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Disability Insurance - Total Disability Archives

Not Under A Doctor's Care When You File? 'Not A Problem', Court Rules

On July 27, 2016, the U.S. Court of Appeals for the Seventh Circuit handed down a decision in the case of Berg v. New York Life Ins. Co. reversing an adverse judgment in the district court against DeBofsky, Sherman & Casciari' client, Eric Berg. The court of appeals found in Berg's favor on two significant issues: First, the court ruled that a claimant for disability benefits did not have to be under a doctor's care for the claimed disabling condition as of the date the claim arose. The court found the policy lacked such a temporal requirement and that its terminology was ambiguous on the issue. Second, the court found that if the insured is unemployed when he submits a claim, his "regular job" is the occupation that was last performed, not the so-called occupation of "unemployed person."

Obtaining LTD Benefits Often Requires Legal Help

Short-term and long-term disability plans are supposed to provide workers and professionals with coverage to make ends meet when a serious medical impairment or injury takes the person away from work. Not everybody participates in these insurance plans. In fact, the Bureau of Labor Statistics says the roughly 39 percent of people working in private industry 2014 had short-term disability (STD) coverage and 33 percent carries long-term disability (LTD) coverage. Of those in management and professional positions the participation rate was significantly higher.

Insurers Must Evaluate Cognitive/Mental Demands of An Occupation

DeBofsky, Sherman & Casciari attorneys Mark DeBofsky and Martina Sherman recently won the case of Wonsowski v. United of Omaha Life Ins. Co., 2016 WL 3088141 (N.D. Ill. June 2, 2016) following a bench trial before Magistrate Judge Geraldine Soat Brown in the federal court in Chicago.  The case involved Shellie Wonsowski, who had worked as a mechanical engineer before becoming disabled on account of symptoms of idiopathic gastroparesis.  Although Wonsowski initially qualified for benefits, United terminated her benefit payments after concluding she was capable of returning to her regular occupation, which was classified as requiring sedentary exertion.

How to Interpret the "Each and Every Duty" Requirement in a Disability Insurance Policy

Many disability insurance policies require a showing of an inability to perform each and every regular job duty.  Does that mean you can't be considered disabled if you are unable to perform some but not all of the required job duties? In most jurisdictions, the answer is yes - you need not prove an inability to perform every single job duty in order to receive benefits. 

Co-Morbid Impairments (Combination of Two or More Disabiling Conditions)

A recent ruling won by DeBofsky, Sherman & Casciari, Curtis v. Hartford Life & Acc.Ins.Co., 2014 WL 485233 (N.D.Ill. August 20, 2014) illustrates the importance of considering the combined impact of more than one medical condition in determining disability.  Cindy Curtis, a former operating room nurse at Lurie Children's Memorial Hospital in Chicago, became disabled in 2007 due to musculoskeletal impairments of the back, knees and shoulders suffered in car accidents, along with fibromyalgia and myofascial pain throughout her body.  She filed a claim for long-term disability insurance with Hartford, which provided group disability coverage through her employer.  Hartford approved the claim and paid benefits under the own occupation definition of disability that covered the first 24 months of payments. However, two years later Hartford discontinued Curtis's benefits, finding that she did not meet the "any occupation" definition of disability that became effective on that date.  In the key portion of the ruling, the court emphasized that "even if none of her impairments in isolation necessarily compel a finding in [Curtis's] favor," the co-morbidity of her impairments had to be considered in combination in assessing disability. 

"No good deed goes unpunished"

A recent DeBofsky, Sherman & Casciari victory, Cheney v. Standard Ins.Co., 2014 WL 4259861 (N.D.Ill. August 28, 2014) illustrates the concept of being disabled while still working and thus qualifying for disability insurance benefits.  The plaintiff, Carole Cheney, was a non-equity partner at the law firm of Kirkland & Ellis, LLP who specialized in appellate and commercial litigation.  After struggling with neck and back pain for years and receiving workplace ergonomic accommodations that ultimately failed to enable her to keep working in the office, Cheney began working from home most days beginning in 2003.  Ultimately, though, she had to stop working after December 19, 2011; and she took an approved leave of absence from her law firm beginning January 3, 2012 to pursue treatment for her back pain, ultimately undergoing major spine surgery a few months later.  Although Cheney's disability insurer, Standard Insurance Company, maintained that Cheney's coverage ended when she ceased working, the court ruled otherwise based on the policy language, which continues coverage after the cessation of active work during a leave of absence.  Thus, Cheney qualified for benefits even though her date of disability  did not commence until shortly before she underwent surgery.

Working while disabled

Can you be working and disabled at the same time? That was the question answered in Mirocha v. Metro.Life Ins.Co., 2014 U.S.Dist.LEXIS 98025 (N.D.Ill. July 18, 2014), which found that even though the plaintiff, Joseph Mirocha, had been discharged from his position as an electrical supervisor at Palos Community Hospital in the Chicago suburbs, he was disabled even though he worked up until the date of discharge.  The court flatly rejected MetLife's main argument that Mirocha did not suffer a loss of income prior to his disability date; and found: "MetLife's contention in its summary judgment papers that Mirocha does not qualify because he earned 100% of his Predisability Earnings for one week after the date he claims disability borders on the frivolous."

"Any" or "All"

If an insured is making a claim under a disability insurance policy that he or she is unable to perform the duties of their occupation, does the policy require a showing that the claimant is unable to perform all of the job duties or is a showing of an inability to perform any material job duty sufficient.  That was the question presented in Chaudhry v. Provident Life and Acc.Ins.Co., 2014 WL 3511529 (N.D.Ill. July 16, 2014), which involved a claim submitted by a psychiatrist who sought total disability benefits when a vision impairment significantly limited him from practicing in his field.  There were a number of complicating issues, including the doctor's guilty plea to one count of Medicare fraud, which caused the insurer to question his claimed pre-disability income.  However, the major issue in the case turned on whether Dr. Chaudhry needed to show he could not perform any aspect of his prior practice.  Judge Amy St. Eve of the U.S. District Court for the Northern District of Illinois, analyzed the issue in the plaintiff's favor.

DeBofsky, Sherman & Casciari, PC