Contributed by Disability Insurance Bad Faith Attorney, Eric Ratinoff

We’ve spent quite a bit of time now in this series talking about disability insurance claims, what the insurance policy is about,  what the insurance company’s duties are and how to put your best foot forward when making a claim.  But what does it mean to be totally disabled under an insurance policy?

Well, most private insurance policies that have been sold in the last 20 years have two major provisions.  One is a total disability provision involving “own occupation,” and then there is a conversion to “any occupation.”

Let’s talk about “own occupation.”  Most insurance policies will state that in the first 24 months of disability, if a person is unable to do the substantial and material duties of their own occupation, that’s total disability.  Now, an “own occupation” policy is a kind that I talked about in an earlier post where insurance companies were selling these policies in the 1970’s through the early 1990’s, and they were policies that never converted.  They were pure “own occupation” policies all the way to age 65 sometime and beyond.  That meant that if you were unable to do the substantial and material duties of your own occupation, then even if you began another career, you would still collect the full benefits of your policy.  Most policies that are sold now contain a provision stating that after 24 months of disability from  being unable to do the material and substantial duties of your own occupation, the policy will convert to “any occupation.”  This means if you are able to do the substantial and material duties of any occupation, your benefits will be reduced based on the level of income you are able to produce in any occupation you choose.

Now, the insurance policy doesn’t tell you what the courts have interpreted “any occupation” to mean here in California.

“Any occupation” does not mean that if you used to work as a technician in a lab that you can now become a ticket taker at your local movie theatre or a greeter at Walmart.  That’s not what “any occupation” is.  In order to understand what the meaning of “any occupation” is in California, you have to look to the case law.

What the case law tells us is that you must consider what the substantial and material duties are for the policyholder’s occupation.  What that means is what is necessary to the prosecution of an occupation in the usual and customary way.  Now what it also means is that you also have to be able to do a job with reasonable continuity.  You can’t be considered as able to work if you can only work a couple hours here and a couple hours there.  If you could work eight hours a day, but in two hour increments throughout a 20 hour period with naps in between.  That’s not realistic, and that’s not reasonable continuity.  So you must be able to work with reasonable continuity in your own or another occupation.

The next important point is that an occupation would have to be in your own field, or another occupation in which you could reasonably be expected to engage in.   It has to be another occupation that you can do with reasonable continuity,  that you could reasonably be expected to perform satisfactorily in light of certain very specific things that have been recognized and ruled on by the California courts.  Your age, your station in life, your education, your training, your experience, your physical and mental capacity are all the type of criteria that determines whether the so called “any occupation” component of the disability policy applies to you.

Again, using the example of the ticket taker, if you had worked in a lab before, if you were a court reporter, or if you were a lawyer, if you were a veterinarian, or if you were a vet tech — you can’t be expected, having done that type of work, to then have to become a ticket taker or a greeter at Walmart.  It’s not the way the law works in California and it’s not what you purchased when you purchased your disability insurance, and you paid those premiums over all these years.  You bought protection.  You bought piece of mind, and your insurance company owes it to you to hold up their end of the bargain.  You have held up your end, so don’t let the insurance company get away without holding up their end of the bargain. They are holding to the promises that they made to you and your family.

To download this series via Podcast, visit the KCRLegal Personal Injury Podcast!

Contributed by Disability Insurance Bad Faith Attorney, Eric Ratinoff

So you’ve become disabled.  You’ve paid premiums all these years. You’ve done everything you’re supposed to do. You made your claim, you provided documentation and information to the insurance company. You filled out their forms, you gave them permission to get your medical records, including permission to talk with your doctor, if they want to.

Now what does your insurance company have the obligation to do?

First and foremost, they have the obligation to promptly and thoroughly investigate your claim. That doesn’t mean just look at what’s convenient for them. They have to affirmatively look at the records and get any records that they don’t have that they think may support your claim. And that’s an important point – an insurance company in California cannot just look at information that supports their position that you’re not disabled or that there isn’t coverage in your policy. Every insurance company in California has an affirmative obligation to seek out evidence of coverage, not simply seek out evidence that helps them deny coverage.

Insurance policy holders have a very important right to hold their insurance company to the standard that they have to put policy holders’ interests on at least a high a standing as they put their own. And that’s a powerful tool.  Insurance companies have to investigate, and they have to do it quickly. They have to pay you timely. They have to seek out information that supports your claim. And they have to communicate.

Insurance companies are not allowed to be dishonest with you. They are not allowed to tell you that there’s no coverage when in fact there is. They are not allowed to undercut your claim because it’s convenient or profitable for them.

In so much of the world and the way that we see big business doing business, companies put profits over people. An insurance company, in handling your claim, absolutely is not allowed to put profits over you. It’s people over profits. They have got to do their job, and they’ve got to do it well. They’ve got to do it quickly. And they have to seek out information that supports you.

Let’s talk about the medical review doctor for the insurance company. This is somebody who earns his or her living from the insurance company that makes money by collecting insurance premiums but not paying claims. So this doctor will look at the records and say, “gee whiz, I disagree with the treating doctor,” the one who’s treated the insurance policy holder for 15 years, who knows the record inside out, who’s visited with the patient many many times over the years. He’s actually drawn the blood and had the conversations and done the physical examinations and all the work that doctors do when they’re doctors who treat people and understand people and know their patients. But the insurance company has someone there in house on their payroll who will look at the records and say, “well, I disagree with the doctor who actually knows what he’s talking about.”

There’s no misunderstanding why that happens. The question is what do we do about it? And what’s an insurance company’s obligation? It’s certainly to do more than that.

Now, has that doctor gotten on the phone with the treating doctor? Has he inquired about what the doctor wrote in his records about the patient? They don’t do that, but they certainly should if they’re going to disagree with that doctor.

And why doesn’t the insurance company doctor perform a physical exam? If there’s additional testing that needs to be done, why not get that done? They have an affirmative obligation to do it if they’re going to deny a claim. Where there’s medical support, they can’t simply disregard your good medical evidence. It doesn’t work that way in a private disability insurance policy in the state of California.

If your insurance company’s playing those kinds of games, you don’t have to put up with that. Get somebody – an attorney or another representative – to step forward and help you make your best case.

To hear this series on Podcast, visit and subscribe to the KCRLegal Personal Injury Podcast!

Contributed by Disability Insurance Bad Faith Lawyer, Eric J. Ratinoff

So let’s take a few minutes to talk about what happens when you become disabled.

Here you are somebody who’s purchased a long term disability policy to protect you and your family, and calamity strikes – either an accident or an illness – and you can no longer work.  What you should do is immediately make a claim with the insurance company.  There’s a claim form that you can easily obtain – call your agent, call your broker, call the insurance company directly.  Let them know that you’ve been injured, or that you’re sick, and you’re making a claim under your policy.  And you should start to fill out the claim form right away.  Get it back to them promptly.  There will be statements that will need to be filled out by your physician, so make sure to get the form to your doctor as soon as possible.

Now, every disability policy has a provision stating that you need to be under the regular attendance of a physician for the disabling condition to be valid under the policy.  What “regular attendance” means is up for interpretation, and, really, that’s a medical issue to determine what’s regular and what’s reasonable according to the condition that you’re suffering.  It must be established that this is a condition that’s affecting your life to the point that you can’t do the job you’ve trained to do for so many years.
It’s also important to start gathering documentation that will help you put your best foot forward with the insurance company.  Get your medical records together if you are able.  Gather whatever films may have been taken.  Let your insurance company know that they can have it all.  Now the insurance company has forms that allow them to get your medical records themselves – and they should do that.  It’s their obligation to do that.  But they don’t always do it. And whenever possible, you as the claimant need to force their hand.  It’s understandable that you may not be able to gather everything – that perhaps because of your condition you simply cannot manage to pursue the necessary documents or even keep them organized.

That’s one of the sad things about how these insurance companies treat people, because often it’s a disabled person who’s down and out and lacks resources and is sick, disabled, that the insurance companies take advantage of.  And they have you jump through hoops.  They’re not supposed to make you jump through hoops, but sometimes they do.

So get your documentation – your medical records, your earning information.  Get your W2’s. or if you’re self employed, get your 1099’s.  Gather together your tax returns.  All of this information comes together and may provide support for your claim.  Every policy contains something pertaining to earnings, and almost every policy calls it “proof of loss,” or some version of that phrase.  In essence it’s the proof that your claim is valid and falls under the provisions of the policy.  This is the type of information that helps prove that.

If you were injured on the job and you have a vocational rehabilitation counselor that’s been working with you through the worker’s compensation system, get that documentation together.  If you’ve applied for social security disability and have been deemed disabled according to social security, get that documentation together.  But don’t be misled – the definition of disability under most insurance policies is far more favorable to you as the insurance policy holder than the definition of disability under the social security guidelines.  So if social security says you’re not disabled, that doesn’t mean that you are not disabled under your insurance policy.  They are two different worlds.  But certainly, if the social security has said that you are disabled, that’s very powerful evidence to get in front of your insurance company to support the proof of your claim.

It’s important to get as much documentation as possible to make it difficult for the insurance company to deny your claim.

Stay tuned to part three of this 4-part Disability Claim series.  To subscribe to this series via podcast, visit the KCRLegal Personal Injury Podcast.

Contributed by Insurance Bad Faith Attorney and KCR Partner, Eric J. Ratinoff

Most people who purchased disability insurance policies did it because for decades insurance companies were engaged in a huge marketing effort, and they were making a lot of promises.  Essentially, they said that if you paid your premiums month after month and year after year – and these were expensive premiums – they would protect you, your family, your earnings and your lifestyle.  For example, doctors go to school for years, investing hundreds of thousands of dollars of time, money and energy into their education.  It makes sense that they would turn to insurance companies to protect them in the event that they can no longer practice medicine.

In the early 1970’s through the mid 1990’s there was intense competition among the insurance companies, where they started offering what is known as “own-occupation policies.”  Now the concept of offering an own-occupation benefit within a long term disability policy has been around since disability insurance’s inception.  But as a marketing tool in the 1970’s and 80’s, insurance companies figured out that they could charge huge premiums and go after the highest earning individuals – doctors, lawyers, stock brokers, and other professionals – offering to protect the livelihoods from their high earning jobs.

But there was a targeted effort to get doctors to buy these policies, and in the competition among insurance companies to sell the most policies, they ended up overselling and making promises that they could not fulfill.  The heaviest promise they made to California doctors was basically that in the event they could no longer practice their own occupation – regardless if they obtained a new occupation earning money elsewhere – they would still receive the full benefit from their policy.

So jump ahead several decades, and a number of physicians who paid tens of thousands of dollars in premiums over the years have become disabled.  And now the insurance companies’ promises have come back to haunt them.

But their promises really shouldn’t haunt them, because they’d been paid millions of dollars in premiums over thirty or more years.  But with the fall in investment returns, poor investment decisions made by these companies and the fall in the economy, insurance companies figured the easiest way to save money would be to find ways to reject claims.

Meanwhile, as the insurance companies were finding ways to cheat the claims of honest, hard working people, they created a new animal to sell.  It’s called the “residual income” disability policy.  And the brokers went out selling these policies, saying, “this is an own-occupation policy; if you can’t do your own occupation you’re covered.”  But what they didn’t make clear is that almost every new own-occupation disability policy contains a residual income clause, stating that if you are “gainfully employed” anywhere else, the benefit you receive from your policy will be reduced.  This is a big difference from the policies they’d been selling all those years that promised full benefits to age 65 (and sometimes beyond), no matter what the employment or earning situation was, as long as the policyholder could no longer practice his or her own occupation.

If you are shopping for a disability insurance policy, be on the lookout for terms like “gainfully employed” or “residual income.” It may be worth a look at your current policy to make sure you know what you purchased.

In part two of this four-part series, Eric Ratinoff will discuss what should be done when a disability claim needs to be filed.

Contributed by California Insurance Bad Faith Attorney, Eric Ratinoff

Insurance companies routinely roll out new marketing strategies to make their services more appealing to certain high income segments of society.  Too often, these strategies prove to be heavy on marketing and light on value.

One such example lies in disability insurance policies as marketed to doctors, especially physicians practicing in California.

In the 1980’s and early 1990’s, “own-occupation” insurance policies seemed to be the most effective at achieving solid total disability coverage for the medical profession.  At that time, all insurance carriers who offered own-occupation disability policies maintained their policies under the same working outline, and defined total disability as being unable to perform the “substantial and material duties” of one’s regular occupation while under the care of a physician.  The definition made it clear that if the doctor could not do his job, he would be entitled to full benefits.  The “regular occupation” referred to the one he was engaged in at the time of the disability, meaning the doctor could pursue a different profession and his benefits would not change.  Additionally, if being under regular doctor’s care would not improve the policyholder’s condition, most companies would waive the “under care of a physician” requirement.

However, due to lack in regulation of individual long term disability insurance terms, many carriers have since modified their policies (or eliminated own-occupation policies altogether), creating in essence their own definitions of the term.  Now we have a situation where what may be a good own-occupation policy with one carrier is essentially an entirely different policy disguised as an own-occupation policy with another carrier. Some of the policies now marketed as own-occupation policies are actually income replacement contracts (or “loss of earnings” policies), as they have inserted a clause restricting the physician’s ability to pursue any other occupation while receiving the total disability benefits awarded due to their inability to engage in their primary profession.

Other insurance carriers have begun marketing a new type of policy named “Medical Occupation.”  These policies redefine the occupation of a physician as encompassing a variety of duties, and they define total disability as being unable to perform all of those duties.  They base the policyholder’s benefit on a percentage of what job functions they regularly fulfilled prior to the disability, and what percentage they are able to fulfill after the disability.  This means if the physician chose to continue working in some capacity after the disability, this would decrease or possibly eliminate his benefits.

One major insurance company that discontinued their own-occupation policies in the late 1990’s has re-entered the market with the new medical occupation model.  They are now heavily marketing these policies to physicians.

Insurance companies across the board routinely attempt to reduce or eliminate benefits in order to cut costs and increase profits.  For physicians who purchased own-occupation policies in the 1980’s and 1990’s, however, this has resulted in numerous unpaid and under-paid insurance claims.  Fortunately, the law in these cases typically favors the insured.

Physicians should choose wisely when shopping for a long term disability insurance policy.  Certainly there are some specialties that may not require a pure own-occupation policy.  But surgeons, obstetricians, ophthalmologists, urologists and others who would greatly benefit from pure own-occupation policies should double check their existing policies, and thoroughly review any new proposals prior to signing the dotted line.

When seeking a pure own-occupation disability policy, look for words like “any other occupation” or “gainful occupation.”  Keep in mind that there may also be time limits implemented, i.e. the policy may be written so that the pure own-occupation benefits exist only for the first 5 years, with restrictions taking place thereafter.  If you see these or similar terms, do some comparison shopping.  There are still a few carriers who offer pure own-occupation policies.  As always, reading the fine print is critical with insurance policies to make sure you are getting the appropriate value in exchange for the high price of your premium.

Contributed by KCR Partner, Stuart Talley

For most of our clients, the decision to undergo an initial hip replacement surgery was difficult.  Now they are being told that there is something wrong with their hip and that another painful and risky surgery may be necessary.  Our clients are confused, concerned, and justifiably angry.  Unfortunately, the spin from DePuy has only added to their confusion and anxiety.  No one is telling these people what exactly is wrong with their recalled hips, what the long term health consequences of having one may be, or what the chances are they will have to have the hip replaced.

Since we’ve been bombarded with questions on this topic, we posted detailed answers to some of the most frequently asked hip recall questions at our website.  Hopefully this will help curb the massive wave of confusion and concern people are experiencing due to this major hip implant recall.

Many people think that if they are not experiencing problems with their recalled hip, there is nothing they need to do.  Unfortunately, this is not true.  The law requires people to file a lawsuit within a certain period of time once they “suspect” there may be a problem with their hip.  In some states, this statute of limitations period can be as little as one year.  Therefore, if a person waits until something goes wrong with their artificial hip, it may be too late to file a lawsuit, since everyone who has a recalled hip was recently notified that their hip was the subject of a recall.  There is no doubt that DePuy is relying on this misperception to limit its liability.

Our product liability and personal injury lawyers have successfully fought against Johnson & Johnson and their subsidiaries for years, so we are well aware of the tactics they employ to minimize the financial repercussions that occur due to faulty products.  One such tactic is requesting medical records of a patient.  Once they receive the information, they attempt to make the case that any problems the patient may be experiencing with the faulty device are not their responsibility.  This can impact the way the patient’s doctor views their situation, and adversely affect their case down the road.

It’s important to remember that in 2007, DePuy was indicted by federal authorities for paying millions of dollars in kickbacks to surgeons who used their products.  During a major recall such as this, suspicion of DePuy’s motives are certainly justified.

Contributed by Kershaw, Cutter & Ratinoff Attorney, Ian M. Hunter

On September 27, 2010, the 9th Circuit issued an opinion in the case of Wang v. Chinese Daily News, No. 08-55483, a case brought by California-based employees of a Chinese-language newspaper for violation of the Fair Labor Standards Act (“FLSA”) and California wage and hour law.  The District Court had certified the FLSA claim as a collective action and further certified the California claims under Rule 23(b)(2) and 23(b)(3).  The District Court had granted partial summary judgment to the plaintiffs, held jury and bench trials and entered judgment for the plaintiffs.  The employer, CDN appealed, challenging aspects of each ruling by the District Court and the jury’s verdict.

In affirming the judgment of the District Court, the 9th Circuit made several key holdings that California wage and hour practitioners may find interesting.  One in particular stands out, as wage and hour lawyers wait for the California Supreme Court to rule in Brinker and Brinkley and face arguments that class certification should be delayed or denied until those rulings.[1]

In Wang[2], as in many wage and hour cases, one key issue was what it means for an employer to “provide” a meal break under California Labor Code section 512(a).  As the Wang court noted:

A pair of cases now pending in the California Supreme Court present the question whether employers need only “provide” meal breaks in the sense that they do    not impede their employees from taking such breaks, or whether employers have an affirmative obligation to ensure that workers are actually relieved of all duties during a meal period.

In arguing either side of this particular issue, practitioners may have a tendency to make the issue black or white, as if the California Supreme Court’s only choice is between two extremes.  I.e., plaintiffs argue that it is ludicrous for employers to think that so long as they post a compliant meal break policy, they need make no further efforts to make those breaks available to employees; defendants, on the other hand, argue that employers should not be required to force employees to take those breaks.  Of course, the answer likely falls somewhere in between, as the court in Wang held.  Employers do have a minimal obligation to make breaks available, and that is unlikely to be impacted by the ultimate ruling in Brinker and Brinkley. The Court in Wang found:

Even if the California Supreme Court interprets California law to place only minimal obligations on employers, the evidence presented to the jury was sufficient to support a finding that CDN did not “provide” reporters with meal breaks. The evidence showed that reporters did not have time to take meal breaks because they worked long, harried hours and faced tight deadlines. There was testimony that reporters were required to carry pagers all the time and be on call from morning until night without ever getting a sustained off-duty period. The evidence showed that reporters did not keep time cards and that pay stubs did not reflect time actually worked. Several reporters also testified that they could rarely take uninterrupted 30 minute breaks. CDN never told reporters that meal breaks were available and never told them to keep track of meal breaks on a time card.  In short, reporters could not take daily, uninterrupted 30 minute breaks regardless of whether they desired to do so. Under either possible reading of California Labor Code § 512(a), CDN did not “provide” its reporters with meal breaks. Substantial evidence therefore supports the jury’s verdict.[3]

In an environment where employee scheduling is less structured than in many other workplaces, the 9th Circuit held that the employer cannot take an entirely “hands-off” approach to meal breaks.  At the very least, “provide” means the employer must take some action to make it realistically possible for employees to take daily, uninterrupted 30-minute meal breaks.  In the Wang scenario, this may mean, at a minimum, the employer must ensure that reporters have sufficient time before deadlines to accomplish all work tasks and have 30 uninterrupted minutes for a break and that on-call reporters have at least 30 uninterrupted minutes off-call.  In a more rigid employment relationship, where employees are on-duty until relieved, this may entail ensuring that “workers are actually relieved of all duties during a meal period.”[4]

What this all means practically for litigants in wage and hour class actions is that Brinker and Brinkley may not possess the talismanic significance we tend to attribute to them.  The California Supreme Court is likely to offer a nuanced and fact-based understanding of “provide” under the Labor Code, one which neither employers nor employees will be able to wield as a club in all cases.  Moreover, unless the question is a close one in any particular pending class action, there is not necessarily any need to wait for the Brinker and Brinkley opinions.  Employers do have an affirmative obligation to make meal periods realistically available to employees.

[1] See Brinker Rest. Corp. v. Super. Ct., 165 Cal. App. 4th 25 (2008), review granted, 196 P.2d 216 (Cal. Oct. 22, 2008); Brinkley v. Pub. Storage, Inc., 167 Cal. App. 4th 1278, 1290 (2008), review granted, 198 P.3d 1087 (Cal. Jan. 14, 2009).

[2] Wang (slip opinion) at 16410, citing Brinkley, Brinker, and Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4th 1286, 1303 (2010).

[3] Wang (slip opinion) at 16410-11.

[4] See Jaimez, 181 Cal. App. 4th at 1303; Cicaros v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962.