Let’s pick up where we left off last time, when we were talking about the test of Total Disability and, specifically, what usually happens after 2 years of injury or illness onset…
After the 2-year mark, the definition or test for entitlement (usually) changes from one involving an insured’s ability to perform the essential duties of his or her “own occupation” to one involving that insured’s ability to perform the essential duties of “any occupation.” Subjective factors such as the insured’s age, degree of specialization of his or her occupation, level of specialized training or education and level of income the insured is accustomed to earning in his or her “own occupation” all are involved in the determination of Total Disability after the 2-year (or post-104) mark.
The test of whether an insured is totally disabled is, effectively, a subjective one. This means that the insured himself and herself and not, instead, a reasonable person is the subject of the assessment to determine whether the insured meets the entitlement definition.
In other words, a person is not totally Disabled from engaging in “any occupation” if his or her condition would enable him or her to enter into an occupation reasonably comparable to his or her old occupation in status and reward and reasonably suited in work activity in light of his or her education, training and experience; although a reasonably suited job is one which is comparable to the insured’s pre-accident occupation in nature, status and remuneration, an applicant is not required to engage in trivial or inconsequential work, work for which he or she is overqualified, or work for which he or she is completely unsuited by background.
One more thing…
Sometimes, at the time of denial, insurers make suggestions of alternative occupations. And, sometimes, the alternative occupations suggested are entirely inappropriate. Inquires (and perhaps further analysis) must therefore be made when such alternative occupations are suggested. In other words, questions asking as follows must be asked:
- Is the suggested occupation trivial as compared to the client’s prior occupation?
- Does the suggested occupation involve work that is inconsequential?
- Did the insured previously supervise 150 people in a factory and is now asked to drive around with an anxious 16-year-old student driver or participate in the grilling of hamburgers at a local fast-food diner?
- Is the suggested occupation of a nature entirely out of context when compared to the insured’s former occupation? For example, should the former train conductor now become a beekeeper or a park ranger?
- What about the status of the employment suggested? Should the former commercial bank manager be compelled to become an advertising salesperson?
The above is by no means a (or the) complete picture when it comes to Total Disability and the disputes that invariably arise when entitlement to LTD benefits is denied by an insurer.
If you have been denied LTD benefits and need help understanding your legal options and what steps you may need to take to challenge such a denial, we can help. As always, do not construe the above brief overview as actual legal advice. It is not. For legal advice, please contact us directly to speak with one of our litigation lawyers.
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