Posted on: 7/27/2012
Joseph M. Hamilton, Jessica Vigliotti
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It is common for disability insurance policies to include, as part of the definition of total disability, a requirement that the insured be receiving care "appropriate for the condition causing the disability," or some similar language. In the case of older policies, however, the policy language frequently requires only that the insured be under the "regular care" of a physician. This article addresses case law from various jurisdictions that deal with the import of appropriate care provisions, the interplay between appropriate care and regular care policies, and the methods used for determining what care is "appropriate." Additionally, the article discusses arguments pressed by claimants in an attempt to avoid the requirement that they receive appropriate care.
Regular Care Policies
Courts considering policies that include only a regular care provision hold that, to be eligible for benefits, the insured is merely required to be seeing a suitable doctor to monitor his condition on a regular basis. Heller v. Equitable Life Assurance Society of the United States, 833 F.2d 1253 (7th Cir. 1987) is a frequently cited case that demonstrates the typical interpretation of a regular care provision. In Heller, the insured was a physician specializing in invasive cardiology. Heller developed carpal tunnel syndrome, and submitted a claim for benefits. The policy required that Heller be "under the regular care and attendance of a physician" to be eligible for benefits. Equitable took the position that Heller was not entitled to benefits because he refused to undergo carpal tunnel release surgery as recommended by at least two doctors who had examined him.
The Heller court rejected Equitable's argument, noting that the policy language stating that the claimant must be under the regular care and attendance of a physician is clear on its face, and could not be read to include a requirement of undergoing surgical procedures. The Heller court noted it would not read such a requirement into the contract "when the insurer failed to provide such a conditional clause in the policy." The appropriate care provisions often seen in newer policies are an attempt to include such an express condition in the policy.
Appropriate Care Policies
Courts faced with construing the language in policies that include appropriate care provisions typically find that the insured has a duty not only to regularly receive medical care, but to seek and accept care that is suitable for the disabling condition. However, as the Heller case demonstrates, where a policy only includes a regular care provision, the question of whether the care received is suitable may not be relevant to the disability determination. The determination of what care constitutes "appropriate care" can be complex. Further, the distinction between these two policy provisions becomes especially important in the context of cases where an insured refuses to undergo surgery that could potentially alleviate a disability.
The Insured's Theories
Insureds whose benefits have been discontinued based upon a failure to accept appropriate care have advanced several theories. One theory is that the appropriate care provision itself is ambiguous. The insured in Buck v. Unum Life Ins. Co., 2010 WL 887379 (N.D. Cal.) asserted this argument. Buck claimed that the phrase "receiving medical care from someone other than himself which is appropriate for the injury or sickness" was unclear, because "appropriate" could refer to the type of medical practitioner from whom the claimant must receive care. The court quickly dismissed this argument, noting that Buck's interpretation was simply not reasonable as a matter of grammar.
In Paul Revere Life Ins. Co. v. DiBari, 2010 WL 4876054 (D.Conn.), the insured also unsuccessfully argued that the appropriate care provision was ambiguous. The provision in that case required that the insured be receiving "the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability." Paul Revere argued that language imposed upon DiBari a duty to seek and obtain care appropriate for his disabling condition, determined objectively by reference to prevailing medical standards. DiBari disagreed, arguing the provision was ambiguous and could be read to mean he was obligated to receive "regular and personal care," and that only if the care was somehow inappropriate could Paul Revere deny benefits. The Court held that the appropriate care was not ambiguous, and that the policy clearly imposed upon DiBari the duty to seek and accept care appropriate for his condition. See also Doe v. Provident Life and Accident Ins. Co., 1997 WL 799439 (E.D.Pa.) (insured unsuccessfully argued appropriate care provision should be read as referring to an appropriate physician, as opposed to the type or quality of care).
Alternatively, the claimant may attempt to avoid the effect of an appropriate care provision by arguing that the burden of proof falls on the insurer to establish that the care he is receiving is not appropriate. This was the approach taken by the claimant in Doe v. Provident Life & Accident Ins. Co., 1997 WL 799439 (E.D.Pa.). In Doe, the insured, who had been receiving benefits for two years prior to Provident ceasing payments, argued that because he had been receiving the benefits Provident had the burden of establishing he was no longer eligible. This is an incorrect statement of the law, as the court in Doe recognized. Likewise, in Reznick v. Provident Life & Accident Ins. Co., 2005 WL 822240 (E.D. Mich.), the court quickly dismissed a similar argument. In both of these cases, the courts recognized that the claimant bears to burden of proving entitlement to disability benefits under a disability policy.
Another avenue of attack used by claimants is to argue that as a matter of public policy, the courts should not permit insurance companies to dictate what type of medical treatment an insured must receive. The courts have flatly rejected this attempt to maneuver around the plain language of the policies. For example, in DiBari, the court noted that its decision in favor of Paul Revere in no way impinged upon DiBari's right to choose his own course of treatment. Similarly, in Provident Life & Accident Ins. Co. v. Henry, 106 F.Supp.2d 1002 (C.D.Cal. 2000), the court stated, "requiring an insured to adhere to the terms of his insurance contract by accepting appropriate care in order to receive contractual disability payments does not deprive the insured of the ultimate choice in his treatment."
The Case Law - Are Appropriate Care Provisions Effective?
There are several California cases addressing the impact of appropriate care provisions, which illustrate various approaches to these issues. One such case, Provident Life & Accident Ins. Co. v. Henry, 106 F.Supp.2d 1002 (C.D. Cal. 2000), was the first in the Ninth Circuit to hold that a disability insurance policy may condition benefits on the insured's receiving appropriate medical care, which may include surgery. The coverage at issue conditioned eligibility for benefits on Henry receiving "care by a Physician which is appropriate for the condition causing the disability." Henry – a podiatrist – claimed to be disabled as a result of carpal tunnel syndrome, and argued that Provident could not require him to have carpal tunnel release surgery absent specific policy language alerting him that he could be required to undergo surgery.
The court disagreed. The court noted that it was bound to adhere strictly to the language of the contract, and here the policy was unambiguous. With respect to what "appropriate care" entails, the court opined that such would be determined objectively, as the treatment a patient would make a reasonable decision to accept after duly considering the opinions of medical professionals. The court noted that under some circumstances, appropriate medical treatment could be surgical.
Subsequently, in another California case, the court expanded upon this, implying a duty to seek and accept appropriate care – potentially up to having surgery – even under a policy that included only a regular care provision. In Provident Life Ins. Co. v. Van Gemert, 262 F.Supp.2d 1047 (C.D. Cal. 2003), Van Gemert – an oral surgeon – was covered under three disability insurance policies. Two of those policies required, as a condition of eligibility for benefits, that Van Gemert be receiving care "appropriate for the condition causing the disability." The third policy, however, required only that he be "under the care and attendance of a physician" other than himself.
Van Gemert submitted a disability claim based on vision loss in his left eye. Provident initially began paying benefits to him, but eventually asserted that curative surgery was the appropriate course of care and was required under the policies. Van Gemert refused the surgery; as a result, Provident paid benefits under a reservation of rights and filed an action for declaratory judgment.
The court concluded that under the two policies which included an "appropriate care" provision, there was no question that if surgery constituted appropriate care (a question for the fact finder) then Van Gemert was not entitled to benefits. Interestingly, the court came to the same conclusion with respect to the third policy, which did not include an appropriate care provision. The court reasoned that the duty of good faith and fair dealing – implied into every contract under California law – required that Van Gemert seek and accept whatever care a reasonably prudent person would pursue, and that such care could potentially include surgery. In determining whether a claimant's refusal to accept surgical treatment is reasonable, the court identified several factors to consider, including: the risk involved in the recommended treatment; the pain and discomfort likely to result from the treatment; the prospect that the disability would be removed, allowing for a return to work; whether a reasonable person would submit to the treatment; and whether the particular treatment or procedure is recommended by a competent physician.
California backpedaled a bit in a more recent appropriate care decision, however, declining to imply an appropriate care requirement into a policy that included only a regular care provision. Buck v. Unum Life Ins. Co. of Amer., 2010 WL 887379 (N.D. Cal.), involved a claim for disability benefits by a dentist. Buck claimed he was disabled as a result of an accident that caused him to incur post traumatic carpal tunnel syndrome. He was covered under two separate disability policies: a policy issued in 1984 required only that he be "under the care of a physician other than [him]self," while a policy issued in 1986 required that he be "receiving medical care from someone other than himself which is appropriate for the injury or sickness."
Unum initially approved benefits for Buck, but subsequently determined that in order to remain eligible for benefits, Buck was required to undergo carpal tunnel release surgery. The court conducted two separate analyses based on the distinct policy language in the 1984 and 1986 policies. With respect to the 1984 policy, the court concluded that the policy language "was not intended to allow the insurer to scrutinize, determine, and direct the method of treatment the claimant receives." The court noted that had Unum desired, it could have included a provision in the policy requiring the insured submit to appropriate care – as it did in the 1986 policy.
With respect to the 1986 policy, Buck argued the policy language only required that he be receiving medical care from the appropriate type of medical practitioner. The court flatly rejected this interpretation of the contract language, holding that the 1986 policy was unambiguous and clearly imposed on the insured the "duty to seek and accept appropriate care" for the injury or sickness upon which his claim is based. Although the court denied Unum's summary judgment motion, it did so because whether the particular care received was "appropriate" was a factual question to be determined by the trier of fact.
The approach in the Buck case illustrates the majority position seen throughout the jurisdictions that have considered how to interpret these policy provisions. For example, in DiBari, 2010 WL 4876054 (D. Conn.), the court held that where there is an appropriate care provision, an insurer is permitted to condition the receipt of disability benefits on the claimant receiving appropriate care, which in this case included surgery. DiBari, a general and cosmetic dentist, applied for disability benefits as a result of bilateral carpal tunnel syndrome. DiBari was treated conservatively for some time, but such treatment did not alleviate his symptoms. One of DiBari's treating physicians suggested carpal tunnel release surgery and indicated that there were no contraindications to the surgery.
Despite this recommendation, DiBari was not comfortable with having surgery and declined to do so. As a result, Paul Revere began paying benefits under a reservation of rights and filed a complaint for declaratory judgment. On Paul Revere's motion for summary judgment, the court considered how to interpret the policy language.
The policy required that, in order to be eligible for benefits, a claimant be "receiving Physician's Care." The policy defined "Physician's Care" as "the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability." Paul Revere contended that the policy created an express and unambiguous obligation on DiBari to obtain care that is appropriate for the treatment of carpal tunnel, judged objectively by reference to prevailing medical standards. DiBari, on the other hand, argued that the policy merely required that he be under the regular and personal care of a physician, and that Paul Revere could deny benefits only if the care received was somehow inappropriate.
The court noted that resolution of this dispute would significantly impact the outcome of the case. The court indicated, in dicta, that in a policy that only requires a claimant to receive "regular care," it would follow the Seventh Circuit's decision in Heller and hold that surgery is not included within the purview of regular care. However, if the policy required DiBari to receive care appropriate for the condition causing disability, surgery may be included within the treatments DiBari is required to accept in order to remain eligible for benefits.
Ultimately, the court concluded the policy was clear and unambiguous, and imposed upon DiBari the duty to seek and accept appropriate medical care for his carpal tunnel syndrome. With respect to whether carpal tunnel release surgery constituted appropriate care in that case, the court noted that DiBari's decision to forego the surgery was not supported by any medical advice or evidence. DiBari presented no evidence in support of the position that surgery was not the appropriate course of treatment. The court took note of the Buck decision, where the court found that whether surgery was appropriate care could not be determined on summary judgment. However, because DiBari had presented no contradictory evidence, the court granted summary judgment in favor of Paul Revere.
The application of appropriate care provisions can be especially difficult where the claimed disability is a psychiatric condition. For example, in Sebastian v. Provident Life and Accident Ins. Co., 73 F.Supp. 2d 521 (D. Md. 1999), Sebastian – a business owner – sought benefits based on bouts of anxiety, depression, pain and fatigue. He was prescribed medication by his primary care physician, but did not thereafter visit a psychiatrist until a year later, at which time he was diagnosed with adjustment disorder and depression. After only four visits, Sebastian terminated his relationship with the psychiatrist. He then began treatment with another physician, who diagnosed him with bipolar disorder and treated him with medication and weekly therapy sessions.
Provident argued that Sebastian had not received appropriate care during the initial stages of his claimed disability. The policy required Sebastian receive care appropriate for the disabling condition. The court instructed the jury that "appropriate care" means suitable care under the circumstances; it does not mean perfect care or the best possible care. Provident argued that because Sebastian did not see a psychiatrist at all during the first six months of his claimed period of disability, he had not received appropriate care. Sebastian's treating physician testified that the first psychiatrist with whom Sebastian treated did provide appropriate care. The court held that it could not grant summary judgment, because there was a question of fact regarding whether the care received was appropriate for the disabling condition.
Another case involving the interpretation of an appropriate care provision in the context of a psychiatric claim is Reznick v. Provident Life and Accident Ins. Co., 2005 WL 822240 (E.D. Mich.). Reznick was a physician suffering from depression. The policy included an appropriate care provision, and the court interpreted "receiving care by a physician which is appropriate" as imposing on Reznick a duty to seek and accept appropriate care.
Reznick's treatment included infrequent therapy sessions. Provident presented evidence that based on the dosage of medication prescribed, Reznick was not receiving appropriate care for an alleged totally disabling condition. While Reznick claimed to be suffering from bipolar disorder, the court found that his dosage of 500mg per day of Paxil, an anti-depressant, was less than the typical therapeutic level. Further, Reznick was not compliant with taking his medication as prescribed and was not receiving intensive weekly psychotherapy. In the four years before trial, Reznick had approximately twelve office visits with his doctor. The doctor noted that Reznick had made the decision that intensive weekly therapy was not needed.
The court found that if Reznick did have a psychiatric condition that precluded him from performing his occupation, then he clearly was not receiving appropriate care for the severity of the condition. The court then noted that if it were to assume the care Reznick was receiving was appropriate care, then, based on how little care and treatment was required, the court would also conclude that he did not have a psychiatric condition that was totally disabling. Under either scenario, Reznick was not eligible for benefits.
Finally, in a recent Massachusetts case, Metropolitan Life Ins. Co. v. Cotter, 2011 WL 2367609 (Mass. Super.), a Massachusetts trial court found in favor of MetLife based upon its determination that Cotter was not receiving appropriate care for his psychiatric condition. Cotter was a sales director when he was diagnosed with prostate cancer. Following successful surgery, Cotter sought to continue his claim on the grounds that he was disabled as a result of depression and anxiety. His policy included an appropriate care provision. MetLife had Cotter examined by both a psychologist and a psychiatrist. Those examinations did not support his diagnosis. Rather, the psychiatrist concluded that Cotter had an adjustment disorder, with mixed depression and anxiety. He recommended that Cotter have his medications reassessed, engage in cognitive behavioral therapy aimed at reducing his anxiety, have a neuropsychological assessment, and engage in occupational rehabilitation services. In the examiner's opinion, if those steps were taken, and Cotter was motivated, he would be able to return to his former job within six months.
Cotter's treating psychiatrist informed MetLife that Cotter was not motivated or interested in returning to his former occupation. The treatment recommendations were never implemented and the treatments actually provided to Cotter were not focused on returning him to his former occupation.
MetLife continued paying benefits to Cotter, but filed a declaratory judgment action on the basis that he was not entitled to benefits because he was not receiving appropriate care. The court agreed, noting that Cotter had offered no evidence that the recommendations of the examiner did not comply with prevailing medical standards, did not have a reasonable likelihood of success, or pose any risk to Cotter's well being. The court concluded that Cotter had made a choice to pursue a new career, rather than seek to return to his former occupation.
Even once a court interprets the policy as imposing upon a claimant the duty to seek and accept appropriate care, significant questions still remain. Determining what care actually constitutes appropriate care is an analysis that usually requires expert testimony and is a question for the trier of fact. This question was a large part of the court's focus in Mack v. Unum Life Insurance Company of America, 471 F.Supp.2d 1285 (S.D. Fla. 2007). There, the policy required that Mack receive "medical care from someone other than himself which is appropriate for that injury or sickness." Mack sought benefits based on Type 2 diabetes which he claimed prevented his continuing to practice as a licensed marriage and family therapist. Mack admitted that for a year and a half he did not seek treatment from an internal medicine practitioner or from his primary care physician. Indeed, one of his treating physicians testified that Mack was not complying with the standard of care he provides for his patients because Mack did not seek treatment.
In order to establish what appropriate treatment would be, the court found the logical step would be to turn to the treating physician's standard of care for diabetes. The record contained that information, and Mack failed to comply. The court found that no matter how far a court was willing to stretch a liberal interpretation of the policy's care and attendance provision, it must follow a logical point of reference. Here, the logical point of reference would be the treating physician's standard of care because of the fact that he was Mack's treating physician. The court cited Reznick for the conclusion that an appropriate care provision creates an explicit duty to seek and accept appropriate treatment which is concomitant with the insured's seeking and accepting the care that is appropriate for a disabling condition as determined by a treating physician.
An earlier case from Pennsylvania, Doe v. Provident Life and Accident Insurance Co., 1997 WL 799439 (E.D. Pa.), however, demonstrates that accepting the treating physician's recommendations as "appropriate care" is not always suitable. There, the policy required that Doe, to be eligible for total disability benefits, be receiving care by a physician which is "appropriate for the condition causing the disability." Doe was compliant with his treating physician's treatment plan and recommendations, but Provident's experts were critical of that treatment plan. Provident's experts testified Doe should still be on anti-psychotic medications and was not receiving the optimal range of available therapies. Provident also presented testimony to the effect that Doe had made a choice to change his lifestyle and not return to the practice of law.
Doe requested the court charge the jury that the policy language would be satisfied as long as the care received satisfied the standard of a reasonable physician under the malpractice standard. The court disagreed, and instructed the jury that appropriate care means care that is suitable under the circumstances and does not mean perfect care or best possible care. Although the jury found Doe had established that he was not able to perform his occupation, the jury – applying the appropriate care provision – nonetheless found Doe was not totally disabled, because he was not receiving care which was appropriate for the disabling condition.
An appropriate care provision can have a significant impact on a disability claim. In litigation, the insured is likely to argue several theories in an attempt to avoid the requirement that he receive appropriate care, including that the policy is ambiguous, that the insurer bears the burden of proof, and that allowing the insurer to dictate medical treatment violates public policy. The insured is also likely to argue that the care he is receiving is, in fact, appropriate. The determination of what care is appropriate, however, is complex and will include consideration and comparison of a treating physician's recommendations and possibly expert testimony. The cases discussed above illustrate that the treatment an insured must pursue to remain eligible for benefits can even include surgery, where the factors suggest that such treatment would be the most reasonable course. In considering whether an insured is receiving appropriate care, it is critical that the insurer fully understand the condition allegedly causing the disability; what treatment the insured has received, and why; and what other treatment modalities are available. Reliance on qualified medical expertise, either within or outside the company, is necessary to appropriately conduct that analysis.
Joseph M. Hamilton
Mirick, O'Connell, DeMallie & Lougee, LLP
Senior Risk Manager, Reliant Medical Group