You know that employer disability policies define “disability” as the inability to perform each of the material duties of the employee’s “regular occupation.”

But what happens when the policy does not define the term “regular occupation”?

And…what if the employer’s job description is different from the Dictionary of Occupational Titles, which provides a generalized description of the job?

Here’s the case of Dahlka v. Unum Life Ins. Co. of Am., 2008 WL 2944518 (W.D. Wisconsin June 12, 2018)(Reasonable for an ERISA plan administrator to interpret “‘regular occupation’ as meaning a general occupation, rather than a particular position with a particular company.”)

FACTS. Dahlka sought ERISA-governed short term and long term disability benefits due to severe foot and ankle pain. The plan contained discretionary language.  After Unum issued multiple denials of long term disability benefits, Dahlka sued, claiming among other things: (1) Unum kept changing its reasons for denial, which constituted an unfair, arbitrary and capricious “moving target”; and (2) Unum improperly used the Dictionary of Occupational Titles job description, rather than the unique job description provided by the employer.

 TRIAL COURT HELD:

          1.  Moving Target Issue. Plaintiff contended Unum kept “moving the target” because Unum did not tell “him sooner that it found his medical evidence insufficient because it was based on self-reported symptoms.”

                   a. “The fact that Unum requested additional information and proof that plaintiff satisfied the elimination period after relying on information provided by plaintiff’s employer does not qualify as a moving target. Unum acted reasonably and rationally in relying on [information provided by the employer] and revisiting its decisions when plaintiff provided further evidence showing that his employer had not accurately or fully described his work attempts.”  Op. at 14 (emph. added).

                   b. “Unum also did not move the target by then analyzing plaintiff’s medical records and work restrictions after finally receiving a more complete description of plaintiff’s work history.” Op. at 14.

                  c. “Unum’s rejection of Dr. Floren’s retrospective restrictions because it was based on plaintiff’s self-reports of pain did not involve a ‘new’ expectation or requirement.”  Op. at 14.

          2.  Defining the Term “Regular Occupation.” Plaintiff contended Unum improperly used a general definition of his job from the Dictionary of Occupational Titles, rather than the job description provided by the employer.

                   a. “[M]any other federal courts have upheld as reasonable an ERISA plan administrator’s interpretation of ‘regular occupation’ as meaning a general occupation rather than a particular position with a particular company.” Op. at 16 (cases cited).

                   b. “[T]he Dictionary of Occupational Titles is an acceptable source for nationwide job descriptions and classifications.” Op. at 17.

 

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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.