Manipulating business owner
Case arose when chiropractor fell and hurt his back, neck and shoulder and filed a claim for disability benefits. Prior to becoming disabled the doctor was a sole practitioner who spent 95% of his time performing manipulations and the other 5% of his time on marketing and administrative work. After the claimant filed his claim the insurance company denied his claim based on the fact that he was still going to “work” every day.
We sued three different insurance companies on behalf of our doctor client and had him placed back on claim with one of his carriers, and a lump sum resolution at mediation with the other two carriers. The key to success in this case was extensive pre-litigation work in discussing with the doctor’s office staff and referral doctors about the nature of what our claimant chiropractor did on a regular basis prior to his injury and the fact that he was forced to hire a manipulating chiropractor to perform the work he did prior to his injury. Quick note: what seemed to really upset the insurance company was that when our client went out and focused on marketing and administrative work he actually was able to exceed his prior income.
As it turned out he was a great business owner. As is the case in all “own occupation” individual disability policies, his ability to make an income doing something other than his prior occupation was not relevant. For more information read Kirk Wagar’s article on the importance of detailing exact job duties in the initial claim form.
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RAGSDALE v UNUM
Mental and Nervous Exclusion for Alcoholism
Managing Partner, Kirk Wagar has handled cases around the country such as the case of John Ragsdale. Mr. Ragsdale was a recovering Alcoholic in full remission. As a top advertising executive and creative consultant, Mr. Ragsdale was in charge of large client accounts and was at the peak of his career. Mr. Ragsdale faced a devastating injury when equipment at a commercial shoot fell on him. In the course of his treatment he was given pain killers, which caused him to regress in terms of his progress and he was forced to seek in-patient help. UNUM denied his claim based on an exclusion that provided only 24 months benefit for “mental or nervous conditions”.
The key to success in this case was working with our client’s medical records to highlight the physical components of his illness and weaving those together with the real physical limitations he had based on the injury suffered which set this ball in motion. We were able to win a full Plaintiff’s Summary Judgment, placing Mr. Ragsdale on claim with UNUM and Mr. Ragsdale is still receiving benefit checks to this day.
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The material and substantial duties v. “A” material and substantial duties
We were proud to represent and fight for a well known trial lawyer in Miami who had the scare that many of our friends and family members have had. He was diagnosed with prostate cancer and at the outset the prognosis was quite dire. Luckily, through aggressive treatment, the prostate cancer went into remission and our client was “cancer free”. The long standing damage however, to our clients psyche and confidence, as well as problem incontinence caused his being to be essentially shattered. His doctors advised him not to go in front of a judge or jury as he could no longer concentrate on the facts or issues required to be successful. He constantly focused on whether or not he would have an “accident” in front of the jury and it paralyzed his ability to be an effective trial advocate.
His insurance company denied this claim based on the fact that he was able to do depositions, write legal briefs, run an office, meet with clients, attend depositions and the other secondary occupational duties that all trial lawyers do. Our argument, which was successful in convincing the insurance company to place our client on claim without the necessity of litigation, was that if a trial lawyer is unable to take a case to trial, he will have no clients, he will receive no settlement offers and he will not receive referrals from other lawyers. While we do many things in our jobs, the inability to do that one thing that is necessary in certain occupations, even if it is a small amount of time or income generated, renders us completely and totally disabled from their occupation.
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Job title v. actual job duties
We represented a surgical anesthesiologist from rural Florida who had spent his entire career and training in residency performing anesthesiology in the surgical room theatre. Our client, at the age of 50, developed incredibly powerful migraine headaches, (the most prevalent cause for lost work days in the United States), when he was in the operating room. The cause was unclear and different medical professionals pointed to the bright lights, possible escape gas and/or stress. The reality is that in a disability insurance setting the cause of symptoms is largely irrelevant. What is required is that a treating doctor understands what the claimant did for a living in an own occupation setting and that based on his or her medical opinion that individual can no longer perform those duties.
The insurance company denied our clients claim stating that there are other things an anesthesiologist can do other than work in an operating room. While this is a true statement, it is irrelevant for the purpose of an own occupation disability policy. We filed a Motion for Summary Judgment as to what our client’s occupation was as a matter of law under the terms of his policy, and after the hearing the insurance company resolved the case to our client’s satisfaction. The interesting point to this case is if these policies are not read specifically to what you yourself do for a living as opposed to what other people with similar job titles do, insurance companies will take advantage of that understanding not only with you but also with inexperienced counsel and judges who have not been exposed to the proper arguments under the law.
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Is she totally or residually disabled?
As is often the case, people who have disability policies whether they be group or individual insurance policies are motivated people who have absolutely no interest in being disabled. This was the case where we co-counseled with another law firm to represent a wonderful orthopedic surgeon from North Florida who was forced to receive neck fusion based on a long standing degenerative spine condition. Once she went through the surgery, it was impossible for her to perform the lengthy surgeries that she had previously performed, however she worked with a large group of doctors and transitioned to an office practice in more of a support role.
The insurance company argued that she had always had an office practice as no surgeon spends every waking moment in surgery. However, we were able to show, based on our surgeon client’s type of patients that her practice had completely changed. One example that was particularly persuasive was the fact that our doctor had approximately seven hundred patients from when she was performing surgery that she saw in pre and post operative consultations and when she transitioned to more of a support role for her group, she maintained absolutely no relationship with any of her prior patients, even though she was probably seeing about the same, if not more patients per year. The key is to isolate claimant’s actual job duties prior to becoming disabled.
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