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    General Characterization of Travel Requirement of Job Not an Abuse of Discretion – 10th Cir.

    Attached is a published case out of the Tenth Circuit, Dardick v. Unum Life Insurance Company of America, et. al. This case is on appeal from the district court’s grant of judgment to Unum. In this matter, plaintiff seeks long term disability benefits under an ERISA governed plan. Plaintiff argued that defendant abused its discretion, in part, on a mischaracterization of plaintiff’s job, specifically the extensive travel requirements and stress of his job. The Court determined that defendant was only required to consider plaintiff’s job as it was normally performed in the national economy.

    Mr. Dardick alleges that Unum mischaracterized the nature of his work as a vice president for Westcon, which was a procedural irregularity demonstrating arbitrariness. The Plan provided that an employee’s occupation would be viewed “as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.” Aplt. App. at 355-56.

    Unum initially characterized Mr. Dardick’s position as Systems ProjectManager, a sedentary position. During the first appeal, Mr. Byard determined that Mr. Dardick’s position was more consistent with a Cloud Solution Manager. Mr. Byard acknowledged Mr. Dardick’s report that “his occupation includes travel all over the country and long work hours,” id. at 409, which was considered “to be a job specific requirement . . . and not necessarily representative of the manner in which the overall occupation is performed throughout the national economy,” id. at 411. As normally performed, this position contemplated “an occasional level of local business related travel [and] ongoing work hours in excess of a standard 40 hour work week.” Id.

    During the second appeal, Mr. Byard again revised his assessment of Mr. Dardick’s position, finding his duties to be more consistent with the combined position of Vice President of Product Development and Vice President of Marketing. Addressing the travel requirements of this position, Mr. Byard again determined that as normally performed, the position required “an occasional level of local/regional business related travel.” Id. at 899. And again, “work hours in excess of a standard 40 hour work week” were to be expected. Id.

    Mr. Dardick maintains that Unum did not in good faith adjust its assessment of his occupation as it received additional information. Rather, he argues that Unum knew his job title from the beginning. But he cites to various documents that demonstrate an evolving picture of his occupation. See Reply Br. at 16. For example, his initial application submitted in August 2015 described his occupation only as “VP, Westcon Cloud Services.” Aplt. App. at 48. Much later, on August 17,2016, his former supervisor provided an extensive description of his work, id. at 862-65, which Mr. Byard relied on to revise his assessment of Mr. Dardick’s occupational duties. Thus, we conclude that Unum’s consideration of additional evidence to modify Mr. Dardick’s job description did not demonstrate bad faith.

    Although Mr. Dardick emphasizes that as he performed it, his position was very stressful and required extensive travel, he does not challenge either the Plan language providing that his occupation would be viewed as it is normally performed in the national economy or that the normal occupational requirements did not include excessive stress or extensive business travel. Mr. Dardick’s citation to Unum’s claims manual directing that various job requirements, including travel, be considered when evaluating an employee’s position does not nullify the overall Plan provision that an employee’s position be viewed as it is normally performed in the national economy. For example, in evaluating the demands of the positions he identified for Mr. Dardick, Mr. Byard did consider the travel demands for those positions. Therefore, we conclude that Unum’s assessment of Mr. Dardick’s occupation was not arbitrary and capricious.
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