New Jersey Disability Lawyer Blog
The disabled must navigate the maze of insurers’ roadblocks to maintain their disability benefits often when they are too ill to tend to the demands of the insurers. Insurers aggressively find ways to deny the payment of bona fide disability claims. Over a decade ago, the Supreme Court recognized that insurers have an incentive to hold onto the benefit dollars they owe to claimants because it clearly improves the company’s finances. Insurance companies have what is referred to as a structural “conflict of interest when a plan administrator both determines eligibility for benefits and pays benefits claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 171 L.Ed.2d 299 (2008).
A common thread in disability denials is the company’s decision that the insured can perform “sedentary work” despite their restrictions and limitations. Sedentary work, simply considers the physical condition of the person- can they sit most of the time, and walk or stand for brief periods of time. The DOT definition for sedentary work conveniently focuses exclusively on the physical demands and disregards any other aspect such as cognitive.
In Smith v Reliance, Reliance paid LTD benefits out for several years to an executive who had strokes and suffered from heart problems. Reliance then reversed course and concluded Mr. Smith could return to work, alleging he had to prove that he could not perform sedentary work due to a physical limitation on, for example, sitting, typing, or speaking. The court disagreed, holding that if someone had to prove they could not sit, speak or type, in order to receive disability benefits, “such a rule would erase disability eligibility for all but the bedridden. Some serious diseases are debilitating because of their effect on the mind or because they worsen with stress.” Smith v. Reliance Standard Life Ins. Co., 2019 U.S. App. LEXIS 18518, at *14 (4th Cir. June 20, 2019)
The insurer must consider the actual duties of the individual’s regular occupation when deciding whether to approve of the disability claim. Not only must they review the physical nature of the job, but the intellectual, the cognitive elements.
Another recent tactic by insurance companies such as Cigna, Prudential, Hartford, Unum and Reliance Standard is to ask the treating doctor whether their patient can work if they are provided with “standard breaks” to “reposition” themselves. This type of question is misleading because it suggests that the only problem the individual has is related to moving about in the chair. Our clients that have back problems, for example, cannot merely shuffle in their chair to get out of pain. They must change their position from sitting to laying down, to reduce their symptoms. Chronic pain often interferes with concentration and focus, requiring frequent rest periods.
A recent example of an insurer denying a claim based on an assertion that the disabled person can “change positions” is McIntyre v Reliance Standard. Ms. McIntyre, a former nurse was found eligible for long term disability benefits for the initial period because Reliance agreed that she could not perform the duties of a nurse. But Reliance Standard eventually denied the claim, concluding that she could perform other sedentary occupations because occupations “allows for breaks.”
The source for the allegation that she could perform sedentary occupations was a question to her treating doctor as to her general abilities unrelated to a workplace setting. Her doctor noted that she could sit for thirty minutes before needing a position change; and continued to maintain she could not return to work in any capacity. The insurance medical examiner alleged that she could perform sedentary work. Using this manufactured evidence, Reliance concluded that Ms. McIntyre could return to work in a sedentary capacity because she could potentially sit for thirty minutes and then change position.
The court saw through Reliance’s illogical conclusion. The court held that “given the realities of full time work, the court has difficulty imagining occupations that would consistently allow McIntryre to take a break every half hour.” The court reasoned that “even if McIntyre took only 10 minute breaks after every half hour she worked, she would be breaking for at least 80 minutes for every 8 hour workday, totaling nearly 7 hours a week. McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28, 2019).
The insurance companies overlook multifactorial elements of full time work. Most of us can sit for durations. But an individual suffering from pain, side effects of the medications, and physical fatigue cannot predictably sustain work on a regular reliable basis. We at Bonny G. Rafel LLC navigate through these difficult roadblocks to achieve a fair and just result for our disabled clients.