An analysis of whether a claimant can perform a gainful occupation requires a consideration of the age of the claimant and whether he retains transferability of skills.
Use of Vocational Experts
If the objective is to determine whether the claimant is able to perform the duties of the claimant’s particular occupation, considering his restrictions and limitations, the vocational evaluator should describe in detail the material and substantial (or important) duties of that occupation. The attorneys of MyLTDbenefits.com have found that courts in Vermont, New York and Connecticut have interpreted the “own occupation” language in long-term disability policies to be limited to “a position of the same general character as the insured’s previous job, requiring similar skills and training, and involving comparable duties.”
In one Second Circuit case, two peer review doctors opined the long-term disability benefits claimant qualified for sedentary work and benefits were denied based upon these opinions, despite the opinions of treating physicians who determined that she was unable to perform sedentary work based upon physical and mental limitations. The court criticized the insurer for giving no consideration to whether claimant could in fact find such sedentary work, failing to consider her training, education and experience since she was in her late 50s, had performed only unskilled manual labor for 30 years, and was not fluent in the English language.
The court determined that without evaluation of these factors, the insurer was unable to determine what “unable to engage in further employment” means. Employability is not only a medical diagnosis. The disability benefit lawyers of MyLTDbenefits.com will argue that a finding that a claimant is physically capable of sedentary work is meaningless without some consideration of whether she is vocationally qualified to obtain such employment, and to earn a reasonably substantial income from it, rising to the dignity of an income or livelihood, though not necessarily as much as she earned before the disability. In one such case the court ruled an insurer is required to perform both a medical and a non-medical assessment as to whether a long-term disability benefits claimant has the vocational capacity to perform any type of work that permits her to earn a reasonably substantial income from her employment, rising to the dignity of an income or livelihood.
Please contact us for experienced assistance with your disability claim. We pride ourselves on providing cost-effective solutions.