Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 17: Definition Of Disability Terms In An ERISA Policy

December 21, 2020 Nancy L. Cavey Season 1 Episode 17
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 17: Definition Of Disability Terms In An ERISA Policy
Show Notes Transcript

Part 1 - Deconstructing The Definition Of Disability In An ERISA Policy

Part 2 -  How Long-Term Disability Insurance Carriers Evaluate Occupational Requirements

Part 3 -   The 4 Important Terms In Your "Own Occ" Disability Policy You Need To Know

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about  "Definition Of Disability Terms In An ERISA Policy" and much more!

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Nancy L. Cavey:

I'm national ERISA disability attorney Nancy. Cavey welcome to winning. Isn't easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I have to say this. So I've said it today. I'm going to be talking about how disability insurance claims begin and end with the definition of disability and occupation. Many policy holders , including lawyers and doctors mistakenly believe that there are ERISA or individual disability policies pay disability benefits. If they can't work in their job or their practice specialty, they can't understand why I always start my discussion with them with the definition of the disability in their policy. Now that term seems to be pretty easy to understand, but it isn't get out your own disability insurance policy and take a look at it. There are lots of lies, confusions, and misunderstandings and traps in these definitions that can harm and even destroy your claim before you get started. So today I'm going to talk about the basic Arista definition of disability and deconstructing that definition, how a disability insurance carrier will evaluate job or occupational requirements and the four important terms in your own occupation policy, language that you need to know before you stop, work and apply for your benefits, or before you appeal a wrongful denial of your claim. We're going to take a quick break, but when we return, we'll get started, stay tuned.

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Nancy L. Cavey:

Welcome back to winning isn't easy. Are you ready to get started? Let's begin with a basic Arista definition of disability and deconstructing that definition. There are, in my opinion, four basic ERISA policy, definitions of disability. Number one, it's the two year own occupation. Number two, the two year own occupation with what's called residual disability benefits. Number three, the two year own occupation with residual disability benefits than any occupation to age 65 or number four, the two year old occupation with no residual disability benefits and then any occupation to age 65. Well, what's the definition of disability in your policy. Most disability policies will provide a two year old occupation grade at which time the standard of disability is going to change to any occupation. Now, within that two year own occupation policy, there could be partial disability policies and residual disability policies. A typical definition of a two year own occupation with a residual provision says you're not disabled when we pay every disability claim and insurance company determines that you are limited from performing the material and substantial duties of your regular occupation duty , your sickness or injury, and you have a 20% or more loss in your indexed , monthly earnings due to that same sickness or injury. So after 24 months, you are disabled. When the insurance company will determine that due to the same sickness or injury, you're unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience. Now you keep on hearing that word occupation in these definitions. Well, I'm going to discuss the important terms in the definition of occupation. I want to pause and shift gears for a moment. Why, because many policy holders confuse or conflate their job with an occupation. I want you to get out your disability insurance policy and look at the definition of disability. And when I'm come back, I'm going to talk about how disability insurance companies evaluate jobs or occupational requirements. So let's stay tuned. So how does a disability insurance company evaluate job or occupational requirements? The really the issue again, is going to come down to the definition of disability in your policy. So how does that carrier interpret the term occupation and what is the difference between job and occupation in the policy? If the term occupation or regular occupation is used in the definition of disability, your claim is going to be based on an analysis of the type of work generally performed for employers in the national economy and not the work that you've performed for your specific employer. On the other hand, if the term job or any variation of jobs, such as a regular job is used in that definition of disability or claim is going to be evaluated based on an analysis of the work performed for your specific employer. Got the difference. So who does that? I'm going to introduce you to another liar for higher player and the disability carriers arsenal. That is a vocational evaluator. Now a vocational evaluator is an expert in the world of work and they will analyze your occupational requirements and classify that work using a big book called the dictionary of occupational titles or something called the own. It. Now, the what's important about this is that the dictionary of occupational titles is a copulation of occupations in the American economy. And it's based on strength levels. It talks about the physical requirements of an occupation, the cognitive requirements and the psychological requirements. The DOD will use those strength levels to determine the physicality of the work. The work is classified into a number of categories. There's very heavy, heavy, medium, light, and sedentary. And in each of these classifications, you consider the amount of lifting, standing, walking, and sitting that's required of the job. And the classification of your job becomes an issue at the occupation stage because they have to take that job and translate it into an occupation. Unfortunately, many disability insurance carriers, vocational evaluators will purposely misclassify the strength level of your work or they'll ignore crucial job functions that allow the disability carrier to deny your claim. And that's two of the tricks that they use either individually or in combination. Now work under the dictionary of occupational titles is classified into skill levels, and that's primarily based on the length of time. It takes to learn how to do the job, the more skills , uh , the job where the occupation has the higher the classification. And this is going to become an issue when you get to the, any occupation stage where the claim, I'm sure the adjuster has to determine whether or not you have any skills that would transfer to other occupations. Let me give you an example. A specialty within an occupation could be considered an occupation in and of itself, a nurse, a physician, or a salesperson . Now, if the dictionary of occupational titles list the specialty as an occupation itself, then the insurance company is going to use that specific dictionary of occupational titles. But let me explain this a little bit more. Let's take the example of surgeon. A surgeon is a medical director, but obviously they're specialized because they do surgery. Now, the term surgeon is listed in the dictionary of occupational titles and the carrier could very well consider your occupation to be that , uh , a surgeon. I don't like that. And I always attack that, but I want you to understand that, that the carriers wet themselves to the specific dictionary of occupational titles. And that's where I argue that the dictionary of occupational titles is not valid , uh , that they need to fully develop and consider your occupational duties as a surgeon or alternatively use the O net. If that argument is available based on the terms of the policy. So you can see that, that there are problems with how the disability insurance company evaluates jobs or occupational requirements and all of those benefit, the disability insurance carrier, not you. So let's do a deeper dive into the dictionary of occupational titles because normally that's what you are display policy will refer to as the measure of, or , or tool to use to determine your occupation. Now, the dictionary of occupational titles, as I said , uh , was a copulation of your occupational duties and jobs that are available in the American economy. The problem is it hasn't been updated in a million years, and there are lots of occupations that don't exist anymore. Like the elevator operator. And there are many occupations that haven't, aren't even covered by the dictionary of occupational titles. And I think that's a big problem. And part of the mistake that many defense , uh , carriers vocational evaluators will make in trying to classify an occupation, they'll try to shove it into what they think is the closest , uh, title. When in fact it might be a compilation of a number of tiles , or simply may not exist in the dictionary of occupational titles. Now what's the adjuster going to be doing here? The adjuster's going to ask your employer for a copy of the job description or requirements from your employer. And unfortunately, in my experience, many employers have outdated job description forms that don't explain. In fact, what you really do. The adjuster is also going to ask about your occupational history. They're going to ask you to fill out a form and guess what that form doesn't always ask the right questions about the physical requirements of your job, much less the cognitive requirements of your job, where the social behavioral requirements of your job. So not only is it important to understand how much you have to lift in your job or occupation , uh , how long you have to sit, stand and walk stupid Ben, but you may have to prepare reports, compile information, and do presentations, or you might have quotas. They have to meet. And if you don't meet those quotas, you can't do the essential functions or material and substantial duties of your occupation. And many occupations do require you to interact with coworkers, the public and supervisors. And if you have any types of problems that would interfere with that ability, again, that's something that should be measured and considered, but the forms that the adjuster has, you fill out don't the right question . So I always like to supplement them and make sure that everything is covered. Now, as I've said before, your job might be a composite type job. It might incorporate two jobs and the carrier's vocational evaluator will purposely classify the composite job in a manner that allows the carrier to say that you're capable of performing that occupation. You also may face a situation where you have a dual occupation and the carrier vocational evaluator will purposely mischaracterize that occupation. Now, in my view, that can be a big issue in claims for professionals. Let's say, for example, you're an OB GYN and you can't perform surgery or deliver babies. Now you might be totally disabled, but if your policy says that if you perform one of the material and substantial duties of your occupation, you aren't disabled. So you might not be able to perform surgery. You might not be able to deliver babies, but you can see patients in the office. And if you can do that, then you won't meet the definition of total disability, not withstanding the fact that your partners probably wouldn't put up with it. Now, the insurance company may interpret the claim as one in which you're only partially disabled, because you can perform the duties in your office and earn money. This is a very complicated area, and there are variations in policy languages to what constitutes material and substantial duties. And that can impact , uh , the carrier's decision. In my view, any medical professional, or even a lawyer should consult with an experienced ERISA attorney before they stop working and apply for benefits. So they understand that policy definition. Now what's also important in that area is that doctors, lawyers, dentists, we all have billing and the disability carrier is going to be wanting to look at the billings to determine what your occupation is and what the material and substantial duties of your occupation might be based on the number of procedures you perform, the frequency of the procedures and how that has changed over time as a result of your disability. So this can be a very complicated area if you are a professional. Now, since I do represent a lot of professionals, there's the issue of the subspecialty letter or rider . If you are a professional, I think if you can get it, you should have a subspecialty letter that exclusively recognizes your occupation as a narrow specialty. When the policy is purchased now, how your policy was marketed to you by your broker agent or insurance company, and how your claim is ultimately submitted, can influence how the insurance company interprets the claim. So let me give you an example of a dual occupation , uh , dilemma. Uh, this was a GI surgeon that I represented to the was a hand surgeon. And as a result of his occupation, not only did he do surgery, but he did emergency surgery. He was on calls and he would see patients in up after surgery. Now , uh, he also, by the way, did other surgery surgeries in his practice, he would do elbow surgery and he would do shoulder surgery and some other general orthopedic issues. He became disabled as a result of a rollerblading accident. And he had a fusion of his dominant hand. He had this stock performing surgery and taking emergency call. He reduced his work schedule and it consisted of clinical and non-surgical orthopedics, but because he had a subspecialty policy as a hand surgeon, the disability carrier paid him his total disability benefits. If he hadn't had that subspecialty policy, the company would have probably taken into consideration how much surgery he did in terms of the elbows, the shoulders and general orthopedics, how many on-calls he did , uh, and , and the nature of his practice prior to him becoming disabled, because they were going to sort of , uh, parse if you will. Exactly what percentage of his , um, practice was hand surgery, as opposed to everything else. And they, as I said, we'll do that by looking at your billing code numbers, looking at your [inaudible] earnings to compare that with your post disability earnings and how the nature and number of your procedures have changed. Again, I think it's crucial that before you file your claim for disability, you know, whether you have a subspecialty policy and that you get your financial and billing records in order, because those are going to be crucial to the success of your disability claim. In addition to what's in your medical records, because of course, you're going to want your physician to confirm that you can't do certain procedures or the nature of the procedures or the frequency of the procedures and how you are disabling condition has changed the nature of your practice. So it's gotta be backed up by medical records , uh, and your , uh , billing , uh , financial records. Now, if you're in California, congratulations, evaluating own occupation claims in California is a whole different ball game because the state of Florida of California rather has issued specific guidelines around the definition of disability for long-term disability claims governed by California law. So one of the things I always want to look at is what was the state in which this policy was issued. And you can look at that on the face page of your policy, because that will impact what law governs your claim under the terms of California law. The definition of total disability , uh, to be used in a group of risk case issued in California is as follows a disability that renders one unable to perform within reasonable continuity, the substantial and material acts necessary to pursue the usual occupation in the usual or customary way. Now, I like that definition, why the policy holders usual occupation is the occupation. The employer routinely performs at the time the disability begins, and the carrier has to consider the duties of the occupation to be substantial and material acts necessary to pursue that occupation in the usual or customary way. Now you can see there's a lots of things that you can take apart in that definition to make it favorable to you as a policy holder, but it will require a vocational analysis that goes beyond just the occupational classification. Other than the dictionary of occupational titles, California law requires that the carrier determine the occupation accurately as performed by the policy holder for that specific employer. That's perfect. It's customized to what you were doing at the time. You became disabled based on the nature of your occupation. Wow, that's a lot of information. Let's take another break and I'm going to come back. And now I'm going to talk about the four important terms in your occupation policy language that you have to know before you stop working and apply for benefits, or before you appeal a wrongful denial of your own occupation claim.

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Nancy L. Cavey:

Welcome back. We're going to talk about the four important terms in your own occupation policy language that you need to understand before you stop working or appeal a denial. Are you already , okay? Let's take this apart. The four important terms within a definition of disability can include the term one limited to material duties, three substantial duties and four regular occupation. So let's unpack this. The term limited means that you must not be able to do all of the important tasks normally identified with your occupation. So it's important that you get from your employer, your job description, and compare that job description with what it is you do every day , day in and day out. I suggest that you write out your version of your job description and compare it to what your employer has told the insurance company, your duties consist of, because you want to make sure that you're on the same page, either with your employer or that the carrier is on the same page with you. Now, the next important term is one . We see all the time that's material and substantial. That's a term of art. That means that those are material and substantial duties that are required for the performance of your regular occupation. And if you admit one of them or you modify them, then that's not , uh , that's not material and substantial. So let's say you're a dentist and you have carpal tunnel. And that prohibits you from holding your instruments. Well, that certainly is a material and substantial , well, a part of your duties. You've got to hold instruments. And if you can't do that, you can't perform dental procedures . So you're eligible for your benefits. Let's break this down a little bit. Material duties what's that those are characteristic to your occupation that are qualitative in nature. If the duties are eliminated, then the occupation as defined would not exist. So in material duties, refer to specific job related tasks . And as I said, it's a question of qualitative measurement. What are substantial duties? Now, those are tasks that represent the largest proportion of the total task done in an eight hour day. Now a substantial duty is recognized if that duty is eliminated, and if that was eliminated, then you couldn't do your occupation. It wouldn't exist. These are quantitative. And they suggest that the performance of specific occupational duties of more than four hours per day would be considered to be a quantitative. So substantial duties are referring to the time spent , uh , as identifiable from a quantitative determination. So in generally in general duties, that require more than 20% of your Workday aren't material and substantial in nature. So again, if you were the dentist and you are spending 80% of your time doing dental work , uh, that dental work is a substantial duty. And if you can't hold the instruments to perform a root canal or a crown or whatever it is you're doing, then that you can't do the material duties of your occupation. So it's qualitative and quantitative. The next key definition is regular occupation. And that means the occupation that you will routinely performing when your disability began. Now, disability policies have different standards. There's no one gold plate definition group long-term disability. ERISA policies generally require that the insurance company look at your occupation as it's normally performed in the national economy, instead of how the work tasks are performed for a specific employer, a specific, specific location for a specific job. So if your employer has modified this job because of local or regional needs, or because they just want it done a different way, that's not the standard that the disability carrier is going to use. They're going to look at how that regular occupation is performed in the national economy, not how you've done it for that employer. Now, there are some policies that actually do require the insurance company to look at your occupation as it's performed for your employer or your local economy. And that standard is important because again, you would prefer to have your occupation measured , uh, by how it's performed for your employer or how it's done in the local economy than how it's done in the national economy pursuant to the dictionary of occupational titles. Now, when you look at your disability policy, you don't see that that policy ensures your job. It ensures the occupation. And again, the issue here is what is your ability or inability to perform your occupational duties pursuant to the dictionary of occupational titles. Now, I'm going to give you an example of how this plays out. My client was a 54 year old manager at Costco, and he worked there for 20 years. He supervised 15 employees. His job at Costco required him to assist the drivers in unloading the inventory. That weighed as much as 50 to 60 pounds stack shells, including climbing ladders, going up and down. And he had to manage the inventory sales and employees in his department. Unfortunately, he began to have problems with an inner ear infection that ultimately affected his balance and coordination. The disability carrier paid his short term disability benefits, and about 12 weeks of long-term disability benefits. But he was notified by the disability carrier that the occupation of a retail manager, which was described in the dictionary of occupational titles, didn't require lifting stacking shells , climbing ladders. And as a result, they said, ha we're denying your claim because that's what you were. You were a retail manager, but the reality was that his restrictions and limitations precluded him from bending stooping, twisting lifting, climbing ladders. So the issue was, well, could he do his present job? What was his present job? Would he get his long-term disability benefits? Well, the disability insurance company insured his occupation. It was as it was performed in the national economy. When I looked at the duties, the lifting requirement isn't there and the duty defined his job as mostly supervisory and administrative. So he wouldn't get the benefits. If the insurance company can show that he was physically able to perform those duties that were supervisory and administrative in nature. Now he came to me and the obvious question was, can I win this claim? Now, remember the term material duties refers to specific job related tasks. It's generally qualitative and the term requires or substantial re refers to the time spent is an identifiable quantitative determination. So in this case, I had my own vocational counselor involved in the case we got from , uh , the employer, his job description, and we got him to write down his job description. We took apart both the material duties, and we took apart the substantial duties. Now the retail manager's position required him to be able to do supervisory and administrative work, but because of his problems with balance and coordination, he had difficulty sitting, standing, looking at a computer, turning his head side to side and up and down. Those duties required more than 20% of his Workday . And we were able to argue that he was unable to engage in both the material and substantial duties of his occupation. Now you can see, we had to dis we had to take apart his occupational duties, and we had to look at the dictionary of occupational titles. We had to do a quantitative measurement and a qualitative measurement of his job duties before we were able to convince the disability insurance carrier . Then in fact, he was unable to do the material and substantial duties of his occupation. It's extremely important that you understand this basic concept of what's covered by our policy and whether or not you are having to meet a standard of your own occupation is performed by your employer in the local economy or the national economy. And once you understand that standard, we've got to get out of the dictionary of occupational titles and analyze what are the material and substantial duties of your job to determine whether or not any of those require you to do more than 20% or spend more than 20% of your Workday . Then we've got to analyze your medical , uh , and , um, condition in terms of the, your physical abilities, your cognitive abilities, your , uh, psychological abilities or your social behavior , uh , requirements, because we needed to determine what problems you having from each of those standpoints and add in medications to determine whether or not the combination of one or all of those things would preclude you from doing any of the material and substantial duties of your occupation. Got it. Okay. So, but what happens after 24 months of own occupation benefits? The definition of disability is going to change from an inability to do your own occupation, to an inability, to do any gainful occupation for which you are reasonably fitted by education, training, or experience. That's called the change in definition, period from own occupation to any occupation. It's a crucial stage in your claim. And I'm going to be talking about that in next week's episode. Well, that's it for this one. 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