” defense, and it can be particularly problematic for dentists with slowly progressive conditions, like degenerative disc disease, carpal tunnel syndrome, hand and wrist pain, etc. Many dentists facing these types of conditions begin to decrease their hours, in an effort to limit fatigue, manage their pain, and reduce the risk to patient safety. At the same time, they often seek out non-clinical sources of income, such as teaching at a dental school or selling real estate. Then, when it comes time to file a claim, the insurance company defines their occupation as a part-time dentist, part-time dental school professor, and part-time real estate agent, and it becomes much more difficult to collect total disability benefits, because the dentist must now prove that he or she cannot perform the material duties of all three occupations.

In light of these potential pitfalls, we recommend that dentists review their policies and speak with an experienced disability attorney before making any changes to their occupation, particularly if the dentist is suffering from a slowly progressive condition and thinks that he or she may need to file a disability claim down the road.

 

Information offered purely for general informational purposes and not intended to create an attorney-client relationship. Anyone reading this post should not act on any information contained herein without seeking professional counsel from an attorney.

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