Question of disability for pharmacist on narcotics doesn’t halt insurer

This article was initially published in the Chicago Daily Law Bulletin on March 15, 2017.

By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at mdebofsky@debofsky.com.

There are some medical conditions that produce such severe pain that only narcotic medication can relieve the distress. In such situations, a question has arisen in several disability insurance cases as to whether taking narcotic pain medication is disabling in and of itself if either licensure issues or strict corporate policies prohibit an employee from working while on narcotic medication.

A recent ruling out of Oklahoma was one such case. In Anderson-Posey v. Unum Life Insurance Company of America, 2017 WL 723898 (N.D. Okla., Feb. 23, 2017), Traselynn Anderson-Posey, who was a CVS pharmacist, fractured her coccyx in a fall outside her home in June 2013.

Due to persistent severe pain and delayed healing, the plaintiff was prescribed a regimen of medication that included narcotics. Although Anderson-Posey’s physical condition improved, she maintained that she remained disabled on the ground that she could not lawfully dispense medication while on narcotics.

The defendant disagreed and argued that Anderson-Posey was both physically and cognitively able to perform her job even while on narcotic medication. However, both the plaintiff and her treating doctor responded by pointing out that the plaintiff was not allowed to work while on narcotics regardless of whether the narcotics themselves interfered with her functioning.

Unum nonetheless claimed that unless the narcotics themselves caused impairment, the plaintiff could not be considered disabled. Unum also later asserted that narcotic pain control was not medically necessary.

The court framed the issue before it as follows:

"Narcotic pain medication can impair cognitive functioning. Defendant asserts that, in plaintiff’s case, the narcotics did not impair her cognitive functioning. Thus, defendant argues that plaintiff was not disabled because she could perform the cognitive demands of her job. Plaintiff argues that defendant’s decision was arbitrary because the record shows that she was impaired by the narcotics, and CVS fired her because she could not work while on narcotics." (Record citations omitted.)

The court resolved the dispute in the plaintiff’s favor, holding: "Regardless of whether plaintiff’s narcotics impaired her cognitive functioning, defendant’s decision that plaintiff could work as a pharmacist while on narcotics is unreasonable."

The court cited provisions of the Oklahoma Administrative Code that it interpreted to bar dispensing drugs while on narcotics, but held that even if the regulations were unclear, CVS policy prohibits pharmacists from distributing drugs while taking any narcotics.

Although Unum disputed that CVS’ policy was clear-cut on that issue, the court pointed out that CVS had fired the plaintiff and it was incumbent on Unum to clarify the point if it thought otherwise.

The court further determined that even though the Oklahoma regulation did not impose a bright-line rule, "common sense dictates that a pharmacist working with any narcotics in her system is not practicing with reasonable skill or safety," as the regulations mandate.

The court explained that working as a pharmacist requires a great deal of reasoning and cognitive focus. A pharmacist must "verify the accuracy of prescriptions, evaluate drug interactions, confirm that the drugs prescribed correspond to the conditions diagnosed and accurately dispense the correct prescriptions."

The court also expressed concern about the risk of serious injury or death that could be a consequence of error and thus concluded: "CVS obviously believes that it is unreasonably risky to allow a pharmacist to practice while on any narcotics." The court was also critical of Unum’s failure to investigate other pharmacies’ policies and found it "doubtful any other pharmacy would disagree with CVS’ position."

The court moreover pointed to evidence showing that the plaintiff’s cognitive abilities were, in fact, affected by the medication and that it made her thinking "fuzzy and slow."

Although Unum asserted that the plaintiff’s ability to drive and her renewal of her pharmacist license during the time she claimed to be disabled rebutted the plaintiff’s claimed impairment and established her cognitive abilities, the court disagreed.

The court found that while driving requires focus and attention, working as a pharmacist is far more cognitively demanding. The court assessed the license renewal as merely showing that the plaintiff hoped to return to work. Hence, the court concluded that the renewal had "nothing to do with narcotics and everything to do with keeping her license up to date so she could return to work as soon as she was off narcotics."

Finally, the court addressed whether the plaintiff even needed to be on narcotics. The court noted that Unum did not even raise that issue until after it was suggested by its in-house attorney. The court also found the issue underdeveloped and lacking in substance. The court wrote:

"Although Dr. Schnars’ opinion raises doubts as to whether plaintiff had a disabling condition that required treatment with narcotics, a few sentences written after a review of plaintiff’s record by only one of defendant’s medical consultants is not enough evidence for a reasonable mind to accept it as adequate support for defendant’s decision. ‘Substantiality of the evidence is based on the record as a whole.’ [Citation omitted.]

A brief opinion written the day before plaintiff’s appeal was denied is simply insufficient to constitute substantial evidence. Thus, considering the record as a whole, substantial evidence does not support defendant’s decision to terminate plaintiff’s [long-term disability] benefits on the basis that plaintiff did not have a disabling condition that required narcotic pain medication and defendant’s decision was therefore arbitrary and capricious."

Despite finding the insurer’s decision arbitrary and capricious, the case was remanded to Unum for further findings.

This case bears a great deal of similarity to Mackey v. Liberty Life Assurance Company of Boston, 168 F.Supp.3d 1162 (W.D. Ark. 2016), which also involved medical licensing restrictions that prevented a nurse from working in the medical field while on prescribed narcotics.

Since there is no tolerance for error in dispensing pharmaceuticals, the court’s concern about both the plaintiff’s and the public’s safety dictated the outcome of this case.