A controversial issue in disability benefit evaluations is whether benefits are due to someone whose medical condition, while presently in remission, would be aggravated to such an extent by a return to work that the claimant’s life or health would be jeopardized. The issue is commonly referred to as “risk of disability” or “common care and prudence” and is well-described in Lasser v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 628 (D.N.J. 2001), aff’d344 F.3d 381 (3d Cir. 2003), a case involving an orthopedic surgeon whose cardiac condition was so labile that his doctor deemed him at risk of serious health complications or even sudden death if he returned to his stressful surgical practice.
In addition to arising within the context of heart conditions, the risk of disability issue has also been litigated in several cases involving anesthesiologists addicted to narcotics used in the course of their practice, particularly Fentanyl, a highly potent opioid, which is apparently not an uncommon occurrence. See Eric. B. Hedberg, “Anesthesiologists: Addicted to the Drugs They Administer,” ASA Newsletter (Am. Society of Anesthesiologists, Park Ridge, Ill., May 2001). One such case was the subject of a recent ruling issued by a federal court in Massachusetts: Colby v. Assurant Employee Benefits. 2011 U.S.Dist.LEXIS 117751 (D.Mass. Oct. 12, 2011) . There, Dr. Julie Colby, an anesthesiologist became addicted to Fentanyl which she started taking to cope with severe back pain from a herniated disk and arthritis.
When her co-workers discovered her addiction, Colby ceased working and voluntarily entered into a rehabilitation program. She also applied for disability benefits from her employer’s group disability insurer, Union Security Insurance Co. (USIC). Although her claim was approved while Colby was in a rehabilitation program, the insurer terminated the benefits upon her discharge, informing her “the potential for relapse [into substance abuse] is not the same as a current disability.” When presuit appeals were unsuccessful, Colby filed suit. The original lawsuit resulted in a finding that the insurer had acted arbitrarily (Colby v. Assurant Employee Benefits, 603 F. Supp. 2d 223 (D. Mass. 2009)); however, the court remanded with instructions to “consider Dr. Colby’s risk of drug abuse relapse as a long-term disability if the risk was found to be sufficiently high.” However, upon remand, the insurer again denied the claim, reasserting that the risk of relapse was not a qualifying disability and also maintaining the condition could be mitigated with a reasonable accommodation. The court again disagreed and awarded benefits.
The court reiterated its conclusion from the initial ruling that the insurer acted arbitrarily by categorically excluding the risk of drug relapse as a qualifying disability under the policy. The court pointed out the insurer conceded it would cover a risk of relapse of a physical condition; therefore, excluding the same coverage for mental impairments was deemed arbitrary. Although USIC claimed it never made such a concession, the court pointed to USIC’s reliance on Stanford v. Continental Casualty Co., 514 F.3d 354, 358 (4th Cir. 2008), which noted, “[w]hether [the recovering addict] succumbs to that temptation [of using narcotics when placed in a high-risk situation] remains his choice; the heart-attack prone [individual] has no such choice.” The court in the initial Colby ruling disagreed with Stanford’s holding, finding that observation “defies the nature of drug addiction” and “ignores the common language in LTD plans treating physical and mental disabilities on equal footing.” 603 F. Supp. 2d at 242. Instead, the court agreed with the dissenting opinion in Stanford, calling it a ” ‘moralistic error’ to distinguish the risk of drug abuse relapse for a recovering addict from a physical ailment.” 603 F. Supp. 2d at 242. The court also relied on other district court rulings recognizing that a risk of drug abuse relapse could satisfy a LTD plan’s definition of disability if the probability of relapse was “sufficiently high.” 603 F. Supp. 2d at 243 (citing Kufner v. Jefferson Pilot Fin. Ins. Co. 595 F. Supp. 2d 785, 797 (W.D. Mich. 2009); Royal Maccabees Life Ins. Co. v. Parker. No. 98 C 50422, 2001 WL 1110489, at *7 (N.D. Ill. Sept. 20, 2001) (vacated by settlement, 2003 WL 22019779 (N.D. Ill. Aug. 21, 2003)).
Turning to the specifics of what occurred following the court’s original ruling, the court held that USIC flouted the court’s ruling by again categorically refusing to consider a risk of relapse of addiction as a disability. The court also faulted the insurer’s failure to perform a factual analysis of whether the risk of relapse was sufficiently high so as to preclude Colby from performing her occupation. In addition, the court dismissed the defendant’s argument that a reasonable accommodation of providing someone to “shadow” Colby would have enabled her to work. The court cited USIC’s Master List of Rules, Guidelines, Protocols, which placed the burden on USIC to work with the claimant and the employer to determine the reasonableness of an accommodation that could preclude the payment of benefits. The insurer’s post hoc suggestion of a shadow did not comply with those guidelines; therefore, the court ruled that USIC’s argument was barred.
The court did, however, determine that the disability would only last for the 36-month own occupation period set forth in the policy. After 36 months, the insured would have to be disabled from performing any gainful occupation for which she was qualified and given her education, training and experience, Colby would have been able to perform many occupations that would not require her to be in close proximity to narcotics. Thus, the court ordered the payment of benefits for 36 months and also awarded the plaintiff attorney fees incurred since the date of the initial remand.
As this ruling pointed out, the leading decision on this subject is Stanford v. Continental, where the issues were hotly debated in both the majority opinion that ruled against the claimant and in a passionate dissent authored by Judge Harve Wilkinson who decried the plaintiff’s “cruel choice of losing his disability benefits or returning to the environment that impelled his addiction’ ” There is plainly a split in the court rulings on this issue. Favoring the payment of benefits is Hellman v. Union Cent. Life Ins. Co., 175 F. Supp. 2d 1044 (M.D. Tenn. 2001) (holding that a recovering, substance-addicted anesthesiologist’s risk of relapse may render him unable to return to his profession, depending on the facts); Brosnan v. Provident Life & Accident Ins. Co. 31 F. Supp. 2d 460 (E.D. Pa. 1998) (same). On the other side, two rulings have gone the other way: Allen v. Minn. Life Ins. Co., 216 F. Supp. 2d 1377 (N.D. Ga. 2001) (holding that a recovering, substance-addicted anesthesiologist’s risk of relapse does not render him unable to return to his profession) and Laucks v. Provident Cos. No. 1CV971507, 1999 WL 33320463 (M.D. Pa. Oct. 29, 1999) (same). Since Stanford, though, Wilkinson’s viewpoint was adopted both in Colby and in Kufner v. Jefferson Pilot which dealt with the same issue and where the court refused to countenance what it characterized as the insurer engaging in a “form of ‘benefits Russian roulette’ with plaintiff’s career and [placing] his patients’ lives at risk.” 595 F.Supp.2d at 796. Undoubtedly, the debate will continue.