Accidental death policies, by definition, provide benefits when the insured dies as the result of an accident. However, not all accidents are covered since most policies have exclusions limiting the type of accidents that will be covered. State Insurance Codes have placed limitations on what exclusions an insurance company can place in such policies.
I assisted a recent client whose 59 year old mother died of an accidental overdose of her pain medication, Oxycodone. Her mother was insured with an accidental death policy from Stonebridge Life Insurance Company. However, her claim for benefits following her mother's death was denied.
Stonebridge Life denied the claim citing two exclusions in the policy. The first exclusion excluded losses caused by the use of intoxicants or prescription medications unless taken as prescribed. Stonebridge Life asserted that the insured took more than the prescribed amount, giving rise to the exclusion. The second exclusion cited by Stonebridge Life was an exclusion for losses caused by illness or the treatment thereof. Stonebridge Life asserted that the medication was a treatment for chronic pain and thus, again was excluded by the policy.
On behalf of my client I argued that California Insurance Code Section 10369.12 limits the insurance company's ability to exclude death caused by drugs. Section 10369.12 allows an insurance policy to include an exclusion "in the form set forth herein." The exclusion for intoxicants in the Insurance Code states:
"The insurer shall not be liable for any loss sustained or contracted in consequence of the insureds being intoxicated or under the influence of any controlled substance unless administered on the advice of a physician.
Stonebridge Life's exclusion in its policy was similar, but not identical to the above language. The crucial difference was that Stonebridge Life's exclusion excluded losses caused by a person using drugs unless taken or used as prescribed by a physician. This language clearly required the insured to take the medication within prescribed amounts. We argued that the language from California Insurance Code - unless administered on the advice of a physician - does not require the patient to take the medication exactly as prescribed.
A Federal Judge in the Northern District of California agreed with our interpretation of the Insurance Code and the policy and has ruled that in California an insurance company cannot exclude death caused by an overdose of prescribed medication, even though the decedent took more than was prescribed by his/her physician. Based on the same reasoning, the court held that the medical treatment exclusion was inconsistent with the California Insurance Code since it would be just another method of getting around the limitations set forth in California Insurance Code Section 10369.12 with regard to losses caused by use of prescription medication.
The opinion of the court in Smith v. Stonebridge Life Insurance Co can be found on Westlaw at 2008 WL 4531818. For more information on this case and other insurance cases, see our web page at stennettcasino.com
Tuesday, December 2, 2008
Wednesday, May 14, 2008
HARTFORD RECIPE FOR LTD DENIAL
If you are receiving benefits under a Hartford disability policy then you should be aware of its recipe for denial. I have seen a consistent pattern of termination of benefits by Hartford. The strategy is to set a trap for the beneficiary that can be avoided if you are aware of the following.
Regardless of the form of your disability Hartford will send a functional capacity evaluation form to the treating doctor which will ask him/her to delineate the number of hours their patient can sit, stand, walk in an 8-hour work day. It will also ask many other questions regarding the patient’s functioning. Typically, the doctor will rely substantially on the patient’s statements of disabilities. The trap is this. The form typically does not conform to the individual disability that you may have. Thus though you may be able to sit for only 20 minutes in a work setting in front of a computer on a consistent basis, you may be able to sit for 2 hours in a car. Or, on a good day you may be able to do much more than on a bad day, which typically will follow a day of activity. Thus, the problem in a work setting becomes the inability to perform the same function day after day, 8-hours a day. The functional capacity form is typically filled out by the doctor and by the patient on the basis of the worst case scenario. Thus, the doctor may state that the patient can sit for only 20 minutes consecutively. What the doctor should be stating is that the patient is limited to 20 minutes sitting at a work station consecutively before their abilities to concentrate, etc. are interfered with by pain and discomfort. Or that their capacities vary and thus their limitations are based on an inability to perform consistent, day-after-day activities.
The trap is that once the physician sets out the limitations as being the ability to sit "only 20 minutes at a time," then Hartford sends a surveillance team to videotape the insured. Hartford will camp out at your residence at 6 a.m. and follow you for the entire day. They will do this for 2 to 3 days and if they are unsuccessful in finding you doing any activities they will come back another time and do it again. Inevitably, the insured will leave their home and perform errands such as shopping, going to the bank, going to church, etc. These errands will typically show the insured doing things beyond the limitations placed in the functional capacity evaluation forms completed by the treating doctor.
Once the surveillance is completed then Hartford will send an adjuster to the insured’s home for a 2 to 3 hour interview. During the interview they will obtain a signed statement from the insured listing all the limitations they have due to their disability. Then they pop out the video and ask the insured to identify themselves in the video and that indeed it reflects their abilities. The video will show the insured getting in and out of cars, driving cars, sitting in cars for extended periods of time, doing extended shopping for a half day or more. These will be perceived as inconsistent with the limitations the insured and the treating physician placed and thus makes the insured’s claim of disability appear to be false.
The reality is that an individual who is disabled from the grinds of a 40-hour work week is not necessarily disabled from life. They still have to perform activities of daily living that are required, whether one is working, or not. The abilities to go to the grocery store and the bank do not correlate with the ability to work a full time job. However, Hartford’s strategy is to get the insured to at least appear to overstate their disability and then discredit them with the video. If you understand Hartford’s strategy you can avoid the trap. Don’t place unrealistic, definite time limitations on any of your capacities. Concede your ability to do what you can do, with the important aspect being the things you cannot do that prevent you from returning to work.
For more information on how to protect your disability benefits visit our web site at StennettCasino.com.
Regardless of the form of your disability Hartford will send a functional capacity evaluation form to the treating doctor which will ask him/her to delineate the number of hours their patient can sit, stand, walk in an 8-hour work day. It will also ask many other questions regarding the patient’s functioning. Typically, the doctor will rely substantially on the patient’s statements of disabilities. The trap is this. The form typically does not conform to the individual disability that you may have. Thus though you may be able to sit for only 20 minutes in a work setting in front of a computer on a consistent basis, you may be able to sit for 2 hours in a car. Or, on a good day you may be able to do much more than on a bad day, which typically will follow a day of activity. Thus, the problem in a work setting becomes the inability to perform the same function day after day, 8-hours a day. The functional capacity form is typically filled out by the doctor and by the patient on the basis of the worst case scenario. Thus, the doctor may state that the patient can sit for only 20 minutes consecutively. What the doctor should be stating is that the patient is limited to 20 minutes sitting at a work station consecutively before their abilities to concentrate, etc. are interfered with by pain and discomfort. Or that their capacities vary and thus their limitations are based on an inability to perform consistent, day-after-day activities.
The trap is that once the physician sets out the limitations as being the ability to sit "only 20 minutes at a time," then Hartford sends a surveillance team to videotape the insured. Hartford will camp out at your residence at 6 a.m. and follow you for the entire day. They will do this for 2 to 3 days and if they are unsuccessful in finding you doing any activities they will come back another time and do it again. Inevitably, the insured will leave their home and perform errands such as shopping, going to the bank, going to church, etc. These errands will typically show the insured doing things beyond the limitations placed in the functional capacity evaluation forms completed by the treating doctor.
Once the surveillance is completed then Hartford will send an adjuster to the insured’s home for a 2 to 3 hour interview. During the interview they will obtain a signed statement from the insured listing all the limitations they have due to their disability. Then they pop out the video and ask the insured to identify themselves in the video and that indeed it reflects their abilities. The video will show the insured getting in and out of cars, driving cars, sitting in cars for extended periods of time, doing extended shopping for a half day or more. These will be perceived as inconsistent with the limitations the insured and the treating physician placed and thus makes the insured’s claim of disability appear to be false.
The reality is that an individual who is disabled from the grinds of a 40-hour work week is not necessarily disabled from life. They still have to perform activities of daily living that are required, whether one is working, or not. The abilities to go to the grocery store and the bank do not correlate with the ability to work a full time job. However, Hartford’s strategy is to get the insured to at least appear to overstate their disability and then discredit them with the video. If you understand Hartford’s strategy you can avoid the trap. Don’t place unrealistic, definite time limitations on any of your capacities. Concede your ability to do what you can do, with the important aspect being the things you cannot do that prevent you from returning to work.
For more information on how to protect your disability benefits visit our web site at StennettCasino.com.
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