Don’t Ignore “Any Occupation Investigations” – They Are More Involved Than You Think
ERISA Plans generally include a “change in definition” after a period of time such as 12, 24, 36, or 60 months, with 24 being the most common. The “definition” referred to relates to a change of disability from one’s OWN occupation to a definition of disability requiring claimants be unable to do ANY occupation for which they have training education or experience.
To begin, the key word here is “occupation”. Although most claimants would define “occupation” and “job” as the same thing they definitely are not the same when it comes to private disability Group Plans. A “job” refers to material and substantial duties that a claimant is actually performing for an employer for money, while an “occupation” is a more generalized description for a type of work claimants would seek employment in that encapsulates all similar jobs.
All occupational assessments should be thorough and comprehensive. However, many insurers do not take into account all of the variables necessary making the process of the TSA (Transferable Skills Analysis) a GIGO (garbage-in, garbage-out) process. Despite the fact that insurers put all of their eggs in the “change in definition basket”, the process of investigation is most often flawed, incomplete and misleading.
A Transferable Skills Analysis is the insurer’s process used to identify alternative gainful occupations disabled persons can do given their previous training, education and experience. In order to perform the TSA accurately, claims handlers must update medical information and use current restrictions and limitations. Unfortunately, this is not done and old or assumed R&Ls are used in the process, hence garbage-in, garbage-out.
Now we come to the “change in definition” from one’s own occupation to any occupation in group Plans. The use of the word “occupation” is deliberate in ERISA Plans to ensure that claimants understand that the Group Plan does NOT insure jobs, but only occupations, which is a much broader definition.
For example, although the job of a Retail Manager of a Rite Aid store may be required to lift, carry and shelve inventory, and frequently walk, stand, and lift, the “occupation” of a Retail Store Manager in the DOT ( extremely outdated Dictionary of Occupational Titles) classifies the occupation as “sedentary” in functional capacity. So, private group disability does NOT insure the claimant’s job, but only the occupation. (In contrast, IDI policies actually insure jobs.)
When claimants are notified that insurers are starting the TSA (Transferable Skills Analysis), claimants have a great deal of work to do beginning with a clear understanding of why the insurance company is doing the investigation. For the first 24 months the burden of proof is that claimants are unable to perform their OWN occupation.
After 24 months, claimants must prove they are unable to perform ANY occupation in the national economy. Often the disability insurer applies the “national standard”, but the outdated DOT falls short in evaluating the actual duties performed.
It’s been my experience that most claimants are unaware of the importance of the “change in definition” investigation and just allow the process to take place from the insurance company’s point of view, and hope for the best. This is clearly wrong thinking because most claimants either do not have a copy of their Plan, or don’t understand the significance of the “change in definition”.
The change in definition of disability from OWN to ANY occupation is an insurance company’s last hope of terminating claims, therefore, they put some emphasis on the process. Claimants should do the same.
All medical “proof of claim” should be updated. Physician’s need to document “totally disabled from performing any occupation in a competitive workforce, etc.” Patient notes should be obtained and provided to the insurance company. New medical update forms should be completed.
In other words, it is up to the claimants to make sure their claims are up to date and support total and permanent disability. Claimants should also request proof that “indexing of pre-disability earnings” has taken place in order to determine what a “gainful occupation” would be.
Those who allow the TSA process to take place without putting additional information into the file may regret not doing that. A change in definition investigation should ideally be managed by the claimant, not decided arbitrarily by an insurance company.
If you have been notified that your insurer will be conducting an investigation “to determine if you are eligible for benefits beyond 24 months” and need assistance, please feel free to contact me.
The worst thing you can do is ignore it, and allow the process to play out without current input from you or your doctors.