Dr. C, a dentist, came to Attorneys Dell & Schaefer in 2006 seeking assistance in submitting applications for long-term disability benefits. In 1999, Dr. C began noticing a slight tremor in his right hand while writing and at times while holding a dental instrument. He immediately sought care from a neurologist, who after examining Dr. C, determined that the tremor was likely stress and anxiety related. Dr. C continued working and operating his dental practice with the hopes that his slight tremor would resolve.
Unfortunately, the tremor did not cease, in fact, it worsened. Dr. C began suspecting that perhaps the tremor was not simply stress, but something more serious and complicated. Beginning around 2002, Dr. C was forced to reduce his patient load due to his hand tremor and stop performing major dental procedures, which produced a majority of the income in his practice. Dr. C was having great difficulty maintaining his dental practice and he made the difficult decision to sell his practice before matters got financially worse. Dr. C found a buyer for the practice and negotiated an agreement where he would stay on as an independent contractor assisting in the transition of the practice to the new dentist. By mid 2003 the transition of the practice was complete and Dr. C accepted a new position with a dental practice performing minor dental procedures and cleanings. Dr. C’s symptoms continued to progress between 2003 and 2006, eventually causing him to go and see his neurologist again who advised him to stop all forms of general dentistry as of November 2006.
Prior to November 2006, Dr. C never understood what it meant to be “disabled”, as defined in his disability policy. He had always thought that “disability” was the loss of sight, the loss of a hand, or some injury or illness which would cause him to be completely incapable of performing activities of daily living. Dr. C had not realized, until Dell & Schaefer brought it to his attention, that pursuant to the unique terms and conditions of his disability policies, that “disability” also meant experiencing a 20% or greater loss of income in your occupation due to an illness or an injury. In early 2007, Dr. C submitted his applications for long-term disability benefits and claimed a disability date of May 2002, which was when he first began to loose income as a result of his hand tremor. The disability carrier approved the claim as of November 2006, but denied disability benefits for the period of May 2002 through October 2006, claiming that the insured’s late notice caused prejudice to the insurers, and even if the insurers had the ability to conduct a contemporaneous review, under their review of the claim Dr. C had not suffered the requisite loss of income to qualify for disability benefits. Under Florida law and the law of most states, failure to provide timely notice of claim to a disability carrier, in Dr. C’s case 90 days, can create a presumption of prejudice to the insurance carrier and an effective affirmative defense in the event of a suit.
Dr. C’s disability policy stated that if he was disabled prior to age 60 then he would receive disability benefits for his lifetime, otherwise the benefits would terminate at age 65. Dr. C turned age 60 in February 2006, and the disability carrier claimed he was not disabled until November 2006. The policy defined disabled as either residually or totally disabled. The carrier continued to deny benefits for anytime before November 2006 and advised Dr. C that benefits would terminate at Age 65. Attorney’s filed a lawsuit on behalf of Dr. C for breach of contract and seeking recovery of disability benefits due from May 2002 through October 2006. During litigation the insurance company raised the following defenses:
- Dr. C failed to provide timely notice of claim;
- Dr. C failed to reasonably treat with a physician from May 2002 through October 2006;
- Dr. C failed to suffer a loss of income due to illness or injury;
- Dr. C failed to comply with the “proof of loss” requirements of his policy.
Despite the difficult legal hurdles facing Dr. C’s case, Cesar Gavidia, Jr. and Gregory Michael Dell of Dell & Schaefer’s disability litigation team were able to successfully negotiate a confidential settlement that included past and future lifetime disability benefits.