Disability insurance should cover individual claims for loss of income due to contracting COVID-19 and its after effects on medical health.  What about our medical providers who were exposed to the horrors of the illness in hospital settings for example, and develop mental health impairments.  Are they required to continue working, suffering in silence?  No. ,Disability insurance policies provide for coverage for conditions of mental health, but unfortunately, many policies, especially group policies limit the duration of these claims to 24 months. The Parity Health Parity and Addition Equity Act enacted in 2008 bars health insurers from offering different benefits for the treatment of chronic physical conditions and mental health conditions. This act does not apply to disability claims. It is a travesty that  disability insurers can limit their benefits based on the type of illness, whether related to mental health or physical health.  Millions of Americans are struck with symptoms of anxiety, panic, depression, and turn to their disability policies only to learn that their illness is limited in coverage.  With the increase of these claims as related to COVID-19, the insurers will tighten their purse strings, and try their best to limit their financial exposure and continue to discriminate against those with psychiatric conditions.  This is a disheartening failure of our congress and the judicial system.

Even with the safety equipment provided by employers, must all employees return to the workplace?  Would disability cover the class of workers who are at high risk of contracting the COVID? Individuals with conditions that place them in a risk of severe medical illness from COVID may qualify for disability insurance since they need to remain sequestered until the risk of the virus passes.  The Centers for Disease Control and Prevention have identified certain conditions that warrant such restrictions, such as severe asthma, lung conditions, heart disease, people who are immuno-compromised, and several others.  These claims have not been litigated yet, and you can be sure that the disability insurance companies are deep in discussions on how to limit these claims.  There is some precedential decisions in this area of the law, mostly related to individuals with a high risk of severe medical complications such as a person with severe cardiac disease who risks heart damage including a heart attack, if exposed to high work stress.

Medical practitioners will be facing new challenges as their patients seek their support for seeking disability benefits.   What patients will be eligible to continued disability benefits because their medical health does not warrant them returning to the workforce?  We have helped many offices address this issue, and come up with a viable strategy when facing their dual roles as treating physician supporting and as a specialist advocate for their patient remaining out of the workforce.

Common thinking about disability coverage would cause the average individual to expect that if they become unable to perform the specific duties of their occupation, they would qualify for disability benefits.  For example, if your employer requires you to travel for your occupation, then if you cannot perform this essential duty, you should qualify for coverage. The insurance companies would prefer to profile the occupation in a generic sense, because the manner in which one employer requires the employees to perform their duties may be particular to that work setting, or even geographical area of employment.   This issue is often litigated because many policies define “occupation” based on how the job is performed in a fictitious “national economy,” which is a term of art.  Courts are split on their treatment of this issue. Should insurance companies evaluate whether a claimant can perform their actual duties or should they evaluate whether a claimant can perform the duties of their occupation as it is generally performed?

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019).  The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.”  Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference.  Hankins v. Std. Ins. Co. 677 F.3d 830 (8^th Cir. 2012).

Another example concerns the occupation of an attorney.  The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018).  The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.”  The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

Disability policies contain a provision explaining that coverage will not be extended for a claim based on a “legal disability.”  Legal disability relates to the individual’s eligibility to work due to necessary licensing, such a financial advisor (Series 7 license), lawyer (bar license) and physician (medical license).  What happens when a disability caused by a physical or mental disability results in the professional becoming legally prohibited from working in their occupation-due to suspension or revocation of their license? This may occur if an attorney develops dementia, commits ethical violations and becomes disbarred- or if a doctor develops a substance abuse, such as addiction to fentanyl, and loses his medical license.  Recently several doctors have been incarcerated for Medicaid fraud.  What is the root cause of the disability? Do they have a valid claim for disability benefits while their license is suspended?

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors:  (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.”  Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012).  The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.”  Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)