Posted in Bad Faith Insurance
Some disability insurance policies include a provision that the insurer will try to use to disregard the insured’s actual job duties in deciding whether the insured is disabled. A number of these policies, especially those sold by Standard Insurance Company, contain language that states that, in deciding whether to pay the claim, the insurer can “look to” how the occupation is performed “in the national economy” or how the occupation is “generally” performed. The insurance company will wield this language like a sword to disregard a particular job duty that the insured is required to perform but is unable to do. Often the insurance company will not even inquire into the insured’s actual job duties but instead simply quote from this policy language permitting it to look to how the occupation is performed in the “national economy” or performed elsewhere.
In the 9th Circuit, it is clear that in evaluating a disability claim, an insurance company or ERISA Plan must “analyze, in a reasoned and deliberative fashion,” the actual job duties required of a claimant for his particular employer. Salz v. Std. Ins. Co., 380 Fed. Appx. 723, 724 (9th Cir. 2010). In Salz, in reversing the district court’s decision upholding Standard Insurance Company’s denial of disability benefits by, the 9th Circuit Court of Appeals stated at page 724:
“Second, even if use of the Department of Labor’s Dictionary of Occupational Titles (1991) (“DOT”) is appropriate, Standard’s exclusive reliance on the DOT failed to take into account Salz’s “Own Occupation.” While the policy states that Standard “is not limited to looking at the way you perform your job for your Employer” (emphasis added), a proper administrative review requires Standard to analyze, in a reasoned and deliberative fashion, what the claimant actually does before it determines what the “Material Duties” of a claimant’s occupation are.”
If your claim has been denied, read the denial letter carefully to see if the insurance company ever expressly acknowledged the specific job duties or functions of your job that you state you are limited in performing and whether it has expressly considered whether you can perform them. If the insurance company never identifies those job duties or functions and never states considers whether your medical condition limits you in performing those job duties or functions, it is likely that the insurance company has violated the requirements of governing case law. Under the Salz case, failure to consider your actual job duties should be a solid ground for reversing the insurance company’s denial.
Contact The Law Offices of Bennet M. Cohen, P.C. to arrange a consultation with an experienced San Francisco, CA disability insurance claims attorney.
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