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Long-Term Disability and Vocational Evidence

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Mason Waring: My name is Mason Waring, and I am an attorney and partner at Chisholm Chisholm Kilpatrick. I am joined here with my colleague, CCK attorney Leah Small. We represent workers who are disabled and we help them with their long-term disability insurance claims. These are insurance policies that you either get through your employment or that you would purchase directly from the insurance company. Today, we are going to talk about vocational evidence. We often talk about medical evidence or insurance policy issues, but vocational evidence can be really important in your claim. We are going to talk about what vocational evidence is, some important facts to consider if you are handling your claim, and also what you should do if your claim is denied. So let us get started, Leah. Could you tell our viewers what we mean when we say vocational evidence?

Leah Small : So, vocational evidence is a very broad term. There are several things that fall within it. Some examples include claimants education, a new training they received, their work history, so the jobs they performed in the past, as well as their earnings history so their hourly rate, or the salaries they earned at those jobs. It also includes the physical and cognitive duties of the job they were performing at the time they became disabled. Sometimes, you may have a job description that will describe that. Other times, it may be up to the claimant to write out specifically what their physical and cognitive job duties were. It can also include other things such as reports from vocational experts as well as the labor market surveys which look at the availability of jobs that might match up to a claimant’s skills.

Mason:  And why is vocational evidence important?

Leah:  So vocational evidence is important because of how disability is defined in these long term disability policies. Often it is not enough for a claimant just to have some impairments as a result of their medical condition. Those impairments have to prevent them from performing the duties of their own job, and then, often times, if they have policy they got from their employer, then, from doing any occupation. And so, your own occupation, just as it sounds, the job you were doing at the time you became disabled. And in order to understand whether your functional impairments rise to that level of preventing you from performing your own occupation or any occupation, you need vocational evidence to do that.

Mason:  So if someone was so disabled that they could not perform any job reliably or consistently, maybe not as big of a deal in their claim ,depending on the terms of the policy, but vocational evidence may be less important because if it is clear from a medical perspective of the individual who can not do any job reliably and consistently. But if we have a claim, where the policy has terms like any occupation, own occupation, and the person has some ability to work perhaps in some job and really just cannot do their own occupation, that is when vocational evidence often comes into play in a central. Another point also, if many of these policies will pay benefits if you are disabled from your own occupation for the first twelve, twenty-four or thirty-six months. After that time, it changes to an any occupation definition disability. We see often in those cases that vocational evidence could be very important. So Leah, can you give us some examples of how vocational evidence impacts the claim?

Leah:  So, when we are looking at an own occupation claims, so when the question is, whether the claim is disabled from their own occupation. In order for you to determine whether your functional impairments prevent you from performing your own occupation, you have to determine what your own occupation was and what duties are required. And oftentimes, people know what their job title was but job title does not always tell the full story. So two people could have the same job title, but their duties might be vastly different. Alternatively, some people have a job title that does not actually match up to the duties they were performing. So, it can be important to look at the formal job description that your employer might provide, your own description of your job duties, or you can get a vocational expert who can evaluate and analyze your job duties and provide detailed report evidencing what your job required.
One instance where we see this come a lot, and where defining your own occupation can become really important, is for physicians who need to file long-term disability claims. Often, a physician will have a specialty or a board certification. And so, while all physicians maybe work broadly as doctors, that tells you very little about what various doctors in different specialties do on a day-to-day basis. And even within the same specialty, you can have wide variation. So, you may have an orthopedic doctor, one works in office, the other is a surgeon. So, those two is going to be very different. Alternatively, another instance of this is we see a radiologist. You have some radiologists who review CT scans, x-rays, MRI reports and just provide feedback on what those images show. You also have interventional radiologist who reviewing medical imaging actually perform various procedures using those images.
So it is  to say for physicians on occasion, it is really important especially because many physician policies provided they take into specialty or board certification into account when determining what the own occupation is. And in these cases, one physician may be disabled given the specialty they work in, but their condition may not disable another physician. For example, you could have an emergency room physician who has a severe heart condition. Now, perhaps it does not cause outward symptoms on a day-to-day basis, but he cannot handle stress. So even though you could physically do his job, his condition makes it so he cannot handle the stress of his job because ER is very demanding. There is a lot of pressure involved.
But a primary care physician, who works in office, has a much lower level of stress more likely, and therefore, could still do their job with that same condition. Similarly, surgeons honestly need to make use of their hands and they need to have dexterity, fine manipulation. So, if the surgeon loses the ability to fine manipulate, they might not be able to perform surgery and they are disabled from their own occupation, but another doctor might not have that extreme need for fine manipulation and might be able to continue working in that circumstances.
One thing to keep in mind though, that often for physicians, board certification alone is not enough. It is important to read your disability policy to understand how own occupation is defined because sometimes, if you are board-certified but you were not actually practicing in that specialty, your policy might provide then that that is not considered for purposes of your own occupation. Also, some policies provide that you have to be doing a percentage of your duties` within that specialty in order for it to be considered part of your own occupation. So, if you are a physician that is board-certified and you do some work in that specialty, but that large portion, you work it outside the specialty, that specially might not be considered for purposes of your own occupation.
So, I guess the question becomes then, “What evidence do institutions need to provide in order to demonstrate what their own occupation was?” Obviously, information about their board certifications, if they have job descriptions from the practice or hospital or anything like that, and also CPT code reports which will demonstrate all the procedures or exams what the physician has built for, and they could evidence that you have been doing work in your board certification for specialty.

Mason:  That was great information Leah. Thank you. Let us change gears a little bit. Can you give us some examples about the importance of vocational evidence in any occupation claims?

Leah:  So, any occupation claims, the definitions that apply can vary a lot, policy to policy. So again, it is important to review your policy to understand exactly how any occupation is defined. But many any occupation definitions of disability, take the claimants training education and experience in their account when determining whether there are other occupations that they can perform. So, in order to determine whether you meet that definition of disability and then, thus, determine whether you are still entitled to benefits, you need to understand what other occupations you are qualified to perform and then determine your functional impairments prevent you from doing those occupations. So, as we have just said, evidence regarding your education, any training you have gotten, your prior occupation, so what the job skills you have obtained, and your prior earnings, will all inform whether you are vocationally capable of performing other occupations. And if so, what those occupations are.

Oftentimes, though we see with these insurance companies… If a claimant is able to do sedentary office work, they will automatically say you are not disabled from any occupation. You are no longer entitled to benefits. But that is not automatically the case and that is an example where vocational evidence becomes really important. We see this a lot for construction workers or other people who have done manual labor for almost their entire careers. So, their jobs are extremely physically demanding, so they may easily meet the own occupation definition even if they can do sedentary works. They cannot do that physically demanding job anymore. Then, when it switches to any occupation, the insurance company terminate saying, “You are capable of sedentary work. Go work in an office.” But if someone has limited education and has perform manual labor for their entire career, they might not have those skills that are necessary to go perform office work. So, the take away is, even if you can physically perform sedentary work, if you do not have the skills necessary to actually perform the duties of that work, then, you may still be entitled to LTD benefits under that any occupation definition.

Another way any occupation is sometimes defined is included in what we call a gainful component. And so, that means no longer be entitled to benefits. You must not only be capable of performing another occupation, but that occupation must earn you a certain percentage of your pre-disability earnings. So, when a gainful components were, again, vocational evidence becomes really important because it can mean the difference between an approval or denial.

Mason:  Hey, Leah. Could I just jump in and unpack that a little bit?

Leah:  Sure.

Mason:  The gainful component, I wanted to highlight it because it is a real important concept, and I guess another way to look at it is, if you can not earn a certain amount of money working each month then, you may still be disabled even if you can go back and do some work.

Leah:  Right.

Mason:  It varies from policy to policy as Leah described it. It is very often is a percentage of the amount of what you were earning before you became disabled, but it can vary. It is an important concept and, again, emphasizes why you need to read the policy to understand what the disability standard is. Sorry to interrupt. I just… It was a great point.

Leah:  No, no. So usually the gainful component is based on your pre-disability earnings, so what you are earning right before you became disabled. And why is that become important is, oftentimes, there is a range of possible salaries within the same occupation often depending on individual skill level or the experience they bring to the role. So, you may be able to perform an occupation vocationally, but you can only perform it at that entry level. And so, you are likely to earn less than someone who is more senior and can perform at a higher level. But often, when doing these analysis, the insurance company just looks at the median earnings. And if the median earnings meet that gainful component threshold then, say you are capable of earning that amount, so you are no longer entitled to benefits. But through vocational events, if you can demonstrate, “I do not have the skills to earn that median amount. I earn a lower amount,” then, you do not meet that gainful component threshold and you might still be entitled to benefits under that any occupation definition.

The gainful component can also be important because it can make the any occupation definition easier to meet especially if you had high earnings prior to your disability. Because often, higher salaries typically correspond to more demanding jobs, and the more demanding a job is, often the fewer functional restrictions or limitations it takes to disable you from that job. So, if you had an extremely high salary prior to disability and you have a gainful component in your any occupation definition, even if there are a multitude of jobs you could perform with your impairments, if you still could not perform a job that earns that gainful component threshold, then you are likely still entitled to benefits.

Mason:  Thanks, Leah. I think it might be helpful to our viewers for us to talk about our process a little bit. And so, when we are approaching a case where vocational evidence is going to be important, it is really… What we do for our clients, we read the policy carefully. We really try to start there because that is the springboard for what you need to do. You need to know the standard that you are dealing with. Read the policy carefully. We communicate with the employers to get the job descriptions to really understand how that job was performed for that employer. And that is the foundation we use to look at how the job may be performed for the national economy. A lot of these policies will say, “Look.” They look at your own occupation. It is not just how it is done for your employer, it is how its done to the national economy. But it is really important to start with the employer because the way many policies are worded, the insurance company should also take into account how the job was performed for the employer. So look at both of them in testing whether you are disabled.

It is important to analyze the medical evidence. We analyze a medical evidence for our clients and often, we have to get a vocational expert involved and that is someone that has training, both evaluating people’s ability to do work, but also looking at the evidence and what your impairments are and matching that up to the job description. Vocational experts can also be really important where there is no job description or where the job description does not accurately reflect the work you are doing. And so that is a super common thing that we experience, where the employer will produce a job description, but our client will say, “Look, this really does not define my job. There was so much more to it.” So, we will get a vocational expert involved. They will take a look at the evidence. They will interview our clients and then, using their experience and access to the various tables of jobs out there will say, “Look, your job is actually better defined as this job,” and that gives you a real foundation to make the claim and also to rebut wrongful denials by insurance companies, where they are just looking at the job, the four corners of the job description, whether or not it is accurate.

So, getting those experts involved can be really helpful in critical and may be necessary to meet your burden of proof in court. If your claim has been denied, the appeal period, you are going to file an administrative appeal with the insurance company. That is usually your last opportunity to get subset of evidence into the record, and depending on the jurisdiction you are in, depending on the terms of your policy, you may actually need a vocational expert to meet your burden of proof in court. So, when we undertake a case, we evaluate all that and try to get all the evidence together that you will need to put the strongest case on that you can. So let us… I guess that is a good segway into what you do if your claim is denied and you need to file that appeal. So Leah, could you tell our viewers about that?

Leah:  So as you have said, if LTD claim is denied, then the next step is filing that administrative appeal with the insurance company. Members should be aware the time to do that is limited and they want to make sure they meet that deadline because if they miss that deadline they could lose their rights to their long-term disability benefits all together. As you mentioned, it is also often the last chance to get evidence into the record before court. So it is really important that claimants gather them together if they were handling it themselves, gather everything, make sure it all gets submitted before that deadline.

If your claim has been denied or your benefits have been terminated, you can contact Chisholm Chisholm and Kilpatrick. We are happy to review to see if we can assist. It does not cost you anything to contact us. We have experienced analyzing these vocational issues and identifying any mistakes the insurance company may have made in handling your claim. And as you said, we work with vocational experts to evaluate vocational evidence and determine what claimant own occupation was, what other occupations are qualified to perform, and if their impairments rise to that level of rendering them disabled under the applicable definition of disability.

Mason:  Thanks, Leah. I guess I would just add that, you know, as part of this appeal process, you are entitled to a whole host of documents and particularly, where it is on our reserve governed claim. And that is typically claims where you received the long-term disability coverage through your employer. You are entitled to the claim file. So, if you get a claim denial, you are entitled to the documents of the claim file and all of the opinions that the insurance company based the decision on, very often that is a vocational opinion. So these insurance companies have in-house vocational people that they use to help support their benefits denials and it is super important to get those opinions and review them carefully. And if you are in that appeal stage and they have relied on vocational evidence, you can get a lawyer involved to evaluate that and respond to that.

If this were a personal injury case, you could deal with the expert issues in litigation if you had to, after the case is filed in court, you cannot do that. In a reserve governed long term disability case typically, you generally have to do that during the appeal process, and so, if you need an evidence, if you need an opinion or an expert to hit certain points or respond to wrongful positions taken by the insurance companies experts, you need to do that during the appeal. And so getting an experienced long-term disability attorney involved during the appeal process can be really important. So feel free to reach out to us if you would like to see if we can help you with that. Leah, thank you very much for all this great information today.

Leah:  Thank you.

Mason:  And we wish you all a great day. Take care.