August 16, 2018

Archives for November 2017

Bullshit Jobs

“Work is the refuge of people who have nothing better to do.”
Oscar Wilde

Radio journalist Studs Terkel interviewed hundreds of people for his 1974 book Working. Here are a couple quotes from it:

Work is about a search for daily meaning as well as daily bread, for recognition as well as cash, for astonishment rather than torpor; in short, for a sort of life rather than a Monday through Friday sort of dying.

Most of us have jobs that are too small for our spirit. Jobs are not big enough for people.

Apparently not much has changed in the 43 years since Working came out. Consider this from The Power of Meaning, by Emily Esfahani Smith (2017):

Today, about 70 percent of all employees either are “not engaged” in their work—that is, they feel uninvolved, uncommitted, and unenthusiastic about it—or are “actively disengaged” from it, and less than half of all workers feel satisfied with their jobs.

Or consider anthropologist David Graeber’s widely circulated 2013 article On the Phenomenon of Bullshit Jobs: A Work Rant:

In the year 1930, John Maynard Keynes predicted that, by century’s end, technology would have advanced sufficiently that countries like Great Britain or the United States would have achieved a 15-hour work week. There’s every reason to believe he was right. In technological terms, we are quite capable of this. And yet it didn’t happen. Instead, technology has been marshalled, if anything, to figure out ways to make us all work more. In order to achieve this, jobs have had to be created that are, effectively, pointless. Huge swathes of people, in Europe and North America in particular, spend their entire working lives performing tasks they secretly believe do not really need to be performed. The moral and spiritual damage that comes from this situation is profound. It is a scar across our collective soul. Yet virtually no one talks about it.

“Virtually no one talks about it.” Why not? The Financial Times ran an article a couple months ago called Britain’s Joyless Jobs Market Can Be Bad For Your Health. (It’s here, but you’ll have to subscribe to read it.) It makes the same point as the following quote from the article published by the Lawyers Assistance Program of British Columbia which we looked at a few weeks ago:

[I]t is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.

Seems like a pretty uncontroversial thing to say, but you can’t tell from the nastiness in the comments that follow the article — one more sad case of polarized opinions talking past each other and the loss of meaningful discourse. Not only can’t we talk about economics, but apparently we also can’t talk about how crummy jobs ruin our health.

Why has it become so inflammatory to suggest that boring, meaningless work might not be a good thing? Because of the widespread “truths” about work that have become culturally sacred. To many — maybe most — people, work represents a moral good, no matter how boring, trite, thoughtless, and demeaning.

One person who isn’t afraid to talk about it is Rutgers history professor James Livingston. He says the following in his book No More Work: Why full employment is a bad idea (2016):

Work means everything to us. For centuries—since, say, 1650[1]—we’ve believed that it builds character (punctuality, initiative, honesty, self-discipline, and so forth). We’ve also believed that the market in labor, where we go to find work, has been relatively efficient in allocating opportunities and incomes. And we’ve also believed that even if it sucks, the job gives meaning, purpose, and structure to our everyday lives—at any rate we’re pretty sure that it gets us out of bed, pays the bills, makes us feel responsible, and keeps us away from daytime TV.

Those beliefs are no longer plausible. In fact, they’ve become ridiculous, because there’s not enough work to go around, and what there is of it won’t pay the bills—unless, of course, you’ve landed a job as a drug dealer or a Wall Street banker, becoming a gangster either way.

[Work] no longer functions as either a moral calendar or an economic calculator. You will learn nothing about character by going to work at the minimum wage because the gangsters or the morons at corporate headquarters control your opportunities; you will learn nothing about the rationality of the market because the same people determine your income.

More next time.


[1] 1650 is the year René Descartes died.

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Colorado Court of Appeals: Treatment with Approved Physician Did Not Terminate Previous Physician’s Authorized Treatment Provider Status

The Colorado Court of Appeals issued its opinion in Berthold v. Industrial Claim Appeals Office on Thursday, November 16, 2017.

Workers’ Compensation—Change of Authorized Treating Physician—Maximum Medical Improvement—Final Admission of Liability.

Claimant sustained work injuries and received medical care from Sharma, an authorized treating physician (ATP). Several months later she requested and received permission, under C.R.S. § 8-43-404(5)(a)(VI)(A), to begin treatment with another physician, Miller. Notwithstanding the agreed-upon change of doctor, claimant’s employer periodically sent her to the see Sharma. After Miller assumed her care, Sharma reported that claimant reached maximum medical improvement (MMI). Miller disagreed. Despite this disagreement, claimant’s employer filed a final admission of liability (FAL) based on Sharma’s conclusion. Claimant challenged the FAL, and an administrative law judge found that Sharma’s status as claimant’s ATP terminated when Miller began treating her, pursuant to C.R.S. § 8-43-404(5)(a)(IV)(C), the automatic termination provision. A panel of the Industrial Claim Appeals Office (Panel) disagreed, concluding that C.R.S. § 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under C.R.S. § 8-43-404(5)(a)(III). The Panel further held that the termination provision in C.R.S. § 8-43-404(5)(a)(VI)(B), which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP, did not apply either because it was not in effect when claimant changed physicians.

On appeal, claimant contended that her employer erred in relying on Sharma’s MMI finding when issuing the FAL because Sharma was no longer an ATP when he made the MMI finding. She argued that (1) her treating relationship with Sharma was automatically terminated by C.R.S. § 8-43-404(5)(a)(IV) because it applies to all changes of physicians, and (2) even if this section does not apply, her relationship with Sharma was terminated by recently amended C.R.S. § 8-43-404(5)(a)(VI). The Colorado Court of Appeals held that the C.R.S. § 8-43-404(5)(a)(VI)(B) termination provision only applies to requests to change a treating physician made after the effective date of the provision. Second, C.R.S. § 8-43-404(5)(a)(IV) is limited to changes made under C.R.S. § 8-43-404(5)(a)(III) “within ninety days after the date of the injury.” Because claimant’s request in this case to change her physician predated C.R.S. § 8-43-404(5)(a)(VI)(B), and because it was not granted under C.R.S. § 8-43-404(5)(a)(III), her treatment with Miller did not automatically terminate Sharma’s status as an ATP.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Fault-Based Grounds for Dependency and Neglect Must Be Proved as to Each Parent

The Colorado Court of Appeals issued its opinion in People in Interest of M.M. and P.M. III on Thursday, November 16, 2017.

Dependency and Neglect—No Fault—Summary Judgment.

The Fremont County Department of Human Services (Department) filed a dependency and neglect petition concerning M.M. and P.M. III. Mother admitted that the children were dependent and neglected. Although father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, he denied the allegations in the petition against him and requested an adjudicatory trial before a jury. The Department moved to adjudicate the children dependent and neglected by summary judgment. The trial court granted summary judgment and adjudicated the children dependent and neglected.

On appeal, father asserted that the trial court erred in granting summary judgment. He contended that the facts concerning him were disputed, the remaining undisputed facts concerned only mother, and the children could not be adjudicated dependent and neglected simply because the Department established that mother was a danger to the children. There are four statutory grounds for adjudication, two of which require a showing of fault as to each parent. The undisputed facts established that, with respect to the “no-fault” grounds, C.R.S. § 19-3-102(1)(c) and (e), the children were dependent and neglected and the trial court properly granted summary judgment on those statutory grounds. With respect to C.R.S. § 19-3-102(1)(a) and (b), however, the material facts concerning father’s conduct were disputed and thus the trial court erred in granting summary judgment on those grounds.

The judgment was affirmed in part and reversed in part. The case was remanded for the trial court to amend the order of adjudication to reflect that the children were adjudicated dependent and neglected only under C.R.S. § 19-3-102(1)(c) and (e).

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/29/2017

On Wednesday, November 29, 2017, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Pang v. Sessions

United States v. Beierle

Groesbeck v. Bumbo International Trust

Vansickle v. Braggs

United States v. Ross

United States v. McIntosh

Haley v. Allbaugh

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Introduction, and Lessons from Alzheimer’s Disease

Editor’s Note: CBA CLE Legal Connection welcomes Aaron Eisenach to the blog. Aaron Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. Read more below.

I am very excited to submit my first blog on CBACLELegalConnection.com! Some of you will recognize me from recent Elder Law and Estate Planning Retreats. Others may have heard me lecture at Senior Law Day or provide CLE courses on long-term care planning. Or perhaps you have read my chapters in Elder Law in Colorado and Senior Law Handbook. But in case our paths have never crossed, please allow me to further introduce myself.

I am a long-term care planning specialist representing myriad insurance companies and products that help people protect their family and finances from the greatest risk left in life: needing extended care.  I wear three hats in my professional life. First, I assist other advisors and agents that do not specialize in long-term care insurance and choose to trust me with their clients.  Second, I serve as a wholesaler of LTC planning products to agents in Colorado and many other states. And third, as an educator I am certified by the Colorado Division of Insurance to teach state-mandated continuing education courses that all resident agents must complete in order to offer LTC coverage. Whichever hat I’m wearing my goal is to help families mitigate the emotional, physical and financial consequences of an extended care event.  My steadfast belief is that everyone deserves a serious conversation about the potentially devastating emotional, physical and financial consequences needing long-term care can cause.

My passion for this niche in the insurance industry stems from witnessing my father’s and grandfather’s battles with Alzheimer’s disease and the lasting impact on family and finances. I remember occasionally visiting my grandfather, usually after Sunday morning church services, in the skilled nursing facility in which he lived for 10 years. I can still breathe the smells and hear the groans from residents in the hallways of the facility. I could hardly wait to get in the car and escape the image of the man that I only knew as a prisoner to a crippling, horrific disease.

Imagine the heartbreak when we started to realize that my father was beginning to show symptoms of the same condition. Thankfully, before signs of dementia crept in to rob him of his cognition, he took my advice and purchased long-term care insurance. Because of his familial experiences, my father realized that the coverage was not for him per se. It was for my mom, and his children and grandchildren more than it was ever for him. When dad resigned from a prestigious job, a few newspaper articles, banquets and receptions honored him while he was still mostly aware of his surroundings. When dad could no longer be left alone, my mom also quit her job and began her new vocation: full-time caregiver.

Dad’s long-term care insurance policy was structured to cover care at home, in an assisted living or skilled nursing facility, adult day care or hospice. Its benefits were unlimited: the coverage could never be exhausted regardless of how long he might have needed care.  Mom resisted turning on the benefits for many months (it seems she held sacred the “…for better or worse, for richer or poorer, in sickness and in health” part of the wedding vows) until she finally realized that she needed help in caring for dad. Eventually a home care agency was hired to help take care of him a few hours per day, freeing her to go to the grocery store, the doctor’s office, or see a grandchild’s piano recital. In other words, the long-term care insurance gave her some of her life back.

Eventually the combined care provided by mom and the agency wasn’t enough. After a health scare of her own, mom called me and wanted to know my feelings about placing dad in a nursing home permanently. Realizing that my dad’s chronic care needs were making my mother chronically-ill herself, I told her that she had my absolute encouragement to do so. At that point she said that she had already talked to the other children and that they also agreed. A facility was chosen that was close to the homes of three of the four children. Mom and dad’s house was sold, allowing mom to live closer to the facility so that she could be there every day possible as his loving wife and his personal care advocate, which is so vitally important regardless of the quality and reputation of the facility in which your loved one resides. As an example of her compassion, after dad had passed away in the very early morning hours she fed his roommate breakfast later that morning. All but $20 per day of dad’s 18-month stay was paid-for by his insurance policy. In fact, not a single penny of mom or dad’s retirement plans was spent on care.

These experiences and God’s hand led me to my passion for, and career in, telling others about the importance of planning ahead for the possibility of needing extended care services. For more than 20 years I have listened to clients tell me of their own stories of caregiving. The stories lead to similar conclusions: the emotional and physical strains and pressures of being a caregiver are devastating, adult children often do not contribute equally to the care needs of the parent(s) which can lead to resentment and in-fighting, the lifetime savings of the care recipient was depleted much quicker than ever imagined, relying on Medicaid should be avoided, the lack of planning leads to chaos, and more.

My next blog will focus on the premise that everyone needs a plan for care (not necessarily insurance), the components of a care plan, and common planning goals. I will also present the latest cost of care data for Colorado. Until then, if there is anything I can do for you or your clients, please visit www.AaronEisenach.com or call 303-659-0755.

 

Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of AaronEisenach.com and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.

Colorado Court of Appeals: Parties Cannot Waive Statutory Time Period for Record Sealing

The Colorado Court of Appeals issued its opinion in Robertson v. People on Thursday, November 16, 2017.

Plea Agreement—Menacing—Consumption of Marijuana—Possession of Drug Paraphernalia—Consumption of Alcohol—Deferred Judgment—Petition to Seal—Statutory Waiting Period.

In 2014, Robertson was charged in three separate cases with (1) misdemeanor menacing; (2) consumption of marijuana and possession of drug paraphernalia; and (3) consumption and possession of alcohol by a person under 21. Robertson entered into a global plea agreement whereby he pleaded guilty to the menacing charge and received a deferred judgment lasting one year, the drug and alcohol cases were dismissed, and Robertson was permitted to seal the records of all three cases. After Robertson completed the deferred judgment, his guilty plea was withdrawn and the case was dismissed. He petitioned the court to seal the records in all three cases, which the court granted.

On appeal, the prosecution contended that the district court erred by granting Robertson’s petitions to seal the records in the drug and alcohol cases because C.R.S. § 24-72-702(1)(a)(III)(A) prohibits such sealing until at least 10 years have passed. Where a statute prohibits a court from sealing criminal records until 10 years have passed since the disposition of the criminal proceedings, as in this case, the parties may not waive this requirement and authorize the court to seal the records earlier. Therefore, the district court lacked authority to seal the criminal records in the drug and alcohol cases. The records in the menacing case, however, were eligible for sealing because that case was completely dismissed after Robertson completed the deferred judgment. However, the existing record in the menacing case was not sufficient to support the order.

The orders in the drug and alcohol cases were vacated. The order in the menacing case was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Roaring Fork Transportation Authority Possessed Eminent Domain Power by Statute

The Colorado Court of Appeals issued its opinion in Sos v. Roaring Fork Transportation Authority on Thursday, November 16, 2017.

Eminent Domain—Inverse Condemnation Claim—Compensable Damages—Restoration Damages—Diminution in Value.

Sos owns property on which he owns and operates a tire business. The Roaring Fork Transportation Authority (RFTA) built a bus station on the property north of and adjacent to his property. Before RFTA began construction, an earthen embankment rested on the property line between Sos’s and RFTA’s properties. Sos regularly sold tires and other items on the embankment and, with the previous owner’s permission, on the northern property. As part of its construction, RFTA removed the embankment and built a wall on its property, and then restored the embankment, which the wall relies on for lateral support. Sos then wanted to remove the embankment to facilitate his business. He brought an inverse condemnation claim against RFTA because the bus station wall relies on his property for lateral support. RFTA moved for summary judgment and Sos moved for partial summary judgment, regarding whether a compensable taking or damages had occurred. The district court denied RFTA’s motion and granted Sos’s motion, determining that the force the bus station wall permanently imposed on the embankment constituted compensable damage under article II, section 15 of the Colorado Constitution, and that the proper measure of damages was restoration damages rather than diminution in value.

On appeal, RFTA argued that the district court erred in determining that RFTA possessed the power of eminent domain because the General Assembly had not granted RFTA this power expressly or by clear implication, and because it does not possess the power of eminent domain, Sos cannot establish an inverse condemnation claim. Pursuant to the plain language of C.R.S. § 43-4-604, RFTA has the power of eminent domain by clear implication.

RFTA next asserted that the district court erred in concluding that RFTA’s bus station wall caused compensable damage because the wall’s construction did not substantially diminish the value of Sos’s property or substantially change Sos’s use of his property. The district court found, with record support, that RFTA authorized the building of the bus station wall and that RFTA incorporated the embankment’s support into the bus station wall’s design and construction. The court, therefore, properly determined that the imposition of force on Sos’s embankment was the natural consequence of RFTA’s intentional construction of the bus station wall. Further, the record, including RFTA’s own expert opinions, supported the district court’s finding that the bus station wall imposed a new force on Sos’s embankment to such a degree that an engineered remedy was now required before the embankment could be excavated. The district court properly determined that RFTA damaged Sos’s property.

RFTA next contended that the district court erred in ruling that restoration costs rather than diminution of value was the proper measure of damages. The record shows that the diminution in value of Sos’s property after RFTA built the bus station was de minimis. But RFTA’s construction substantially limited Sos’s use and enjoyment of the embankment area. Therefore, the district court properly determined Sos’s damages under the measure of restoration costs.

RFTA further argued that the district court erred in allowing evidence of Sos’s business and personal uses for his property because such interests are non-compensable in condemnation cases. RFTA contended that Sos presented no admissible evidence regarding restoration costs or supporting the damages award. The Court of Appeals concluded that the district court’s damages award is supported by competent record evidence.

RFTA also argued that the district court erred in rejecting its proposed instructions regarding diminution of value being the proper measure of damages. The district court’s decision was supported by competent evidence and did not cause the commissioners to be inaccurately instructed on the law.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/28/2017

On Tuesday, November 28, 2017, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Mayfield v. Ruiz

United States v. Cisneros-Guerrero

United States v. Baker

United States v. Booker

United States v. Roibal-Bradley

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Jury Award of Zero Noneconomic Damages Appropriate Where Injuries were De Minimis

The Colorado Court of Appeals issued its opinion in Miller v. Hancock on Thursday, November 16, 2017.

Non-economic Damages—Jury Award—De Minimis—Pre-Offer Costs—Pretrial Offer of Settlement.

Plaintiff Miller was involved in an automobile accident with defendants, Aragon and Hancock. Miller sued Aragon and Hancock to recover economic and noneconomic damages that he suffered as a result of that accident. Before trial, both Aragon and Hancock made statutory offers of settlement to Miller pursuant to C.R.S. § 13-17-202. The jury awarded Miller only economic damages. Miller filed a motion for new trial on damages, which the trial court denied. Each of the parties also moved to recover their costs, Miller as the prevailing party, and Aragon and Hancock pursuant to C.R.S. § 13-17-202, arguing that the final judgment Miller recovered did not exceed their respective pretrial settlement offers. The court did not award Miller costs against Hancock, but awarded Hancock the entire amount of her claimed costs that accrued after her first offer. The court awarded costs in favor of Miller and against Aragon and denied Aragon’s request for costs.

On appeal, Miller contended that the trial court erred by denying his motion for new trial on damages. He argued that a jury’s failure to award noneconomic damages is impermissible as a matter of law when the jury returns a verdict awarding economic damages. Miller contended that it was undisputed that his injuries were more than de minimis; however, his characterizations of the relevant facts and evidence lack record support. The jury could have reasonably concluded that Miller’s injuries from the accident were de minimis. Thus, the record here was sufficient to support the jury’s award of zero noneconomic damages.

Miller also argued that the trial court should have included his pre-offer costs when determining whether Hancock’s pretrial offers of settlement exceeded the amount Miller recovered from Hancock at trial. Whether a statutory offer includes pre-offer costs depends on the language of the offer. Hancock’s offers unambiguously included costs, so Miller was entitled to have his pre-offer costs included in his final judgment for the purpose of determining whether either of Hancock’s offers entitled her to recover her post-offer costs pursuant to C.R.S. § 13-17-202. Thus, the trial court erred by interpreting Hancock’s offers to exclude costs.

Miller next argued that the trial court erroneously reduced the costs he was entitled to recover, yet awarded Hancock the entire amount of her claimed costs without subjecting her costs to similar scrutiny. Here, the trial court abused its discretion when it reduced the amount of Miller’s recoverable costs without making adequate findings as to whether those costs were reasonable and necessary.

The order denying Miller’s motion for a new trial on damages was affirmed. The awards of costs to Hancock and Miller were reversed and the case was remanded for further proceedings to determine Miller’s costs and whether, after determining Miller’s costs, Hancock made a settlement offer pursuant to C.R.S. § 13-17-202 that exceeds the amount of Miller’s final judgment, inclusive of pre-offer costs and interest.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

The Colorado Court of Appeals issued its opinion in People v. Deleon on Thursday, November 16, 2017.

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/27/2017

On Monday, November 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Wilcox

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Workers’ Compensation Case Reversed Because Interpretation of Policy was Arbitrary and Capricious

The Tenth Circuit Court of Appeals issued its opinion in Owings v. United of Omaha Life Insurance Co. on Tuesday, October 17, 2017.

The plaintiff in this case, Owings, suffered a disabling injury while on the job and was afforded long-term disability benefits by the defendant, United of Omaha Life Insurance Company (United). Owings disagreed with the amount and beginning date of his disability benefits and filed suit. The district court granted summary judgment in favor of United, and Owings appealed.

Owings injured his back at work on July 1, 2013 while moving a surgical chair and cabinet, which left Owings unable to lift, bend, stoop, carry, push, and pull, resulting in Owings experiencing long-term back pain and spasms. The same day of his injury, Owings met with Bratton, the Director of Human Resources at United, who informed Owings that his title would be changed and his salary reduced, effective immediately. Owings went home and did not work for the company thereafter. Owings then applied for short-term disability benefits with United. As part of his application, Owings described the incident and the date it occurred, as well as statements from his employer and treating physician, Dr. McClintick. Dr. McClintick listed the “Date symptoms first appeared” as July 1, 2013, also noting that Owings had been continuously disabled and unable to work from the same date. Bratton, however, completed and signed an “Employer’s Statement” form for United, where she stated that Owings disability resulted from a previous injury and his last day of work was July 2, 2013.

Owings applied for long-term disability and was approved, although the letter stated that Owings became disabled on July 3, 2013. Owings, through his attorney, sent a letter to United asking for the date of disability to be changed to July 1, 2013. In response, United asked for copies of all of Owings’ time sheets. Bratton emailed Union twice with conflicting dates on Owings’ last day, but ultimately concluded that Owings left work at some time on July 2, 2013. Relying on this information, United denied the request to adjust Owings’ disability date, explaining that July 3 was the first day Owings was unable to work, since his employer verified he had worked July 2. United would only pay Owings the discounted salary set forth by Britton on July 1st. Owings subsequently filed suit.

Owings’ complaint is governed by the Employee Retirement Income Security Act (ERISA). A benefits decision under an ERISA-governed plan is generally left to the discretion of the administrator in determining the terms of the plan and of determining eligibility. In this case, the policy afforded United the discretion and final authority to construe and interpret the policy. The Tenth Circuit then examined whether the benefits decision at issue was arbitrary and capricious, limiting the review to determining whether the interpretation of the plan was reasonable and made in good faith.

Owings asserted that United abused its discretion in interpreting the term “disability” when calculating the amount of his monthly long-term disability benefit under the policy. Owings argued that the policy defined disability by reference to the inability to perform at least one of the material duties of his regular occupation, whereas United omitted the phrase “at least one of” to modify the policy to include each and every job duty.

The Tenth Circuit found United’s definition of disability to be inconsistent with the plain language of the policy, which requires only that the injury prevent the employee from being able to perform one material duty of occupation. The Tenth Circuit therefore found United’s definition of disability arbitrary and capricious.

The next issue was that United prohibited an employee from being declared disabled on the last day that he or she worked. United argues that Owings performed his job with no impairment for at least part of the day on July 1, so the earliest possible date disability could begin was on July 2. The Tenth Circuit found that United’s explanation could not be inferred from the policy’s definitional section. Nothing in the policy supported United’s conclusion that an employee cannot become immediately disabled after working for part of the day.

A third issue was whether United erred in relying exclusively on the statements from Bratton. The Tenth Circuit found that the record established, without question, that United rejected Owings’ initial request to adjust his disability date, as well as his subsequent administrative appeal, due to Bratton’s statements. The Tenth Circuit held that United erred in blindly relying on Bratton’s statements, as the determination should not have been based on whether Owings worked on a particular day, but rather on which day he sustained his injury.

The Tenth Circuit found that it was undisputed that Owings became injured on July 1. Owings’ treating physician identified July 1 as the date Owings was first unable to work. The only work Owings did on July 2 consisted of using the company cell phone; he did not physically go to the workplace. For these reasons, the Tenth Circuit concluded that United acted arbitrarily and capriciously in interpreting and applying the policy language. Under plain and ordinary meaning of the policy language, Owings became disabled on July 1, 2013. The proper remedy was to reverse the district court’s grant of summary judgment in favor of United.

The Tenth Circuit Court of Appeals REVERSED and REMANDED with directions to enter summary judgment in favor of Owings.