Most ERISA readers are now well aware that “any occupation” investigations will take place between 9-18 months of paid LTD benefits for Plan change of definitions of 24 months. Although 24 months is the most common time period for any occ change in definition, there are Plans with any occupation provisions of 12, 24, 36, and 60 months.
Although insurers do very poor jobs with any occupation investigations, it should be viewed as a “managed activity” on the part of the claimant. Claimants have options during the TSA (Transferable Skills Analysis) time period, but unfortunately little is known about the process and what is possible.
One of the add-ons for TSAs is called, “a Labor Market Survey”, or LMS, for short. Claims handlers always did have the option of requesting a LMS, mostly for claims with suspicion of part-time work capacity. Today, LMSs are rarely seen, mostly because insurers want the “total denial impact” rather than potentially resulting in “no work capacity”, or only “maybe employable” results. Personally, I think most insurance CRCs (Certified Rehabilitation Counselor) just don’t want to take the time to do it.
A Labor Market Survey is when the rehabilitative specialist randomly calls approximately 10 potential employers within a 40-mile radius of the claimant’s residence. Anonymous medical restrictions are provided to each employer who is then asked, “Would you hire this person for this job?” For most jobs, the answer is “No”, but again, some employers may indicate a willingness to hire disabled employees under certain conditions.
For the most part LMSs are most often favorable to claimants. In situations where claimants are requesting their own TSA during the any occupation period, or when an attorney is processing an appeal, the Labor Market Survey can be persuasive evidence of unemployability. Attorneys are often too “out there” in their own grab for money schemes to know about, or use the LMS for appeal purposes. I’ve used them myself on behalf of clients several times, and the results have always benefitted clients.
Again, insurance companies rarely request an LMS during the TSA because results are most often favorable to claimants. However, that also means the LMS might be a good report to add to the Administrative Record when needed.
But, let’s not get too excited. A Labor Market Survey conducted by a Certified Rehabilitation Counselor can cost up to $1,000. Cost effectiveness limits the usefulness of the report in all but specific cases where the cost is warranted based on probable outcome. An LMS is NOT the kind of report that is routinely requested, but when a claim is challenged due to “work capacity, it can add to support total disability.
I am an absolute advocate of providing claimants and insureds with the same information used by insurers who evaluate claims. Balancing the playing field with information gives claimants better opportunities to support claims using tactics that are the same or similar used by insurers to deny claims. While a LMS might not be used a great deal, it can be used when needed, as claimants become more aware of its existence.
