ERISA - Gainful Occupation Archives

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim to handling a claim denial and through preparing a case for litigation. In Part Ten of this series, we discuss vocational experts. The assistance of a vocational expert is generally only necessary when addressing a disability claim. Even then, for many claims, a vocational expert’s expertise is not required. However, under certain policies and circumstances, their assessment is critical.

Vocational experts typically analyze the duties of a particular job, a claimant’s ability to perform the duties of a job, what jobs are available that a particular disability claimant could perform and whether a job pays a certain level of income so as to determine if it is a “gainful” occupation. Some of these assessments are made in light of the individual’s education, training and work experience, the restrictions and limitations resulting from their medical conditions and the job’s required substantial and material duties. For example, a medical expert may submit to disability insurer a report stating that a disability claimant can only sit for six hours per day and cannot lift objects that weigh more than five pounds. The vocational expert would then take into consideration whether those restrictions/limitations prevent the person from performing a particular job that is or may be available for him or her to perform.

For most disability claims, especially those governed by ERISA, the policy’s language controls. But, there are occasions when applicable state or ERISA law will control certain aspects of a claim. A person’s claim may entail an assessment of their ability to perform their own occupation. Under those circumstances, the vocational expert will look at the job’s requirements and the restrictions and limitations provided to him by the insurer. The vocational expert may then determine whether the restrictions and limitations prevent the person from performing their job’s duties.

If a person’s claim is governed by an “any occupation” standard, then the vocational expert will have to perform a more in-depth analysis. The vocational expert will likely need to perform a transferable skills analysis (“TSA”). Conducting a TSA entails examining the Department of Labor’s Dictionary of Occupational Titles (“DOT”), which is a listing of the job requirements for a wide variety of different occupations. The vocational expert will compare the insured’s job experience, their restrictions and limitations and the DOT to determine whether the insured can potentially perform a particular job within the relevant market provided for by the policy. If the policy requires that the potential job be within a specific region or pay a specific salary, then the vocational expert will also examine whether those requirements are met. When addressing the reports of vocational experts, some courts have held that the vocational expert must define the duties of the identified “other occupations” in their report. See, e.g., Turner v. LINA, 2017 WL 6000099, at *3-4 (W.D. Wash. Dec. 4, 2017).

If an insurance company concludes that a person does not have restrictions or limitations, then it will not consult a vocational expert. Likewise, if the insurer’s medical experts conclude that a person has very substantial restrictions and limitations, then a vocational expert will likely not be consulted. Vocational experts become much more important when a person has some restrictions and limitations but is not completely disabled. Under those circumstances, a battle of vocational experts can become very important.

If an insurer obtains the opinion of a vocational expert, and the expert lists numerous positions that the insured can allegedly perform, then hiring a vocational expert as a rebuttal expert can be useful for the claimant. Most vocational reports relied upon by insurance companies are flawed because the vocational expert performing the analysis is not provided with detailed information about the insured’s work history. A cornerstone of a TSA is an assessment of the duties that the insured previously performed. This failure of the insurance company to provide detailed information about the insured’s employment history to the vocational expert often renders the report highly inaccurate.

A review of the vocational expert’s report may reveal other flaws that may persuade a court to disregard the opinion. For example, if the vocational expert fails to consider all of the insured’s restrictions and limitations, the court may conclude that the report lacks merit, and thus ignore it. See Bruce v. N.Y. Life Ins. Co., 2003 WL 21005313, *4-5 (N.D. Cal. April 28, 2003). The court will also likely discount the vocational expert’s report if the insurer failed to provide the expert with medical reports, or at least a synopsis of the contents therein. See Archuleta v. Reliance-Standard Life Ins. Co., 504 F.Supp.2d 876, 885-86 (C.D. Cal. 2007); Lambert v. CWC Castings Div., 2003 WL 1797916, *2–3 (W.D. Mich. March 14, 2003). Furthermore, courts have found that an insurer’s failure to confirm that the allegedly performable jobs are present in the local economy violates the terms of some disability policies. See, e.g., Kennard v. Means Industries, Inc., 555 F.App’x 555, 557-58 (6th Cir. 2014).

Finally, vocational experts who assess claimants for insurance companies are almost always only provided with the restrictions and limitations that were found to be applicable by the insurance company’s peer reviewers. These peer reviewers, who receive some or most of their income directly or indirectly from insurers, are almost invariably biased in favor of the insurance company and go to often absurd lengths to conclude that a person either is not disabled or, at most, only has minor restrictions and limitations. Given that the vocational experts are only given the limitations that were found to be present by these peer reviewers, another way to attack a vocational expert’s report is to convince the court that the underlying peer reviewer’s analysis is flawed. Garbage in, garbage out. If the court rejects the peer reviewer’s assessment, then anything relying on that assessment becomes useless.
For most disability claims, the real battle is over which medical expert has properly assessed a claimant’s level of disability. However, in some cases, finding a means of effectively attacking a vocational expert’s report can be the difference between convincing a court that an individual is disabled and losing the disability claim because the insurer found that a person could work in his own job or in any other job.

A common justification for denying a claim for long-term disability insurance benefits or short-term disability insurance benefits is that the claimant is capable of returning to work in another job. However, insurers / ERISA administrators are not allowed to deny a claim just because an insured might be capable of returning to any job, rather the identified job must be based on the insured’s education, training and experience. Further, the occupation must be “gainful,” which usually means that it pays the insured at least 50%-60% of his or her pre-disability income. In Kennard v. Means Industries, Inc., 2014 U.S. App. LEXIS 2846 (6th Cir. Feb. 13, 2014), the Sixth Circuit imposed another important requirement — the insurer must prove that the theoretical job actually exists.

During an accident, Kyle Kennard inhaled fumes from a chemical spill, which severely injured his lungs and rendered him ultra-sensitive to noxious fumes. Following the accident, Kennard’s treating physician found that for the rest of his life, Kennard would be limited to working in a “clean-air environment.” Kennard was awarded disability benefits by the Social Security Administration, and then applied for disability insurance benefits under his employer’s ERISA-governed employee welfare benefit plan.

Pursuant to the terms of the Plan, Kennard was required to submit to an examination by a physician chosen by the Claim Administrator. Following an examination, the physician found that Kennard was employable “as long as he could be guaranteed that he would be placed in an absolute clean air environment with absolutely no noxious fumes or inhalants, as he is extremely sensitive to this.” Given this finding, the ERISA administrator denied Kennard’s claim for disability insurance benefits on the grounds that he was capable of sedentary work in a clean-air environment. The district court ruled that this decision was not arbitrary and capricious, but the Sixth Circuit reversed that ruling.

In finding that the denial of Kennard’s claim for long-term disability insurance benefits was improper, the court noted that “a valid denial of benefits premised on Dr. Levinson’s opinion would need to include evidence of the existence of absolute-clean-air jobs available to Kennard,” and noted that the SSA found that there are no jobs in the national economy that Kennard could perform. To support the denial decision, the administrator was required to identify a job he could perform “in terms of a real American workplace,” and present evidence of jobs available to the claimant. Because the ERISA administrator offered no evidence of the existence of the job used as the basis for the denial, the court found that the denial decision was improper.

In other words, if an insurer denies a claim for benefits after finding that the claimant can perform a particular job, there must be evidence that the job exists. It is improper to deny a claim based on a job that only hypothetically exists.

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Ten: Vocational Experts

ERISA Administrator Must Show That a Theoretical Job Actually Exists in Order to Serve as Justification for Claim Denial

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