• Guardian Life Disability And What To Expect When Seeking Disability Benefits
  • Guardian & Berskhire Life Long Term Disabilit Insurance Claims (Ep. 9)

Ambiguous Disability Policy Language is Construed in Favor of Disability Claimant with Berkshire Life Policy

Most purchasing a disability insurance policy may not negotiate specific language. Rather, insurance companies use stock forms, and the negotiation involves the tradeoff between the extent of coverage and the premium. The insurance company supplies the specific statutory provisions once the extent of coverage is determined. When a dispute arises about specific terms, courts interpreting insurance policies use a time-honored legal principle that construes the language against the drafter. This means that if something in the policy is unclear and susceptible to two or more meanings, the court will favor the interpretation that is most beneficial to the policy holder because the insurance company had the ability to craft the policy in such a manner as to avoid the ambiguity.

Florida Supreme Court Rejects Berkshire Life Insurance Company’s Attempt to Limit Disability Benefits

In Berkshire Life Insurance Company v. Adelberg, the Florida Supreme Court decided when a disability policy fails to define the term “your occupation,” whether the claimant’s “own occupation” is subject to the insurance company’s determination or the claimant’s actual and specific occupation engaged in when the disability occurred. The claimant was employed as a yacht salesman when he injured his knee. He had an own occupation disability policy with Berkshire Life Insurance Company, which defined “total disability” as the “inability to engage in your occupation, … after the first 120 months, the termtotal disability,’ will have this meaning: your inability to engage in any gainful occupation in which you might reasonably be expected to engage, with due regard for your education, training, experience, and prior economic status.” However, the policy did not define the term “your occupation.” Prior to injury, the claimant had worked as a jeweler, food-commodities salesman, and a yacht salesman. Subsequent to injury, he was employed as a freight-space salesman.

In court, the claimant argued his regular occupation when he was injured was that of a yacht salesman, an occupation which required him to walk and crawl though small spaces to inspect the product. Due to his previous and current employment being in sales, Berkshire Life contended his occupation was that of a general salesman and, because he had subsequently been employed in sales, he wasn’t totally disabled within the meaning of the policy and couldn’t recover disability benefits.

The Court held that Berkshire Life failed to define the term “your occupation,” and in doing so, the policy language would lead a reasonable person to conclude that during the first 120 months “your occupation” means the work in which a person is engaged at the time of disability. Therefore, the Court held, “the term ‘your occupation’ refers to the specific work done by the insured at the time of the injury, not work requiring similar skills and producing a comparable income.”

Comments (8)

  • Janie, if your claim has been denied you will need to go through the administrative appeal process to secure remaining benefits. Please feel free to contact our office to discuss the short term disability denial and what your rights are with respect to appealing the denial and making a claim for any potential long term disability.

    Stephen Jessup May 4, 2021  #8

  • I paid four of short term disability and then denied any remaining time even though my eye sight has not improved and my doctor says I cannot return to work.

    Janie May 3, 2021  #7

  • Jeff, I am sorry to hear all that you are going through and that Berkshire has delayed in approving your claim. We want to review everything to figure out how we can get this claim approved ASAP. Please feel free to reach out to us at your convenience. A lawyer is always available to speak.

    Alex Palamara Mar 16, 2020  #6

  • How long does it take for them to review my policy that has been in review now for 3 weeks? I got cancer back in July for September I’m sorry now I’m still waiting to get my short-term disability monthly check which is around $900. I’m 3 months behind in my mortgage, my mortgage company will be contacting me soon. I’m now back into a corner not sure what to do, please call. Thank you. My kidney was removed from the cancer, I go back every 4 months to make sure it does not come back but I am unable to return to my job as a chemical applicator with chemicals. I was a termite inspector and applicator. Thank you.

    Jeff H. Mar 16, 2020  #5

  • John,

    I don’t think they would give you a problem while taking the classes. The issue is whether you would be able to do a new job with the information or skills you learn in the classes? The chances of a buyout are very slim and also rare with Guardian.

    Gregory Dell Sep 18, 2012  #4

  • Hey Greg, thanks for responding.

    My former occupation was as a human resource consultant and my primary responsibility was to hire potential employees into these fortune 500 companies. When I was diagnosed with delayed onset PTSD, my career came crashing down and it all fell apart.

    The classes I’m taking are in real estate and the program is completely online at my own pace through a local community college. Based on this, do you think they’ll come knocking?

    Also, I’ve been on claim for 4 years now. Do you think there is any possibility they may attempt to buy out the remaining portion of the claim? I’m interested, but I heard that Guardian does not buy out claims for conditions such as PTSD and depression. I just want them out of my life understandably…

    Please advise, and thanks again.
    John

    John Sep 17, 2012  #3

  • John,

    The answer to this question depends on what your occupation was before you became disabled. If the skills required to complete a year of college are similar to the skills necessary to perform your own occupation, then you may be opening up a can of worms. If you are looking into an online program that allows you to work at your own pace, then that would be the best route to take as it is not like a job that requires reasonable continuity of 40 hours a week and 8 hours a day.

    Gregory Dell Sep 17, 2012  #2

  • Greg, can you go to college while receiving disability benefits?

    I am an Iraq combat vet suffering from PTSD, depression and anxiety. I have an individual, own-occupation policy with Guardian (with no two year limit on mental or nervous disorders) and have been on claim with them since 12/2008. I also receive VA disability (100% rating) and SSDI for the same things.

    Recently, the VA approved a grant for veterans allowing them to go back to school up to a year, and they pay for it. I really want to do this but I don’t want to put myself in a bad position to where they might terminate my benefits.

    Please advise, thanks.

    John Sep 16, 2012  #1

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Our disability insurance lawyers help policy holders seeking short or long term disability insurance benefits from Berkshire. We have helped thousands of disability insurance claimants nationwide with monthly disability benefits. With more than 40 years of disability insurance experience we have helped individuals in almost every occupation and we are familiar with the disability income policies offered by Berkshire.

How do you help Berkshire claimants?

Our lawyers help individuals that have either purchased a Berkshire long term disability insurance policy from an insurance company or obtained short or long term disability insurance coverage as a benefit from their employer.

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What are your fees?

Since we represent disability insurance claimants at different stages of a disability insurance claim we offer a variety of different fee options. We understand that claimants living on disability insurance benefits have a limited source of income; therefore we always try to work with the claimant to make our attorney fees as affordable as possible.

The three available fee options are a contingency fee agreement (no attorney fee or cost unless we make a recovery), hourly fee or fixed flat rate.

In every case we provide each client with a written fee agreement detailing the terms and conditions. We always offer a free initial phone consultation and we appreciate the opportunity to work with you in obtaining payment of your disability insurance benefits.

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No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via telephone, e-mail, fax, GoToMeeting.com sessions, or Skype. If you prefer an initial in-person meeting please let us know. A disability company will never require you to come to their office and similarly we are set up so that we handle your entire claim without the need for you to come to our office.

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Jim F.

My employer offered both Short Term Disability and Long Term Disability insurance as optional benefits among others. The premiums were significant, but since they could be payroll deducted I felt they could be reasonably managed and the security of continued income in the event of a medical disability was well worth the investment. As with the purchase of a first aid kit, most would prefer never having to use it.

I have been very fortunate to have had few illnesses or injuries throughout my life and more specifically my 45 year career as a healthcare professional. It wasn’t until early in 2012 that I was diagnosed with a chronic, progressive disease of the eye. Symptoms were minimal at that time, though regular visits to a retinal specialist, including regular therapy by ocular injection, were necessary to slow its progression, the symptoms did not appreciably interfere with my work. In spite of my treatments the condition continued to progress. In early 2014 the symptoms began to interfere dramatically with my day to day duties. My job required significant computer use and the reading of copious amounts of medical documentation. It became evident to me that I could no longer meet the expectation of my management and clinical position without working frighteningly long hours and enduring the relentless eye strain and other symptoms related to the illness.

Though I had always planned for eventual retirement from my full-time position, like most professionals I had hoped to be able to continue to practice my profession on a part-time basis throughout my retirement as long as I remained competent and able. That was not to be. Thankfully, I had the foresight to elect the disability benefit options offered by my company and have the premiums payroll deducted for many years. I notified my supervisor and HR representative that I had to stop working due to my condition and proceed with the disability application process.

All went very well and after using up my accrued vacation and sick time, my short-term disability benefits commenced. Since my condition is progressive and incurable I felt secure in knowing that once my short-term benefits were exhausted my benefits would continue under the long-term policy. However, much to my surprise, after receiving about a month of benefits I received notification from the insurance company that a decision had been made to terminate my benefits due to lack of objective medical evidence to support my claim, though significant documentation had been provided by my retinal specialist.

I was bewildered and unsure of how to proceed with an appeal of that decision. Since I had 180 days to do so, I decided to research the matter thoroughly. In spite of my being a veteran healthcare professional everything I had been reading on the subject cautioned about attempting to proceed with an appeal on my own. Legal representation was highly recommended.

I then began a review of local attorneys, hoping to find one that provided enough documentation on their website that indicated experience with non-social security disability related cases. I was also interested in seeing evidence of some experience with disability cases related to diseases of the eye and resultant vision impairment. I was unsuccessful.

So I expanded my search to include national law firms. It was then that I discovered Dell & Schaefer. After thoroughly reviewing their website, watching many of the video discussions, noting experience with vision related cases, particular documentation related to the insurance company that handled and then eventually denied my benefits, and reading a significant number of testimonials, I decided to request a free consultation as advertised. It was one of the best decisions I have ever made.

After that consultation, I was very confident that I was in very skilled hands which alone reduced my anxiety level immensely. Attorney Alexander Palamara and his Legal Assistant, Kathleen Bordes, immediately began managing my case, their professional expertise clearly evident.

They worked closely with my retinal specialist, my optometrist and the insurance company in compiling the medical documentation necessary for a successful appeal in an amazingly short period of time, keeping me fully informed all along the way. Shortly after being notified by the insurance company that my benefits would be reinstated and paid through the full term of my short-term policy I received a lump-sum payment.

Once the short-term disability appeal was successfully completed, Alex and Kathy immediately addressed the long-term policy benefits. Again in a remarkably short period of time I was granted those benefits, receiving a lump-sum payment for benefits to date and will receive a payment monthly going forward per the terms of my LTD policy.

I am extremely pleased with how my case was handled and the very favorable outcome. Alex and Kathy were a delight to work with and extremely professional in every way. Incidentally, the fee I paid to Dell and Schaefer for their incredible representation was very reasonable and very well earned.

I highly recommend the services of Dell & Schaefer to anyone who may find themselves in a similar disability-related situation.

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