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  • Failure to Consider Plaintiff’s Specific Job Duties...

    Failure to Consider Plaintiff’s Specific Job Duties Not an Abuse of Discretion – W.D. Wi.

    Attached is a case out of the Western District of Wisconsin, Dahlka v. Unum Life Insurance Company of America, et. al. In this case, Plaintiff seeks ERISA governed long term disability benefits. The case is before the court on the parties’ motions for summary judgment. Plaintiff’s argument includes, in part, that Unum failed to consider the particular duties of his job and solely relied on the Dictionary of Occupational Titles to determine his job duties. Of interest in this particular plan’s terms is that the term “regular occupation” is not defined. The court finds, however, that Unum was within its discretion to interpret the term “regular occupation” to mean the definition set forth in the DOT.

    In the policy applicable in this case, disability is defined for the first 24 months as “because of injury or sickness . . . the insured cannot perform each of the material duties of his regular occupation.” AR 85 (emphasis added). The policy does not define “regular occupation” but authorizes Unum, as the plan administrator, to construe or interpret the terms of the policy. Although Unum’s interpretation is entitled to deference under the arbitrary and capricious standard, the interpretation must have rational support in the record. Frye v. Thompson Steel Co., 657 F.3d 488, 495 (7th Cir. 2011).

    Plaintiff faults Unum and its reviewing physician, Dr. Penny, for using a general definition of “light work” to describe the demands of his position, rather than the job description provided by Illinois Tool Works. Plaintiff’s objection is based on the following discrepancies between the two definitions: (1) the light work definition limits exertion to 20 pounds occasionally, 10 pounds frequently and a negligible amount constantly, whereas the Illinois Tool Works job description for manufacturing general technician lists the ability to lift up to 55 pounds for 50 percent of the time as an essential duty; and (2) plaintiff’s job description required 12-hour shifts and not eight-hour workdays. Defendants argue that Unum’s senior vocational rehabilitation consultant reasonably relied on the Dictionary of Occupational Titles to identify and define the requirements of plaintiff’s “regular occupation.”

    Although the Court of Appeals for the Seventh Circuit has held that ERISA demands “a ‘reasonable inquiry’ into a claimant’s medical condition and h potential,” O’Reilly v. Hartford Life & Accident Insurance Co., 272 F.3d 955, 961 (7th Cir. 2001) (citing Quinn v. Blue Cross and Blue Shield Association, 161 F.3d 472, 476 (7th Cir. 1998)), it has not addressed specifically what qualifies as a reasonable interpretation of the term “regular occupation” in an ERISA policy. However, as defendants point out, many other federal courts have upheld as reasonable an ERISA plan administrator’s interpretation of “regular occupation” as meaning a general occupation rather than a particular position with a particular employer. E.g., Osborne v. Hartford Life & Accident Insurance Co., 465 F.3d 296, 299 (6th Cir. 2006); Gallagher v. Reliance Standard Life Insurance Co., 305 F.3d 264, 272 (4th Cir. 2002) (use of Dictionary job description is acceptable reference when it “involve[s] comparable duties” to plaintiff’s position); Dragus v. Reliance Standard Life Insurance Co., 2017 WL 1163870, at *11 (N.D. Ill. Mar. 29, 2017), aff’d, 882 F.3d 667 (7th Cir. 2018) (using Dictionary to determine “regular occupation” provides “objectively reasonable job description for assessment of disability in ERISA case[s]”); Valeck v. Watson Wyatt & Co., 266 F. Supp. 2d 610, 620-21 (E.D. Mich. 2003) (upholding interpretation of “regular job” and “regular occupation” as “kind of work [insured] did” rather than “specific job in the specific office and with the specific supervisor and co-workers with whom she worked”); Ehrensaft v. Dimension Works Inc. Long Term Disability Plan, 120 F. Supp. 2d 1253, 1259 (D. Nev. 2000) (“This Court finds that the term, ‘occupation,’ is a general description, not a specific one.”); Dionida v. Reliance Standard Life Insurance Co., 50 F.Supp.2d 934, 939 (N.D. Cal. 1999) (“The term ‘regular occupation’ may be fairly construed to mean ‘a position of the same general character as the insured's previous job, with similar duties and training requirements.”).

    In Osborne, the Court of Appeals for the Sixth Circuit reasoned:

    The word “occupation” is sufficiently general and flexible to justify determining a particular employee’s “occupation” in light of the position descriptions in the Dictionary [of Occupational Titles] rather than examining in detail the specific duties the employee performed. “Occupation” is a more general term that seemingly refers to categories of work than narrower employment terms like “position,” “job,” or “work,” which are more related to a particular employee’s individual duties. Although reasonable persons may disagree over the most appropriate methodology for determining a particular employee’s “occupation,” we cannot say that Hartford transgressed the boundaries of its broad discretion under its insurance policy and the ERISA plan to make disability determinations.

    Osborne, 465 F.3d at 299. I am persuaded that it was not arbitrary or capricious for Unum to interpret “regular occupation” as general definition that applies nationwide, and that the Dictionary of Occupational Titles is an acceptable source for nationwide job descriptions and classifications. Myers v. Life Insurance Co. of North America, 2009 WL 742718, at *17 (N.D. Ill. Mar. 19, 2009) (noting same in case with same undefined policy term).

    The record shows that Unum’s consultant reviewed the manufacturing general technician job description, plaintiff’s restrictions, the Dictionary of Occupational Titles and the Enhanced Dictionary of Occupational Titles and determined that plaintiff’s job duties were consistent with the occupational tasks of plastic press molder because both positions required monitoring or tending molding machines. The consultant also correctly noted that a plastic press molder qualified as light work under the Dictionary. Plaintiff does not argue that Unum chose the wrong occupation or category or work from the Dictionary or that the asks or responsibilities of a plastic press molder are dissimilar to those of manufacturing general technician, Myers, 2009 WL 742718, at *17 (noting same), and he presents no evidence that the regular operation of tending molding machines requires twelve-hour shifts and lifting up to 55 pounds. Rather, plaintiff’s arguments focus on the unique nature of his particular position with Illinois Tool Works.

    As the cases above hold, Unum acted well within its discretion under the policy in construing the term “regular occupation” to mean a category of work rather than a job description drafted by a particular employer. Without more, plaintiff cannot show that Unum ignored or failed to consider the essential duties generally understood to be part of his “regular occupation.” Therefore, I conclude that Unum’s decision to identify plaintiff’s regular occupation as light-level work as a plastic press molder is reasonable and has rational support in the record.
    As a side note, Plaintiff has appealed the decision to the Seventh Circuit.
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