By A. Christopher Wieber (Law Office of Mark Scherzer)
When evaluating whether you qualify for benefits under an individually-purchased disability income policy or an employer-sponsored group long term disability plan, it is important to consider not only the evidence substantiating your medical condition, but also the evidence addressing the occupational component of the applicable disability definition. The failure to address this aspect of the disability definition may jeopardize the success of an otherwise valid claim. See The Importance of Establishing All Elements of a Short or Long-term Disability Claim. In policies that define disability in terms of the inability to perform one’s own occupation (“Own Occupation” policies), it may be critical for the success of the claim to submit evidence that establishes the distinguishing substantive duties of your occupation. For example, two individuals may bear the same job title “Vice President” – yet have vastly different responsibilities based on the industries in which they work, the size and prominence of their respective employers, and the departments within which each holds the VP title. Under Own Occupation (and even Regular Occupation) policies, it will be important to establish these distinguishing responsibilities and that they are characteristic for similarly situated employees.
In a similar vein, it will be imperative for professionals with disability coverage that explicitly (or implicitly) promises benefits for an inability to perform one’s specialty, to establish (1) the existence of that specialty (whether by certification or industry recognition), (2) the distinct responsibilities of that specialty, and, (3) to the extent the disability is not totally incapacitating, how the restrictions and limitations of the injury or medical condition specifically interfere with the particular responsibilities of the specialty.
The case of Mintzer v. Provident Life & Accident Ins. Co., 2023 U.S. Dist. LEXIS 107618 (D. N.J. Jun. 21, 2023) illustrates the complexities involved in establishing a disability claim in the context of a professional specialty occupation.
~Mintzer’s Claim for Medical Specialty Disability Benefits
For the relevant duration of his career, Dr. Mintzer was as an ophthalmologist, board-certified by the American Board of Ophthalmology. In 1993, he purchased an individual disability insurance policy from Provident Life & Accident Insurance Company (“Provident”), specifying on his application that his “occupation” and “exact duties” were “ophthalmic surgeon.” The Policy provided that “[i]f your occupation is limited to a recognized specialty within the scope of your degree or license, we will deem your specialty to be your occupation.”
In July, 2019, Dr. Mintzer submitted a claim for disability benefits due to ulnar atrophy of his left hand, which prevented him from performing any surgeries, although he remained able to perform most nonsurgical office duties and exams “somewhat slower (with more effort).” Despite Dr. Mintzer’s designation of himself as an “ophthalmic surgeon” on his 1993 policy application, Provident denied his claim for total disability benefits, concluding that he was an “ophthalmologist” and that his pre-disability surgical duties comprised less than 1% of his billing units and less than 6% of the total charges he billed. He thus remained able to perform 99% of his pre-disability billing units.
The U.S. District Court of New Jersey (Judge Michael A. Shipp), upheld Provident’s denial of total disability benefits, which required that Dr. Mintzer be unable “to perform the substantial and material duties of [his] occupation.” Judge Shipp conceded that the policy defined “occupation” to include a “recognized specialty,” but additionally held that Dr. Mintzer’s specialty was not limited to the specialty he designated at the time of his application: “The Policy clearly states that ‘your occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled.’” (Emphasis supplied.) Judge Shipp also held that Dr. Mintzer failed to establish that “ophthalmic surgeon” was a recognized specialty at the time of his disability, noting, among other things, that “[t]he American Board of Ophthalmology does not recognize any subspecialities,” “ophthalmology is considered a surgical specialty, as all ophthalmologists are trained in surgery,” “[w]hile surgery is certainly one of the substantial and material duties of any ophthalmologist, there are also various others, which [Dr. Mintzer] still performs,” and “the number of surgical patients he lost due to his hand injury could have been as many as ten, or as few as five.”
Some courts have recognized that the inability to perform even a single, relatively low frequency job duty may render a claimant unable to perform the “substantial and material duties” of his occupation, but typically this has been where the non-performance of the job duty rendered the claimant otherwise unemployable in their occupation. E.g., McFarland v. General American Life Ins. Co., 149 F.3d 583, 588 (7th Cir. 1998) (Policyholder would “reasonably expect that, if he was no longer able to perform an essential duty of this regular occupation, resulting in the loss of his position, he would be ‘totally disabled’ … even if, in percentage terms, the disability affected an essential duty that comprised, for example, only 5% of the person’s overall duties”); Peterson v. Continental Cas. Co., 116 F. Supp. 2d 532, at 544 (S.D.N.Y. 2000) (court not required to determine whether a particular occupational duty “took up 30%, 50% or some lesser percentage of [claimant’s] time” where the record was nonetheless clear that the ability to perform that duty was essential to satisfactory performance of claimant’s occupation), appealed on other grounds and aff’d in part, 282 F.3d 112 (2nd Cir., 2002).
However, in another case, involving Provident and the same policy language, the Third Circuit Court of Appeals held that a low-frequency duty, interventional radiology (9%), was key to the recognized specialty at issue, “interventional radiologist,” and therefore relevant to the physician’s disability claim (even though the physician continued to work and was capable of performing diagnostic radiology, comprising 91% of his pre-disability procedures):
[I]t is undisputed that Dr. McCann possesses the qualifications of an interventional radiologist. He is certified in that specialty. Dr. McCann was also hired by Holzer Clinic as one of three interventional radiologists, and, in fact, would not have been hired but for his ability to perform some interventional work….
The District Court focused its analysis on the fact that “the diagnostic duties associated with his occupation accounted for 91% of the procedures he performed each week during the three and a half year period preceding [Dr. McCann’s] application for disability leave.” But we note that a purely mechanical comparison of the number of interventional procedures and diagnostic tasks fails to account for the time dedicated to each type of work. Dr. Long explained during Provident’s field visit that in the same amount of time it can take to do an interventional procedure, e.g., an angioplasty, he can probably read more than 10 MRIs….
[T]he American Board of Radiology recognizes a specialty in “Interventional Radiology and Diagnostic Radiology” distinct from a specialty in “Diagnostic Radiology.”
Thus, the interventional aspects of Dr. McCann’s practice cannot be cast aside from the definition of his occupation merely by focusing exclusively on the number of “units” of work Dr. McCann billed…. The record reflects Dr. McCann was performing at least some interventional procedures – procedures a diagnostic radiologist would not be able to perform. Accordingly, we hold Dr. McCann’s occupation to be an interventional radiologist for purposes of assessing the merits of his claim.
McCann v. Unum Provident, 907 F.3d 130, 148-49 (3d Cir. 2018). Thus, whether one can rely on the inability to perform a low-frequency occupational duty to establish total disability in one’s specialty occupation will likely depend on either (1) that the duty is integral to the successful performance of one’s job overall (as in McFarland or Peterson), or (2) that the duty be a central and necessary element of the recognized specialty (as in McCann). Dr. Mintzer failed to establish either. He continued to run his practice with a less-than-20%-loss of income, so was employable. And, as the court held, an ophthalmologist – while trained in surgical procedures – is not defined or characterized by the ability to perform such procedures.
~Occupation at Time of Application for Coverage vs. Onset of Disability
One lesson from the Mintzer case is that one’s specialty will rarely be dictated by the specialty listed in the policy application. Most policies contain language tying disability to the specialty at the time the disability arises. So, it will be important to rely on evidence contemporaneous with the disability to establish one’s specialty bona fides.
This means that a professional with a specialty occupation policy should take great care about filing a timely claim if an injury or illness forces her to abandon procedures that are particular to her specialty. If the professional drops the specialized procedures/duties, and enough time passes, there is a good likelihood that the disability insurance carrier will assert either that (1) the professional’s specialty has now changed to the procedures/duties practiced at the time the claim is filed, or (2) the claim is untimely and, as a consequence, barred (or otherwise limited) by late notice and/or late proof of claim.
~Importance of Type of Plan/Policy, Governing Law, and Specific Language of Policy
Several other factors may dictate the likelihood of success of a particular claim for disability benefits under a specialty occupation disability policy. One is the specific language of the policy or plan. For example, in Evans v. Standard Ins. Co., 449 F. Supp. 3d 605 (W.D. Va. 2020), the long term disability plan was very particular that “if your Own Occupation is medical doctor or dentist, . . . we will consider your Own Occupation to be the one general or sub specialty in which you are board certified to practice for which there is a specialty or sub-specialty recognized by the American Board of Medical Specialties or American Dental Association.” Dr. Evans was board-certified in Diagnostic Radiology – General in 1993 by the American Board of Radiology. In 2005, Dr. Evans was employed by the University of Virginia Physicians Group and became insured under the group’s long term disability plan. Although the American Board of Radiology established a specialty in Interventional Radiology in 2012 – and even though Dr. Evans was routinely engaged in interventional radiology procedures (60% of the time) prior to his disability – he never sought certification in the new specialty.
In late 2017, Dr. Evans filed a claim with Standard Insurance Company (“Standard”) for disability based on his diagnosis of radiation-exposure anemia and his physician’s restriction that he no longer engage in interventional radiology procedures because of their unacceptable exposure to radiation. Nonetheless, Dr. Evans remained in his job at full salary, but performing only non-interventional radiology procedures. Standard denied the disability claim, finding that Dr. Evans’s specialty was Diagnostic Radiology, and that he remained capable of performing the duties of that occupation (and, indeed, remained fully employed with those duties). Dr. Evans appealed that determination, arguing that at the time he was first certified, “Interventional Radiology was considered a subspecialty of Diagnostic Radiology” and that as a Diplomate in Diagnostic Radiology – General, certified in 1993, he was authorized to perform interventional radiology procedures. He argued that “it is enough for a board-certified physician to practice a specialty or subspecialty recognized by the ABMS,” whether or not the physician actually obtained the subspecialty certification. Standard denied the appeal, and the district court endorsed the denial determination:
[T]he court is satisfied that the operative language can be reasonably interpreted to require that a physician be board certified in a particular ABMS-recognized specialty or subspecialty in order for that specialty or subspecialty to qualify as the physician’s Own Occupation. This interpretation does not clearly conflict with the applicable Policy language or alter the terms of the Policy. To the contrary, the court believes that it is reasonably supported by the plain language of the Own Occupation Provision….
Having determined that Standard reasonably interpreted the Policy’s Own Occupation provision, the court also concludes that Standard did not abuse its discretion in identifying Dr. Evans’ Own Occupation. Although more than 60% of Dr. Evans’ professional charges during the preceding 24-month period were associated with interventional procedures, that is not enough to reach Dr. Evans’ desired result. Critically, the record is devoid of any evidence establishing that Dr. Evans has ever held a specialty or subspecialty certificate in Interventional Radiology. Instead, Dr. Evans received a certificate in Diagnostic Radiology from the ABR, and he remained board certified in Diagnostic Radiology at the time he applied for LTD benefits.
The Evans decision makes clear that the particular definitions of “occupation” and “specialty” employed in a disability income policy or long term disability plan may be determinative of whether a given professional can claim a particular specialty. Certainly, it will be imperative to hold a certification where, as in Evans, the operative policy provisions require such certification.
In many policies, however, the definitions will be more flexible and open-ended. In such circumstances, a certification (if available) may still be crucial/determinative. In the absence of a specialty certification, a professional may still prove specialization by custom and practice. For example, the vast majority of lawyers eventually gravitate towards a particular field of practice: litigation, corporate law, mergers and acquisitions, employment law, white-collar criminal defense, elder law, trusts and estates, antitrust, Social Security disability, ERISA employee benefits, etc. Yet, there is no organization to provide official certifications for this specialization. State and local bar associations may allow members to join “sections” that are addressed to particular practice areas. There are also attorney membership organizations, such as the National Employment Lawyers Association, the National Organization of Social Security Claimants’ Representatives, etc., that allow a lawyer to identify themselves as providing services within a particular practice area. However, these sections and organizations are largely voluntary and self-selecting. Rarely are members screened or required to establish their specialty credentials in any particularly demanding way. Nonetheless, the existence of these groups may help to establish that the specialty is one recognized within the legal community. Similarly, law firm practice organization (and advertising), job postings for specialty practice attorneys, judicial attorney fee awards based on specialized practice, and similar sorts of evidence of custom and practice within the legal community may be helpful to establish a particular disability claimant’s legal specialty.
For example, in Doe v. Standard Ins. Co., 852 F.3d 118, 124 (1st Cir. 2017), the claimant asserted that she was an “environmental lawyer,” but Standard Insurance Company (“Standard”) asserted that she was a generic “lawyer.” The distinction was important because even though she was ultimately disabled from even the generic lawyer occupation (in 2012), she was forced to abandon her environmental lawyer work before that date (in 2011). The definition of pre-disability earnings (which dictated he amount of the benefit) was based on the prior calendar year, so that a disability onset date in 2011 would yield a higher benefit (based on her higher income in 2010), whereas a disability onset date in 2012 would calculate the benefit based on her 2011 earnings (which were then reduced by her inability to engage in specialized environmental law work). The First Circuit Court of Appeals found that Ms. Doe had established her specialty as an environmental lawyer:
The Policy … promises lawyers with at least five years’ experience that “[their] Own Occupation [is] the one legal subject matter area or type of legal practice in which [they] specialize, provided [they] have earned at least 85% of [their] gross professional service fee income in that area or type of practice” during the 24 months before disability onset. There is no dispute that Doe met these criteria for specialty coverage….
No evidence in the record supports [Standard’s] assumption that “environmental lawyer” and “lawyer” are equivalent terms that may be used interchangeably. We think that they self-evidently are not and that Standard’s assumption of equivalence was arbitrary. Environmental law is a distinct specialty, and the expertise demanded from environmental lawyers distinguishes that specialty from a generic “lawyer” role. Standard received from Doe’s former law firm a job description outlining the duties and expectations associated with Doe’s specialized area of practice, as well as her resume, which confirmed her expertise as an environmental lawyer. That firm is by no means unique in treating environmental law as a distinct specialty. We take judicial notice that the firm representing Standard in this matter, for example, lists “Environmental” as a distinct practice group on its website. The American Bar Association, in similar fashion, includes “Environment, Energy, and Resources” among its “specialty groups that focus on a unique area of law.” And the U.S. Department of Justice has a discrete Environment and Natural Resources Division.
Thus, Ms. Doe was able to establish her specialty by evidence of custom and practice in the legal community.
Another important factor in the potential success of a professional specialty disability claim is whether coverage is provided under an employer-sponsored group long term disability (“LTD”) plan governed by the Employee Retirement Income Security Act (“ERISA”) or under an individually purchased disability income policy, governed by state contract law. If an ERISA LTD plan confers discretion on the administering insurance carrier, a reviewing court is generally obliged to uphold the insurer’s decision (and any contractual interpretations on which it is based) unless it is an abuse of discretion, i.e., arbitrary and capricious. In contrast, under most state contract law governing disability insurance policies, a claimant need only demonstrate her disability by a preponderance of the evidence, and any ambiguity in the policy’s provisions will (under the rule of contra proferentem) be construed in favor of coverage for the claimant. Thus, for example, in the Evans case (which involved an employer-sponsored LTD plan governed by ERISA), the outcome in favor of Standard might have gone the other way had Dr. Evans’s coverage been provided by an individually-purchased disability income policy. The U.S. District Court for West Virginia conceded that “[a]t most, Dr. Evans’ argument supports the conclusion that the Own Occupation provision is ambiguous.” Under New York contract law, this would be potentially enough for the court to rule that Dr. Evans’s interpretation of the ambiguous provision should be the one applied to his claim. However, because the case was governed by ERISA and Dr. Evans “has not demonstrated that Standard resolved the ambiguity unreasonably,” and, therefore, “Standard did not abuse its discretion in identifying Dr. Evans’ Own Occupation under the Policy,” therefore “Standard reasonably determined that Dr. Evans’ Own Occupation is the one specialty in which he is board certified: Diagnostic Radiology.”
One final factor to note is the absence (or presence) of residual/partial disability benefits in the relevant disability plan or policy. When “Own Occupation” policies were first introduced, they were generally written (and interpreted by the courts) to require the payment of benefits when the insured was disabled from their occupation, even if otherwise able to carry on (and perhaps make even more money) in a different occupation. E.g., Niccoli v. Monarch Life Ins. Co., 70 Misc. 2d 147, 332 N.Y.S.2d 803 (King’s Co. 1972) (ability to act as director of family planning and sex education does not preclude finding of disability when physician unable to perform clinical functions of former specialty of obstetrics and gynecology, and even though he “earned more in his new job than he did before his heart attack”). Subsequently, insurance carriers introduced residual/partial disability provisions, which have now become common in disability insurance plans. The particular language of and interaction between the total and residual disability provisions may influence how a court interprets whether the inability to perform a discrete subset of duties qualifies as total disability from one’s specialty (or not). In Mintzer, for example, Dr. Mintzer argued that even if his specialty was defined as Ophthalmologist, his inability to perform surgical duties qualified him for total disability benefits because surgery was a critical component of an Ophthalmologist’s duties. Judge Shipp rejected this argument, in part, because of the disability income policy’s residual disability provision:
Even if the Court accepts, as Plaintiff argues, that ophthalmology is a surgical specialty – that is, all ophthalmologists are trained in surgery – it does not logically follow that Plaintiff’s inability to perform surgery renders him totally disabled in his occupation. Under Plaintiff’s interpretation of the Policy, if an insured cannot perform one of the material duties of his occupation, he is totally disabled, regardless of whether he continues to work in that same occupation or whether he suffers a loss of income. Such an interpretation renders the residual disability benefits available under the Policy meaningless and is, therefore, unconvincing.
As noted above, and as intimated by Judge Shipp’s opinion, had the surgery been a truly critical duty (such that Dr. Mintzer was no longer employable as an ophthalmologist because of his inability to perform surgical procedures), he might still have qualified for total disability benefits. Indeed, disputes over the nature of a professional’s specialty most often seem to occur where a claimant remains able to perform some work, thus calling in to question whether the claimant should be viewed as disabled at all, or residually (vs totally) disabled. However, as in Evans, this dispute may arise in other contexts – such as the determining the disability onset date for purposes of calculating the amount of the disability benefit, etc.
~Legal Assistance for a Professional Specialty Disability Claim
If you’re a doctor, lawyer, dentist, accountant, or other professional who is considering a disability claim under a policy that provides professional specialty disability coverage, our attorneys can evaluate the viability of your claim and provide guidance to ensure that you maximize the possibility of receiving your full entitlement to benefits. See “Get Your Disability Claim Off to the Right Start.” Or, if your claim is being disputed because of a disagreement with your insurance carrier about the nature of your professional specialty, our lawyers can fight the insurance company in your behalf and ensure that your rights are fully protected.
