The 11th Circuit recently reviewed a Federal Express employee’s long term disability claim through Aetna. The Federal Express worker, Mr. Oliver, had been found disabled by the Social Security Administration after multiple surgeries. He did not give up on life, but still tried to do what he could such as helping get children ready for school, attending classes, attending church and sporting events, and driving a car up to a limited twenty five (25) miles per week. He also participated in physical therapy and walking.

When Mr. Oliver was working, he felt that the disability plan was a great benefit because it would protect him in his time of need. However, this plan stated that to be considered disabled after twenty four (24) months he had to show “complete inability…to engage in any compensable employment for twenty five (25) hours per week”. Aetna, of course, found that the activities Mr. Oliver admitted he could do qualified him for employment of twenty five (25) hours per week. Aetna said “any” included employment that was not gainful. That was rather surprising given that many paraplegics perform all of those activities and quadriplegics can perform some too. No one, short of being in a coma or incompetent, would even qualify given many can perform most of those activities. So is this disability policy really limited to persons in a coma or incompetent?

Mr. Oliver filed suit and the court agreed that “any employment” did not require some form of gainful employment. On appeal the 11th Circuit affirmed this as well.

The decision is rather surprising given the 11th Circuit precedent known as Helms v. Monsanto, 728 F. 2d 1416 (11th Cir. 1984). In that opinion, the 11th Circuit ruled that it would interpret a policy to exclude such menial jobs as selling peanuts or pencils on a street corner for a pittance. Employment had to be gainful.

This plan should have been interpreted in the same manner. To be denied, Mr. Oliver must be capable of working with reasonable continuity in a competitive job twenty five (25) hours per week. He could not do this. His pain produced unpredictable good days and bad days.

The 11th Circuit, however, found that if Mr. Oliver can sell pencils or peanuts on the street corner he is not disabled.

Something has to give here. It is fraudulent to provide such policies as a benefit to employees without disclosing to them in advance that it will not provide coverage really unless you are in a coma or incompetent.