Problems in Proving Your Inability to Obtain a Gainful Occupation

If you have a medical condition that is so debilitating that you are unable to work in your current occupation or cannot obtain other gainful occupation, you should be entitled to long-term disability benefits. But you must first meet the definition of “disability.”

How Do Long-Term Disability Policies Define “Disability”?

Long-term disability (LTD) policies usually define “disability” in one of two ways:

• “Own Occupation” – Under this definition, you are considered “disabled” if you have a medical condition that limits your ability to perform the duties of your own occupation. If you meet this requirement, you are entitled to benefits.

• “Any Occupation” – Under this narrower definition, you are considered “disabled” if you cannot work in any gainful occupation that you are reasonably suited for, taking into consideration your education, training and experience. Thus, if you are capable of working in any gainful occupation but not your own, your claim for LTD benefits will be denied.

Often times many LTD “own occupation” policies shift to the “any occupation” standard after a certain length of time, usually 24 months. The question then becomes: What is “gainful occupation?”

What Is Considered “Gainful Occupation?”

Generally, an occupation is considered “gainful” if it pays you 60 to 80 percent, (depending on your policy) of your pre-disability earnings. Thus, before your disability insurance company denies you disability benefits or terminates your disability benefits under the “any occupation” policy, it must first show that considering your education and vocational history, you can reasonably perform some sort of job that would pay you at least 60-80% of your pre-disability wages.

For example, if a surgeon were diagnosed with Parkinson’s disease, causing tremors of her hands, she would most likely be found disabled under the “own occupation” policy. This is because her job requires the use of fine motor skills. However, whether she qualifies under “any occupation” is more difficult to determine since it depends on her prior salary, ability to perform other jobs, and the amount she anticipates earning at those jobs. If her pre-disability earnings were $300,000 per year, then her insurance company must show she could reasonably earn $180,000 per year (60% of $300,000) in another job before they could deny her claim.

What Is “Reasonably Suited?”

Based upon your education, location, skills and limitations, you must be reasonably suited to perform a gainful occupation. “Reasonably” is a broad definition, but some factors that make an occupation “unreasonable” are:

• Within a reasonable commute of your home, few or no positions exist within that occupation.
• You are under-qualified to perform the job because you lack the necessary skills or education. Although you cannot reasonably perform a job you are under-qualified for, it would not be unreasonable for you to perform a job you are overqualified for.
• The employment position does not permit you to attend your regular medical appointments.
• Your physician has not released you to perform the tasks required for the job.

So in order for the insurance company to accurately assess the type of jobs you could perform, if any, you should submit as much favorable medical evidence as you can. This includes your doctor’s opinion discussing your limitations and restrictions.

Who Decides Whether You Can Work at Another Occupation?

Vocational experts (VE) are used to establish whether you could perform “other jobs” and the compensation associated with those jobs. They are versed in the specifics of the labor market and often experienced in placing individuals with disabilities in occupations. The LTD insurer’s VE’s source of information supporting their opinions includes information from the Bureau of Labor Statistics, surveys of employers, and the (outdated) Dictionary of Occupational Titles.

As with other kinds of experts, VEs often disagree with each other. Not surprisingly, the LTD insurer’s VEs are frequently biased toward opining that a disability applicant can obtain gainful employment.

Although a VE’s testimony and opinion may be critical in determining whether you could obtain a gainful occupation, and therefore whether you are eligible for benefits, ultimately the LTD insurer will make the final decision of whether your benefits are approved or denied. Even though many insurers likely place more weight on the insurer’s VE and deny you benefits, favorable VE evidence in the administrative record can be crucial for your appeal, especially if you later decide to file a lawsuit in federal court.

Contact A Long-Term Disability Lawyer

Speak to a long-term disability lawyer at Uscher, Quiat, Uscher & Russo, P.C.. We will review your LTD policy to determine which disability definition your policy provider. We can also evaluate your claim to determine whether you could obtain a “gainful occupation” that is reasonable in your situation. If not, we can help you compile medical and expert evidence supporting your disability claim.

Call 201-502-8351 or send an email to get in touch with our long-term disability attorneys today.