Figuring out whether you have a viable long term disability claim isn't easy. How do you know whether your symptoms are disabling enough? Is it possible to predict how the insurer will evaluate your claim? Is it possible to know whether you have enough proof to win your claim?
There's so much to consider, and you need answers.
We can help.
To evaluate the viability of your long term disability claim, start by considering your specific job duties and requirements. These factors will heavily impact how the insurer evaluates your claim and whether you will obtain benefits.
There are a number of generalized occupational resources that will guide you through this analysis. You don't have to sift through them all. We'll break it down for you and tell you what's important.
Depending on your specific job, there are other special considerations that must be made. We'll identify those issues for you. Be prepared -- the things we point out may surprise you.
This article is one of six pillar pages that comprise our Disability Wiki. It is designed to be a comprehensive, standalone source of information about how your occupation impacts your disability claim. It also links you to other content in the Wiki and on the Web if you want more detail on any subtopic.
Your Ability to Perform Occupational Duties
How do you assess whether you can make a successful disability claim? There are 3 steps. 1. Create a list of your restrictions and limitations. 2. Identify the material duties of your job. 3. Compare the list of restrictions and limitations with respect to each material duty. If your restrictions and limitations will prevent you from performing one or more of the material duties, then you may have a viable disability claim.
What are restrictions and limitations?
Restrictions and limitations are what prevent you from performing the duties of your occupation. There is a subtle difference between a "restriction" and a "limitation."
- Restrictions: Restrictions are activities you should not do. For example, a restriction is when your doctor tells you not to lift anything over 10 pounds because it could cause harm. You may be able to lift more than 10 pounds, but you shouldn't do so because it may hurt your back.
- Limitation: Limitations are activities you cannot do. For example, a limitation is when all you can physically lift is 10 pounds.
Restrictions and limitations only are relevant when they stem from the symptoms of your illness or injury. If you cannot use a keyboard for more than 10 minutes because it causes pain in your wrists due to carpal tunnel syndrome, that is both a restriction and limitation. If you cannot use a keyboard because you do not know how to type, that is not a restriction and limitation for disability purposes.
What are material duties of an occupation?
When you think about the material duties of your occupation, you think of your specific job description, which requires you to perform certain functions. For example, you may think of monitoring a $10 million dollar budget; managing a certain number of client accounts; making sure a company system operates smoothly; or supervising 50+ employees.
While all those activities are in fact duties or responsibilities of your job, that is not what the insurance company is thinking. The insurance company is not concerned with your specific responsibilities. Rather, the insurance company will assess your occupation by looking at the occupation's exertional and functional requirements.
In other words, in order to perform your job responsibilities, what are you physically required to do? Are you required to sit at a desk all day? How many hours a day do you have to walk, stand, and sit? Are you required to travel? Do you have long hours? Do you have to use your hands, your feet? Do you need to reach, bend, lift, grasp?
In making its assessment, the insurance company will heavily rely on vocational resources. These include the Department of Labor’s Dictionary of Occupational Titles, which classifies occupations as: sedentary, light, medium, heavy, and very heavy. See: How Functional Limitations Can Disable You From Your Job.
Most occupations that executives or professionals have are either sedentary or light. Sedentary work is mostly sitting, but also involves walking or standing for brief periods of time. Light work is still mostly sitting, but involves more standing and walking than sedentary work. See: Occupational Analysis Tools - Helpful Tips.
By heavily relying on the physicality of an occupation, insurers often under-assesses the importance of non-physical attributes of executive and professional occupations. These may include cognitive requirements, work stress, and work pace.
This disadvantages you because these non-physical duties are very important to executive and professional positions. You may be able to do the physical requirements of the job, but cannot concentrate long enough to perform the cognitive requirements of the job. Because these duties often are under-assessed by the insurer, you must remind the insurer of these activities so that they will be considered.
So, now that you understand what material duties of an occupation are, how do you go about proving the material duties of your occupation?
Helpful Vocational Resources and Evidence
When assessing the material duties of your occupation, there are a number of helpful online resources available. There also are various types of assessments you can obtain from a vocational expert.
The first place your should look for evidence of your job duties is the job description prepared by your employer. Obtain a copy of this. If you do not have a copy of your job description, you usually can obtain a copy from Human Resources at your employer.
These job descriptions often are heavy on your responsibilities versus the physicality of the job. But, they often contain expectations that support the physicality, cognitive requirements, and pace/stress level of the job. For example, these may include travel requirements, being on your feet all day, making a specific number of sales calls, reading, computer use, etc.
After obtaining your job description, see if it accurately reflects what you do. Often your employer's job description is generic, written by someone in another office, and does not accurately reflect what you actually do. If your job description does not accurately describe your duties, you may want to see if you your employer can correct the description before it is sent to the insurer.
Another thing you should do is create your own comprehensive list of your material job duties. Having this will be very helpful for your disability claim. To assist you in this process, use two free tools we provide on our website: The Disability Claim Toolkit and Sample Vocational Tool.
O*Net is an online vocational resource sponsored by the United States Department of Labor. The information on O*Net is regularly updated. Indeed, it is much more up-to-date than the Dictionary of Occupational Titles (DOT) described below.
When trying to assess the requirements of an occupation, O*Net should be the first tool you consult. However, it does not supersede the DOT. Therefore, both O*Net and the DOT should be consulted.
O*Net provides a much more comprehensive analysis of individual occupations than the DOT, particularly concerning the cognitive demands of an occupation. See: Occupational Analysis Tools.
For each occupation, O*Net provides a wealth of information. This includes:
- A sample of reported job titles;
- A list of task performed technology skills required;
- Tools used;
- Required knowledge, skills and abilities;
- Work activities;
- Work context;
- Educational requirements;
- Credential requirements;
- Work styles;
- Work values;
- Related occupations;
- Wages & employment information; and
- Sources of additional information.
Dictionary of Occupational Titles
The Dictionary of Occupational Titles is a vocational resource sponsored by the United States Department of Labor. It has been reproduced and can be found online here.
It is in its fourth edition, but is still out of date. It was originally created in 1938, and was last revised in 1991. As a result, there are many occupations in the economy today that are not listed in the DOT.
The DOT is very important because the insurance companies rely on it heavily, even though it is in many ways outmoded. When an occupation is not listed, their vocational department will look at similar occupations or combine two other occupations.
The DOT classifies occupations in various ways, but the insurance companies focus primarily on the strength classifications. The DOT provides for five strength classifications: sedentary, light, medium, heavy and very heavy. These terms may be confusing to your doctors because in thinking about "sedentary" and "light" they may mistakenly think those are easy or modified, such as "light duty." In fact, most office occupations in the modern economy are considered "sedentary" or "light."
- Sedentary: Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Typically, sedentary work includes occupations commonly described as "desk jobs."
- Light: Light work is more physically demanding than sedentary work. A job is classified as light work when it requires walking or standing to a significant degree.
- Medium, Heavy, and Very Heavy: By contrast, medium, heavy and very heavy occupations almost exclusively involve physical labor such as construction. Medium work involves exerting 20-50 pounds of force occasionally. Heavy work involves exerting in excess of 100 pounds occasionally and in excess of 50 pounds frequently.
For more information about how to use the DOT for your benefit, see Occupational Analysis Tools.
Occupational Outlook Handbook
The Occupational Outlook Handbook is an online resource published by the Bureau of Labor Statistics, which is part of the U.S. Department of Labor. The Handbook provides a description of the job's duties. It also describes the educational requirements of the occupation and the expected median pay for the occupation.
A vocational expert is an authority on occupations, including the skill level and the physical and mental demands required. They also are experts on earning capacity, the characteristics of work settings, and labor markets.
A vocational expert is often the person who can connect the dots for you. Your doctor can support the fact that you cannot physically sit for more than 15 minutes. But, it is the vocational expert who then supports the fact that if you cannot sit for 15 minutes, you cannot meet the sitting demands of your occupation.
Vocational experts are also very helpful if and when your policy's applicable definition of disability changes from "own occupation" to "any occupation." At that point, you may need the support of a vocational expert to establish that you do not have the education, training and experience to do any other occupations.
Transferable Skills Analysis
A transferable Skills Analysis (TSA) is one of the tools that could be utilized by a vocational expert. A TSA is used to determine your skills and aptitudes, and determines whether they are transferable to other occupations.
A TSA is typically used when the standard of disability in your policy is changing from "own occupation" to "any occupation." Not all policies transition, but many do, so you need to check the language of your policy.
When your policy is transitioning to "any occupation," the insurer will make a determination whether you are able to perform the duties of any occupation to which you are reasonably suited by education, training and experience. As part of this determination, the insurer will commission its own vocational expert to conduct a TSA.
A TSA report often will report that there are a number of other occupations that are similar to your own occupation that you have the education, training and experience to perform. We've seen TSAs that have reported up to 10 other occupations.
To counter the TSA of the insurance company, you may want to commission your own TSA from your own vocational expert. You'll want a TSA that explains that you do not have the necessary education, training or experience to perform the occupations identified by the insurer's TSA.
Even if the insurer doesn't commission its own TSA, it may be beneficial to commission your own to demonstrate that you have no viable alternative occupations. This is usually the case when you've been in the same occupation for your whole career.
Labor Market Survey
A Labor Market Survey (LMS) is another tool that could be utilized by a vocational expert. A LMS is used to determine if there are actual alternative occupations available in your region. The LMS also will determine whether you meet the background and job requirements, and determine whether it pays a suitable salary. Many policies require that alternative occupations pay a certain percentage of your pre-disability earnings, usually 60%.
A LMS is different from a TSA. A TSA determines whether you have the education, training and experience to work in particular occupations. A LMS, on the other hand, determines whether there are any actual jobs in those occupations in your community.
Common Vocational Issues
There are many occupational issues that will affect your disability claim. These may include job accommodations, job performance evaluations, and even the difference between the words "job" and "occupation."
A job accommodation is when your employer is able to make some minor change to your job to enable you to continue working with your disability. The Americans with Disabilities Act of 1990 requires most employers to make a reasonable accommodation upon request.
Accommodations impact disability claims because most policies that insure you for your "own occupation" include a provision for reasonable accommodations. In other words, to qualify for benefits under the policy, you'll have to establish that you are unable to perform the material duties of your occupation, including any reasonable accommodation to those duties.
For instance, if you have a job that requires you to sit continuously for hours at a time, and you are unable to sit for long periods of time, you normally would be able to establish disability. However, if your employer could accommodate your job so that you could take 10-15 minute standing breaks as needed, it would be far more difficult for you to establish disability.
Because of this requirement, before going out on disability, you may want to try any accommodations that your employer can offer. If they refuse accommodations, then it makes it easier for you to argue that you are disabled with or without possible accommodations.
Likewise, if you try the accommodations, and you are unable to work despite the accommodations, then you could then argue that you are disabled and accommodations do not or would not help.
Job Performance Evaluations
Most employees receive periodic performance reviews at least annually. A poor evaluation could be strong evidence of disability. Who better to assess whether you can perform the duties of your occupation than your boss? For instance, if your evaluation criticizes you for failing to pay attention, that could help support your claim that you are unable to concentrate.
The opposite is also true.
If you receive a fantastic annual evaluation in December and then a couple of weeks later you go out on disability, the insurer may ask you to explain how you were able to do all the duties of your job two weeks before and not now.
This may be easy in the case of an injury, but not in the case of a progressive illness. In the case of a progressive illness, the insurer will be looking for evidence of poor performance and absences as the illness progressed.
"Job" v. "Occupation"
Most people use the words "job" and "occupation" interchangeably. But, your disability policy gives the terms very different meanings.
- Occupation: Your "occupation" is your generic profession, trade or specialty. For instance, it means lawyer, accountant, cardiologist, marketing consultant, etc. This is always relevant.
- Job: By contrast, your "job" is your individual job at your company in your specific office. This is typically not as relevant.
The vast majority of insurance policies insure you for your occupation -- not your job.
Why is this important? Well, there are many aspects of your job that are job related versus occupation related. If what makes you disabled is job-related, then it will not count for purposes of establishing disability under the policy.
For instance, if you work in a building where you need to climb 3 flights of steps to get to your work station, and you're unable to do so, that may prevent you from doing your job. But, it is not proof you're unable to perform the duties of your "occupation." The fact your workplace has no elevator is job-related, rather than occupation-related. The insurer will simply assert you are able to perform your occupation at another company in a building with an elevator.
The term "occupation," however, does have some dimension. For instance, if you were an attorney, your "occupation" would be specific to your specialty (i.e., personal injury attorney). It also would be specific to your location (i.e., New York City) and the size of your firm (i.e., 100 lawyers).
Therefore, if 100-lawyer personal injury firms in NYC require long hours and constant trial work, those are occupation-related and relevant. If your specific firm required you to travel to the Los Angeles office twice per month, that would be job-related and likely less relevant. It is job related because other firms of similar size and location do not typically require their attorneys to travel to other offices.
Special Considerations for Your Specific Job
There are literally thousands of different types of occupations in the U.S. economy. These occupations are categorized in various resources including, the Dictionary of Occupational Titles, published by the U.S. Department of Labor, the Occupational Outlook Handbook, published by the Bureau of Labor Statistics, and O*NET.
This article focuses primarily on professional and executive occupations.
Accountants are the backbone of American business. Without them, businesses could not do their finances or their taxes.
Accountants prepare tax returns and financial reports. They also review and audit the finances of businesses. The occupation is mostly sedentary requiring approximately 6 hours of sitting and 2 hours of standing/walking each work day. The occupation requires a high degree of concentration and mathematical ability.
The accounting profession has several specialties that could be considered as "occupations" for disability purposes. Among them are accountants who are tax accountants, auditors, and consultants. If you are one of these specialists, the insurer will need to consider whether you are disabled from your specialty, rather than as a generic accountant.
The disability challenges of the occupation involve the significant sitting requirement and the very high degree of attention and concentration required throughout the work day.
Being a Dentist is a very physically demanding occupation. As a result, proving a disability is easier than with many other professional occupations.
Dentists need to be able to make precise and coordinated movements of their fingers. They need to be able to manipulate and assemble small objects while bending over and wearing gloves. They need to be able to be on their feet much of the day, as well as pull, push, reach and handle. They also must be able to communicate with patients and concentrate throughout the day.
The disability challenges of the occupation involve the standing, leaning, and fine motor control requirements. Even an injury to a single finger could make a dentist unable to perform the duties of the occupation.
Being a doctor can be physically demanding. Doctors come in many specialties. For disability purposes, most disability policies will treat your specialty as your own occupation. For example, if you are a cardiologist at the time of disability, then your own occupation is that of a cardiologist.
The various medical specialties have a wide range of functional requirements. These usually are classified as either "sedentary" or "light" under the Dictionary of Occupational Titles. For example, surgeons must be able to constantly use their hands, and must be able to stand throughout the day. By contrast, radiologists must review films and computer screens much of the day.
The disability challenges of the occupation involve standing, walking, long and irregular hours, high stress, and high cognitive demands. Doctors often are "on-call," which require them to be available overnight and on weekends.
Managers work primarily in an office environment. The Dictionary of Occupational Titles classifies the occupation as "sedentary." The occupation can be classified as "light" if the occupation requires frequent out-of-town travel.
The disability challenges of the occupation involve prolonged sitting, frequent use of a computer, long hours, tight deadlines, and cognitive demands. The most common disabilities are ones that restrict sitting, cause fatigue, or cause cognitive deficits.
Investment Banking is a very demanding occupation that requires long hours, frequent travel, and high stress. It usually is classified as a "light" occupation under the Dictionary of Occupational Titles.
Investment bankers also perform high-level cognitive demands. For example, they must have exceptional attention to detail, the ability to analyze complex financial information, and the ability to call upon in-depth regulatory knowledge for compliance purposes.
Therefore, this occupation may face a number of disability challenges with respect to an inability to sit for prolonged periods and an inability to perform high-level cognitive functions.
Lawyers are an occupation near and dear to our hearts. Like doctors, lawyers have many specialties. Lawyers are usually classified as either "sedentary" or "light" under the Dictionary of Occupational Titles.
Most disability policies will treat your specialty as your own occupation. If you are a trial attorney at the time of disability, then your own occupation is that of a trial attorney.
The occupation is usually very demanding in that it requires long hours at a desk, high stress, and high cognitive demands.
Professors do much more than teach and instruct students in a classroom or lecture hall setting. They also conduct academic research and prepare written work for publishing in their field. Additionally, many professors hold chair, advisory, and other leadership positions within their department.
Physically, the occupation typically requires time at a desk, but also requires substantial time standing/walking while lecturing, coordinating with others, and possibly traveling. The ability to safely navigate throughout a campus also may be an occupational requirement. Professors usually are classified as "light" under the Dictionary of Occupational Titles.
The cognitive work demands for professors are very high. Even a relatively slight cognitive impairment may be disabling.
Sales agents work under a lot of quotas and competitive-driven pressures. They also perform a number of highly demanding physical functions. Indeed, this typically is not a desk job. Sales agents are generally classified as "light" under the Dictionary of Occupational Titles.
Sales agents usually must travel throughout their designated territory to sell products or services. They also must be capable of carrying samples and sales materials for current and prospective customers to inspect. If you cannot perform these functions, you may have a viable claim.
However, they also perform functions that require sitting at a desk. For example, a sales agent must review orders, call current and prospective clients, track data on sales, and complete paperwork on accounts. An inability to perform these functions also may be disabling.
Traders typically work for brokerage firms where they execute client orders for securities or stocks. They also may perform monitoring and analytical functions for corporations or other business entities.
Some traders work on trading floors, while others work in offices. If the trader works on the floor (e.g., at the New York Stock Exchange), the job is typically classified as "light." If the trader works in an office setting, the job is typically classified as "sedentary." This can make a big difference if your disability stems from a physical impairment. The floor trader may have an easier time proving disability than the desk trader.
The occupation is very demanding and stressful. It requires long hours, quick reaction time, and in-depth knowledge of regulatory compliance in the financial industry. Another common requirement is entertaining clients at night. This could be particularly problematic for individuals with fatigue or dietary restrictions.