Proving that you have reduced functional capacity and can't work is only part of the required proof you need to win long term disability benefits. You also must establish that you are unable to satisfy the functional requirements of the occupational standard in the policy.
What is the Occupational Standard?
Disability policies always provide definitions of the occupational standard required to be satisfied. The best policies are known as “own occupation” policies. They only require that you establish that you are unable to perform the duties of your “regular occupation.” Other policies require that you establish a more difficult standard. These policies, known as “any occupation” policies, require that you establish that you are disabled from any occupation to which you are qualified by reason of education, training or experience. Still other policies are a hybrid. These policies require that you establish disability from your own occupation for a specified period of time (usually 24 months), and then thereafter to establish disability from any occupation.
In most policies, the occupational standard forms part of the definition of “disability” or “total disability” in the policy. For instance, a typical own occupation definition of “total disability” will provide, “‘Total Disability’ means that because of injury or sickness the insured cannot perform each of the material duties of his regular occupation.”
Variations with Occupational Duties
There are many variations to this wording, but there usually is no practical difference in meaning. Some variations are:
- “unable to perform all the material duties”
- “cannot perform each of the material duties.”
- “unable to perform the important duties.”
- “unable to perform the essential duties.”
- “unable to perform with reasonable continuity the material duties.”
- “unable to perform the Material and Substantial Duties.”
Courts do not read these definitions literally. If they did, no one could satisfy them, particularly the ones that use “all the material duties” and “each of the material duties.” It is a material duty of almost every job to talk on the telephone or to read. Unless the claimant is in a coma, he can usually talk on the telephone and read even while in a hospital bed.
In reality, you can satisfy the policy definition of disability even when your are unable to satisfy just one material duty if that duty is a prime duty, i.e., a main reason that you make money.
The leading case on this issue is Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381 (3d Cir. 2003). Lasser involved an orthopedic surgeon in a four-person practice group. He saw patients during office hours, performed scheduled surgeries, took night call, and performed emergency surgeries. Because of his disability, he could no longer take night call and perform emergency surgeries. The Third Circuit found him to be disabled because even though night call and emergency surgeries were only a small amount of his time, they accounted for over 50% of his income. In finding him disabled, the Third Circuit provided, “[t]his substantial earnings decline lays out as little else can the materiality of those activities to his regular occupation.” Id. at 387.
In explaining this point to clients, I often use the example of baseball player Chuck Knoblauch. There was a point in his career when he no longer could throw the ball accurately to first base. If this deficiency resulted from an injury or sickness (and I am not insinuating it was), he would have been totally disabled from the job of second baseman. This was the case even though he still could field the ball and still hit. He would have been totally disabled because without being able to throw the ball accurately to first base, he simply could not play second base even with all of his other abilities. See, McFarland v. General Am. Life Ins. Co., 149 F.3d 583, 587-588 (7th Cir. 1998)(describing how a shortstop who could no longer run, hit, catch or throw would be disabled).
Many policies, however, define the term “material duties.” Courts will apply the definition as written. A typical definition is “Duties that: (1) are normally required for the performance of your Own Occupation; and (2) cannot be reasonably omitted or modified. However, to be at work in excess of 40 hours per week is not a material duty.”
This definition brings up two additional issues: job accommodations; and the 40-hour work week.
First, in proving your disability you must be prepared to address any possible work accommodation that could enable you to continue working. For instance, if you cannot tolerate prolonged sitting, you must consider whether an ergonomic chair could alleviate your pain. Likewise, if you cannot tolerate overseas travel, you must consider whether your employer could reduce the amount of such travel.
This issue directly affects your deciding between two types of claims; whether to go out on disability or whether to request a reasonable job accommodation under the Americans with Disabilities Act. Trying to go down both paths at the same time is inherently risky. If you request an ADA accommodation supported by your doctor but also make a claim for disability, the disability insurer will use the request for an accommodation as evidence that you are not disabled from your occupation--because the occupation can be modified. Under those circumstances, you must then see the accommodation through and see if it works. If it then does not work, then you could make a claim for disability arguing you cannot do the occupation even when accommodated.
Second, in proving your disability you must be prepared to address the 40-hour work week issue. This may be very important particularly in occupations where long hours are common such as with lawyers, doctors and investment bankers. With many disabilities, the most disabling symptom is fatigue and lack of stamina. Disability is much easier to establish when you must work 80 hours per week, rather than 40. Indeed, the effect of 40-hour limitation may well mean you are disabled from your demanding occupation but not disabled under the terms of the policy.
Variations with Occupational Language
Policies also vary between using “own occupation” and “regular occupation,” but there is no real distinction between the two. The only meaningful distinction is between the use of the term “job” and “occupation.” When a policy uses the term “job,” it means your own job at the specific employer. By contrast, when the policy uses the term “occupation,” it means that your occupation, e.g., lawyer, accountant, etc., as it is performed in the industry at similarly situated employers. This distinction often is important. For instance, you may be disabled from a “job” because you work in a building that requires you to climb stairs. However, you would not be disabled from you “occupation” because there are other employers who have offices where stair climbing is not required.
When the policy does not define the term “regular occupation,” courts have interpreted it to mean a position of the same general character as the insured’s previous job. The seminal case on the issue is Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 252-253 (2d Cir. 1999). The Kinstler Court requires insurance companies to consider the nature of the employer when determining the regular occupation. In Kinstler, the plaintiff worked as a nurse at a small health care agency, which according to the Court required its nurses to perform different duties than nurses employed at large hospitals. Therefore, the regular occupation could not just be considered a “nurse.” Consideration had to be given to how a nurse performs duties at an employer similar in size and location. For example, if a client is a lawyer who practices at a large law firm in New York City, the material duties of that occupation will be defined by reference to how attorneys perform a similar job at other large law firms in New York City. It would be inappropriate to define the job by reference to how lawyers perform duties in small firms or governmental entities.
Many policies, however, define the term “own occupation” or “regular occupation.” Courts will apply the definition used in the policy to the extent that it differs from common law concepts found in Kinstler and other cases. A typical definition of “regular occupation” is as follows: “the occupation that you are routinely performing when your period of disability begins. Your occupation will be viewed as it is normally performed in the national economy instead of how it is performed for your specific employer or at your location or work site.”
This definition brings up the issue of when your occupation is set, i.e., when your period of disability begins. This is important in many situations. For example let’s say you have a choice between disability and an ADA accommodation. If you take a less demanding job as part of your accommodation, for instance, a lawyer changes from being a trial lawyer to being a corporate lawyer, then when he eventually applies for disability the insurer might argue (and prevail) that the relevant occupational standard is that of a corporate lawyer, rather than that of a trial lawyer. The insurer is likely to prevail because at the time of disability, the claimant was a corporate lawyer. In effect, by taking a less demanding job, you have raised the bar for yourself. Now you must show that your ability to function has deteriorated so you cannot even do the less demanding job. Of course, the opposite is true. For example, if you were a manager for your whole career and then one month prior to your date of disability you were promoted to executive vice president, then the occupational standard would be that of an executive vice president.
Although there are some ERISA covered policies that have a pure “any occupation” definition, they are extremely rare. The vast majority of the time “any occupation” comes into play is when the definition of disability is a hybrid: “regular occupation” for a period of time (usually 24 months), and then “any occupation” thereafter. A typical definition of disability is as follows:
You are disabled if you are unable to perform the material and substantial duties of your regular occupation;
After 24 months of payments, you are disabled if you are unable to perform the duties of any occupation for which you are reasonably fitted by education, training or experience.
One typical variation of this definition includes an earnings qualifier. This usually is done by further defining the term “any occupation” to mean “an occupation that is or can be expected to provide you with an income that exceeds 60% of your indexed monthly earnings.” In other words, you will only be required to establish that you are disabled from occupations that you are fitted for in which you are expected to earn at least 60% of her prior earnings.
Is the change in definition from regular occupation to any occupation important? You bet it is. Some insurers start with the premise that their liability under the policy is only two years and that you will not satisfy the any occupation standard. At the very least, the change in definition will be disruptive because the insurer will conduct a full-fledged investigation of the claim. You can expect that the insurer will begin that investigation about six months prior to the change of definition date.
Because the change of definition of disability is so important, think about it from the very beginning of your claim. There are several things you could do that will make the any occupation determination go more smoothly. First, when you send out questionnaires to the treating doctors seeking their opinion as to your disability, see if they will agree at that point to opine you are disabled from not just your own occupation, but from any occupation.
To make the questionnaire most effective, provide the doctor with a written description of your occupation, and you also must try to describe in broad strokes the occupations you might be “reasonably fitted.”
Second, without damaging your chances to prevail during the own occupation stage, avoid relying on your inability to do duties specific to related to your occupation. For instance, if you rely heavily on the fact that you cannot do the heavy travel of your occupation, you make it harder to satisfy the any occupation stage because the insurer will find an occupation you are reasonably fitted that does not require heavy travel. Let me emphasis, however, that if you must rely on the travel requirement to satisfy the own occupation standard, then do so. You can face the any occupation standard when it becomes relevant in two years. Things change. By that time your condition may have deteriorated and there are other reasons why you cannot work.
Third, you could obtain a report from a vocational expert right from the beginning. It is never too early to start educating the insurer about the specifics of your occupation, and your education, training and experience.
You may wonder whether the insurer will find you a job during the any occupation investigation. Unfortunately, the answer is, no. The insurer only will determine whether you have the functional capacity to do another job, whether you have the education, training and experience to do the other job, and whether that job exists in the economy. Case law, however, has placed some restriction on this. An insurer also must establish that the claimant actually would be able to obtain such a job. This issue was litigated in Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir. 2006). Ms. Demirovic was in her late fifties. She worked as an unskilled manual laborer for nearly thirty years and her facility with English was extremely limited. The Court held:
In this case, a proper inquiry would require not only a medical assessment of Demirovic's physical capacity to perform both physical and sedentary work, but also a non-medical assessment as to whether she has the vocational capacity to perform any type of work -- of a type that actually exists in the national economy -- that permits her to earn a reasonably substantial income from her employment, rising to the dignity of an income or livelihood.
Because issues of occupation become more important once the standard becomes “any occupation,” more attention and resources must be spent on vocational records and expert evidence.
Vocational evidence includes the employment history of the claimant, a job description from the employer, job analysis resources such as the Dictionary of Occupational Titles and O*NET, your education and training, and other documents that elucidate your job duties and your potential for performing other occupations. For example, evidence that a particular job is very noisy can be proven with statements from employers or even photos demonstrating noisy conditions.
To elicit vocational information from the client and then to relate the information to the client’s symptoms, we have developed a tool for you to use that will help you describe in great detail your specific duties, both physical and cognitive. The tool will help you rate the duties of your job in order of importance and to explain why your symptoms prevent you from performing each duty.
Besides the information from you and your employer, opinions from vocational experts as to whether you can perform certain type of work can become invaluable. In submitting these records, remember that factors such as the age and your location also should be highlighted, as the insurer must consider these factors. See, e.g., Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir. 2006). To prove disability, you would need to establish that the medical evidence demonstrates restrictions and limitations that are greater than the functional requirements of your job.
You are an important source of vocational evidence
Be prepared to document your specific job duties, such as managing employees and being responsible for particular functions. Include the physical and cognitive requirements of your job such as; how long you need to sit, stand, and walk; how many hours you need to work; how much travel is required; are there any special requirements of the job; and what are the cognitive demands of the job.
Have a copy of your resume prepared and write-up a description of your job.
Here is a tool to help you with this process. The tool queries you in great detail about your specific job duties, both physical and cognitive, asks you to rate the duties of your job in order of importance and to explain why your symptoms prevent you from performing each duty.
Once you have this information (and what you obtain from the employer), you will be in a better position to draft an affidavit pertaining to you occupation. To have maximum impact, we often describe a typical day of work to illustrate the demanding nature of the occupation.
If the worksite of your occupation is important, you should obtain photographs of where you worked, so the insurer could be made to understand the work conditions. For instance, commodity traders work at busy and noisy trading desks. A hearing problem may not be an issue in a quiet office, but it may make a trader totally unable to do her job at the noisy trading desk. Photos of the room may make this more apparent to the insurance company claims manager who probably has no idea what a trading desk looks like.
Employer Generated Evidence
The application for long term disability benefits always includes a form to be completed by the employer. The form usually will ask the employer to provide: the employee’s job title; the salary and other compensation paid to the employee; the date that the employee starting working; the date that the employee stopped working; and the reason that the employee stopped working. The form also usually asks the employer to attach the employee’s job description.
Less frequently, but still very often, the insurer will request that the employer complete a Physical Demands Analysis of your job. On this form, the insurer will request that the employer assess the physical and cognitive demands of the job, including: primary function and components of the job; the work schedule for the job; machines and tools used; educational/training requirements of the job; can the job be modified and for how long; hours standing, walking and sitting at one time; hours standing, walking and sitting during a workday; physical demands such as climbing, lifting, carrying, stooping, kneeling, crouching, handling, grasping, fingering, reaching, twisting; talking, vision, hearing, and reading requirements.
It is important to interface with your employer when these forms are being completed. For instance, see if the employer will send you a draft of both forms prior to their finalization. This is important because the forms often are completed by staff in human resources who have no personal knowledge of what you actually do on the job. The completed forms, therefore, may leave out duties/requirements essential to your disability claim. It is very difficult to correct these deficiencies after the forms have been sent to the insurer.
You should also have any employer created job descriptions and any performance evaluations they may have. The performance evaluations may be helpful because they often describe the duties of the job. They also may be helpful in substantiating that you have been having difficulty on the job for some time. Poor performance is consistent with disability. Stellar performance is inconsistent with disability.