Injury Or Sickness, Lifetime Benefits Or To Age 65?

An issue being seen with greater regularity in disability claims of dentists is whether a disabling condition is appropriately classified as a sickness or an injury. The issue is of tremendous import, since many private insurance policies held by dentists differentiate on the maximum benefit period between a disability caused by sickness and one caused by injury.

Disabilities resulting from a sickness are generally limited to a benefits period until age 65, while many policies afford lifetime benefits for a disability that is the result of an injury. And contrary to popular belief, several conditions fall into a gray area leading to disputes with the insurer on the maximum benefit period.

An example quite typical to the dental profession is carpal tunnel syndrome, due to the repetitive nature of their work, and the importance of maintaining fine motor skills for the successful treatment of patients, without putting patients at risk of harm. Insurers often try to argue that this condition is a sickness for disability insurance purposes, because the disability happens over time, is due to repetitive actions, or because no one incident led to the disability, and perhaps even because one could argue that it is an “occupational disease” process, that is akin to traditional sicknesses. We advance the position that it is an injury, entitling our client to lifetime benefits, where applicable.

Our position is that the condition is an injury - notwithstanding the fact that there is no one single and specific onset. The argument is that the condition was the result of repeated insults (accidents/injuries) and thus, was an unintended result of intentional behavior (accidental). We seek to harmonize our position with the policy language governing the specific claim for our client, but, strategically, our approach is to develop that medical evidence to support the injury claim.

Several courts throughout the country have addressed the issues - and have utilized a variety of legal concepts to reach decisions. The driving force behind the courts’ decisions, however, has been the “reasonable expectations” of the insured. Thus, if a claim should arise from a repetitive type condition, careful thought must be given to how to frame responses to the insurer on the claim forms, because the insurer will likely look to develop claim responses that could lead to finding that an insured is disabled from sickness, rather than injury, and greatly shortchange benefit payments. Other arguments involve a potential ambiguity in the contract, and we seek to apply the legal concept of construing ambiguous policy terms in favor of the insured.

About Jason A. Newfield, Esq.

Jason A. Newfield, Esq., is a founding partner at Frankel & Newfield, a national disability law firm, where he aggressively represents claimants in long term disability insurance, ERISA, and other insurance claims and litigation. He holds an AV® Preeminent Peer Review from Martindale-Hubbell and has been named to the Super Lawyer New York Metro list from 2013 — 2016. Mr. Newfield is frequently invited to speak before bar associations, medical organizations and other trade organizations regarding disability claims and has published numerous articles on Disability Insurance. He is a member of the American Conference Institute, regularly presenting to attorneys and claims personnel at national conferences on disability litigation.