We often use the phrase that a person is “unable to perform the material and substantial duties of their occupation” in our representation of claimants. What exactly does that mean?
The term “Material and Substantial Duties” is often a defined term in policies for Disability Insurance. This often includes BOTH private Individual policies, and group LTD ERISA policies.
The material and substantial duties phrase is the legal term used to describe what you actually do at your job, but it’s not as vague as “writing reports” or “being an anesthesiologist in an operating room.”
Let’s define the terms:
Material duties are tasks that must be done as part of an occupation. A chiropractor must have the ability to extend their arms and exert pressure upon a patient in a highly controlled fashion. If the chiropractor cannot extend their arms fully, then they cannot perform this duty of their profession. A professional pilot with a vision issue cannot fly a commercial airplane.
Substantial duties are the duties that are important to completing the tasks of the occupation. They can be described as qualitative or quantitative. Here, the person cannot perform a large proportion of their duties. A sales director who is unable to communicate because of a stroke who cannot understand or comprehend language, may be able to get themselves to work, but without the ability to communicate, they cannot perform the substantial duties of their occupation.
Tese two characteristics of occupational duties occasionally overlap, and some of the legal arguments that we encounter between our clients and the insurance companies do become frustrating. It seems foolish that our client’s claim is being held up because the insurance company thinks an accountant who previously managed a five-office accounting firm and can no longer perform high-level cognitive analysis should take a job as a bookkeeper.
There are critical distinctions between the group LTD ERISA policies, and private Individual policies.
For our clients with private Individual policies, what you do is often what you are – so to speak. They get to appreciate what YOUR activities are – often for doctors it would be supported by the billing codes and activities they have performed. For lawyers, it might be redacted billing records to show activity. For traders, it might be their trade confirmations. The essence is that what you do matters.
In sharp contrast, many of our long-term disability cases are governed by ERISA and are group LTD policies. In those cases, almost universally the definition is interpreted to be a “watered down” or generic occupation classification. Thus, it is not what YOU do, but, rather, what people called what they call you do. Most people struggle to grapple with this concept (and we are bewildered as to why it is acceptable), but these claims will typically hinge upon the use of outdated vocational materials by the insurance companies. The changes in the workplace that have occurred in the last five, ten, and sometimes even twenty years are ignored by the claims adjusters when it suits them. They tend to rely upon the Dictionary of Occupation Titles which offers broad, and often generic descriptions of occupations.
We routinely challenge job descriptions, particularly when the disability policy at issue has an “own occupation” clause. This is critical when the claimant has dedicated years of training and experience to their profession, whether it be as a neurosurgeon or as an investment trader.
Our attorneys work with claimants to clarify the specific duties of their occupations and work with their treating physicians to ensure that their medical records reflect not only their conditions, but the specific tasks that they cannot perform as a result of their disability. If the medical records do not reflect the specific tasks, the insurance companies will use that as their defense.
When dealing with the issues presented in an insurers’ use of the DOT – we will often attack the reliance upon this source, as it is both outdated and overly broad. Many courts have appreciated these issues and we leverage those prior decisions to further our arguments.
When Frankel & Newfield speaks with claimants, one of the first things we ask for is a copy of their disability insurance policy. The provisions of the policy are a contract between the claimant and the insurance company. We review the policy with great attention to whether or not the policy has an “own occupation” or “any occupation” provision. An “own occupation” policy means that the claimant is being insured for their ability to perform the tasks of their occupation.
The “any occupation” policy can present a number of challenges to the policyholder. The insurance company may have the ability to push back to say that a person who is disabled from being a college professor could take a job as a researcher, where less interaction with students is necessary, or they do not need to stand on their feet for an extended period of time. The fact that they have invested years of study in attaining a doctorate to be a professor in a university may not have merit in an “any occupation” policy.
At Frankel & Newfield, we can help you understand your disability insurance policy and what kind of challenges you may be facing in your claim.