Line between ‘job’ and ‘occupation’

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Line between 'job' and 'occupation'

Chicago Daily Law Bulletin
October 1, 2007

by MARK D. DEBOFSKY

In Weiss v. Prudential Ins.Co. of America, 2007 U.S.Dist.LEXIS 56357 (D.N.J. Aug. 2), the plaintiff, who worked for a country vocational board of education as a food services instructor for special education students was injured when he slipped and fell in a freezer at work and herniated a disk in his back. Weiss had disability coverage issued by Prudential through the New Jersey Educational Association and he applied for benefits. However, the claim was denied based on Prudential's assertion that Weiss's impairments were not of sufficient severity to disable him from working as a teacher. The question before the court was whether Prudential interpreted the term ''regular occupation'' unreasonably.

Following Lasser v. Reliance Standard Life Ins.Co., 344 F.3d 381 (3d Cir. 2003), the court found that the term ''regular occupation'' entails the usual work the insured was performing immediately prior to the onset of disability. However, the court noted that Lasser left open the possibility that an insurer could define the term in a different manner. Indeed, Prudential included a definition in its policy, deeming regular occupation as ''the occupation you are routinely performing when your disability begins. Prudential will look at your occupation as it is normally performed instead of how the work tasks are performed for a specific employer or at a specific location.'' However, the court noted that even a reference to that definition did not clearly answer the question of whether Prudential acted unreasonably in deeming Weiss's occupation ''teacher'' rather than ''special education food services teacher.''

Certainly, as the court pointed out, ''there is nothing in the Policy's definition of regular occupation that would suggest to a potential claimant in Weiss's position that he would be compared to a chemistry, physics or English teacher, even though he had been working as a food services instructor to special education students. On the contrary, the definition suggests quite the opposite insofar as it refers to what occupation Weiss was 'routinely performing when your disability occurs.' ''

Instead, the court found the policy definition ''suggests that Prudential could look to other schools around the country to determine whether food service instructors to special education students normally are required to lift heavy foods and food service items. If it concluded that most such instructors do not have to do such heavy lifting, then Prudential could reasonably have concluded that food service instructor to special education students is a 'light duty job as a Teacher.' Nothing in the record, however, suggests that Prudential actually looked at anything more than the broad category of 'teacher' in assessing Weiss's regular occupation.''

Weiss did submit a detailed job description that he had prepared; and Prudential did not deny the accuracy of the description other than to declare the document as ''self-serving.'' Prudential also claimed the plaintiff had an obligation to procure a job description prepared by his employer, and his failure to do so justified the benefit denial. The court found no basis for such an argument, though, since the policy required the claimant to provide the following as proof of claim, none of which involved an employer-generated job description:

''Your proof of claim, provided at your expense, must show: 1. That you are under the regular care of a doctor. 2. The appropriate documentation of your monthly earnings (such as a pay stub). 3. The date your disability began. 4. Appropriate documentation of the disabling disorder.5. The extent of your disability, including restrictions and limitations preventing you from performing your regular occupation or gainful occupation. 6. The name and address of any hospital or institution where you received treatment, including all attending doctors. 7. The name and address of any doctor you have seen.'' Nor did Prudential ever request that Weiss produce a more ''authentic'' job description; thus, Prudential's argument was rejected.

The court further criticized Prudential for its failure to make any effort whatsoever to analyze the physical demands and requirements of providing food service instruction to special education students. Following Lasser, the court ruled that while Prudential was not required to limit its analysis to Weiss's duties at the school where he was employed, it still had to consider his duties and the nature of his duties vis-a-vis the insured's occupation.

Further, the court held: ''defining 'regular occupation' in the Policy to mean 'the occupation you are routinely performing when your disability occurs' necessarily implies that Prudential would at least look at Weiss's job as a food services instructor to special education students. Prudential's interpretation that Weiss was a 'teacher,' and nothing more specific, is inconsistent with the goals of the Policy and contrary to the plain language of the Policy.''

Accordingly, the court found Prudential's interpretation arbitrary and capricious and awarded the plaintiff all benefits due. This ruling is a variation on the ''job versus occupation'' line of cases, where the question is whether the insurer is evaluating the insured's ability to perform his or her job or the insured's occupation as it is performed in the general economy. Some of the more significant cases addressing this issue include the Lasser ruling cited by the court, along with a number of other frequently cited cases that include Giampa v. Trustmark, 73 F.Supp.2d 22 (D.Mass. 1999) (chiropractor no longer able to perform manipulations but able to manage chiropractic clinics); McFarland v. General American Life Insur.Co., 149 F.3d 583 (7th Cir. 1998) (heating and air conditioning contractor no longer able to perform installations but able to manage business); Gammill v. Provident, 346 Ark. 161, 168, 55 S.W.3d 763 (2001) (cardiologist able to perform majority of pre-disability duties still qualified for total disability benefits if unable to perform any material duty of occupation. ''It is only necessary that it be shown that he is unable to perform any one or more of the substantial or material acts of his occupation in his usual and customary manner. Nor does the mere fact that one continues to work at his regular job establish a lack of disability. It is only a factor to be considered, and where an insured is able to continue his employment with the aid of his fellow employees or in some manner other than his usual and customary one, he may still be 'disabled.' '').

What distinguishes Weiss is Prudential's inclusion of a definition of ''regular occupation'' in its policy. However, as the district court noted, the definition was somewhat ''opaque.'' The court appropriately found that Prudential could have written the policy to allow it to evaluate disability based on whether Weiss could work as a teacher, but that is not what the policy stated. Because of the way in which the policy was written, the court properly determined that the insurer's determination was deficient because the specific demands of the insured's work as a special education teacher in food service had to be analyzed. This case will undoubtedly be a guidepost for future cases addressing the same issue.