Last month, The Hartford Life and Accident Insurance Group was found by the court to be arbitrary and capricious in its failure to conduct a proper vocational assessment of the claimant's ability to perform all occupations. Most long-term disability policies pay benefits for the first two years of the claimant's disability if the claimant is unable to perform her own job. After the first two years, the claimant must show, more broadly, an inability to work in any occupation for which she has the experience, training, or education.
In the present case, the claimant was approved and received benefits for several years "based on the conditions of Chronic Low Back Pain, Lumbar Facet Arthritis and spondylolisthesis." However, after she notified Hartford that she had taken in a foster child, it undertook a special investigation and conducted surveillance. She was videotaped on two different occasions at a fast food restaurant. On the first day, she was observed driving and getting in and out of the car. On the second day, she sat, without visible discomfort, for twenty-eight minutes at a table inside the restaurant. A Hartford representative showed the video to the claimant in her home. The claimant said the video "represented her normal/average level of functionality." The claimant stated her capabilities on her "best day" as including the ability to walk and stand for twenty minutes, to sit for thirty minutes, and to lift up to twenty pounds. Her statement claimed that she was having an "average" day and that she had two "best" days per week and one to two "bad" days per week.
Hartford sent the claimant to an independent medical examination (IME) which resulted in a report noting restrictions on the claimant's ability to work, including lifting 20 pounds, limitations on her ability to move, and a need to adjust positions periodically throughout the day. Hartford viewed these findings as allowing for full-time sedentary work as long as the claimant would have the ability to change positions and the job would not require prolonged standing or walking. This analysis was reported to the claimant's personal physician who refused to take a position on his patient's capacity to perform work and recommended a functional capacity evaluation, emphasizing that neither his own observations, nor those of the independent medical examiner, were "sufficient to make the needed determination!"
Despite these repeated recommendations from the claimant's doctor, Hartford refused to conduct a functional capacity evaluation. Instead, Hartford used the Occupational Access System (OASYS), a computerized job matching system based on the Dictionary of Occupational Titles by plugging in the claimant's education, experience, and the assumption that the claimant could work in sedentary jobs. The program returned four jobs that that the claimant supposedly could perform.
The claimant hired her own vocational expert who determined that three of the four jobs Hartford found appropriate simply did not exist in the claimant's home state. The vocational expert also stated that all of these jobs would have a probationary period where no absences would be tolerated, followed by allowing at most one absence per month. Rather than identifying where the jobs exist, Hartford merely repeated the statement that the jobs were "prevalent in the national economy." The court held that, "Hartford should have responded to [the vocational expert's] report with the actual numbers and locations of these jobs." The court found this failure "particularly troubling" in view of other factors relevant to these three jobs, such as a sit-stand option and ability to miss days-- both of which needed to accommodate the claimant.
The court also found it significant that none of Hartford's reviewing experts specifically addressed the effect of the claimant's bad days. "Two consecutive 'normal' days are not particularly instructive on the claimant's ability to work on her bad days", said the court.
Finally, Hartford accepted the claimant's statements only when they confirmed the video surveillance and ignored her other statements. While the corroborating video surveillance was important, it was insufficient on its own to terminate benefits. It showed less than one hour of the claimant's life. Since the Plan failed to show the availability of three of the jobs and had not considered whether the claimant was sufficiently well to work the fourth job on a daily basis, the decision to terminate benefits was arbitrary and capricious, held the court. Accordingly, Hartford was ordered to reinstate long-term disability benefits retroactively to the date they were terminated.
This case emphasizes how crucial a strong vocational analysis is for the claimant to win her long-term disability benefits case.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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