Case Study: Disability Claims and Disputes Print
Written by Jeffrey Herschler   
Saturday, 31 July 2010 15:33

medical-examThe aging of America is sure to result in an increase in disability claims. Debilitating conditions tend to manifest themselves during the aging process. Nowhere is the trend more imminent than in Florida’s healthcare workforce where the average physician is in his or her early fifties. The typical administrator is in his or her mid forties. Meanwhile the insurance industry is grappling with an investment portfolio hammered by the Great Recession and some poor underwriting criteria in the past that resulted in under pricing. Therefore, another trend to beware of is an increase in disputes as insurers attempt to mitigate the influx by denying claims. Below are two case studies that illustrate the challenges faced by disability policyholders who claim benefit.

Disability Case Study #1: 


Scheduled exam with non-doctor

This firm represented a registered nurse who applied for and received disability income benefits based on a total disability due to cervical and lumbar disk herniations. During the course of the claim, and while the insured was being paid monthly disability income benefits, the carrier scheduled a functional capacity evaluation ("FCE"), to be conducted by a therapist. The key to success in this case was the firm's careful review of the disability income insurance policy and experience in handling such disputes. The policy provided that the insurance company had the right to require the insured to undergo a medical examination conducted by a physician of its choice. There was no provision in the disability policy providing the insurance company the right to conduct a FCE or such an evaluation by a non-medical doctor.

On behalf of the client, the firm filed a lawsuit in Federal court seeking a declaratory judgment, injunction and recovery of attorneys' fees and costs. The declaratory action sought the judge's decision on the insurance carrier’s right to require the client to undergo a FCE by a non-doctor in order to continue to receive monthly disability income benefits. The injunction sought to prevent the insurance company from requiring the client to undergo a FCE in order to continue to receive monthly disability income benefits. When the insurance company was served with the lawsuit, it cancelled its scheduled FCE. Thereafter, the insurance company requested that the law firm dismiss the lawsuit. The firm advised the insurance company that the case would be dismissed if the insurer agreed in writing that it did not have the right to pursue a FCE under the terms of the policy, and would never seek to schedule a FCE. The insurance company would not agree to same. Thus, this case is pending a decision by the court.

Disability Case Study#2:


Client's Rights under Florida Law -Videotaping IME

The firm represented an orthopedic surgeon who owned a disability insurance policy insuring him if he became unable to perform the material duties of his own occupation. The surgeon developed carpal tunnel syndrome and was unable to do what he previously had spent his days doing, which involved spending approximately 90% of his time performing surgery. He filed a claim for disability income benefits. The insurance carrier accepted the claim. During the time the insurance company was paying the surgeon benefits, the insurance company scheduled a independent medical evaluation ("IME") for the surgeon, which is in fact an insurance exam with rarely any independence. The insurance company advised the surgeon that he was required under the terms of the policy to attend the evaluation alone. The insurance company also advised the insured that it could terminate his claim if he failed to cooperate. The surgeon contacted the law firm to handle this matter.

The key to the law firm's success was a careful review and understanding of the terms of the policy and Florida law. While the disability policy contained a provision permitting the insurance company the right to require the insured to attend a medical evaluation performed by a doctor of its choice, it did not provide that the insured must attend the evaluation alone or that benefits could be terminated based on the insured's demand to have a third party present at a IME, including a videographer. The law firm advised the carrier of client's willingness to cooperate and attend an IME, as long as it could be videotaped by a professional videographer. The law firm received a copy of the doctor's qualifications and proof the doctor had malpractice insurance.

The insurance company argued that there was no right to have the IME videotaped. The firm responded by providing Florida case law addressing the right of workers' compensation and personal injury claimants to have a third party, be it an attorney or videographer, present at a medical evaluation, considering the adversarial nature of the IME. The law firm went further and advised that it would be filing a declaratory action so that a judge could determine whether under the terms of the policy the carrier had a right to refuse the videotaping of an IME and would seek costs for going through the process. The carrier finally agreed to allow the videotaping of an IME prior to institution of a lawsuit.


Thanks to the Wagar  Law Firm for contributing the case studies.  Contact or visit


Last Updated on Sunday, 22 August 2010 15:00