Understanding "Own Occupation" Benefits Under ERISA Disability Insurance

Welcome to Season 5, Episode 26 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Understanding "Own Occupation" Benefits Under ERISA Disability Insurance."

“Own Occupation” and “Any Occupation” might sound like simple terms - but in the world of Long-Term Disability insurance, they can make or break your claim. In today’s episode, disability law expert Nancy L. Cavey unpacks one of the most misunderstood but critical distinctions in disability policies: how your occupation is defined. If you’ve ever had to read a disability policy - or worse, file a claim - you know these definitions aren’t just legal jargon. They determine whether you’ll receive benefits when you can’t work in your specialized field, or whether an insurer can cut you off by arguing you could work in any other job, even one far outside your training, experience, or pay grade. Nancy breaks it all down: what “own occupation” and “any occupation” really mean, how these definitions can shift over time in an ERISA plan, and why understanding them early can be the key to protecting your income. You’ll learn the secrets to securing your own occupation disability benefits, common pitfalls that lead to denials, and specific strategies for those facing psychiatric disability claims - where insurers often push hardest to reclassify your case. Whether you’re just reviewing your coverage, preparing to file, or already battling a denial, this episode offers clear, actionable guidance to help you navigate the fine print and fight for the benefits you deserve. Let’s get started.

In this episode, we'll cover the following topics:

One - Own Occupation vs. Any Occupation – What’s the Difference?

Two - The Secret to Getting Your Own Occupation ERISA Disability Benefits

Three - Tips for Preventing a Denial of Own Occupation Psychiatric Disability Insurance Claims

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals. 

Transcript

Nancy Cavey [00:00:00]:
 Foreign Nancy Cavey, National ERISA and Individual Disability Attorney welcome to Winning Isn't Easy. Now, before I get started with this podcast, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar association says I have to say this, and now that I've said it, nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Today we're going to take a deep dive into one of the most misunderstood but absolutely critical distinctions in a disability insurance policy or plan. It's the difference between own occupation and any occupation. Now, if you've ever tried to make sense of a long term disability policy or plan or you've had to file a claim yourself, you probably have come across these terms.
 
 Nancy Cavey [00:01:05]:
 They sound straightforward, but the implications are anything but. The definition in your policy can mean the difference between receiving benefits when you're no longer able to work in your specialized profession or being denied beneficial because the carrier thinks you could do some other job, even if it's so far outside of your expertise that it's almost silly. Or it pays significantly less than what you were making at the time you became disabled. So in today's episode, I'm going to break down exactly what these terms mean and why they matter. I'm going to talk about three things. 1. Your own occupation versus any occupation. What's the difference? 2.
 
 Nancy Cavey [00:01:46]:
 The secret to getting your own occupational risk of disability benefits. Number three Tips for preventing a denial of your own occupation. Psychiatric disability insurance claim Got it. Let's take a break for a moment. Before we get started.
 
 Speaker B [00:02:05]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of Robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:02:30]:
 Welcome back to Winning Isn't Easy. Own occupation versus any occupation. What's the difference? Well, there's a huge difference. When you file your disability insurance claim, your ability to qualify and receive benefits really depends on how your policy defines the term disability. There are two major types of definitions in a disability policy or plan. There's own occupation and any occupation. Now they sound similar. Occupation.
 
 Nancy Cavey [00:03:00]:
 The only difference, right is own or any. But that's not quite Own occupation refers to your inability to perform the specific occupation you were doing at the time you became disabled. Remember, you didn't insure a job, you insured an occupation. And so if you're a surgeon, for example, and you can't stand for long periods of time or do intricate procedures due to a physical condition, you could qualify if you have an own occupation subspecialty policy. Now, you might also have just a pure own occupation policy, which can be defined as the inability to do the material and substantial duties of your own occupation or the inability to do the important duties of your occupation or any other variation of that particular definition. There's just not one definition of any occupation. So before going into this claim, you need to understand that. Now, what will of course happen in most disability policies or plans, except for generally IDI claims, Individual disability insurance.
 
 Nancy Cavey [00:04:14]:
 You will say that after one, two or three years, there is a change in the definition from an inability to do your own occupation to an inability to do any occupation. Now what does that mean? I got to get that disability policy or plan out. But generally what it means is that you have to be unable to perform any job for which you are. Sorry, any occupation for which you are reasonably qualified by education, training or experience, not just your occupation, but any occupation, even potentially if it pays less. And again, that's going to depend on the terms of your policy. Now here's the catch. Many ERISA governed employer policies start with the own occupation definition, but then switch and normally it's 24 months. Now, what's important about that is there's going to be a transition investigation, guaranteed.
 
 Nancy Cavey [00:05:12]:
 Okay? And by the way, disability carriers or plans require that you apply for Social Security disability benefits. And just about the time you might be getting your Social Security disability benefits, the definition of disability changes to any occupation benefit. And I'm going to talk about the interaction and how you can be whipsawed with that occurrence. Now I will tell you, the transition point from own occupation to any occupation is where carriers and plans are going to ramp up the security of your. I'm sorry, the scrutiny of your claim. What are they going to do? Well, about six months before this definition changes, they may send you a letter that says, hey, just remember, the definition of disability changes if the light bulb hasn't gone on before. The light bulb should be going on in your head right now. Why? What they will be doing is multifactoral.
 
 Nancy Cavey [00:06:09]:
 They are going to send you an updated activity of daily living form for you to report on. They may ask you to update your vocational profile, your educational history, your licensure history, current licenses that you have. They may ask you to also give them one of your old resumes. They may ask you for a description of your, of your occupational duties. Why? What they're trying to figure out with all of that is one, ultimately they're going to have their doctors review your medical records and come up with their assessment of your restrictions, limitations. They want to be able to argue that you're capable of engaging in sedentary work, which is basically sitting six out of eight hours lifting no more than ten pounds. And what they then want to do is to look at that vocational history, what your occupation was, the training, the experience that you have to determine whether you have any skills that you have learned from your occupation that you could take from your own occupation to any occupation. Now to help them do that, they may schedule you with a not so independent medical evaluator or a not so independent functional capacity evaluator.
 
 Nancy Cavey [00:07:35]:
 Whether or not they have the right to do that, they depends on the terms of your policy or plan. And if you are told that you need a report for an IME or an fce, you need to hire a lawyer immediately to learn about the protections that are crucial to protect you at that stage of the case. They will put surveillance on you. And before they do that, however, they're going to do a social media check. So please, if you haven't, don't ever, ever do social media. If you are on long term disability, they're going to check, I see it all the time in claims files where they'll hire a personal injury, I'm sorry, a private investigator rather to investigate you. They'll do address checks. They'll look for where you live, they will look for who lives with you.
 
 Nancy Cavey [00:08:23]:
 They'll look at what cars you own, they will look at your criminal background, your licensure background. They'll, they're going to do a social media search. They may even reach out to you to take a statement from you. And that's not necessarily a social call. So again, if before the definition of disability changes from any occupation to own occupation and you're getting that call, tell them to put their questions in writing because again, it's going to be a setup. They're looking for inconsistencies that their doctors can use or they can take back to your doctor to say, oh, you can really do some kind of a sedentary work. Now again, understanding that policy is crucial. You have to look for definitions.
 
 Nancy Cavey [00:09:11]:
 You have to understand when things change in the policy because the burden of proving that you're disabled gets much higher. And you have the burden of proving that now. In the next section, I'm going to talk about qualifying for own occupation benefits and that sedentary work that I alluded to. All right, let's take a break. Welcome back to Winning Isn't Easy. Let's talk about the secret to getting your own occupation disability benefits. Now, if you've got an ERISA disability policy and your doctor has told you to stop work, one of the most important steps you can take before you stop work is to read that policy cover to cover before leaving the job. You are going to see two standards of disability.
 
 Nancy Cavey [00:10:12]:
 One, generally for the first two years, is an inability to do your own occupation. And ultimately the definition is going to change to any occupation. This is often where people get blindsided. Just because a carrier has accepted your own occupation claim doesn't mean they're automatically going to continue to pay those benefits when the definition changes to any occupation. So I want to talk about the concept of sedentary work. Sedentary work is a term of art used primarily in Social Security cases. And it's based on the Dictionary of Occupational, the title's definition. And basically, you can't sit more than six to eight hours, limited standing, limited ability to sit, need to change positions.
 
 Nancy Cavey [00:11:02]:
 And it also involves, by the way, non exertional issues such as the need for breaks, difficulty with pace, the difficulty with sitting, I'm sorry, with stooping and bending, but also other postural limitations and the use of a person's hands. I want you to be thinking about the whole constellation of your body, if you will, at both the own occupation stage and the ne occupation stage. Now, when you get out your disability policy or plan, you will see that it may have a definition of occupation and you need to understand what that is. Is it the occupation you are doing for your employer in the local economy, the national economy, pursuant to the Dictionary of Occupational Titles. And you might want to get your own employer's occupational description. Why? Take that apart and think about not only why you can't do those occupational duties, but specifically, if there's anything sedentary about your occupational duties, you want to start documenting in your medical records why it is even at this point in a own occupation period that you can't do or have difficulty doing sedentary work. Remember, lifting no more than ten pounds, occasionally carrying light items like files and tools, primarily sitting, standing or walking is no more than two hours in an eight hour day, six hours seated. Now, I want you to be thinking about that.
 
 Nancy Cavey [00:12:43]:
 So let's say, for example, you worked for a company and you were A traveling salesman. Okay, so obviously that requires you to put together presentations. It requires you to do presentations. It may require you to travel by car or by plane. And so there is some sitting involved, isn't it? You want to be emphasizing all the reasons why you can't do that occupation, including focusing on the sedentary aspects of that. Remember, if you can't lift even 10 pounds, if you can't stand or walk more than two hours a day, if you need assistive devices, if you can't sit more than six hours a day, if you have to alternate between sitting and standing, you, you need breaks. If you have postural limitations, problems with your hands, problem with focus, problem with absenteeism, all of these things can erode your ability to do not only your own occupation, but when we get to the any occupation game, help you. Why do I say game? Because at the any occupation stage, the carrier wants to prove up that you can do any occupation that's of a sedentary nature.
 
 Nancy Cavey [00:14:02]:
 If you can sit, you can work and they don't think you are disabled. It's as simple as that. Now sometimes as we approach this change in definition of disability, I think about getting an FCE and that can be done. A functional capacity evaluation before the definition switches or if you get an inkling that they're going to deny your claim or you get a denial letter that the FCE objectively measures your ability to perform work related tasks. And it can be the difference between staying on claim and having your claim denied. Now, I like to use reputable vendors and I want my treating physician to review and endorse it. We want to see this consistency between what's in your medical records and the history of your symptoms and functionality and your FCE and what you've told the carrier. It's not cheap, I will tell you.
 
 Nancy Cavey [00:14:54]:
 And it's not cheap because it costs. It can cost $1,000 or more, but it can make the difference between what happens in your claim. The other thing that you need to understand is look when you're applying for Social Security disability benefits and you're required to do so for interescent disability cases, Social Security uses a five step sequential evaluation. And at step four, the issue is can you go back to the lightest job you held in the five years before your claim was adjudicated? Sounds a whole lot like own occupation, doesn't it? But where those cases are won and lost is step five. And that test is, is there other work in the mythical hypothetical, not real world national economy that you wouldn't want to do. And that does not pay a living wage. In view of your age, which is not a factor in an ERISA case, generally, your education, the skills you've learned and your restrictions sounds like some of the things I've already talked about. In the Social Security world.
 
 Nancy Cavey [00:15:49]:
 It also comes down to a question of whether you can do sedentary work. Now, many times in Social Security they'll say you could be a surveillance system monitor, you could be an addressor, you could sort nuts and bolts. Disability carriers are more sophisticated in finding other sedentary type jobs. But that's the game, okay? And so what will happen sometimes is that the disability carrier will say, hey, the definition just changed. And you know, we think that you can do any kind of occupation. We're going to deny your claim. And about that time you get the Social Security decision that says, you know, not only can you not do your past work, but you can't do other work. We're going to pay the benefits.
 
 Nancy Cavey [00:16:34]:
 Now, you may think that that's all you need to win your own, any occupation claim. And it's not. And it's not, because age is not a factor. But two, what you will see is there are two ways to be disabled. At step five, for subsequent cases, if you're over 50, the judges may use something called the grids. And disability carriers will say, well, they grid it out based on their age. That means nothing in terms of their ability to do their own or any occupation. Or the judge may have found that your exertional skill level is light, but that there's been an erosion of your ability to do that.
 
 Nancy Cavey [00:17:14]:
 And by the way, you're disabled, well, a disability care is going to seize on that finding that you are able to engage in light work and deny the claim at any occupation stage. If that happens, where we've got this whipsaw, clearly we want to, if possible, get a functional capacity evaluation that will clarify the, the functional, physical, exertional and non exertional restrictions and limitations so that ultimately our own vocational evaluator can attack the disability carrier plan's denial of the claim based on their doctor's opinion about your ability to do at least sedentary work and their vocational evaluator's opinion about all the bogus jobs that allegedly exist that you would be qualified to do based on those restrictions and, and the transferable skills. So we want to be prepared to attack all this. I want you to be thinking about this from the very beginning. How am I going to use the, and comprehend the definition of disability and occupation to create the foundation for ultimately proving that not only I can't do my own occupation, but I can't do any occupation. So we want to be thinking about sedentary work from the beginning of the claim. Even though your occupation may not be sedentary in nature, you can see where this takes a lot of planning and forethought. And one of the reasons why you should be considering hiring an experienced ERISA disability attorney because strategy and tactics can make all the difference.
 
 Nancy Cavey [00:18:57]:
 Now in our next section, we're going to change tact and we're going to talk about psychiatric disability claims and how that interacts with the own occupation standard and some pitfalls that can lead to a claims denial. Got it? Let's take a break.
 
 Speaker B [00:19:15]:
 Are you a professional with questions about your individual disability policy? You need the Disability Insurance Claim System Survival Guide for Professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours. We're giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order yours today at Disability claims for professional professionals.com.
 
 Nancy Cavey [00:19:54]:
 Welcome back to Winning Isn't Easy. Let's talk about tips for preventing a denial of an own occupation. Psychiatric Disability Insurance Claim this is particularly challenging. Psychiatric disability claims can involve anxiety, depression, post traumatic stress disorder, or a combination of all those. Your psychiatrist may recommend that you stop work. And if that happens, it really is essential to plan carefully before you file a disability claim. And you may not even be thinking about this. You may be overwhelmed, but you need to stop and think.
 
 Nancy Cavey [00:20:28]:
 Or a family member has to help you stop and think. So here are some important tips that you need to implement as quickly as possible. Number one, you want to get a copy of the disability policy and read it carefully, focusing on the definition of own occupation, the definition of disability. But you want to be looking at the mental nervous policy limitation provisions that you'll see in practically every ERISA disability policy or plan come in two flavors. The first flavor is if the disability is caused by a psychiatric condition, benefits are limited to just two years. That's pretty easy to deal with if you have an underlying physical condition. If you don't, and this is a pure psychiatric claim, you understand benefits potentially are going to be limited to just two years. But the other flavor is what I call the Monty Python version, and that is disability benefits would be limited to just two years if your disability is caused or contributed to ever so slightly by a psychiatric condition.
 
 Nancy Cavey [00:21:33]:
 So it doesn't matter if you have an underlying physical condition, like a back condition that's caused you to be depressed, if that depression is contributing ever so slightly to your disability. Benefits are limited to just two years. Now, the other thing I think is really important that you understand by the terms of the policy is what is the proof of disability and what's the requirement for ongoing medical treatment? What you need to do is understand that definition of occupation, because your goal is to show that your psychiatric condition prevents you from performing the material and substantial duties of your occupation, or however that term is defined. That means your medical records need to tell a clear story, a clear story of your symptoms, like impaired cognition, crying spells, insomnia, fatigue, hyperactivity, difficulty interacting with coworkers, supervisors, or the public, struggles with daily personal tasks like grooming or caring for pets, the inability to engage and volunteer activity or hobbies. I will tell you, one of the things that matters is the treatment plan. I see disability carriers criticize, critique, poo poo treatment plans. They want to know what kind of treatment are you receiving, how often, how does the intensity of the treatment match the severity of your symptoms? I hear that one all the time, Ms. K.V.
 
 Nancy Cavey [00:22:53]:
 the intensity of the treatment doesn't match the severity of the symptoms. If they were as depressed as the doctor thinks they are, they would be hospital. Well, that's not always true, is it? What medications are prescribed and what is your response to that medication? Ms. Kavi? You know, if they actually prescribe the right kind of medication, they would be able to go back to work. Oh, and are there any side effects of the medication and how do they alternate your functionality if you have side effects? I will tell you. The disability carrier plan wants to see those reported side effects in different trials of medication. The other thing I see is improvement. I hate that word.
 
 Nancy Cavey [00:23:33]:
 The doctor may say, well, how are you doing? And you may say, I'm fine, or I've improved. Those two words, carriers or plans, will jump on. Now, just because you've improved doesn't mean that you can work. The improvement has to translate into functional ability, what you can actually do and how long. So when you say improvement, compare and contrast. Well, you know, before I took this medication, I could do blah, blah, blah, blah, blah, or I couldn't do blah, blah, blah, blah. And now I've slightly improved in that I can function. You know, I can interact with people a little longer, you know, maybe more than 30 minutes, or I may come out of my room and interact with my family and participate in family activities.
 
 Nancy Cavey [00:24:20]:
 But after 30 minutes, I have to retreat to my room. So you've got to explain what this improvement is, and you have to really make sure that your psychiatrist is explaining in writing why your symptoms impact your ability to perform your own occupation. Carriers are going to be looking for clinical evidence of severe persistent psychiatric functional impairment. And without that, they are going to argue that your condition isn't disabling, no matter how real it feels. Now, one of the other games that they will play is they'll look at the mental status examination, which is basically, are you oriented to time and place? Like what time is it, what day is it, and who's the president? If you can answer those questions, as most people can, disability carriers or plans will say, well, they're oriented to time and place. And so those complaints that they're making of forgetfulness or confusion, that doesn't jive with this mini mental status exam. So I always like doctors to clarify that the mini mental status examination isn't a reflection of your psychiatric abilities. Now please remember that you have to get treatment based on the frequency, nature and duration of your symptoms.
 
 Nancy Cavey [00:25:35]:
 And you're expected to get that. And if you don't, the disability care can say, well, we don't even get to the question of whether you're disabled or not. You violated the terms of the policy by not getting the appropriate treatment or the frequency of the treatment. Now, clearly this is a high stakes area, but with the right documentation, planning and support from your medical team, you can give your claim the best chances of success. You need to understand that own occupation standard because that's where the proof is. You don't want an unclear policy or vague medical records to jeopardize your benefits because the doctor didn't understand what your occupational duties were and you didn't give a good explanation as to why it is you were having trouble doing those occupational duties. Now, another game that disability carriers or plans will try to harp on and use as a defense is that you are just a disgruntled employee. You didn't get along with your supervisors or coworkers, or you got a bad review.
 
 Nancy Cavey [00:26:39]:
 They want to try to pin it on employment issues, not psychiatric issues. So be careful about those issues. And if you are having those kinds of problems, you need to make sure that you're explaining that it's not the disagreement or the problems with your supervisor, it's the symptoms that you are having that interfere with your ability to do your occupational duties. Got it? Thank you. For tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review, share it with your family and friends, and please subscribe to this podcast. Join us next week for another insightful episode of Winning Isn't Easy. Thanks for listening.