In some cases, the type of job you perform or the amount of education you have can affect whether you get LTD benefits.
The differences between own occupation and any occupation can be technical and confusing. The insurance company will do whatever they can to muddy the waters and make claims harder to file to avoid payouts. In this article, we will break down the differences “own occupation” and “any occupation.”
Own occupation refers to your specific occupation and your essential duties of that occupation. Let’s take the occupation of a heart surgeon, for example. You are not just a doctor; you are a surgeon with a specialty in cardiovascular surgery. To file a successful own occupation claim, you must be unable to perform the material and substantial duties of your particular subspecialty to qualify for “total disability.” This doesn’t mean that you are completely helpless; you just cannot go back to work and perform the same job as before.
Let’s presume that your disability is that you’ve developed a tremor in your hands. As such, you cannot hold a scalpel to perform delicate heart surgeries. Let’s further presume that you still have the ability to perform general consultations with heart patients. You may be able to perform the basic duties of a general cardiologist – and on a full-time basis, but you cannot perform heart surgeries.
Own occupation does not focus on your ability to perform some of the duties that you have as part of your job, but instead focuses on the most essential part of your “own occupation.” If our heart surgeon in the example above had an “own occupation” policy, the doctor would likely qualify for disability benefits. If the heart surgeon only defined his or her “own occupation” as a “cardiologist”, then he or she may have a more difficult time qualifying for disability.
Most disability policies that have an “own occupation” will convert to an “any occupation” after two years.
Any occupation refers to being able to find gainful employment that is suited for your work experience and education level. Claims that are filed under any occupation are examined to determine your level of employability. The insurance company will look to see if you can work in virtually any capacity with accommodations in your previous field of work and use this to deny your claim. Even if you cannot perform your prior work, the insurance company will review your medical records and work with a job expert to determine whether there are other occupations that you may be able to perform.
You will see the term gainful employment many times in a claim under any occupation.
A typical definition of “gainful occupation” is:
“an occupation, including self-employment, that is or can be expected to provide you with an income equal to at least 60% of your indexed pre-disability monthly earnings.”
This definition means that your claim will only be approved if the insurance company fails to prove that you can earn at least 60% of your salary by working.
Let’s take a kindergarten teacher, for example. A grade school teacher has to be on her feet, educating small children. She walks with them all day to the bathroom, recess, gym, the lunchroom, etc. Now let’s say that our teacher has peripheral neuropathy, which requires the teacher to stay off her feet the vast majority of the day. In fact, the teacher has to periodically elevate her legs throughout the day. Under an “own occupation” disability policy, she may qualify for disability. But under an “any occupation” disability policy she may still the work capacity to earn 60% of her salary working as an administrator, like a vice principal. She will no longer have the full responsibilities of a full-time classroom teacher, but still has the skills to sit behind a desk and work in the field of education of young children.
Who Has the Burden of Proof?
Proving that you cannot work or that a job is not suitable for your skills will be your responsibility. Using a disability attorney can help with this, but the first thing to do when applying for long term disability is to read your policy thoroughly. If you have a group policy through your employer, you can request a copy from your human resources department.
After you read your policy, you can decide if you think you have a case for LTD benefits. When you start gathering information for your claim, be sure to include all the necessary information that will “stack” your administrative file. Your administrative file is everything in your case. It includes all the correspondence between you and your insurance company, all your medical information, notes from your doctors, and even surveillance footage. Check out our What Not to Say When Filling Out Long Term Disability Papers.
Who Decides Whether I Can Work Any Occupation?
Insurance companies will use vocational experts to help prove that you still have employment options out there. A vocational expert is a person who has expertise in the labor market and often has experience placing disabled people in new positions of employment. They rely heavily on data resources like labor statistics and employer surveys (which are very subjective). A vocational expert’s testimony is valuable, and the decision to approve or deny a claim will be in the hands of the claims administrator at the insurance company.
Your education level primarily comes into play during the “any occupation” period of a disability insurance claim. As you may know, most LTD policies evaluate whether the claimant can perform his or her “own occupation” for the first two years of benefit payments, but then evaluate whether the claimant can perform “any occupation” after 24 months.
Some policies may use the term “reasonable occupation” instead of the term “any occupation”. A sample policy may define “reasonable occupation” as
“any gainful activity for which you are; or may reasonably become; fitted by: education, training; or experience; and which results in; or can be expected to result in; an income of more than 60% of your adjusted pre-disability earnings.”
To terminate benefits under this “reasonable occupation” definition, an insurance company would have to show that the claimant no longer met the definition of disability, which required that he be able to perform any occupation for which he was qualified by education, training or experience, and that would provide an income of more than 60% of the claimant’s pre-disability.
So you can see that education plays a small role in evaluating a claim under an “any occupation” or “reasonable occupation” definition of disability.
Obtaining the Assistance of an Experienced Disability Attorney
Using an experienced disability attorney will help you build a strong case for an appeal. For example, your disability attorney may retain his or her own vocational expert to counter the insurance company’s vocational expert opinions. If your claim is denied, it is good to have this evidence in your administrative file for an appeal.
The differences in “own occupation” and “any occupation” can be tricky. The goal of the insurance company is to pay out as little as possible. An experienced disability attorney can help you navigate your way to a successful claim.
Disability attorney Nick A. Ortiz does not get compensated unless you do. If you would like to have a free consultation, contact the Ortiz Disability Law Firm. The initial consultation call is entirely free, and you are under no obligation to use our firm. We are happy to answer any questions you may have. Give us a call at (866) 853-4512.