What is a "Gainful Occupation" under a Disability Insurance Policy?
The overwhelming majority of employer provided group long term disability insurance policies governed by ERISA contain two definitions of disability depending on what stage your claim is in. As discussed in depth throughout our website the two definitions of disability are what are commonly known as the “Own Occupation” and “Any Occupation” definition of disability. As they imply, the former is an evaluation as to one’s ability to perform their pre-disability occupation and the latter their ability to perform some alternate occupation. Although the period that each definition of disability lasts (12, 24, 36 or 60 months, etc.) and the exact term used (Regular Occupation, Gainful Occupation, etc.) and definition of that term may vary depending on the insurance company they essentially embody the same general idea of “occupation.”
A large number of long term disability claims are denied during the transition between the Own Occupation and Any Occupation stage for the simple reason that the insurance company no longer has to consider how your disabling medical condition prevents you from performing your pre-disability occupation, but rather how your condition prevents you from performing an alternate occupation that is based upon your training, education and experience. These alternate occupations are typically less demanding than one’s original occupation. What can vary dramatically across disability insurance policies is the presence in an earnings requirement/qualified in an “any occupation” definition of disability. Policies that do contain an earnings requirement/qualifier in the definition of “any occupation” contain language along the lines of “an occupation that would pay you 60% of your indexed pre-disability earnings.” However, based on your particular policy language these earning requirements and what they actually mean can vary greatly and improve or hamper your chances of successfully being approved into the “any occupation” period.
So what constitutes the ability to perform an identified occupation under an “any occupation” standard of review?
A recent Federal Court decision from the Northern District of Illinois addressed this issue in the case of Contreras v. United of Omaha Life Insurance Company. In the Contreras case the Court was tasked with determining whether United of Omaha’s denial of benefits to Ms. Contreras was appropriate in light of the Policy’s definition of “gainful occupation.” The Policy defined gainful occupation to mean,
“[A]n occupation, for which You are reasonably fitted by training, education or experience, [and] is or can be expected to provide You with Current Earnings at least equal to 85% of Basic Monthly Earnings within 12 months of Your return to work.”
First and foremost, this is a very specifically worded definition of “gainful occupation” that is not often seen in disability insurance policies. However, the specificity of the language would work to Contreras’s benefit.
During the course of United of Omaha’s review of Contreras’s eligibility for continued disability benefits under the “gainful occupation” definition of disability, United of Omaha conducted a Transferable Skills Analysis (TSA). Based on the results of the TSA, United of Omaha’s vocational consultant determined Contreras would be capable of working as an “Order Clerk.” To refute this assertion Contreras had her own vocational assessment performed that concluded she lacked the requisite training and experience with computer use required of an Order Clerk as set forth by the Dictionary of Occupational Titles. Contreras argued that her limitations related to computer use would preclude employment as an Order Clerk all together or necessitate her having to start in an entry level position that would not meet the required 85% wage requirement in the Policy, and that in light of same she would be disabled under the Policy’s “gainful occupation” definition of disability.
The Court agreed. The Court determined that the administrative record failed to support a finding from United of Omaha’s vocational review that Contreras would be able to meet the wage requirement in the Policy within 12 months of her potential return to work. Instead the Court agreed with the vocational assessment provided by Contreras that established she would not be able to meet the 85% wage requirements within her first year of working as an Order Clerk, and therefore, she was disabled under the “gainful occupation” standard contained in the United of Omaha policy.
Contreras’s case hinged on the “12 month” requirement. The Court noted in its opinion that if the 12 month time requirement had not been in the policy it would have reached the conclusion set forth in established case precedent that absent a time limit in the policy on when the target wage needed to be earned, a TSA identifying a qualifying job would have been sufficient. So if the United of Omaha policy had defined Gainful Occupation to mean, “[A]n occupation, for which You are reasonably fitted by training, education or experience, [and] is or can be expected to provide You with Current Earnings at least equal to 85% of Basic Monthly Earnings,” the Court would have upheld United of Omaha’s denial of benefits.
The Contreras case has very specific facts, but it does shine light on how Courts evaluate “any occupation” standards of disability in light of earnings requirements and how to combat an insurance company’s Transferrable Skills Analysis. In appealing a denial of benefits under an “any occupation” definition of disability it may be advantageous to conduct your own vocational review to establish additional evidence of disability.
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Q: Can I ask for another appeal?
A: Giovanna, you should consult with the attorney(s) that represented you in your appeal to the Third District Co... Read More >
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A: Amy, first and foremost, I am sorry to hear of MOO’s delay tactics and the fact that they sound like they mi... Read More >
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What is a "Gainful Occupation" under a Disability Insurance Policy?
The overwhelming majority of employer provided group long term disability insurance policies governed by ERISA contain two definitions of disability depending on what stage your claim is in. As discussed in depth throughout our website the two definitions of disability are what are commonly known as the “Own Occupation” and “Any Occupation” definition of disability. As they imply, the former is an eval... Read More >
Can my insurance carrier deny my benefits even if there is no change in my medical condition?
Insurance companies frequently terminate long term disability benefits after paying a claim for several years, even when the claimant's condition remains the same. It would seem unfair that one's benefits can be cut off when their disabling condition has not improved or changed in any way. However, it is quite common that a person who has been on disability for several years, who has been approved for "any occ... Read More >
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Disability Benefit Denial Reason #5 – Your Medical Evidence is Weak
If you're seeking long term disability benefits from an insurance company, you may be concerned that you're facing an uphill battle. Fortunately, the stronger your medical evidence, the greater the odds that your claim will be approved. On the other side of the coin, one of the most common reasons for denial of long term disability benefits involves too-weak med... Read More >
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Getting a denial letter from your disability insurance company is one of the ultimate insults. You are sick and not able to work, yet your disability insurance company is telling you to return to work. The disability insurance company has denied your disability benefit claim and is basically calling you a liar. When receiving a disability denial letter or a ph... Read More >
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After appeal filed by Attorney Jay Symonds, Mutual of Omaha overturned previous denial of short term disability benefits for Maine Senior Software Engineer
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In 2016, Cathy, a Quality Assurance Manager for a medical device company, sought surgery for a tear in her right rotator cuff. Cathy fully expected to heal, recover and return to work. However, disappointingly, things did not turn out quite like she expected. After continuing to experience pain, discomfort and restriction in her right shoulder range of motion, she discovered that her shoulder did not heal prop... Read More >
After appeal filed by Attorney Jay Symonds, Mutual of Omaha overturned its previous denial of short term disability benefits for Colorado Senior Manager
Our client, Ms. J, formerly worked as a Senior Manager of a treatment facility. In October 2016 a number of medical issues, including fibromyalgia, chronic pain syndrome, chronic fatigue and depression forced Ms. J to stop working and submit her claim for disability benefits, first under her employer's short-term disability (STD) policy and then continuing under its long-term disability (LTD) policy. The STD c... Read More >
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Pre-disabilityBefore going on disability, Mr. M was working as a quality control inspector for Tam International. In 2009, after years of service, Mr. M sustained an injury while at work and he was forced to file a claim for disability with his employer sponsored disability plan. His claim was based on low back pain, osteoarthritis, neuralgia, radiculitis, neck pain, shoulder pain, muscle spasms, headaches... Read More >
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Mutual Of Omaha Overturns Denial of Short Term Disability Benefits for Software Developer With Chronic Back Pain
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