Court misses the mark on disability
Chicago Daily Law Bulletin
August 14, 2006
by MARK D. DEBOFSAKY
Gregory L. Tippitt, a systems programmer for Munich American Reassurance Company since 1982, began suffering from joint pain, back pain, cluster headaches and fatigue beginning in 1997. Eventually, after multiple physician visits failed to produce any relief in Tippitt's symptoms, he became disabled in January 2000, shortly after receiving a promotion. Tippitt applied for benefits a few months later and supplied medical reports from multiple physicians and a physical therapist.
A detailed description of job duties was also submitted. Despite the evidence provided, Reliance Standard refused to pay benefits, asserting that its policy required that the insured be disabled from performing ''each and every material duty'' of his occupation. Reliance cited the Dictionary of Occupational Titles to conclude that Tippitt's job resembled that of ''manager, computer operations,'' and that he was capable, despite his restrictions, of performing a majority of the material duties of that occupation. Tippitt sought review of that determination; however, Reliance affirmed its decision and Tippitt then brought suit. The district judge upheld Reliance's findings; however, the Court of Appeals overturned that decision and remanded the case. Tippitt v. Reliance Standard Life Insur.Co., 2006 U.S.App.LEXIS 19174 (11th U.S. Circuit Court of Appeals, July 31).
The court did uphold the district court on several issues, though. First, the court found that policy language requiring the insured to ''submit satisfactory proof of Total Disability to [Reliance]'' was sufficient to sustain an arbitrary and capricious standard of review because of a prior ruling involving identical policy language, Levinson v. Reliance Standard, 245 F.3d 1321 (11th Cir. 2001). The court simply refused to analyze the issue and considered itself bound by its prior ruling. The Court of Appeals also upheld the lower court's determination that no error occurred in utilizing the Dictionary of Occupational Titles as the standard rather than the actual job duties.
However, the insurer's determination and lower court's ruling ran aground on the interpretation of what constitutes ''total disability.'' The court explained:
''We begin our interpretation of the MARC Plan with the definition of 'total disability.' An insured who 'cannot perform each and every material duty' is one who cannot perform any duties or one who can perform fewer than all of his duties. The definition of 'total disability' does not explicitly provide the time standard against which an inability to perform a duty is to be measured. Reliance and the MARC Plan seem to argue that the time standard is 'any amount of time.' We believe, however, that the standard must be the ordinary work period, which usually is a work day. Many, if not most, job duties exist throughout the work day. In order to perform a job satisfactorily, to carry out its duties, a worker must be able to perform the tasks it requires from the beginning to the end of the work day. Otherwise, he cannot perform its tasks or carry out its duties. This is another way of saying that the duty of a job is to perform its tasks as many times, and as long throughout the work day, as the job requires.''
The court then noted that its conclusion was reinforced by other policy language. By distinguishing between partial and total disability, it was obvious that the terms have different meanings. However, the court could not decide from the record whether Tippitt could perform all of his duties for some of the time or only some of the duties; and therefore remanded the case.
The court here missed the mark on the standard of review issue and also failed to carefully analyze the occupational issue. First of all, accepting the language Reliance cited as being sufficient to trigger a deferential standard of review is contrary to the majority of Circuits that have now rejected ''satisfactory proof'' as sufficient grounds to depart from the de novo standard of review. See, e.g., Herzberger v. Standard Insurance Co., 205 F.3d 327 (7th Cir. 2000); Diaz v. Prudential Insur.Co. of America, 422 F.3d 635 (7th Cir. 9/20/2005); Kearney v. Standard Insurance Company, 175 F.3d 1084 (9th Cir. 1999); Kinstler v. First Reliance Standard Life Insurance Company, 181 F.3d 243 (2d Cir. 1999). Of greatest significance, though, is the court's gross misunderstanding of the difference between partial disability and total disability. When a policy has a definition of disability that would find the insured disabled if unable to perform his own occupation, the inability to either perform all of the material job duties or the incapacity to perform the job duties for as much time as is required is sufficient to qualify the insured for benefits, a point taught clearly by Seitz v. Metropolitan Life Insur.Co., 433 F.3d 647 (8th Cir. 2006). Seitz, which held that an insured who could only perform his job duties for a portion of the time required and was therefore disabled, merely reinforces longstanding authority on this issue. See, ''Insurance: 'Total Disability' or the Like as Referring to Inability to Work in Usual Occupation or in Other Occupations,'' 21 ALR 3d 1155, citing Elmore v. Southern Security Co., 209 Iowa 872, 224 NW 32 (1929). A leading insurance text also states:
Provisions in a disability policy requiring that the insured be unable to perform every duty pertaining to his or her occupation must be given a liberal construction. For example, clauses which relate to the occupation to be considered in determining whether the insured is entitled to benefits will not be liberally construed or applied where, to do so, would make recovery of benefits unreasonably impossible in all or practically all cases. Thus, the duties of an insured's occupation must be viewed as a whole and not separately or in piecemeal. L. Russ and T. Segalla, Couch on Insurance 3d §147:106 at 147-138. Moreover, Saffle v. Sierra Pacific Power Company Bargaining Unit Long Term Disability Plan, 85 F.3d 455 (9th Cir. 1996), rejects an interpretation that would deny disability based on language requiring proof of inability to perform ''each and every'' material duty:
Reading ''each and every'' literally could mean either that a claimant is not totally disabled if she can perform any single duty of her job, no matter how trivial - or that a claimant is totally disabled if she cannot perform any single duty, no matter how trivial. There is little question that the phrase should not be given the former construction, as ''total disability'' would only exist if the person were essentially non-conscious. See, e.g., Helms v. Monsanto Co. Inc., 728 F.2d 1416 (11th Cir. 1984) (holding that arbitrator's literal interpretation of ''total disability'' as absolute helplessness was unreasonable because it would render the entire plan meaningless and would contradict policies underlying ERISA; rather insured can recover if he is unable to perform all the substantial and material acts necessary to the prosecution of some gainful business or occupation); Torix v. Ball Corp., 862 F.2d 1428 (10th Cir. 1988) (same). On the other hand, Saffle's preferred construction would effectively convert benefits for total disability into benefits for partial disability. Given two possible literal meanings that are not wholly sensible, it cannot be unreasonable for the Committee to interpret the Plan so as neither to qualify, nor to disqualify, virtually everyone. 85 F.3d at 458-9.
Any other interpretation, as Saffle points out, would be inconsistent with the Plan's two-tiered disability structure because it collapses the threshold for occupational disability into the standard for general, or permanent disability. Total (occupational) disability has to do with the inability to perform a regular occupation for two years and 180 days; total (general) disability by contrast has to do with the inability thereafter to engage in any occupation for which the participant is reasonably fitted. 85 F.3d at 459. Also see, McFarland v. General American Life Insur.Co., 149 F.3d 583 (7th Cir. 1998). It is only recently that courts have issued aberrational decisions such as Gallagher v. Reliance Standard Life Insur.Co., 305 F.3d 264 (4th Cir. 9/25/02), which have ruled that the ability to perform any single material job duty precludes a finding of total disability. Accord, Carr v. Reliance Standard Life Insur.Co., 363 F.3d 604 (6th Cir. 4/14/2004) and Ellis v. Liberty Life Assur.Co. of Boston, 394 F.3d 262 (5th Cir. 2004). These rulings are contrary to over 75 years of established precedent and do not represent the mainstream of analysis on this issue.
Editor's note: Mark DeBofsky was counsel in three cases cited in this article: Herzberger, Diaz and Seitz.