New Jersey Disability Lawyer Blog
Disability insurers love to deny claims based on their medical consultant’s conclusion that the claimant has “sedentary capacity.” The insurer’s vocational counselor swiftly identifies various jobs that the claimant can allegedly perform without performing a full or fair investigation of the transferable skills. Does the inquiry end at the point it is established that the individual can sit in a chair at a desk for a period of time?
Just as important is whether the individual has marketable skills to perform a “desk job”, since virtually every “sedentary” job requires strong computer skills. In our experience, the qualifications related to real time computer and technology use are under investigated in the insurers’ rush to deny.
We have seen some changes in the collateral information the insurers collect regarding our clients. For instance. on the “activities of daily living” forms they must complete, our disabled clients are asked whether they own a computer, whether it is a desktop or laptop, what they use the computer for (pay bills, read news, facebook). Be prepared for these are not innocent questions. It’s direct purpose is to establish that the claimant has full use of a computer and a skill that is “transferable” to the workforce. In short, claimants should not overstate their computer use at home.
We find out if our client used the computer in the past for their work. We understand that often our clients feel out of touch with the outside world once they have to stop working. Frankly, being disabled is a lonely place to be. With that understanding, we find out if our clients use the computer at home, not only as a “TV” to observe the world and stay connected, but rather, to prepare documents, charts, review written material; whether they have skills that are transferable. We make sure they do not overstate their computer use.
Courts have been tuning in to the real difference between using a computer on a sustained basis at a workplace versus having minor computer skills. For instance, see Mackey v. Liberty Life Assur. Co., 2016 U.S. Dist. LEXIS 28623 (W.D. Ark. Mar. 7, 2016). Mackey was a nurse who was disabled from her own occupation based on problems with her lower extremity. Liberty Life analyzed her claim by performing a transferrable skills analysis and found various jobs for her to perform. Liberty failed to consider her limited computer knowledge. The records show that Mackey did not own a computer and had limited experience using electronic medical records which she reported as being “ridiculously difficult” for her to master. The court reviewed the occupations which may be classified as sedentary in today’s economy, which “many and likely most of these jobs involve sitting at a desk and operating a computer for much of the workday”. Liberty did not consider this issue at all which rendered their reliance on a vocational report an abuse of discretion. Liberty also failed to consider her age which was 63 years old and the court found “her age is accordingly a central factor in determining whether she is capable of performing an occupation-particularly one that she had never performed in her career before”. Where a plan benefit does not require an administrator to consider age, and where the participant is relatively young, age may be an innocuous factor hardly necessary for reference. However, Mackey was 63 years old at the time of her appeal, only a couple years away from retirement age. Her age is accordingly a central factor in determining whether she is capable of performing an occupation particularly one she has never performed in her career before.
Another example is Gully v. Aetna Life Ins. Co. 2014 U.S. Dist. LEXIS 12278 (W.D. Ark. Jan. 31, 2014). The court held that Gully could not obtain a sedentary job at the salary required in light of his lack of important technology related skills/his inability to use a computer. The court explained that the report of the vocational consultant contained several “relevant material omissions regarding Gully’s qualifications for the jobs she identified as reasonable occupations”. It did not consider whether Gully’s lack of computer skills could be acquired through training or education within a reasonable period of time or whether the lack of skills could impact his ability to secure a particular wage. The court commented, “a problem with Aetna’s position is that it improperly assumes any necessary training will be minimal” even though the vocational consultant report fails to specifically acknowledge Gully’s lack of computer skills or access a level of training that would be required.
We at Bonny G. Rafel LLC handle dozens of appeals each year and aggressively mine through the evidence to best determine how to convince the insurers that our clients remain disabled. For our appeals, we rely on vocational experts who actually interview our clients and find out why their mental or physical conditions limit them and determines whether they retain real transferable skills to work at a sustained, reliable basis. If the insurers refuse to fairly review our evidence, we expect the Courts will.