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Own Occupation Insurance Policies

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Mason Waring: Hello, my name is Mason Waring. I’m an attorney and partner at Chisholm, Chisholm and Kilpatrick. I’m joined here today by my colleague, Leah Small. We do what much of our practice to handling long-term disability claims, appeals, court litigation for disabled workers. These are individuals who receive long-term disability coverage either through their employer or they purchase disability coverage directly from the insurance company themselves.

Mason: Today, we’re going to talk about own occupation long-term disability claims. And so, we’ll be discussing what it means to meet the own occupation definition of disability according to your policies’ terms. How insurance companies determine the functions of your occupation and your ability to perform those functions. And how you will need to prove and what you will need to prove and demonstrate that you are unable to meet the physical and cognitive requirements of your job. So, let’s get started.

Mason: Leah, if you file for long-term disability insurance, of course, you must meet the policies’ definition of disability and those can vary depending from policy to policy. So, it’s really important to read them, get your policy and read it. Can you tell our viewers more about what it means to be disabled from your own occupation?

Leah Small: Sure. Under most long-term disability policies, for the first 24 to 48 months of your claim, you must meet what known as the own occupation definition of disability. And that means you must be disabled from working in your own occupation, which is the occupation you were doing at the time you became disabled. When you’re looking at this definition of disability, you must examine the material duties of that job both physical and cognitive.

Leah: Now, some policies may define own occupation more narrowly than that. For example, someone include occupational subspecialty. So, if you’re a doctor but you’re not just a doctor, you’re an orthopedic surgeon. Your own occupation may be defined to include that specialty. So, for example, if you can no longer perform surgery, but you can practically work in an office or teach, you might still be disabled under your policies own occupation definition of disability because again, your occupation was surgeon.

Leah: Now, after the first 24 to 48 months, your policy may then require you to be disabled to work in any occupation to continue receiving benefits. However, as you said it’s really important to read your policies because there are some policies that have the own occupation definition of disability for the entirety of the claim. So, it’s important to know what the specific requirements of your policy are.

Mason: Yeah, that’s an important point, Leah. Really really important to get your policy, read your policy and understand it. Some policies are own occupation from day one of that benefits are payable. Some it could be six months, could be 12 months, some are any up to the entire period. So, it’s really important to understand what’s in there because that can depend on what kind of proof you need to provide along with your claim to the insurance company.

Mason: So, moving on, let’s talk about the insurance company and how it determines your occupation. And so, in order to decide if you meet the own occupation definition of disability, the insurance company will determine what your occupation was. And a lot of times you need to report that to the insurance company, but they may do their own investigation and higher vocational experts. So, Leah, can you talk more about how the insurance company goes through that process?

Leah: One of the most important things to note right up front is when determining what your occupation was, the insurance company often will consider how it performed in the national economy. Not how the job was performed at your specific place of employment. And to do this, insurance companies will often use resources from things that the Department of Labor to define what the duties and requirements of your occupation were. And what happens with that, is that may mean that the way they define your occupation, it might include duties and requirements that maybe weren’t part of your job and it may also end up, conversely, not include certain duties or requirements that were unique or specific to your particular place of employment. So again, they’re looking at generally how is that occupation performs in the national economy?

Leah: With that said, it’s still important that the insurance company looks at the duties and requirements you are performing and make sure that the occupation they select is similar to those duties. For example, your job title at your employer may not accurately describe the duties you were actually performing at the time you became disabled. And if the insurance company just looks at your job title and then says, here’s how that job performs in the national economy rather than actually determining what job title best matches the duties you were performing, the occupation it selects might not be accurate and not a correct representation of what your own occupation actually is.

Leah: If the insurance company incorrectly determines what your own occupation is and what its requirements are, that can have a significant impact on your long-term disability claim and result in wrongful denial of benefits. One other thing to know, as we said and we’ll say a lot, read your policy because there are some long-term disability policies that do evaluate your claim based on how your specific job for your specific employer was performed. So, it’s important to pay attention to that. Generally, always read your policy to figure out how they determine what type of own occupation definition you have to meet and that’ll help you determine what type of evidence you need to submit to the insurance company to help them correctly evaluate your claim.

Mason: That makes me think of what a claimant might be going through when they’re sitting down to complete the claim forms and let’s say they do have the own occupation policy. It’s important to not only think about your own occupation but also think about how your impairments prevent you from doing any occupation. So, it is absolutely important to think about your occupation. But if you have an impairment that would prevent you from working reliably or consistently in any occupation, that is an important foundation of even in any occupation claim, because when the definition of this disability changes, if it does to any occupation after 12 or 24 or 48 months, you’re going to want to make sure that it’s been investigated whether or not you can do any job reliably and consistently or there is something that would prevent you from working in a gainful occupation.

Mason: So just keep that in mind. That’s a common mistake we see where maybe someone‚Äôs handled their own claim and they’ve really been solely focused on their own job and what it is that prevents them from doing their own job, but they really neglected other aspects of the health picture that really impacts their ability to work in any job. And you really want to get that information into the record before the insurance company. Circumstances can vary, but really think about your health holistically. Think about all the different things you are dealing with.

Mason: Let’s say, you have chronic back pain that is impacting your ability to work. If you also have sleep apnea that’s making you have bad sleep and you’re fatigued during the day as a result of it. That’s an important part of your picture. Don’t forget about that. Maybe the back pain prevents you from doing lifting which is a material duty of your own occupation. That sleep, if you have severe enough sleep apnea that could negatively impact your ability to do any job. So, keep all that in mind. That’s something that we deal with. Another thing that comes to mind here is where the job description is deficient. And so, you may have worked in job for a period of time. Your employer may not have had a robust job description. Maybe your job changed over time and Leah alluded to that. Sometimes, it can be beneficial at the claim process to get a vocational expert involved to really define the parameters of what you were doing, so you’ll have the job description. Then, a statement from you and vocational opinion really outlining what the full picture was when it really took to do your job and what the requirements of that job. That may be something you want to submit with your initial claim.

Mason: So, keep that in mind. It’s something that we do help people with here at CCK at the initial claim level. We do with it on the appeal level regularly, but sometimes people need a little bit more help at the claim level. So, feel free to reach out to us for a free consultation. It costs nothing to see if we can help you with that. But good things to keep in mind. So, moving on, we’re going to talk more about the distinction between physical and cognitive abilities. Once the insurance company determines what your occupation was, they should evaluate whether your medical condition renders you unable to perform the physical and cognitive duties of your job. It doesn’t always happen. Sometimes, they’ll focus on just the cognitive or just the physical. You really need to take an honest, frank look at your medical picture and figure out “Hey is this impacting physical duties, cognitive duties, both”. Often, it’s both and you really want to figure that out, lay it out and include that as part of the claim. So, Leah, could you talk more about that?

Leah: Absolutely. So often as you said, we’ll see insurance companies focus on one aspect, physical or the cognitive and a lot of times they don’t look at it holistically. The insurance company’s failure to consider both the physical and cognitive can result in improper claim denials. So, for example, you might work in an office, you have a sedentary job, but you’re performing complex tasks that require a lot of focus and concentration are very cognitively demanding. If you have a job like that, that requires a high level of mental acuity, physical pain might impair your ability to do that job, even if physically you’re still capable of performing sedentary work. But if the insurance coming just looks at the physical demands of your job and ignores those cognitive demands, they might determine well you are physically capable of performing sedentary work; therefore, you can do your sedentary job. When in fact, that’s not the case because your pain means you can’t do your job cognitively.

Leah: Alternatively, if you work in a very physically demanding occupation, like construction or something of that nature, even a mild physical impairment can prevent you from successfully completing those job duties. So, if the insurance company doesn’t consider both, then it might incorrectly determine that you’re still capable of performing your occupation. And as you mentioned, insurance companies may use their own vocational experts to evaluate your occupation, but it’s important that you provide your own evidence of what both the physical and cognitive duties of your job work to make sure that they’re doing this correctly and accurately. And as you said, it can be important to write down.

Leah: Think about your job. What did you do on a day-to-day basis both physically and cognitively and write that down. Then, think about your medical conditions all your conditions, even if you may not think that it impacts it, think about it. Write down the symptoms and really just take a frank look at how all your condition impacts your ability to do all those physical and cognitive duties that you listed. This will allow you to explain in detail to the insurance company why you’re disabled from your own occupation. As you talked about, a firm like CCK who has experience handling these claims, we don’t just gather that medical evidence, we gather that vocational evidence from the employer, from experts, if necessary, and submit all that to the insurance company to fully demonstrate why our clients meet that own occupation definition of disability.

Mason: Leah, one additional thing we see is, where people have been working while disabled for a time, they may have reduced their job duties or taken less income, earned less money due to their disability. And when you’re making an own occupation claim, it’s really important to take a very close look at that. And should your own occupation be what you were doing when you stopped working fully in that job because you’re disabled. So, that’s something you want to look at the terms of the policy carefully and really examine that closely because you could lose out on benefits. You could have a more difficult definition of disability to satisfy if your occupation is easier. So, typically you want to relate it back to the job you were doing before your impairments impacted your ability to do it. But it is a real fact intensive analysis, you really need to look at the terms of the policy. That’s a real great issue to involve an attorney on. That’s something that we deal with on a regular basis. So, please feel free to reach out to us if you have questions on that.

Leah: So, as we’ve been saying all along, good place to start thoroughly read your long-term disability policy so that you’re aware of the own occupation definition of disability as defined by your particular insurance company. And if you do need to file a claim under an own occupation definition of disability, keep in mind that the insurance company is often going to determine how your own occupation was performed in the national economy and not according to your particular employer when they’re evaluating your claim. But as we discussed, they still have to consider the duty you are actually doing and what they determine your own occupation to be, has to be accurate. And if it’s not, that can lead to a wrongful denial of benefits. The attorney at Chisholm, Chisholm and Kilpatrick, we have experienced assisting individuals with long term disability claims and procuring the evidence needed to demonstrate what the own occupation was and why your clients are unable to do that occupation. This is gathering medical evidence from treating physicians. Gathering evidence from the claim of themselves about their job and gathering evidence from vocational experts. We understand this can be a long confusing process and especially if there’s lots of different requirements that must be met under your policy. So, it costs nothing for you to reach out to us and see if we’re able to assist you with your long-term disability claim.

Mason: Thank you Leah. Yeah. Our numbers, we’ll probably post it. But 401-331-6300 and you can you can find us in the web at www.cck-law.com. Thank you all very much for joining us today.