Understanding Disability Insurance Protection for Lawyers

By any measure, attorney Mark Messing of Traverse City, Michigan, had a successful career. After earning his JD and becoming admitted to the Michigan bar in 1979, Messing began his career as a litigator, focusing on defective and dangerous products, nursing home abuse, and adult neglect. By the mid-1990s, he was a firm shareholder, earning almost $175,000 a year and helping manage the firm’s practice. His path as an advocate, counselor, and partner appeared untroubled.

But Messing also suffered from depression. It started out mild in 1994 but worsened over the years. Messing’s depression led to a hospitalization in 1997. In 1998, his depression became so debilitating that it prevented him from working as a lawyer. That same year, Messing sought compensation for his loss of earnings under the disability policy that was part of his benefits plan through his employer.

The odyssey of Messing’s disability claim would take him through nearly two decades of uncertainty as the attorney struggled with his chronic depression. Messing’s case, as described in Messing v. Provident Life, 48 F.4th 670 (6th Cir. 2022), is a lesson for attorneys about the struggle of understanding disability insurance, making a disability claim, and maintaining your disability benefits.

Navigating the Limits of Disability Coverage

The case actually began in 1985 when Messing applied for a disability policy with Provident Life and Insurance Company (Provident) that qualified as an employee welfare benefit plan. The policy would provide payments to Messing if he became totally disabled, meaning he could not “perform the substantial and material duties” of any “occupation” in which he was “regularly engaged” at the time of disability. In his 1985 application, Messing listed his occupation as “attorney” and his “exact duties” as “practic[ing] law.” Provident issued the policy.

In 1998, when Messing made his disability claim, Provident initially accepted Messing’s claim but then reversed course, and a lawsuit ensued. The case settled in 2000, and Provident began making payouts under the policy to compensate Messing for his inability to work as an attorney. The policy language was very explicit. Coverage for Messing’s disability did not expire (the policy provided for payments) so long as Messing remained permanently disabled.

Nearly two decades later, in February 2018, Provident reviewed Messing’s matter. Although medical records showed Messing continued to suffer from major depressive disorder, and numerous affidavits from legal colleagues supported the attorney’s claim that he was unable to work, the medical records raised questions about whether the attorney’s condition was in remission, leading to speculation that perhaps Messing was ready to practice law again after 18 years. Based on medical testimony primarily from the insurer’s medical expert, Provident determined that Messing was no longer disabled and thus denied further coverage under the policy.

What complicates Messing’s dispute with his insurer was the discovery by Provident that the disabled attorney did some legal work in 13 cases between 1999 and 2013. Additionally, Messing also represented himself in divorce proceedings in 2001. Although Messing disputed the extent to which he was acting as an attorney, he had filed appearances in several of the cases. Messing submitted many supplemental claim statements over the years, reiterating his position that he was unable to perform “substantially all” of the “duties of [his] occupation” as a lawyer, but he never disclosed his involvement in any of the 13 cases between 1999 and 2013.

Messing’s dispute with his insurer for disability coverage was an uphill battle that centered on a disagreement over the definition of his duties as an attorney. Messing’s arguments pointed to the “own occupation” feature of the disability policy—that he must be covered if he is unable to perform the duties of a managing partner at a firm, which he was in 1998, and that Provident wrongly focused on whether he could work as an “attorney,” as he listed when he originally applied for the policy. But the duties Provident relied on when determining whether Messing could return to work—(1) “telephone contact with clients, opposing attorneys, courts and witnesses”; (2) “travel”; (3) “writing memos, correspondence”; (4) “research—legal and factual”; (5) “court appearances and preparation”; (6) “interviewing clients”; (7) “depositions”; and (8) “writing briefs”—were all provided by Messing when he was a managing partner in 1998. In Messing’s own estimation, those tasks defined his occupation at the time he became disabled.

In the end, in its opinion filed on July 7, 2021, the court found that the medical testimony by the insurer’s expert, as well as the attorney’s own treating physician, was persuasive and that Messing failed to show that he was disabled within the meaning of the insurance policy. Provident’s decision to terminate benefits was affirmed. Messing’s motion for summary judgment on a counterclaim by Provident for restitution was granted after Provident alleged that Messing was not actually disabled within the meaning of the policy and thus was not entitled to a portion of the benefits he received.

Attorney Mark Messing’s case reveals on many levels the troubles a lawyer can experience making a long-term disability claim. By the very nature of the profession, the work of attorneys can be defined in many terms, broad-ranging in its tasks and services and all-encompassing when assessing the needs of legal clients. A knotty dispute about whether a high-stress litigator is able to perform the tasks of lawyering can sometimes come down to a few curt descriptions of the job, as defined in a supplemental claim form.

A tangential argument by Messing that ultimately had no bearing on the case also illuminates the ever-changing nature of a legal career. In his 2021 brief seeking to restore disability benefits, Messing pointed out that, at the time Provident challenged his eligibility, he was in his 60s and hadn’t really practiced law in 20 years. Messing contended he would not be able to find work as a lawyer even if he returned to the profession. But Messing’s age and time out of practice are not medical conditions that prevented him from performing the duties of his occupation. Rather, they are factors that would affect his ability to find a job. That is a genuine concern, but it has no bearing on the heart of a disability claim: whether Messing’s disability and chronic illness were preventing him from doing the work of an attorney.

Spreading the Word: Teaching Lawyers about Disability Protection

Attorneys Joan Bibelhausen and Katherine MacKinnon of St. Paul, Minnesota, teach lawyers how to better understand disability insurance coverage and how to successfully make a disability claim. Representing clients seeking disability benefits is MacKinnon’s chosen area of practice, but she also sits on the board of Lawyers Concerned for Lawyers (LCL), Minnesota’s lawyer assistance program, where Bibelhausen serves as executive director. Both attorneys see disability education for lawyers as a critical part of fulfilling the LCL mission of assisting Minnesota lawyers, judges, law students, and non-attorney legal professionals with any issue causing them stress or distress in life.

Bibelhausen and MacKinnon travel Minnesota speaking to large groups of attorneys and also participate in well-attended CLE webcasts, urging lawyers to understand chronic illness, workplace accommodation, preparing to work with a chronic illness, and disability planning. MacKinnon even hesitates to use the description “chronic illness” around her clients, concerned that the term sounds dismissive to suffering clients.

“The feeling of being dismissed by others is extremely painful for chronically ill workers,” says MacKinnon. “By the time they get to me, they want to say, ‘This is real. I am not a drama queen.’ I want to let them know that I understand, and I am listening.”

Bibelhausen and MacKinnon know all too well the prevalence of disability and chronic illness in the workforce. Consider these facts (taken from Disability Impacts All of Us, Ctrs. for Disease Control & Prevention (May 15, 2023)):

• 61 million adults in the United States live with a disability—that amounts to 27 percent of adults.
• U.S. adults suffer from multiple functional disability types at the following rates: disability in cognition (12.8 percent); mobility disability (12.1 percent); independent living (7.2 percent); hearing (6.1 percent); vision (4.8 percent); and self-care (3.6 percent).
• The most common reasons for long-term disability claims by U.S. adults are musculoskeletal disorders (27.6 percent); cancer (15.0 percent); injuries such as fractures, sprains, and strains of muscles and ligaments (12.0 percent); mental health issues (9.3 percent); and circulatory issues (heart attack, stroke) (8.2 percent).

For attorneys and other high-functioning professionals, making a disability claim on their own behalf can be counter-intuitive and sometimes requires some coaching by a specialist.

“With my clients, in order to make their case, I am trying to establish they cannot work,” says MacKinnon. “But they have been working all their life, and they often want to say, ‘I can work!’ I remind them this is about a claim. It is not about you.”

Basic Lessons about the ADA, Disability, and Insurance for Lawyers

The Americans with Disabilities Act (ADA) defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability.

According to the ADA, major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Mental impairments include any mental or psychological disorder, such as organic brain syndrome, or emotional or mental illness.

The ADA became law in 1990 to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA authors believed that it was good public policy for employers to bear some of the burden when accommodating employees with disabilities. For that purpose, the law requires employers to provide a “reasonable accommodation” to a “qualified individual” with a disability, so long as it does not cause an “undue hardship” on the business or operation of the employer.

There are several insurance options for individuals in the workforce to plan for a disability. Some of the insurance programs are routinely included as a part of a benefits package for working professionals. Common disability insurance programs include:

1. Governmental programs. Federal insurance programs are administered by the Social Security Administration and governed by the Social Security Act.
2. Individual disability insurance policies. Private disability insurance coverage to individuals is governed by state law and generally is available through insurance agents or brokers. Applicants for these private programs are typically subject to underwriting, where the insurer investigates the applicant’s health history for purposes of determining insurability and setting premiums.
3. Non-employer-provided group disability insurance. Groups in which a lawyer is a member, such as the American Bar Association or state and local bar associations, often offer disability coverage. Claims for this type of policy are subject to state insurance laws where the policy is issued, as well as local disability insurance statutes.
4. Employer-provided group disability insurance. The most common type of disability insurance available to professionals in the U.S. workforce is a policy provided through the employer. These policies are governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1000, and state insurance laws.
5. Employer-provided self-insured disability plans. These plans operate just like insured plans, except that the employer is self-insuring for any loss. Although they are funded by the employer and not an insurer, self-insurance plans are typically covered by ERISA and are not subject to state insurance laws.

Advice for Seeking Disability Insurance Coverage

Because your disability benefits depend on your ability to work and function as an attorney, both Bibelhausen and MacKinnon have much advice for lawyers seeking to insure themselves against a chronic illness and to protect their benefits when making a claim:

Take the time to understand the policy you are purchasing. Make sure that a policy that covers only “employees” covers everyone, including owners and partners. Other limitations in the scope of coverage may be critical, so look over the policy for mental illness limitations that may cut off benefit payments after 24 months. The length of time before the long-term disability coverage begins paying benefits is called the “elimination period”; consider how long you could manage without income and whether you can coordinate a short-term disability policy to support yourself in the interim.

Perhaps the most critical consideration when choosing a disability insurance policy is reviewing the underwriting criteria. A look-back provision in a disability policy exists solely to protect insurers, which frequently exclude preexisting health conditions concerning applicants. Insurers may rescind a disability policy if an applicant has become disabled within a short time after the application is approved (usually 24 months). Policy rescission can also occur if the insurer proves the applicant made a false statement that materially affected the insurer’s acceptance of the policy risk.

Whether applying for a disability policy or making a disability claim, the key to success is to be as forthright in all communications with the insurer as possible:

• List all your health conditions when asked by the insurer. Don’t limit yourself to the condition you think is the most problematic. If the disability is physical, do not overlook any psychological issues such as depression or anxiety that develop because of the physical condition. Include information about chronic pain and medication side effects.
• Provide all relevant medical records. As the person making the claim, you are responsible for proving entitlement to benefits, so it is your duty to provide all relevant medical records in the insurance application and when making a claim. Also, just because an insurer collects a medical authorization from you, don’t assume that the insurer has collected all the relevant medical records. Always follow up with the insurer.
• Supplement your responses. Most disability benefit application forms require significant details about your disability, your providers, and your activities. Do not hesitate to attach additional pages that provide a detailed narrative and inform the insurer if someone is helping you fill out the form.
• Remember that the issue is disablement, not diagnosis. Even people suffering from very serious medical conditions can be denied benefits if they are able to work, so when making a claim, be sure to let the insurer know how the condition prevents you from working. List all symptoms, describing their severity and frequency, and explain what specific functions you cannot perform at work because of these symptoms.

Those experienced with making a long-term disability insurance claim know all too well that your life while receiving disability benefits is an open book. Therefore, cooperating with the insurer’s requests and closely following the advice of your treating physician(s) are perhaps the best ways to ensure a successful insurance outcome.