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Common thinking about disability coverage would cause the average individual to expect that if they become unable to perform the specific duties of their occupation, they would qualify for disability benefits.  For example, if your employer requires you to travel for your occupation, then if you cannot perform this essential duty, you should qualify for coverage. The insurance companies would prefer to profile the occupation in a generic sense, because the manner in which one employer requires the employees to perform their duties may be particular to that work setting, or even geographical area of employment.   This issue is often litigated because many policies define “occupation” based on how the job is performed in a fictitious “national economy,” which is a term of art.  Courts are split on their treatment of this issue. Should insurance companies evaluate whether a claimant can perform their actual duties or should they evaluate whether a claimant can perform the duties of their occupation as it is generally performed?

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019).  The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.”  Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference.  Hankins v. Std. Ins. Co. 677 F.3d 830 (8th Cir. 2012).

Another example concerns the occupation of an attorney.  The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018).  The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.”  The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

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We regularly file appeals of disability insurance denials of long term disability claims.  Our clients are bound by ERISA regulations which require that all appeals must be filed within 180 days of the insurance company denial. We meet with our clients as early as possible following their receipt of the denial, to strategize what evidence to collect to challenge the wrongful denial of LTD benefits. We always demand a copy of the insurance company’s entire claim file, because we have a right to the record and it often provides great insight as to the thoughts of the insurer as they planned their denial of the claim.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days.  In our experience, insurance companies regularly ignore these deadlines.  They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination.  The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands.  Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline.  Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors.  We object to our clients having such an exam during the appeal.  It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned.  Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier.  We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline.  Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

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Many individuals with chronic permanent medical conditions reach a level of treatment that is palliative, that will not improve their symptoms or effect their prognosis. Continuing to visit a medical provider to monitor your condition  that does not provide any medical benefit may seem pointless, and can use up valuable time and money resources. The disabled may reduce the frequency of medical visits, especially when the provider advises that no treatment is necessary.  Nonetheless, claimants on long-term disability must fulfill the burden of proof showing that they remain disabled over time. Such a requirement includes furnishing continuing proof of disability, such as medical notes or disability forms signed by a current treating medical provider.

The incompatibility of these two situations clash when the insurer to your disability claim requires “appropriate treatment” for the disabling condition in order to continue the claim.  The recent court decision in Griffin v. Hartford Life & Accident Ins. Co., 898 F.3d 371 (4th Cir. 2018) makes clear that continuing medical visits are necessary. Griffin stopped working due to pain from a herniated disc and saw his medical provider from September 2011 to June 2013. Since there was o feasible medical treatment to improve his condition, he stopped active treatment. Griffin explained to Hartford that he was unable to afford continuing visits to his medical provider, yet Hartford still required that a physician remark on functionality in order to continue paying Griffen long-term disability benefits. Since no treating physician could speak confidently on Griffin’s current disability the court upheld Hartford’s denial of Griffin’s long-term disability claim despite his contention that he remained disabled.

I advise all clients experiencing a chronic medical condition to remain under the care of a physician with at least quarterly visits, even if the physician maintains that the condition remains unchanged. Clients should have disability claim forms completed by their treating provider and keep up to date with any necessary claim materials, so that disability is continuously supported. While it may seem unnecessary to spend resources on visiting a provider when no tangible benefit comes from doing so, previous cases such as Griffin v. Hartford Life show that courts are likely to view, as insurance companies do, a lack of continuing medical history as congruent with improvement in one’s condition or absence of disability altogether.

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Disability policies contain a provision explaining that coverage will not be extended for a claim based on a “legal disability.”  Legal disability relates to the individual’s eligibility to work due to necessary licensing, such a financial advisor (Series 7 license), lawyer (bar license) and physician (medical license).  What happens when a disability caused by a physical or mental disability results in the professional becoming legally prohibited from working in their occupation-due to suspension or revocation of their license? This may occur if an attorney develops dementia, commits ethical violations and becomes disbarred- or if a doctor develops a substance abuse, such as addiction to fentanyl, and loses his medical license.  Recently several doctors have been incarcerated for Medicaid fraud.  What is the root cause of the disability? Do they have a valid claim for disability benefits while their license is suspended?

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors:  (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.”  Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012).  The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.”  Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)

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For those of us handling long term disability claims for people suffering from chronic back conditions, a clause in the MetLife LTD policies has caused us much tsuris (Yiddish word, “worry”). Their policies contain a limitation for “neuromuscular disorders” providing coverage for only two years for disorders of the spine unless one of six exceptions are objectively proven. Simply stated, this clause impacts a large pool of disability claims, since many of the disabled have back conditions that impair their ability to sustain static positions required for most work, such as prolonged sitting or standing. Some long term back conditions linger despite an absence of radiographs or MRIs, or EMGS documenting evidence of progression. A whole other category of disability, that caused by chronic pain and the side effects of necessary narcotic pain medication, is often overlooked by the insurer eager to deny claims.

We have handled many long term disability cases involving “failed back syndrome” where our clients have neuro-stimulators permanently installed in their backs to help them manage pain. Despite that evidence of the severity of their despairing condition, the absence of an “objective” test showing the precise cause of the spinal dysfunction was used to deny their claim.

Fortunately, the 7th Circuit Court of Appeals recognized the significance of various elements of proof establishing the existence of a neuromuscular disorder which qualifies under the exceptions to the MetLife limited coverage. While MetLife emphasized that there were some equivocal test results showing ongoing radiculopathy (an exception to the limit), the Court of Appeals considered the clinical examination results of the claimant’s own specialists, ongoing consistent testing which aligned with the disorder and past positive EMGs as the objective evidence MetLife arbitrarily disregarded. They reversed the District Court in Hennen v. Metro. Life Ins. Co., 2018 U.S. App. LEXIS 26114 (7th Cir. 2018). This decision fortifies that the insurers must not require only a certain “objective evidence” to establish the necessary proofs.

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 Reliance Standards’ unreasonable and bad faith claims handling , was carefully scrutinized by Judge Reeves, sitting in the Southern District of Mississippi.  Reliance and its competitors in the industry, as the Judge notes, “have conflicting missions of deciding who qualifies for benefits and ensuring those decisions do not undermine their own bottom line.”  Nichols v. Reliance Std. Life Ins. Co., No. 3:17-CV-42-CWR-FKB, 2018 U.S. Dist. LEXIS 109526 (S.D. Miss. June 29, 2018).  This conflict of interest has become very evident to the courts, which frequently criticize the practices of disability insurers; yet insurers refuse to change their ways, seeking to preserve their financial interests.

The case involved 62 year old Ms. Nichols who spent her entire life working as a Hazard Analysis and Critical Control Points Coordinator at a chicken processing plant in Mississippi.  Her duties included training employees on quality assurance procedures and inspecting, packaging, and exporting meat products in processing areas, which were maintained at near-freezing temperatures. Ms. Nichols suffers from circulatory disorders, including Reynaud’s Syndrome rendering her unable to tolerate cold temperatures because doing so would cause her arteries to spasm and could lead to serious medical complications, such as gangrene.

Ms. Nichols’ medical conditions clearly prevented her from performing the duties of her occupation, which required exposure to cold.  Reliance sought a way to deny Ms. Nichols’ claim turning to the policy’s definition of  “regular occupation”—which defines a claimant’s occupational duties as they are “normally performed in the national economy,” rather than “the unique duties performed for a specific employer or specific locale.”  Reliance excluded Ms. Nichol’s duties associated with exposure to the cold by generally classifying her job to ignore the meat inspection, packaging, and exporting duties of Ms. Nichols’ occupation and denied her disability claim.  Ms. Nichols brought suit in federal court, and she won a resounding victory.

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Our clients often ask how to retain employee benefits while on disability leave.  A source of this information should be an employee handbook or summary of benefits available from the employer.  Often all benefits such as medical coverage or life insurance continues while the employee is on short term disability.  Then if the employee does not return to work and receives long term disability, they are offered to continue such ancillary benefits providing they start to pay the premiums or convert the coverage in some way.  For instance an employer will issue a letter explaining the employee is eligible for COBRA medical coverage for a set period of time if they pay the premiums for the coverage.

An issue arises when the employee indicates an interest in continuing the coverage but the employer fails to submit the necessary paperwork to them. A recent example of this problem occurred in Erwood v. Life Ins. Co. of N. Am._ 2017 U.S. Dist. LEXIS 56348. Erwood left work on disability, but the employer did not inform him or his family of his need to convert life insurance coverage to own it himself in order to remain covered and did not  provide him with the conversion forms. When Erwood died and his family sought life insurance, the carrier, CIGNA denied the claim because no conversion forms were on file. The employer defended its position by claiming that there was a packet of materials sent to Erwood, but the Court held  the packet was inadequate because it did not include the materials necessary to convert life insurance coverage or inform where to access such materials or even where to send them. The employer’s excuse that Dr. Erwood did have access to the life insurance program on its benefits internet portal was not enough. The Court held that “merely making an SPD on its portal does not satisfy its disclosure obligations of the plan administrator, the employer, especially in light of the fact that once Dr. Erwood’s FMLA leave expired, his access to the portal was terminated.” The Court entered judgment for the full life insurance benefit from the employer.

The Court explained that once Erwood, an ERISA beneficiary, requested information from the employer who was aware of his status and situation, the employer has a fiduciary obligation to convey complete and accurate information material to the beneficiary’s coverage and rights even if he has not specifically inquired about it. The fiduciary, in this case the employer, has a duty to inform when he knows that silence might be harmful. So if an employer makes an affirmative misrepresentation or fails to adequately inform a plan participant, that misrepresentation or inadequate disclosure can be material and when the employee detrimentally relies upon it and loses coverage, the employer can be liable.

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We often suggest to our clients that they carefully limit their exposure on social media. It is simple for insurance companies to track a claimant’s whereabouts if they are regularly posting on Facebook, and not making it private, uploading pictures on Instagram, or other people are tagging them in photos or discussing their whereabouts. An example of the use of social media to deny a claim occurred recently in Goros v. Sun Life Assurance Co., No. 2:16-cv-233-FtM-38CM, 2017 U.S. Dist. LEXIS 137446 (M.D. Fla. Aug. 28, 2017).  Mr. Goros claimed that while he had a motorcycle he was sorrowfully unable to use it due to his back and arthritic conditions. However, social media of his girlfriend reported their long trips and motorcycle rides. The Court took this into account when challenging his credibility and as establishing his ability to perform occasional travel which was one of his job duties.

People that are disabled do not have to stay indoors, they can continue to perform their daily activities and readjust to live a full life with their impairment. However, if they demonstrate through their non-work activities that they can perform physical or mental requirements which are similar to those of the workplace, or if they are more social than they claim to be, this creates potentially legitimate concerns by the disability insurance company of the veracity of the claim and the depth and breadth of the impairment.

It is notable that many states, including New Jersey have passed laws regulating an employer’s access to the personal account social media website of an employee.

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We have been following the Courts’ treatment of mental or nervous disorders limitations in group long term disability policies. (See blog, Disability Caused by Physical Impairment, July 2015)  Recently, the 6th Circuit Court of Appeals joined other courts holding that a claimant is disabled by physical conditions alone, then the mere presence of a psychiatric component does not justify application of a mental health limitation to a claim.  In Okuno v. Reliance Std. Life Ins.Co., 2016 U.S. App. LEXIS 16423 (6th Cir. Sept. 7, 2016),  Reliance applied the one year limit on benefits because there was the presence of a psychiatric component to her claim regardless of the physical component to her disability. The court rejected Reliance’s rationale that as so long as there is a comorbid psychiatric condition the limitation applies.

Every federal circuit court to consider the meaning of the phrase “caused or contributed to by” has read it to exclude coverage only when the claimant’s physical disability was insufficient alone to render him totally disabled. See George v. Reliance Standard Life Ins. Co, 776 F.3d 349 (5th Cir. 2015).  The insurer bears the burden to show that the exclusion applies to the case.  “The effect of an applicant’s physical ailments must be considered separately to satisfy the requirement that the review be reasoned and deliberate.”  See Okuno . In order to overcome the insurers’ application of this mental health limitation to continued benefits, the claimant must claim total disability as the result of a purely physical condition.

What if a physical condition is covered, but the symptoms include depression, which is a mental illness? Courts caution that policy terms and precise medical facts of the claim must be examined.  See, for example, Leight v. Union Sec. Ins. Co. 2016 U.S. Dist. LEXIS 68412 (D.Or. May 24, 2016).   Leight’s Aspergers’ Disorder is expressly exempt from the definition of “mental illness” in the policy but Union Security attempted to apply the mental illness limitation, since the disorder produces disabling symptoms of anxiety and depression.   The court determined that the mental illness limitation did not apply since Aspergers was a ‘covered condition.”

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Disability insurers love to deny claims based on their medical consultant’s conclusion that the claimant has “sedentary capacity.” The insurer’s vocational counselor swiftly identifies various jobs that the claimant can allegedly perform without performing a full or fair investigation of the transferable skills. Does the inquiry end at the point it is established that the individual can sit in a chair at a desk for a period of time?

Just as important is whether the individual has marketable skills to perform a “desk job”, since virtually every “sedentary” job requires strong computer skills.  In our experience, the qualifications related to real time computer and technology use are under investigated in the insurers’ rush to deny.

We have seen some changes in the collateral information the insurers collect regarding our clients.  For instance. on the “activities of daily living” forms they must complete, our disabled clients are asked whether they own a computer, whether it is a desktop or laptop, what they use the computer for (pay bills, read news, facebook).  Be prepared for these are not innocent questions. It’s direct purpose is to establish that the claimant has full use of a computer and a skill that is “transferable” to the workforce.   In short, claimants should not overstate their computer use at home.