Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 22: What You Need To Know About The Long-Term Disability Application Process, Part 1: The Work History Forms & The Definition of Your Occupation

February 01, 2021 Nancy L. Cavey Season 1 Episode 22
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 22: What You Need To Know About The Long-Term Disability Application Process, Part 1: The Work History Forms & The Definition of Your Occupation
Show Notes Transcript

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about  "What You Need To Know About The Long-Term Disability Application Process, Part 1: The Work History Forms & The Definition of Your Occupation" and much more!

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Nancy L. Cavey:

Hi, I'm Nancy Cavey national ERISA and individual disability attorney. Welcome to a winning isn't easy. Before I get started with this podcast, I have to give you a legal disclaimer because I'm a lawyer. The Florida bar association says, I have to say that what I'm saying is not legal advice. So I've said it. So let's get right down to business over the course of the next several episodes. I'm going to talk about the disability insurance claim application process. What you need to know about the application, the work history forms, the activity of daily living forms, the attending physician statement forms. What happens with your application, field visits , surveillance, and IMS . That's a lot to cover, but today I'm just going to talk about the work history form. Now it doesn't sound like a complex form, but how you fill out that form has consequences and it can lead to the carrier, misclassifying your occupation. At the time you became disabled. Now this is a common mistake and it's led to some Epic court battles over what, in fact, the policy holder's occupation was at the time they claim that they were disabled. Now, specifically, I'm going to talk about what is a work history form. What does the disability carrier do, where that work history form. And I'm going to tell you a real life story about the importance of a correct work history and what a salesman is not a salesman. So let's take a quick break. And when we return, we're going to get started. Stay tuned.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. You're ready to get started. Great. So the first thing I'm going to talk about is what is a work history form? When you apply for your disability benefits, the carrier has to determine your occupation. At the time you claim you became disabled, what medical conditions you claim are the basis of your disability, what restrictions or limitations you have, and whether those restrictions and limitations limit, or prevent you from performing the material and substantial duties of your own occupation. So this means that there's going to be a vocational evaluator involved in your case. Who's that? Well, a vocational evaluator is an expert in the world of work and the disability carrier is going to ask that vocational evaluator to consider three things. Number one, what was your occupation at the time you became disabled two , what were the material and substantial duties of your occupation at the time you became disabled and three, whether the restrictions, the limitations, the carrier has accepted, prevent you from doing the material and substantial duties of your own occupation. So where does this all get started? It starts with the work history form. Now, as I said, this form looks pretty simple. It asks basic questions. What's your education? What are the jobs that you've held during the course of your working life? What's the job or jobs you've done for this particular employer? What was the job that you were doing at the time you became disabled? And what training did you get on the job to learn how to do these job duties now, because of the form simplicity, you can be fooled into thinking that the carer will understand what your job was. And you'll also be lulled into thinking that your employer will confirm that you can't do that job. So I unfortunately see many people who blow through this form without understanding its importance. So in the next segment, I'm going to break this down for you in greater detail. So when we return, I'm going to talk about what the disability carrier does with that work history form and the mistakes that you can make that can kill your case or jeopardize your case right out of the gate. Stay tuned. Welcome back to winning. Isn't easy, right ? Are we ready to go? Great. Now what I'm going to talk about next is what the disability carrier does without work history form. In the last segment, I talked about what that work history form asks in terms of questions, but what are the things you need to understand from the very beginning is that when you purchase your disability insurance policy, you did not insure your job. Why don't you say what you really insured was your occupation. So the disability carriers, vocational evaluator is going to translate that job information on your form to determine what your occupation was. And then the carrier is going to determine whether you can do that occupation or at the, any occupation stage of a case. What other occupations you hypothetically mythically really can't do, but could be the basis of a denial . You can see that this is an, that the disability carrier can screw up and they do it all the time because the devil is in the details. Um, unfortunately you don't understand what the devil does with those details. Let's start out first with what the term regular occupation mean means. So, as I said, the policy doesn't ensure a job. It ensures your occupation. So let's get out your disability policy. There is no uniform disability policy, much less a uniform definition of occupation, but generally speaking, the operative considerations in determining what your occupation is, is number one. What was your occupation that you were routinely performing when your disability began and what are the material and substantial duties required of your occupation? Now, remember, there's a big difference between what you do for a job and what your occupation is. Group disability policies ensure you to the extent that you're unable to perform your own occupation as generally is normally performed by people who do the same occupation in United States, instead of how the task was performed for a specific employer or a specific location, that standards important. That's why we want to get out that disability insurance policy and see what is the definition of your occupation? Because that's the starting point when we're applying for disability benefits, why is that important? Well, the insurance company will usually use something called the dictionary of occupational titles that they call those job duties and filter them in to an occupation. Now, if your employer requires job duties that are not required of other employers in the local economy or the national economy, your occupation just may end up being different under the dictionary of occupational titles that can make or break your claim. Now, the definition of regular occupation is different than an individual disability policy, and hopefully you've got a specialty or subspecialty policy. So you might be insured as an interventional cardiologist. And if you become disabled from performing the duties of an interventional cardiologists , you'll be paid benefits, even though you could perform the duties of a cardiologist, you can see the definition of disability, but I'm sorry, own occupation is different in an individual disability policy, that it is in an Arista disability policy. But regardless of what policy you have, you need to get out the policy and read that definition. Let's take apart the own occupation, policy language. There are some operative terms, limited material and substantial duties at regular occupation. Now your policy may actually identify these terms, that there's a definition section. So go to the definition section and then reread your policy definition of disability, because you've got to figure out what's my occupation and what's the standard of disability. So if you just blow through that form, you're not going to understand what it is you need to prove. So what does the term limited mean? It means you can't do all the important tasks that are normally identified with your occupation. Now, the carrier is going to request from your employer job description. And as part of your claim, if I'm representing you, I want you to get a copy of your employers description because more often than not, I'm going to ask you to compare your employer's description of your occupation, with what it is you actually do. And I want my clients to write out their version of their job description. So why, because as I said, this way, insurance carrier is going to have their in-house vocational evaluator translate that job description into an occupation using this book called the dictionary of occupational titles. And it's not unusual for the VIII to make a mistake about your occupation. I want to use these documents, the employer's job description and your description to address any mislabeling or misclassification of your occupation. The next two important terms are material and substantial duties. Now material and substantial duties are generally those duties that are required for the performance of your regular occupation, and they can't be reasonably admitted or modified. So let's, let's think about an example. You might be eligible for benefits if you're a dentist and you have carpal tunnel syndrome, because of that prohibits you from holding your instruments and doing dental procedures, material duties are those specific job related tasks that are characteristic of the occupation, and they are qualitative in nature. So if those duties were eliminated, then your occupation as defined would not exist. Material duties were really relate to specific job related tasks. And as I said, there are qualitative. So in performing dental procedures like filling Keith , uh , one would consider that to be a material duty of a dentist is qualitative. Now substantial duties are tasks that represent the largest portion of the total tasks done an eight hour day. And these are quantitative and they refer to the time, spent doing duties. Now in general duties requiring more than 20% of your Workday are both considered material and substantial in nature. Now, what I like my clients to do is to basically write down the material and substantial duties of their occupation. Particularly if I'm representing a professional, if you're a dentist, I want you to write down what it is. You do, the fillings, the crowns , um, the , the root canal, whatever it is you do. I want you to write that down. And I want you to write across the top of the paper that makes some columns, but physical, cognitive, and behavioral. And I want you to say, okay, material duties, I'm going to do a filling. The physical requirements are that I use X number of instruments, and my hand is in certain positions. Uh , and I am bent over, or I am using my neck in a different position. Cognitively. I need to be able to understand and look at the x-rays and figure out what needs to be done. And I've got to interact with the patient. Now, remember we talked about substantial duties. We also want to understand how frequently you do these procedures. And I assure you if you're a professional, the carrier is going to ask for your billing records because they want to see and allow allies this, what percentage of your practice is doing? What different types of procedures, not necessarily interested in income. They want to know the number of procedures, because we need to show that you can't do the material duties and the substantial duties. Now, how about those limitations? Once we've created, this form has got material and substantial duties. We've got physical, cognitive and behavioral and columns. There's another column I want to add to this spreadsheet. And that's limited. How are your particular medical problems limiting you in doing the material duties by procedure? Now you meet need to do that based on the multiple medical conditions you have, but let's say you've just got carpal tunnel, or you have a problem with your neck. We're going to say, you know, carpal tunnel, right-hand left-hand, I can't do this particular activity. When I am , uh , doing a filling. You know, I have difficulty using the drill to drill out the filling, or I have difficulty , um, camping down or, or the things that you do in the course of, Oh, they , uh , have a filling because this is going to be a roadmap for us, looking at your medical records to see whether or not you are having problems that are documented in your medical records. We're going to use this document with your doctor so that they understand what it is, the material and substantial duties are. So when they fill out that last , the attending position form , they know what you do and what you're having trouble with. And of course, we want to make sure that that's reflected in all the other application forms that you're completing. You can see, this is just not filling out a work history form. This involves strategy tactics, and thinking about how we're going to make sure that your records and financial documents support this claim. Now I mentioned a doc, a book called the dictionary of occupational titles, and we start out this discussion with a definition of disability and the definition of own occupation , uh , is the definition of disability inability to perform your own occupation. Is this performed by your, before your employer in the local economy or the national economy, or according to the dictionary of occupational titles. So you can pause this for a second and type in the word dictionary of occupational titles and type in what it is you think your occupation is. Wow. When you look at the results, you're going to be stunned because it probably doesn't look like or sound like what it is you do. And if you can't find it accurate description, based on what you've typed in, you might have to do a little searching because that's what the big vocational evaluator is going to do. They're going to try to take these tasks and plug you into an occupation that might not be your own occupation, and that can lead to a claim denial. So I know that for too many applicants, including doctors and lawyers just don't take this work history, former occupational analysis form , seriously, because they think everybody knows what I do, but not my clients. We go the extra mile and under my direction, we're preparing this customized work history and an occupational analysis as part of our shock and all , uh, application , uh, that we submit in a package on behalf of our client. Now, we, as I said, want to make sure that your doctor understands what it is you're doing that when they fill out the attending physician statement form, they've got an accurate description of your occupational duties, and can clearly explain in there in your medical records and on these forms, why you can't do the material and substantial duties of your own occupation. Now that's a heck of a lot of work, but I think that work is necessary to get the disability benefits you deserve and knock on wood. I've never had an initial application that I submitted in my shock and all package denied. Hmm . Now I'm going to give you a real life example of how a disability carrier screws up this analysis of what own occupation is and how courts will look at this issue. So let's take a quick break. And when we return, we're going to finish up, stay tuned.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. I'm going to tell you a real life story about the importance of a correct work history form . And when a salesman is not a salesman. Now I read the cases that come out across the United States every week. And I read these stories because I learn lessons about the common carrier mistakes or mistakes that policy holders just like you make, because I don't want to make those mistakes. These cases can read like a fairy tale or they can read like a horror story. And the bad news of course, is that the claim has been filed. The claim has been denied, or benefits have been terminated on appeal has been filed. And now we find ourselves months and years later in federal court. That's a long time to go without your benefits. We want to avoid these mistakes. Let me tell you about the case of Berkshire life versus Bruce Edelberg. And this story tells us how far carriers go , uh , or willing to go about misclassifying occupations. So listen closely to the facts because facts always matter. Heidelberg was a food commodity salesman. I yacht salesman and a CreateSpace salesman. He was employed as a yacht salesman. At the time he began became disabled. He injured his knee. Now Berkshire paid his disability benefits. He attempted to go back to work because you didn't want to be disabled, but the climbing on and off yachts caused his knee to swell. Now he was able to find work as a freight space salesman, and he claimed continuing disability benefits. What did Berkshire do? They said, heck no. Since you're working as a freight salesman, you are totally disabled from your occupation as a salesperson . Now, ultimately this was a state law case cause he had an individual disability policy and this case got tried and went to the Florida Supreme court. The Florida Supreme court said that it'll his occupation at the time he became disabled. Was that a yacht salesman and not just a salesman and Berkshire had to pay his total disability benefits because he couldn't perform his duties of an occupation as a yacht salesman. So a salesman is not a salesman is not a salesman, which is why we take the time to accurately complete these work history forms. And if necessary, I'll get my own vocational opinion about what my client's occupation is. And we'll explain why a freight salesman isn't the same as a yacht salesman. Now, as I've said, if you're a physician, a dentist or an attorney, I guarantee you that the carrier is going to do a forensic accounting analysis of your tax returns, your financial documents and your procedures to determine your occupation. I think you're a far wiser to have an experienced disability attorney do that analysis before you apply for benefits because that analysis can impact whether you've got a residual claim, whether you're totally disabled when you should file what you should do to document the type and frequency of the procedures what's documented in your medical records and whether they need to be cleaned up so that there is adequate documentation or problems about your symptoms and your functionality at work and that your accountant is on the same literally math page so that we can document the necessary loss of earnings in the case of residual or disability benefits. So we need to be on the same page. Now there's a twist on regular occupation cases and that's called a dual occupation situation. And that's a common dilemma when I have , uh , medical professionals or lawyers in this particular case, my orthopedic hand surgeon performed obviously hand surgery. He did on call and he saw patients in his office. Yeah, our rollerblading accident, his wife had gotten him rollerblades for father's day present. And ultimately he fell, had a fusion on his dominant hand and he had to stop performing surgery and emergency calls. He had to reduce his work schedule , uh , to basically clinical and nonsurgical orthopedics. And I can tell you that his group was not happy with him and ultimately they parted ways, but because he had a subspecialty policy as a hand surgeon, the disability insurance company paid him total disability benefits. Now, if he had just had a policy as an orthopedic surgeon, the disability insurance company probably would have said, look, yeah, I know that you did surgery and you did on call before. And that's what you did before you became disabled. And we figured that out based on your ICD nine billing codes, and we know how much income you derive from each procedure. Uh, but we really think that you might be just an office-based orthopedic surgeon. Well, forget the word surgeon, but just an office based orthopedics . Now how many office based orthopedics do you know? And how long would your partnership let you do that? Not very long. So it's crucial that before you file a claim for disability, you know, whether you have a subspecialty policy, we get all the records and those are really crucial to the success of the claim because we've got to figure out whether that disability carrier is going to claim that you were just a physician where you were just an orthopedic surgeon and, you know , you could do something else or just like , uh , you talked about , uh, in , um, uh, Mr. Edwards case , uh, whether we were going to get the salesman as a salesman, as a salesman defense. So I hope that you take the application process seriously, and particularly the work history form. It's going to be a wrap today. And we've got two more episodes where we're going to take this application process apart. So if you like this podcast, consider liking our page, leaving a review or sharing it with their friends and family. Remember this podcast comes out weekly. So stay tuned next week for another insightful episode of winning isn't easy. Thanks.