Meaning of Care

A Crash Course on The Meaning of "Care" and its Significance in the Disability Policy

Disability Insurance policies typically have a "care" requirement written into the policy's definition of disability. Usually you will find a care requirement qualified by either the word "regular" or "appropriate" as seen in the following examples:

"You are under the regular and personal care of a Physician"

"You are receiving care by a Physician which is appropriate for the condition causing the disability."

The two types of care require two differing types of activity by the policyholder and the insured's physician in order to comply with the policy's definition of disability. The former is largely quantitative ("regular") while the later is largely qualitative ("appropriate"). It is not infrequent, however, that the insurance company will read "appropriate" into a "regular" care policy requirement or interpose an "optimal" or "aggressive" care requirement into an "appropriate" care policy standard. Understanding the difference between the two care requirements will better prepare you to spot when the insurance company has traveled well beyond the common sense meaning of the disability insurance policy language which could threaten your client's right to continued benefits under the policy. The following examples illustrate the significance of the degrees of "care" required under a disability insurance policy.

Regular Care

Dr. Stanley Heller was a board certified cardiologist who specialized in invasive cardiology. He was insured under an Equitable Life disability policy which would not pay benefits "...for any period of time which the Insured is not under theregular care of a physician...." (1) In March of 1984 Dr. Heller concluded that he could no longer safely practice invasive cardiology because of carpal tunnel syndrome so he submitted a disability claim. Equitable paid the disability claim for approximately one year before denying the claim based on its conclusion that Dr. Heller failed to satisfy the "regular care" requirement by not undergoing corrective surgery, which was recommended by two of his physicians, even though it conceded that Dr. Heller still could not perform invasive cardiology. Dr. Heller sued and prevailed at trial where the trail judge determined that insurance policy did not require Dr. Heller to submit to elective surgery because Equitable failed to include a surgery requirement in the policy language. (2) Equitable appealed to the 7th Circuit believing that the scope of its "regular care" insurance policy requirement warranted the conclusion that Dr. Heller's refusal to undergo appropriate surgery, that could potentially relieve him of his disabling symptoms, necessitated a denial of benefits.

On appeal, the Heller Court, resoundingly rejected Equitable's construction of the "regular care" requirement:

"Although the policy does not define the parameters of the clause "under the regular care and attendance of a physician," we refuse to add to and construe the policy beyond its clear and obvious language, to require the insured to submit to surgery, if and when surgery is recommended by the physician "rendering regular care and attendance." The language is clear on its face to the average citizen and even more so to a member of the medical profession. We are convinced that...the clause "under the regular care and attendance" means just what it says, namely that the insured is obligated to periodically consult and be examined by his or her treating physician at intervals to be determined by the physician. Clearly the language does not condition disability payments on the insured's undergoing surgery if recommended by the physician rendering "regular care and attendance." We refuse to indulge in judicial activism and condition coverage under the contract on the insured's undergoing surgery, when the insurer failed to provide such a conditional clause in the policy." (3)

The Heller court further held that the "regular care" clause "was not intended to allow the insurer to scrutinize, determine, and direct the method of treatment the claimant receives" and that the purpose of the "regular care" clause was to allow a physician to determine that the policyholder was actually disabled, not malingering and to prevent fraudulent claims. (4)

The practice nugget for policyholder attorneys to take away from Heller is that when the word "care" is qualified by "regular" in a disability insurance policy, the qualification is one of quantity, i.e. periodic visits, as opposed to assessing the qualitative appropriateness, or desirability, of the type of care rendered.

Appropriate Care

Jeffrey Gough was a computer mapping technician insured under his employer's group disability insurance policy with Metropolitan Life ("Met"). In order to qualify for total disability benefits under the group policy, an insured had to show, in part, that "...you are receiving Appropriate Care and Treatment from a doctor on a continuing basis..."(5)
Gough became disabled from further work in 1999 because of right temporal lobe epilepsy. While receiving disability benefits, Gough underwent brain surgery in an attempt to relive him of the epilepsy. Gough's medical records indicated that the brain surgery had an excellent outcome concerning seizure control but Gough still complained of memory loss and confusion. Met paid the claim for a little over two years before denying benefits in 2002 primarily because the definition of disability changed from "own occupation" to "any occupation" and Met's medical review finding no basis for the subjective complaints. The denial was upheld on the internal ERISA appeal.

Upon examination of the administrative record by the Gough Court, the Court opined that the denial by Met was not arbitrary and capricious. Is conclusion was supported, in part, by Gough's failure to demonstrate that he was receiving appropriate care:

"Significantly, Plaintiff has not demonstrated that he was undergoing regular treatment for depression, mood disorder, problems with functioning, or any other psychological disorder. The Plan requires that an eligible participant be "receiving Appropriate Care and treatment from a Doctor on a continuing basis." Although several doctors referred Plaintiff for psychiatric evaluation and management, Plaintiff evidently did not follow-up on these referrals, and there is no record of him receiving any medical care and treatment for a psychiatric disorder or condition."(6)

Linda Pralutsky was a health unit coordinator insured by her employer's group disability policy with Metropolitan Life. The group policy defined disability to mean that : "...due to sickness, pregnancy or accidental injury, you are receivingAppropriate Care and Treatment form a doctor on a continuing basis...." (7) In 2001 Pralutsky stopped working because of a disability that evaded definitive diagnosis, but according to her neurologist, best "fit in a chronic fatigue or fibromyalgia category." (8) Met denied Linda's claim following a medical review for two reasons: (1) a lack of medical documentation supporting the severity of a diagnosis of fibromyalgia and (2) a lack of support that Linda was "aggressively" treating and under appropriate care for the diagnosis.(9) The denial was upheld during the ERISA appeal even though a clinician hired by Met noted that Linda was "receiving appropriate and regular medical care at this point."(10)

In reviewing the appropriateness of the ERISA denial, the Pralutsky Court
Found the denial to be arbitrary and capricious in part because of (1) the insurer's wholesale ignoring of subjective evidence and (2) the grafting of an "aggressive treatment" standard into the policy's "appropriate care" requirement. To that end, the Pralutsky Court noted:

"The plan Administrator initially denied Pralutsky's claim because, in part, she was not "aggressively treating" her condition. The Plan, however, does not require that treatment be aggressive; it requires that it be "appropriate," in that it be from a suitable doctor, necessary to meet health needs, consistent with medical guidelines, and for the purpose of maximizing improvement."(11)

In short, appropriate care need not be the most aggressive care, the optimum care, or even the best care money can by. It need only be "appropriate" with the aim of improving the patient's condition.

Finally, although Gough and Pralutsky and other appropriate care cases (12) reflect a recognition that "appropriate care" is something more qualitative than "regular care," one should not understand the distinction to mean that the policyholder "must obey every doctor's recommendation" or defer to the insurance company's "judgment about the appropriate care for the condition."(13). Appropriate medical care can be determined objectively as the treatment a patient would make a reasonable decision to accept after duly considering the opinions of medical professionals.(14) Experience teaches us that there can be a world of difference between what an insurance company thinks is a reasonable decision and what the facts and circumstances and our policyholder client's and their health care providers believe to be reasonable health care decision. "Care" has significance in the context of a disability policy. Be wary of the insurance company that tries to make the word mean more than what the insurance policy suggests.