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.
Unfortunately, the Fifth Circuit departs from the reasonable analysis set forth by the Third Circuit and Tenth Circuit, using a framework that does not account for actual job duties. In Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802 (5th Cir. 2019) the Appellate Court reversed an LTD benefits award to a 62-year-old disabled woman who inspected chicken in sub-forty degree temperature poultry coolers for a living. She could not continue working due to her illness, Reynauds Syndrome. Reliance identified her occupation as ‘sanitarian’, which generally does not include a designation of any particular work environment. The court relied on the national generic definition of this occupation, thus removing the necessity to work in freezing temperature as material to her performance. Her claim was denied on appeal.
We investigate our client’s actual job duties from our initial representation and stress the materiality of each duty that illness or sickness impairs. It is vital to integrate this analysis from the onset of each case, so the disability insurance companies, always looking for reasons to deny valid claims, must fairly and fully evaluate each case. We rely on vocational consultants regularly to independently assess the job duties and integrate our client’s specific symptoms that interfere with physical and cognitive functionality. Bonny G. Rafel. www.disabilitycounsel.com.