Disability is not measured only by one’s ability to lift, walk, stand, sit, etc. Rather, the California definition of total disability in a policy insuring one’s ability to perform their own occupation is:
“A disability that renders one unable to perform with reasonable continuity the substantial and material acts necessary to pursue his usual occupation in the usual or customary way.”
In policies insuring one’s ability to perform “any occupation” or “any reasonable occupation,” the definition has been stated as:
“A disability that renders one unable to engage with reasonable continuity in another occupation in which he could reasonably be expected to perform satisfactorily in light of his age, education, training, experience, station in life, physical and mental capacity.”
Be Aware of Flares
The definitions both contain the element of “reasonable continuity.” This is an important feature in disability policies. Many patients with diseases such as Multiple Sclerosis, Fibromyalgia, Lupus, etc. experience “flares.” These periods of exacerbation are unpredictable and can last for days, weeks or even months. This is exactly what will prevent an employee from working with “reasonable continuity.”
An employer should be entitled to rely on an employee to provide predictable work service. If the illness prevents an employee from working, on a dependable basis, then the employee is disabled. This is true even though the employee may have “good days” where he or she could perform some job duties.
The inability to work with “reasonable continuity” may be difficult to document. One may actually cancel doctor appointments when they are ill. So medical notes may not contain contemporaneous documentation of the “flare.”
Keep a Symptom Journal
We recommend that, among other things, our clients keep a Symptom Journal. A short notation in the evening of significant symptoms is helpful. If the client had to miss an activity or cancel an appointment due to symptoms, this should be noted. If the symptom caused the client to increase medication, causing unusual drowsiness or fatigue, this should also be noted. It is important to document not only the severity of the “flare,” but also how long it lasts. This would show that the employee is not dependable due to illness and cannot work with “reasonable continuity.”
If you or someone you know is suffering from an illness and being denied benefits by your insurer, please call Kantor & Kantor for a free consultation at 888-569-6013. You can use our online contact form as well.