To Do Any Job, You Must Be Able to Be at Work Consistently
Attendance and Working All Day – Shouldn’t Those Be Considered in Disability Insurance Cases?
It seems pretty obvious that a person must be able to attend work regularly to do their job. Despite that, Long Term Disability (LTD) insurance companies regularly ignore the impact of claimants’ symptoms and limitations on the worker’s ability to arrive at work on time and stay on task throughout the entire day. Claims are frequently denied, despite symptoms like pain, drowsiness, fatigue, and others that limit a person’s ability to work an entire work day. LTD insurers frequently ignore absenteeism. If you have to appeal a denied LTD claim, your appeal must include evidence of these limitations, and address the disability insurance company’s unwillingness to consider this significant factor impacting employability.
Courts know that attendance at work is a key job requirement.
Attendance being a crucial component to working is not a new concept. Federal courts have reached this conclusion for decades. For example, one federal judge in Tennessee summed it up this way thirty years ago:
An employee who does not come to work cannot perform any of his job functions, essential or otherwise.
Wimbley v. Bolger, 642 F.Supp. 481, 485 (W.D.Tenn.1986), aff’d, 831 F.2d 298 (6th Cir.1987)(emphasis supplied). Other courts all around the country have reached similar conclusions, saying:
- “[A] regular and reliable level of attendance is a necessary element of most jobs.” Tyndall v. Nat’l Educ. Centers, Inc. of California, 31 F.3d 209, 213 (4th Cir. 1994);
- “[C]oming to work regularly” is an “essential function.” Carr v. Reno, 23 F.3d 525, 529 (D.C.Cir.1994);
- Attendance is a minimum function of any job. Law v. United States Postal Serv., 852 F.2d 1278, 1279, 1280 (Fed.Cir.1988);
- “[A]ttendance is necessarily the fundamental prerequisite to job qualification.” Santiago v. Temple Univ., 739 F.Supp. 974, 979 (E.D.Pa.1990), aff’d, 928 F.2d 396.
- Absenteeism causes a burden on the employer who “is not required by the ADA to grant plaintiff the unpredictable and indeterminate leave.” McIntyre-Handy v. APAC Customer Services, Inc., 2005 WL 5369158, *6 (E.D. Va. 2005).
There are many other court cases saying the same thing. So, as a starting point in a disability claim, putting proof together of attendance problems can be very helpful to demonstrating that you are cannot work.
Courts also require consistent performance while at work.
It is common sense that a person must not only attend work, but be able to offer consistent work performance while at work. Courts have ruled on this crucial factor in various contexts, including disability benefit claims under ERISA and the Americans with Disabilities Act. In the disability insurance context, one court explained:
In order to perform a job satisfactorily, to carry out its duties, a worker must be able to perform the tasks it requires from the beginning to the end of the work day. . . .This is another way of saying that the duty of a job is to perform its tasks as many times, and as long throughout the work day, as the job requires.
Tippitt v. Reliance Std. Life Ins. Co., 457 F.3d 1227, 1236 (11th Cir. 2006). Another court acknowledged that the absence of a definable pattern of performance was a hallmark of disability. Mitchell v. Eastman Kodak Co., 910 F. Supp. 1044, 1051 (M.D. Penn. 1995), aff’d Mitchell v. Eastman Kodak Co., 119 F.3d 433, 443 (3d Cir. 1997); see also Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996), quoting, Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir.1994)) (“[a]n essential element of any government job is an ability to appear for work … and to complete assigned tasks within a reasonable period of time”).
If you have to frequently stop what you are doing, you cannot stay on task to perform a job. This is particularly true when you have to take unscheduled breaks, and you cannot predict when your symptoms will flare up.
An excellent example summing up the overall impact of disability on consistent work performance is found in a Washington state case from the 1990’s. In Ellis v. Egghead Software Short-Term & Long-Term Disability Plans, 64 F. Supp.2d 986, 995 (E.D. Wash. 1999) the court stated:
These documents establish that Ellis has been disabled from all occupations for more than a year. When they are read together with the earlier medical records and reports, the following picture emerges: a man who is continuously drowsy and fatigued, unable to concentrate, unable to perform the most simple physical tasks, unable to stand, sit, or walk for more than an hour at a time, unable to work more than 15 hours per week, and unable to predict which hours he will be available, if at all. This court cannot imagine any occupation that such a person could fill successfully, much less an employer who would be willing to hire him.
So what can you do to prove your claim?
Proving your claim – absenteeism and inconsistent work performance
You need to use every resource at your disposal to prove that you could not attend work regularly and that your ability to perform when you got there would be spotty or limited. You need to show how you cannot engage in activities over a full 8 hour day. How do you do that? Here are some of the ways we help our clients prove their claims:
- Tell your doctor examples that show how your would be absent or unable to perform work for a full day.
- Keep a journal spelling out detailed examples from your daily life that would illustrate your problems with attendance or maintaining focus at work, and share the best examples with the disability claim examiner at the insurance company.
- If you frequently have to stop what you are doing to rest, sleep, or for another reason related to your disability, tell people. Do not hide your limitations. Your friends and family can be witnesses for you.
- Tell your family to take pictures of you in the middle of the day when you are out of energy and resting. Some of those pictures may show more than you can ever say about your fatigue or other symptoms.
You need the people deciding your disability insurance claim to know what it is like to live in your skin. If getting to places on time, attendance, or keeping on task for extended periods of time are problems for you, you must make sure that your claim file has proof of that. The disability adjuster will not just take your word for it. You need too offer as many different types of proof as possible to make them understand that you would not be able to get to work regularly or do the job to the level required if you could get there.
If your group employee disability claim was denied, get an opinion from an ERISA lawyer about filing an appeal. Call us toll free from anywhere in the U.S. at (866) 282-5260. We handle ERISA disability cases nationwide, and are happy to schedule phone or video chat consultations with you.