What is the difference between an IME and a FCE? Dentists filing for disability should know. Here's what to expect after filing a claim for disability benefits.
Filing a claim for disability benefits leads to all types of requests for information. Learn how to handle each of them.
Editor's Note: This is the second in a series of four articles prepared by Jason Newfield and Justin Frankel of Frankel & Newfield law firm on disability claims and what the practicing dentist can expect when filing a claim. Their goal is to educate dentists, so they are better prepared to file and address the outcomes of their disability claims.
If there’s one thing that insurance companies are good at, it’s denying claims from dentist claimants. The physical nature of dentistry, as discussed in the previous article, led to a large proportion of claims filed by dentists and related dental professionals, and disability insurance companies are aware of this.
While the level of “red flags” being raised in the minds of insurance companies is not as high as for certain illnesses, like Fibromyalgia or Chronic Fatigue Syndrome, there are certain occupations that appear to receive increased scrutiny from claims examiners, and dentistry is among them.
When a claim is filed, the insurance company will typically seek to secure (and lock in) a claimant’s factual history of the claim, and they will attempt to elicit other information from a claimant. Often the person will have a script to work with, and that person will have handled hundreds of these.
In contrast, a newly disabled dentist, focused on his/her health first and foremost, may not keenly respond to the inquiries in a way that is in their best interest, and could negatively impact his/her claim.
As counsel for dentists, we typically do not permit such interviews, or they are conducted in our presence and with our participation.
As per the language of your policy, which should be reviewed by an experienced disability insurance lawyer, the insurance company is typically entitled to access and review information from you and from third-parties (scope is what might be at issue).
In our practice, we see a lot of requests for information that are overreaching authorizations that provide the insurer with access to materials that, frankly, are not relevant to the claim — or can be used negatively against a claimant. In residual or partial disability claims, the financials are relevant, while they might not be in a total disability claim.
What most dentists don’t realize is that they have a right to restrict the scope of the materials that are being requested. They also have the right to modify the scope of any authorization. There may be push back; the insurer may complain that the restrictions make it difficult for them to render a decision on the claim.
If that occurs, the dentist or the dentist’s attorney should request that the insurer clearly explain why it needs such a broad authorization, and on what basis does the policy demand it.
It is appropriate to seek to enforce your rights — whether on your own, or through counsel.
It is likely that the policy owner is required by the terms of the policy to undergo, as reasonably requested by the insurance company, an IME — Independent Medical Examination. Practically every policy now gives the insurer a right to conduct an IME as often as reasonably necessary.
The IME is one of the basic tools that disability insurance companies use to “determine” the extent of a claimant’s disability, and the dentist seeking benefits under his/her policy has an obligation to appear. There have been cases where the claimant objects to attending and this is almost universally held to be a basis to deny a claim, since it is a contractual obligation.
However, the contours of the examination, whether it can be audio or videotaped, or whether a witness can attend, and/or take notes, are issues of significance in this process.
Remember, there is a built-in conflict of interest in these exams. The examining doctor is being paid by the insurance company for each exam. The doctor who reports that many claimants are disabled is less likely to continue to be sent cases by the insurance company.
Protecting your rights against a process which might be stacked against you is of paramount significance in preserving your disability claim.
The FCE, Functional Capacity Exam, is riddled with problems. Unless your policy requires that you undergo this specific test, we advise our clients about the significant concerns we see in such evaluations.
An FCE, which requires the dentist to perform at maximum physical capacity, has been demonstrated to actually harm to some claimants. Often, those who limit their movements due to pain are accused of faking the claim. We ask the insurance company to provide the contractual language that requires this test, based on our experience with safety and reliability issues that it presents.
What is not revealed in a file is how the claimant is doing day one, two, three or two weeks after the FCE. These are rigorous tests of activities and may serve to exacerbate the claimant’s condition.
We have counseled dentists who are being required to attend Upper Extremity FCE’s, where the assessment focuses more on hand issues more prevalent in a dentist’s work. There are significant challenges with this testing as well, but often it poses challenges to claims.
Another tool often seen in dentists’ claims involves the use of surveillance. This clandestine (sneaky) observance of you while you engage in everyday activities will be studied in an effort to “capture” some inconsistency to use against your claim.
While you must live your life, a disabled dentist should be aware of what they do, and that can be harmonized with being disabled from being a dentist.
These are some of the claim handling issues typically seen when a claim gets filed. In our next piece, we will discuss some of the issues that might arise, or challenges we see made by insurance companies in an effort to avoid their contractual obligations.
Read Part 1 of the series: Filing a Claim for Disability Benefits — What You Can Expect
Jason Newfield and Justin Frankel are the founding partners of Frankel & Newfield, a law firm focusing on long term disability insurance issues on behalf of claimants. Both have attained AV Preeminent ratings from Martindale-Hubbell® and have been selected for inclusion in the Metro New York Super Lawyers. The practice represents many dentists, orthodontists, periodontists and other medical professionals.