Playing doctor: disability insurers should leave medical decisions up to the insureds and their physicians.

Own-occupation disability policies generally provide that insureds are totally disabled if they are unable to perform the substantial and material duties of their occupations and are receiving medical care for the disabling condition.

Yet increasingly, insurers take the position that the treatment the insured is receiving is inappropriate for the disabling condition.

There are two types of medical care provisions for own-occupation disability policies: The insured must be under the regular care and attendance of a physician, or the insured must be receiving care by a physician that is appropriate for the condition causing the disability.

Significantly, the policies do not contain any written duty for the insured to undergo surgery or other curative treatment in order to be eligible for benefits.

Yet an insurer may argue that the insured has to undergo carpal tunnel surgery instead of doctor-prescribed treatments of cortisone injections, night splints and anti-inflammatory medication. Or an insurer may assert that the insured should have back surgery, even though treatments such as pain injections, physical therapy and chiropractic manipulations are providing the insured with some relief.

Most courts, however, disagree. For policies containing the regular care provision, most courts have concluded that an insurer cannot require the insured to undergo surgery (or other curative treatment) as a condition to receiving benefits--even where surgery is usually successful and the refusal to undergo surgery was arguably unreasonable.

In Heller v. Equitable Life Assurance Society, the Seventh Circuit refused to allow an insurer to condition a carpal tunnel syndrome-disabled doctor's benefits on release surgery based on the regular care provision. The court held that such a provision required no more than regular monitoring of the insured by a physician to determine whether the disabling condition persisted. The court found that the lack of an express surgery requirement was fatal to the insurer's position and reasoned that adding a surgery requirement would constitute improper judicial activism.

As for policies containing the appropriate care provision, there is surprisingly little case law on the subject. Some courts have found that medical care can be "appropriate" even if it was not the ideal, perfect or best possible treatment. Others have concluded that where the insured had two reasonable courses of treatment for his or her disability, the insurer has no right to complain that the insured chose one rather than the other.

In Sebastian v. Provident Life and Accident Insurance Co., the court held that a reasonable jury could find that the insured received "appropriate care" for his disabling psychiatric disorder despite the fact that: 1)The insured had been treated by his primary care physician, not a psychiatrist or psychologist; 2) the physician waited five months before physically examining the insured and had prescribed anxiety and antidepressant medications before examining the insured; and 3) it was undisputed that the insured's physician had misdiagnosed his condition.

The court emphasized that treatment for a disability can be "appropriate" even if "it was not the ideal treatment," and that "appropriate means suitable under the circumstances ... not perfect care, or best possible care."

In Morinelli v. Provident Life and Accident Insurance Co., even though the insurer presented evidence regarding the poor quality of care rendered by the insured's physician, the court held that "'appropriate care' does not require a qualitative evaluation of the care provided." The court concluded that "the insurer's review of the nature of the care" received by the insured should be limited to "whether it is necessary and causally related to the alleged disability."

And in Kottle v. Provident Life and Accident Insurance Co., the court found that an insured who suffered from a panic disorder received appropriate care even though many of the therapy sessions occurred by telephone.

An insurer that tries to condition disability benefits on the insured undergoing surgery typically goes to great lengths to paint the operation as a benign, risk-free enterprise. That argument is nothing more than an elaborate red herring. The legal issue is not whether the risks of surgery outweigh the benefits; it's whether or not an insurance company can force the insured to undergo surgery against his or her wishes.

The only way to avoid this slippery slope is to stop it before it starts. Only if the decision regarding medical care is left in the hands of the person who receives it will insurance companies be prevented from practicing medicine without a license.

Frank N. Darras, a Best's Review columnist, is a partner with Shernoff Bidart Darras LLR, Claremont, Calif. He is a plaintiff's lawyer representing disabled insureds. He can be reached at [e-mail].