Definition of Disability: The parties agree that the plaintiff’s eligibility for benefits is determined based on whether she is unable to perform her “own occupation.” The policy provides,
“During the Benefit Waiting Period and the Own Occupation Period, you are required to be Disabled only from your Own Occupation.
You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy, or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation.”
Other Key Definitions in the Policy: The “Active Work” clause found in the policy provides that a participant,
“must be capable of Active Work on the day before the scheduled effective date of your insurance or your insurance will not become effective as scheduled. If you are incapable of Active Work because of Physical Disease, Injury, Pregnancy or Mental Disorder on the day before the scheduled effective date of your insurance, your insurance will not become effective until the day after you complete one full day of Active Work as an eligible Member.
Active Work and Actively At Work mean performing with reasonable continuity the Material Duties of your Own Occupation at your Employer’s usual place of business.”
The policy defines “Own Occupation” and “Material Duties” to mean,
Own Occupation means any employment, business, trade, profession, calling, or vocation that involves Material Duties of the same general character as the occupation you are regularly performing for your Employer when Disability begins. In determining your Own Occupation, we are not limited to looking at the way you perform your job for your Employer, but we may also look at the way the occupation is generally performed in the national economy. If your Own Occupation involves the rendering of professional services and you are required to have a professional or occupational license in order to work, your Own Occupation is as broad as the scope of your license.
Material Duties means the essential tasks, functions, and operations, and the skills, abilities, knowledge, training, and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted.
Benefits Paid? No. On October 9, 2012, Standard informed the plaintiff that her claim for long-term disability benefits was denied. In evaluating the plaintiff’s claim for benefits, the defendant Standard consulted with three specialists. Dr. Waldram concluded that plaintiff,
“would have been able to work at a sedentary level position up to the time of surgery as long as she was able to change workstation positions, which in my understanding had been allowed, moving and standing after periods of sitting for 45 minutes to an hour.
I find no evidence that desktop use of the extremity would be an issue as she has no neurologic findings. Her low back would require again moving around in the workplace avoiding prolonged sitting.”
The vocational counselor also submitted a report documenting that the occupation of a lawyer would be defined as “sedentary as it is generally performed” and noted,
“A lawyer could further alternate between periods of sitting and periods of standing or walking by making use of commonly accessible ergonomic accommodations. Equipment such as a sit/stand station for duties involving computer work or keyboarding as well as a standing height desk for tasks such as paperwork or document reviews would allow an individual to further vary the amount of time spent in different positions.”
The report additionally found that these accommodations would allow a lawyer to go from sitting to standing about every 45 minutes.
Basis For Denial / Termination of Benefits: Defendants, Standard Insurance Company, and Long Term Disability Insurance argue several reasons for the plaintiff’s lack of coverage during the relevant time period. But even if she was covered, they assert that she cannot establish disability because of her lack of consistent medical treatment, Standard’s consulting physicians’ opinions that she was capable of sedentary work and because there were no objective measurements of functional limitations at the time she ceased work.
Key Medical Provider Opinions: By 2011, the plaintiff claims that her condition became intolerable. Physical therapy notes in April and May show pain from sitting for prolonged periods of time and constant pain that makes it hard for her to “concentrate while trying to work”. By November 2011, the plaintiff’s chiropractor noted that the plaintiff’s pain “inhibits her ability to perform her job, and disrupts every [activity of daily living] once exacerbated” and indicated that the plaintiff “only felt better when she had a break from paperwork/computer.”
After the plaintiff started her leave of absence, she claims her condition worsened and by March 2012 her chiropractor recommended that she consult with a specialist. The next month plaintiff saw neurosurgeon Douglas Johnson, M.D., Ph.D., who recommended a twelve-week physical therapy program with concurrent cervical epidural injection therapy with pain specialist Narayan Tata, M.D. By June 2012 Dr. Tata performed a cervical discogram showing “internal disc disruption” indicating the plaintiff’s pain was “emanating from the C5-C6 disc level.” Because of “no notable change in her condition,” and an indication that physical therapy seemed to make the plaintiff feel worse, Dr. Johnson recommended surgery “to decompress nerve tissue.” Dr. Johnson also indicated that the plaintiff was “unable to work.”
In August 2012, prior to the insurance company issuing its decision, the plaintiff underwent surgery to fuse her cervical spine. During surgery it was discovered that the plaintiff’s C5 disc was unstable, requiring it to be removed. The plaintiff wore a fixed collar for six months post-surgery to restrict her neck movement.
Issues: The case presents two principal issues: whether the plaintiff, Carole Cheney, had insurance coverage on her date of disability, making her eligible for long-term disability benefits, and, if so, whether the plaintiff can establish that she indeed was disabled under the policy.
As to the coverage issue, Defendants argue that the plaintiff’s coverage terminated on December 20, 2011, because she ceased working on December 19, 2011. Not disputed is that plaintiff took a leave of absence from the law firm beginning on January 3, 2012. Everything else, however, is disputed. Defendants argue that it is more likely that the plaintiff’s coverage ended even before December 20, 2011, because she had been working from home for several years. Defendants’ argument here focuses on the “Active Work” clause found in the policy.
With respect to proving disability, the plaintiff argues that under an occupation-specific disability insurance policy, an insured is entitled to recovery so long as that individual is unable to perform even a single material job duty. In the case of the plaintiff, because she experiences pain while sitting, which hinders her ability to concentrate, she argues that she is unable to fulfill both the physical and cognitive requirements of her “Own Occupation.”
“But plaintiff argues that under an occupation-specific disability insurance policy, an insured is entitled to recovery so long as that individual is unable to perform even a single material job duty. In the case of the plaintiff, because she experiences pain while sitting, which hinders her ability to concentrate, she argues that she is unable to fulfill both the physical and cognitive requirements of her “Own Occupation.”
Plaintiff principally relies on McFarland v. General American Life Insurance Company, where the Seventh Circuit analyzed policy language requiring that a person be “totally disabled” to receive benefits. That term was defined as “‘unable to perform the material and substantial duties of [his] regular occupation.’” In that case, the parties agreed that the plaintiff was unable to perform 65% of his former duties. The court was left to determine, then, whether that reduction in abilities rendered the plaintiff unable to perform the “material and substantial duties” of his job.
Plaintiff also refers to our sister courts that have determined, where the policy language is occupation-specific, the loss of a single material job duty is sufficient to find disability. For example, in Lockhart v. Jefferson Pilot Financial Insurance Company, Judge Coar held that “even if plaintiff’s hands can literally grasp a telephone, but doing so would exhaust her or cause her pain, then she cannot be said to be able to functionally perform that task.” And in Rahman v. Paul Revere Life Insurance Company, Judge Aspen found that because it was uncontroverted that one of the “essential aspects” of the plaintiff’s pre-injury job, who was an emergency room cardiologist, was to run to his patients, his inability to run alone rendered him disabled.”
Holdings: (1) The provision dictating when coverage ends is more appropriately the provision referenced by the plaintiff, because she indeed received approval, in advance and in writing by her employer, for temporary leave, which was to last six months. Considering any ambiguity in the policy in favor of the insured, the appropriate date for coverage to end is nine months after her temporary leave, which would be in September 2012.
(2) “A fair reading of the policy language here supports the view that to be considered disabled, Plaintiff must be unable to perform only a single material duty of her occupation. At this point in our analysis, then, we must determine whether the severity of her condition, degenerative disease of her cervical spine, has caused her such severe pain that an “essential” or material duty of her job has been lost. Defendants paint a picture of the plaintiff’s condition as lacking inconsistent treatment, with few serious problems documented by medical professionals, and a work history that had limited hours and maximum flexibility.”
The Court continued,
“But we do agree with the plaintiff that the record corroborates her pain complaints, and her attempts to use ergonomic accommodations to alleviate her pain to no avail. And the non-examining doctors relied on Standard, who found the plaintiff capable of general sedentary work, failed to opine on the plaintiff’s non-exertional limitations and how those would affect her ability to perform the high-stress work of a litigation partner. We can say in relying on the non-examining doctors, Standard “glossed over” the issue of the plaintiff’s need to concentrate and perform the “mental demands of the active practice of law.”
Important for this case is the distinction that the policy allows for benefits if the plaintiff is unable to perform a single “essential” duty of her occupation, not whether she can perform any sedentary occupation.”
“Sedentary work, in general, may accommodate such a condition, as Standard’s medical consultants stated. But their conclusion did not consider the qualitative and quantitative aspects of the plaintiff’s work as a litigation partner. We find this is the crux of this case. Whether the plaintiff can find other, less demanding, work as a lawyer is not the question. “Own occupation” is defined as “duties of the same general character” as the occupation plaintiff is “regularly performing.” Even looking to the duties of a litigation partner “in the national economy,” as the policy allows Standard to do, the essential duties affected by the plaintiff’s condition remain the same. We, therefore, find that because of her reduced abilities, she was “unable to perform enough of the tasks or to perform [them] for a long enough period” to continue working as a litigation partner, which sufficiently places her within the definition of Disability in the policy.[Note: this claim was not handled by the Ortiz Law Firm. It is merely summarized here for a better understanding of how Federal Courts are handling long-term disability insurance claims.]
Here is a copy of the decision in PDF: Cheney v. Standard