ERISA Administrators Can’t Just “Makeup” A Claimant’s Skills
Dall-E’s take on a cosmetics counter that also sells wrenches and calculators.
How Plans Work: A common feature of long-term disability plans is that after two years of benefits a different definition of “disability” will apply. Under this harsher definition a claimant must be disabled from “any occupation.”
“Any occupation” coverage turns on whether the claimant can perform some job suitable to their education, training, and experience and that offers sufficient wages.
Claims administrators will usually consult an in-house vocational specialist to analyze a claimant’s education and skills and identify suitable occupations.
Vocational opinions should be scrutinized, and a shift in an administrator’s vocational assessment over time is a red flag.
The Facts: Sharareh Iravani was a cosmetics specialist at Saks Fifth Avenue when she became unable to continue working due to neck pain and migraine headaches.
Over the next decade she was treated for spinal degeneration and received LTD and Social Security disability benefits.
Unum, her insurer, conducted several vocational assessments that did not identify suitable jobs that would pay sufficient wages to end benefits.
But in 2020 a vocational expert opined those prior assessments did not "accurately outline the insured's vocational profile nor consider the insured's reported experience and skills in personnel interviewing, training, management, event planning, including 8+ years' experience in sales that directly transfer to other industries."
In 2021 Unum terminated benefits, relying on vocational opinions that Iravani was capable of performing the occupations of “Inside Sales Representative, Hotel Sales Representative, and Personnel Scheduler.”
They Just Overlooked It 🤷♂️: “During the hearing on the cross-motions, Unum's counsel suggested that even if Plaintiff's medical conditions may not have improved, Unum reconsidered its interpretation of Plaintiff's vocational history and her transferable skills on a closer review. Specifically, Unum urges that it had previously overlooked her significant managerial and supervisory experience.”
The Outcome:
The court held that the 2020 occupational opinions were not credible and that Unum had failed to identify jobs suitable for Iravani.
One Unum expert had “highlighted that from 2004 to 2006, Plaintiff worked at Clarins [a makeup vendor], and said that as part of this job, she was ‘in charge of 10 stores.’”
But “[w]hen read in context, Plaintiff's answers on her work experience and education questionnaire simply describe Plaintiff's role as a traveling cosmetics representative for Clarins, where she would interact directly with Macy's customers to give beauty advice and ultimately sell Clarins cosmetic products. She would help co-workers provide similar beauty advice and make their own sales goals. When asked to describe her training, for example, Plaintiff listed ‘beauty products.’ There is simply nothing in the record that supports the conclusion that Plaintiff had the kind of high-level management skills that would be transferable to a job outside of the retail sale of cosmetics.”
Another expert found Irvani had skills in the category of “Craft Technology.”
But those are “defined as occupations that ‘are concerned with performing highly skilled hand and/or machine operations, utilizing special techniques, training and experience’” and includes skills like “[k]nowledge of tools, machines, materials, and methods used in trade or craft specialty” and “coordinating eyes, hands and fingers to use hand tools or machines in constructing, making, or repairing objects.”
“Neither [the vocational expert] nor Unum make any attempt to explain how Plaintiff's experience as a retail salesperson for cosmetics involved such specialty training or provided Plaintiff with any of these skills.”
The expert’s opinion that she had “Business Skills” fared no better.
Those “involve[] occupations that ‘are concerned with directing and working through lower level supervisors to establish policies, set priorities, and render decisions in administering or managing . . . public and private establishments and agencies’” and included skills like “[a]nalyzing and interpreting mathematical information in written or diagrammatic form” and “planning long range or future projects [and] directing the work of others.”
“Although Plaintiff may have used her own experience to help others reach their sales goals, there is simply nothing in the record to suggest that Plaintiff has any of the other skills necessary for an occupation involving business administration.”
Unum’s experts opined on suitable occupations but did “not explain what any of the typical duties of these occupations are or how Plaintiff's work experience qualified her to perform such duties. To the extent these positions rely on "craft technology" and "business administration," Plaintiff does not have such skills. Neither [of the 2020] vocational opinions appear well-grounded in the facts of this case or Plaintiff's actual abilities.”
The Takeaways:
The opinion mentions this policy included a “Rehabilitation and Return to Work Assistance Program,” and Unum might have pursued that path after a decade of benefits if it thought there were transferable skills to find. Alas.
Vocational opinions that provide little information about job selections or fail to tie jobs to a claimant’s actual skills are not atypical. This case was decided on a de novo standard and the 2020 opinions fell on their own flaws. But in abuse of discretion cases a shaky vocational opinion might also warrant “conflict of interest” discovery on the administrator’s vocational processes.