Employees in Chicago who making long-term disability insurance claims under the employer’s group disability policy often are surprised by how the insurer describes their job in the course of denying a claim. It is even worse when claimants don’t find out a description of the job until it is time to file a lawsuit under ERISA § 502(a). Sometimes job descriptions are outdated, or are written for purposes other than demonstrating what you really do in your role. Sometimes employers write them in ways that protect the employer under various employment laws, or tell the insurer your job is performed differently than written in the description. While you cannot rewrite your employer’s description of your job, knowing how the employer describes it early in a long-term disability insurance claim can help give you the best chance of getting that claim paid, because it equips you to know if you need a vocational consultant to explain the occupation.
In a recent case, Perez v. Lincoln Life Insurance Co., No 19-56274, 2021 WL 195022 (9th Cir. Jan. 20, 2021), Ms. Perez had a sedentary occupation: a payroll analyst. In that role, she answered calls and emails about payroll calculations, reviewed and prepared adjustments to correct errors in payroll calculations, and edited verified financial adjustments. The job description stated the job required prolonged periods of sitting. Perez had sitting limitations that would make prolonged sitting, by all notions of what we consider to be sedentary work, would have qualified her for disability insurance benefits. However, Perez’s supervisor told the insurer Perez could perform her job either sitting or standing. When Perez was in litigation with the insurer, the judge made a finding that although Perez’s occupation was “sedentary,” and the legal definition of sedentary involves sitting most of the time, she could do it sitting or standing because of the supervisor’s description. And because the judge made that finding of fact, it was subject to the “clearly erroneous” standard of review on appeal, making it difficult to change the result after the judgment.
The lesson to be learned here is that when you have a claim for long-term disability insurance, try to get a copy of your employer’s job description for your job as early as possible, and share it with an experienced ERISA long-term disability lawyer right away. That way, you are in the best position possible to prevent the insurer or employer describing your occupation in a way to support denying your claim.
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