Under many disability policies, claimants must show that they cannot perform the material and substantial, or the important duties of their occupations in order to qualify for long-term disability benefits. Although these terms are essential to the determination of a disability claim, most insurers do not define the terms “material and substantial” or “important” in their policies. Nor do they provide guidance in their policies about what guidelines or factors they will use to determine the material and substantial or important duties of an insured’s occupation.
Our firm confronted this first-hand in a case in which we represent a gynecologist in a lawsuit against Unum Life Insurance Company of America and Paul Revere Life Insurance Company (collectively, “Unum”) for long-term disability benefits. Our client lacerated her tendon during a procedure and is now unable to perform major surgeries, including hysterectomies. She does, however, maintain a clinical practice in which she is able to bill for routine, simple procedures like lab work and office visits.
Our client’s income disability policies with Unum do not define the terms “material and substantial” or “important,” and provide no guidance on the factors Unum may employ to interpret those terms. So then what exactly are the “material and substantial” and “important” duties of our client’s occupation? Commonsense would tell you that people who purchase income disability policies intend to insure against a risk of an injury that would lead to a loss of income or a loss of earning potential. In our case, our client asserted that the material and substantial and important duties of her occupation were serving as a lead surgeon on major, invasive surgeries, because those procedures resulted in higher billings, clinical referrals, and post-surgical visits. These procedures were also vital in safeguarding her patients’ health.
Unum, however, did not view it that way. As a part of our lawsuit, we deposed Melissa Walsh, the corporate representative designated by Unum in response to our deposition subpoena. In her deposition, Ms. Walsh discussed a 13-page-document Unum prepared when it evaluated our client’s initial claim for disability benefits. (For your reference, we have attached a transcript of Ms. Walsh’s deposition transcript here. We’ve also attached a copy of Unum’s 13-page document here, which was exhibit 4 to the Ms. Walsh’s deposition.) The document contained all the procedures for which our client billed prior to her disability. Referred to by Ms. Walsh throughout her deposition, Unum’s billing document listed our client’s pre-disability duties, how often they were performed, and their total charges. (see pages 71-73, 92-93 and Exhibit 4 to the deposition.)