From Policy to Practice by Ed Comitz and Derek Funk

A dentist’s guide to disability insurance

by Ed Comitz and Derek Funk

• Securing ongoing, sufficient medical support to establish your disabling condition and the extent of your medical limitations. This can include undergoing contractually required testing that provides objective evidence of the severity of your condition. Depending on the nature of your condition, this could also include seeking input from various specialists. In some instances, it is necessary to hire a medical expert to explain things in detail and engage with the insurance company’s in-house doctors, who collect and review your medical records (and sometimes require their own in-person medical exams) to verify your disability.
• Establishing that your date of disability is solely because of your disabling condition and not motivated by other factors (e.g., dissatisfaction with your profession, becoming a parent, the sale of your practice, a voluntary decision to retire, etc.). This can include proving that no worksite modifications would have allowed you to keep working, or would allow you to return to work, even on a part-time basis. Your insurer will also require a satisfactory explanation for why you were able to practice on your last day of work but are no longer able to do so, including providing objective evidence of medical changes during this time frame.
• Establishing that you are under the ongoing care of a doctor (which is now a prerequisite to receiving monthly benefits under all disability policies). This can include establishing that you are receiving care that is directed towards a “return to work” and/or “maximum medical improvement.” If that is not possible, you must instead typically establish that further care would not benefit you.
• Establishing whether you are entitled to lifetime benefits. Depending on your policy, this can include establishing whether your condition is because of sickness versus injury, establishing whether you are “totally disabled” or only “partially disabled,” and/or establishing that your “total disability” will continue without interruption to retirement age (usually 65).

• Reaching the end of the recovery stage following a medical procedure or surgery. Some disability claims use the date of a serious medical procedure or surgery as the initial date of disability. However, such claims are typically not challenged much at the outset because disability insurance is ultimately a business. Disability companies employ actuaries who have determined how long each medical condition is expected to last and how long patients take to recover from various procedures or surgeries. Once you reach that time frame, the claim is viewed in a much different light, and disability insurers keep doctors on staff specifically to challenge the extent and duration of ongoing limitations. Often, the first step here is for the insurance company to arrange a peer-to-peer call between its in-house doctor and your treating provider. These calls are then summarized in a way that can be inaccurate and skew in the insurance company’s favor. Most treating providers are too busy to read the summary of the call carefully and object within the timeline provided in the disability company’s letter. Or, if your doctor doesn’t return the call, the company determines that there is no medical support for ongoing limitations. Even worse, some doctors just sign off on the letter without giving it much consideration, and when you approach them to clarify, they are hesitant to admit to making a mistake.
• Attempting to go back to work, even if unsuccessful. Not surprising, returning to work is something that leads to disability claims ending. But what if the return is unsuccessful? While disability policies do contain provisions, usually called “recurrent disability” provisions, that acknowledge that possibility, insurers also routinely refuse to reopen claims after they have been closed. Returning to work effectively resets the claim and, absent new medical information, your disability insurer may determine that you are in fact able to go back to work, even if you felt that it did not go well and it would not be safe to continue seeing patients.⁵
• Starting a new job or a new business. You might also expect that starting a new job will generate heightened scrutiny in a disability claim, but you may not be aware of all facets that could be relevant to your claim. Obviously, the insurer will want to know if you are going back to your occupation, but they also will assess whether any of the new job duties are inconsistent with your reported limitations—regardless of whether it is a different occupation. Earning any income at all can also trigger offsets under certain disability policies, and if you are starting a business and other family members are being paid, the insurer will scrutinize whether that income should also be attributed to you since you are in the same household. If the income varies month to month, this will have to be addressed in the benefit calculations. Some policies allow the company to take averages over certain periods and others go off the month-by-month income. There often are questions regarding whether certain things—such as bonuses or deductible expenses—count as income for these purposes. Some policies stop paying total disability benefits if you are working at all, in any capacity.⁶
• Surveillance. Surveillance is a tool commonly used by disability insurance companies to analyze disability claims. When surveillance is taken out of context or misconstrued, it can lead to unfair disability denials. Again, insurers are not just interested in whether you are practicing dentistry, but also whether you are doing anything inconsistent with your reported limitations. While this usually begins as online surveillance—for example, of social media activity—disability insurers do not hesitate to pay investigators to follow claimants in person to try to get any physical activity on camera and use it as proof that the claimant is not disabled.⁷ This can happen at any stage of a claim and is often the first step that insurance companies take when they want to limit their liability or terminate benefits.
• Periodic reviews prompted by the company’s financial goals or internal guidelines for reviewing claims. The timing of these reviews often doesn’t have anything to do with what is happening on your claim but can be problematic for a wide variety of reasons. If you’ve fallen behind on regular visits to your treating providers, the company might claim you haven’t met the policy’s ongoing medical care requirement. They might also assume you’ve recovered if you’re no longer seeing doctors. If you’re not careful about how you present yourself on social media or other online platforms, your insurer may question whether your activities conflict with your disability claim. If you have had to switch doctors or have a doctor who is not enthusiastic about being involved in your disability claim, you may need to scramble to gather enough medical documentation to keep yourself on the claim. Or, if you did not keep a record of prior calls with your disability insurance company, you may end up saying something inconsistent with your claim file that calls your credibility into question.

• The timing of the claim, particularly in situations where a disabling condition is slowly progressive.⁸
• Claims made by dentists who own their practice and must decide whether to sell, bring on new associates or keep working at a limited capacity.⁹
• Claims involving both individual disability policies and business overhead expense policies or disability buy-out policies.¹⁰
• Claims involving unclear or ambiguous definitions of key policy terms, such as “total disability” or “occupation.”¹¹
• Claims involving an irregular work timeline immediately before the date of disability.¹²
• Claims where the underlying condition is a diagnosis by exclusion.¹³
• Claims involving multiple comorbid conditions.¹⁴
• Claims involving recommendations for or against procedures or surgeries.¹⁵
• Claims involving mental health conditions.¹⁶

Edward O. Comitz, Esq., is one of the founders of Comitz Stanley, PLLC, and heads the firm’s nationally recognized professional disability insurance practice. Comitz has more than three decades of experience securing “ownoccupation” and specialty-specific disability benefits for his professional clients, resolving coverage disputes and litigating insurance bad faith cases, including successfully assisting dentists, physicians, attorneys and other professionals in reversing denials of their disability claims. He has built the only practice in the country solely dedicated to securing insurance benefits under professional “own-occupation” disability insurance policies, and his extensive industry experience has garnered national acclaim for its goal-oriented, results-focused approach.


Derek R. Funk, Esq., is a member of Comitz Stanley, PLLC, and practices in the areas of disability insurance and insurance bad faith. Funk is a compassionate adviser and zealous advocate for his clients. He enjoys working on difficult, novel and complex legal matters, with the goal of securing benefits for his clients in a thoughtful and well-considered manner.
Website: disabilitycounsel.net/dentists.