Winning Isn't Easy: Long Term Disability ERISA Claims

The 3 Approaches Long-Term Disability Carriers Use When Evaluating Your Initial Application For Your Disability Insurance Benefits

August 30, 2022 Nancy L. Cavey Season 2 Episode 59
Winning Isn't Easy: Long Term Disability ERISA Claims
The 3 Approaches Long-Term Disability Carriers Use When Evaluating Your Initial Application For Your Disability Insurance Benefits
Show Notes Transcript

In this weeks episode of Winning Isn't Easy - Nationwide ERISA Attorney Nancy Cavey talks about "Winning Isn't Easy: The 3 Approaches Long-Term Disability Carriers Use When Evaluating Your Initial Application For Your Disability Insurance Benefits." 

Speaker 1:

The occupational factors that a disability insurance carrier considers, when you apply for disability benefits, what you don't know can bite you. Hey, I'm Nancy Cay . I'm a national Arisa disability and IDI attorney. And I wanna welcome you to this week's episode of winning. Isn't easy before we get started, I've gotta give you a legal disclaimer. The Florida bar association says, I have to say this. So I have this podcast is not legal advice, nothing. However is gonna ever prevent me from giving you an easy to understand overview, the disability insurance world, the games, the carriers play, and what you need to know to get the disability benefits you deserve. So off we go making the decision to reduce your hours and apply for disability benefits or to stop, work and apply for total disability. Benefits can be hard. I watched my father make that decision and it was not an easy one for him to make. Now you may think that once you decide that you're gonna file your disability insurance claim, that a check is gonna be overnighted to you, to your house. After all your doctors has told you to reduce your work and apply for your residual disability benefits or to stop work totally. And even your employer supports your claim, but that's not how it works in the real world. How it works is that your initial application for your benefits is gonna be reviewed by the disability carrier from three perspectives. Now, the first perspective is going to be what are the terms of the policy of the plan? The second is going to be what's the sufficiency of the medical proof that establishes that your disabled as that term is defined by your policy or plan. And what's your occupation as that term is defined by your policy or plan. And how are you unable to do the material and substantial duties of that occupation in this multipart series, I'm gonna concentrate on the occupational evaluation. So, you know, the factors that the disability carrier plan is likely to consider, and this is much more complex than you might think it would be based on a simple reading of your disability policy or plan today, I'm gonna talk about three things. First, your specific occupational duties and what you have to know about the most important feature of your disability insurance policy, or plan two. What were the specific physical and or mental requirements associated with each duty? And thirdly, how long do you have to perform each duty in the course of an average date or week? Got it. All right . Let's take a break. Before we jump these topics.

Speaker 2:

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Speaker 1:

Welcome back to winning. Isn't easy. You're ready to get started your specific occupational duties and what you have to know about the most important feature of your disability insurance policy or plan. So what's the most important feature of a disability insurance plan or policy. In my opinion, it's the definition of occupation. There are actually four possible different definitions of occupation, and you have the burden to prove that you can't do the material and substantial duties of your own occupation. So if you don't know how your policy or plan defines the term occupation, it's gonna be hard for you to prove your case and win your claim. So let's start with an analysis of the four different types of occupation, definitions that we can see in your policy or plan. Number one, it's own occupation. Now this can be defined as an own occupation policy. That's gonna pay you disability benefits. If you can't perform the material and substantial duties of your occupation, but let's say you're a physician. Is your occupation. Um, a as a physician, just a generic definition. Is it your specialty? Is it your area of board certification? You better know the answer to that before you stop work and apply for your benefits. The second definition is what is called a transitional own occupation definition. Now a transitional own occupation policy will pay you if you can't work in your own occupation or specialty, even though you could work in another field. However, if you exceed the amount of income you were making at the time you became disabled while working in another occupation, your monthly benefits can be reduced. What's the third definition? Well , it's a modified own occupation definition. This is a twist. It's a twist on your own occupation and the transitional own occupation definition. The policy will pay you if you can't work in your own occupation or specialty, and you're not working in another field. And number four is any occupation. Now , many disability policies will have a two year own occupation provision. After two years, the standard of disability becomes an inability to perform the material and substantial duties of any occupation that you're capable of performing in view of your education skills and restrictions of limitations, the modified own occupation and the any occupation definitions are commonly seen in group Aristo, disability policies or plans. Now, if you have a choice and you can afford it, you wanna purchase an individual disability insurance policy known as an IDI policy because you want to ensure your own occupation. Got it. Okay. Now that I have set the stage, let's talk about what a disability carrier does with your disability claim and the occupational forms that you fill out. Obviously, the question for the disability insurance carrier or plan is what were your specific occupational duties prior to the onset of your disability? Now, this analysis is going to start with a review of the policy or plan definition of occupation. As you may have gathered, there's no uniform definition of occupation in each policy or plan is different. What you think your occupation was as of the onset of the disability, might not be how the disability policy or plan determines what your occupation was prior to the onset of disability. So that can be this huge disconnect that you need to understand as part of the disability insurance application , uh, for your benefits, you were probably asked to complete a document that asked questions about your duties, that document I'm sure did not ask all the right questions about the physicality of your occupational duties. And I bet it didn't ask any questions about the social or intellectual or the cognitive duties of your occupation. What I suggest, and this is what I do with my clients is that you write out all the occupational duties that you did, and then add those duties that you can't do or can only do on a limited basis. So what you wanna do is make sure you have a complete occupational description of duties, generally duties that you can't do duties that you are having trouble doing. The next thing you ought to do is to get your employer's description of your occupational duties, and then compare the two documents they may not, and probably are not the same. This is important because many disability policy or plans will define the term occupation as it is performed in the national economy and not how you perform it for your employer. Now that's important because many disability policies or plans will actually define the term occupation by looking at the outdated department of labor publications , uh, called the dictionary of occupational duties. Uh , and if you look up your occupation and read the description of the occupational duties in the DTS, you'll be stunned to see how outdated this is. Fact it hasn't been updated in probably 30 years. What I'm trying to do when I'm dealing with these occupational definitions is to create a blended occupational duty , uh, description that matches as closely as possible, the policy or plan description, but also includes all of the duties , uh, that are materially and substantial that you are having difficulty doing or can't perform. Now that we've got a description of your specific occupational duties prior to the onset of disability, the carrier, or the plan is gonna have more questions for you in my next , uh, segment. I'm gonna talk about what were the specific physical and or mental requirements associated with each duty. Got it. You thought this was gonna be easy, didn't you ? Well, it, isn't what we need to take a break to give you a chance to digest this information and think through what I've said . Okay, let's take a break. Welcome back to winning. Isn't easy. What were the specific physical and or mental requirements associated with each of the material and substantial duties of your occupation now is going to be time to drill down and create an Excel spreadsheet. I want you to write down each duty or task in one block , uh, on the left and across the top. I want you to write the terms, physical, cognitive, social behavioral. Now, one of the ways that I go about this is I want my clients to think backwards. I want to have them think about what problems they have with each task, from a physical standpoint, from a cognitive standpoint, or from a social behavioral standpoint, in terms of their interaction with their supervisors, coworkers, or the public. I don't want you to miss anything here. Disability insurance companies, or plant administrators are always looking for a way to justify a claims denial that you can perform your own occupation and where they do that is to misclassify your occupation or not to consider all of your occupational duties. Let me give you an example. I want you to see how this game plays out. If you're in a sedentary occupation, for example, like Mr. Cherry, I think stories are a great way to explain what disability carriers do and how things work in the real world. So cherry was a former micro software engineer in the state of Washington, and he became disabled because of chronic and unremitting, lumbar radiculopathy. He had worked as part of an elite team that worked on new Microsoft products. And he was required to sit, obviously, while working on coding , uh, I issues, he developed back problems. He underwent unsuccessful spine surgery. Even after that spine surgery, he had lumbar radiculopathy. It's an intense burning sensation and pain that goes down the back of your leg potentially to your toes. It feels like you're holding a burning match that you can't put out. And I know about that personally, because I had lumbar radiculopathy and low back surgery. So what were the specific mental or physical duties required of a software engineer? This is where we start with the analysis of the material and substantial duties of the occupation. Now, obviously it was coding that required sitting six to 10 hours per day. It required mental acuity. It required multitasking. It required problem solving . It required working with a team that required meetings in person and by zoom more sitting, and it also required multitasking with co-employees. Now in this instance, cherry supervised the team and that meant he had to meet in person. He had to do zoom meetings, which meant more sitting, which required in the course of supervising in this team, mental acuity, multitasking problem solving and working to schedules. Cherry also had to do troubleshooting that required more sitting and multitasking problem solving . And , um, G SDF, you know what G SDF means? We kind of made this up in our office. It's a code for getting stuff done fast. Now he was on a tight deadline and everyone was waiting on him to solve the problem. In other words, this is pace and production issues. He was on call every three weeks and he could be called back to Microsoft soft office in hours. And he had to stay till the problem was solved. So are you getting a feel for what the physical duties were? The cognitive duties were and the social and behavioral duties? I hope so. So let's break this down. What were the physical and cognitive problems that cherry had now? Cherry could not sit for more than five to 30 minutes at a time without pain. And he couldn't sit for more than four hours a day. He needed unscheduled breaks every 30 minutes and he would miss more than two days per month because of his pain and dysfunction. From a cognitive standpoint, he had trouble with all that concentration and multitasking because of his pain and the side effects of medication. And I bet that he had problems interacting with others, staying focused and , uh, communicating with , uh, his supervisors and coworkers because of his pain and dysfunction. So you understand now better what the problems were that he was having and in his inability to do the material and substantial duties of his occupation? Well, I'm glad you did because the disability carrier didn't and off we end up in federal court. So let me tell you what the judge did here. Um, the federal judge looked at the physical and cognitive duties and Sherry's medical problems and he tied it , uh, together. If you will. Cherry had the lumbar radiculopathy that caused the chronic pain, and that's been recognized by courts as causing pain. So the doc judge did not have a problem with Cher's complaints of lumbar radiculopathy. His doctors confirmed his chronic pain, and the judge also reviewed what's called a functional capacity evaluation. A functional Cova evaluation is a a day or a two day test that tests objectively a person's physical level of functioning, and the FCE confirmed his restrictions and limitations on an objective basis. So it just wasn't, Sherry's subjective complaints about his problems and his di difficulties. These were confirmed with objective testing. So the judge noted that an employee couldn't sit for more than four hours in an eight hour day couldn't by definition, perform sedentary work. They requires sitting most of the time. And the judge noted that sitting tolerance that varies. In other words, you have to get up and you have to move around, is not consistent with sedentary employment. The judge awarded benefits and rejected. Those made up reasons to deny cherry benefits, but it took him years to get his benefits because of the way this application was completed and the way that the disability carrier analyzed his occupational duties. So don't screw this up. It's gonna take some time. I don't want you to gloss through it. Ultimately, this needs to be , I think, reviewed by an experience to risk a disability attorney who should be helping you create this document, and it should be supplied to your doctor. Who's gonna ultimately be asked to fill out an attending physician statement form that form's gonna ask questions about your restrictions and limitations and why you can't do the material and substantial duties of your occupation. This type of document that you complete and have approved by your disability attorney is a way to educate your doctor about the material and substantial duties of your occupation, what you're having problems with and will allow your doctor to answer meaningful questions on that attending physician's statement form that will explain why you can't do the material and substantial duties of your occupation. Got it. Okay. Let's take a break.

Speaker 2:

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Speaker 1:

Welcome back to winning. Isn't easy. How long do you perform each material and substantial duty in the course of an average day? Now that's a strange question, but I think it's a very relevant question. Um, and I think it's just part of completing a winning disability insurance claim, application description of your occupational duties. And it's gotta be done correctly because you have the burden to prove that you're disabled under the terms of the policy. Now, as we've talked about in earlier , uh, uh, episodes disability can be defined in a lot of different ways. The policy might define disability as the inability to perform the material and substantial duties of your occupation, the inability to perform one or more of the material and substantial duties of your occupation or the inability to perform the main duties of your occupation. How does your disability policy or plan define the term disability? You've gotta know this, so, you know what you've gotta prove, and you can back into this proof it's details, details, and more details your occupational description is gonna potentially make or break your claim. And if you are not a medical provider, dentist, or attorney, the carrier or plan is gonna wanna know how long you did each duty on an average day or over an average week, the disability carrier is trying to figure out with this question, what it is you do, how long you do it, and whether or not that duty is material, the materiality of your duties is gonna be used to measure whether or not you're disabled. So I just eat throughout that term material and substantial duties. What does that term mean in the context of your disability policy or plan, get it out and read it. You've got a starting point for figuring out what a material duty is and what a substantial duty is. Not the same thing. I want you to think about the term material as, as the meaningful duties that have to be done as part of the occupation. In other words, if those duties were omitted, then the occupation just couldn't be performed substantial. On the other hand means that the duties are important to completing the task. And that's , uh, a question of whether or not they are , uh, qualitative or quantitative. In other words, is it the quality of the duties? Is it the quantitative or the amount of, of times you have to do this particular task that makes it a substantial duty. Now I will tell you, unfortunately, that disability carriers kind of gloss over their own policy or plan definitions of material and substantial. They often equate time on task with materiality and substantial duties, which is not necessarily the case. And that's why we wanna spend time in looking at that occupational description of, of, of your occupation to understand material and substantial duties. And we wanna understand the definition of disability because ultimately when we're preparing an occupational description, as I've talked about before, we wanna be preparing an Excel spreadsheet. And part of this analysis should be , uh, the amount of time that you are spending on these particular duties and , uh, some sort of description as to why these duties are material. And if you couldn't do these duties, why the , those duties , um, would prevent you from performing that occupation or the occupation couldn't be performed at all. Now, if you are a professional disability carriers determine the material and substantial duties of professionals completely different, what they want in that case, if you're a doctor or a lawyer, an accountant, they want your billing records. They want records of what you've done, records of your procedures, and they want that journaling on a daily or a weekly basis. Cuz they're gonna take this documentation as an objective measure of what you're doing, how much time you spend doing the task and how much you make from each activity. And then they're gonna back into what's material and what's substantial. So if you're a surgeon, for example, the discipline, carrier's gonna want your billing records to determine what types of procedures you do, how many you do them, how often you do them, your income from each procedure and what you may do at the office. And they're going to analyze this. They're gonna want that information after you become disabled and you're filing a residual disability claim. Uh, and then we don't want that on a monthly basis to figure out if you're disabled, are you doing the material and substantial duties of your occupation? And they'll be using that to analyze whether or not they owe you residual disability benefits. You can expect this. And I know it is a pain in the rear end. I deal with this every day with doctors , uh, um, office managers, their accountants, it is a pain, but there is no way around it because that's how disability carriers analyze this . And as , uh, a , a person who has a disability policy, you have a duty to cooperate and to provide them with this information. And if you don't, they can say too bad. So sad. You may be disabled, but you haven't provided us with the information to analyze , uh, your claim or your loss. So we're not gonna pay your benefits. Got it. So you also need to understand that the physical or mental requirements of your job duties are gonna be objectively verified regardless of your occupation by the carrier , um, by phone or in writing. And I'm gonna discuss that in my next podcast or my next , uh, uh, video here. And it's called how disability carrier will verify your occupational duties. The attempt to verify this is not a friendly inquiry as to how are you doing? Are you disabled? That sort of thing. So you need to understand that this contact can get confrontational pretty quickly and can result in a claims denial. Got it. All right . I hope you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, consider liking our page, leaving a review or sharing it with your friends and family consider subscribing to this podcast. That way you're gonna be notified every time a new episode comes out, please tune in to next week's episode of winning. Isn't easy. Look forward to talking with you then . Bye .