“A Risk of Relapse Is a Disability, Court Rules”

by Walter Olson on January 21, 2013

“A federal appeals court on Thursday ruled that insurance companies can be required to pay long-term disability benefits to a recovering drug addict if the person would face a significant risk of relapse by returning to work.” The First Circuit parted company with the Fourth, which has ruled the opposite way. [Jacob Gershman, WSJ Law Blog, subscription; Colby v. Union Security Insurance, PDF]

{ 5 comments }

1 mjs 01.21.13 at 11:54 am

The insidious reach and spread of ADA case law will continue to undermine American labor competitiveness.

2 Walter Olson 01.21.13 at 12:39 pm

It should be noted that this was a case on the coverage trigger for private disability insurance, and that courts applying the ADA are not obligated to adopt those standards . But I agree with MJS that the implications are much more serious if the ideas spread in the ADA realm as opposed to that of insurance law. If the court adopts an over-liberal rule in a coverage dispute, insurance companies usually can rewrite future policies to protect themselves from some or all of the unsought risk. Not so with the regulated parties under the ADA.

3 Tom Gies 01.21.13 at 1:33 pm

As someone who regularly litigates ADA cases on behalf of employers, I am particularly worried about the “regarded as disability” corner of ADA law. It’s not hard to imagine a plaintiff surviving a motion for summary judgment,on a claim asserting that the employer’s refusal to let plaintiff continue in a particular safety sensitive job with significant public safety risk (think airline pilots or bus drivers, or, perhaps the captain of a vessel like the Exxon Valdez) is unlawful because the employer’s worry about a possible relapse amounts to “regarding” the person as being disabled.

4 gasman 01.21.13 at 4:26 pm

Anesthesiologist who abuses drug she should instead be giving her patients. This is my field (anesthesia, not the drug abuse.)
She is not disabled by any means. Recidivism rates for anesthesia drug abusers is predictably very high because their job requires handling narcotics daily and without much supervision and over site being possible. Hard to tell when someone is skimming a percentage off of the patient’s share of the narcs, and frequent drug testing is the only way to tell if it is going into the anesthesia provider instead.

She is not disabled from employment however. She has completed residency training in anesthesia, which permits her to function as a critical care physician having no direct contact with narcotic handling/administration. Anesthesia residency also trains in the management of acute and chronic pain care, which also does not involve access to narcotics (in this field medications are prescribed and nurses administer.) I have overseen the career redirection of colleagues into these areas because they needed to step away from the narcotics, and the temptation to re-abuse.
Further, she has graduated medical school and though initially her license was rescinded, reinstatement following treatment is the norm upon re-application. Nothing states that she has been denied licensure. She is quite capable of seeking non-anesthesia employment within medicine.
And during the time she spent suing her insurer, she could have completed a residency in another specialty area. Hours are brutally long in residency, but what other job training program pays an entirely livable wage for the duration?
Instead of being disabled, she needs to get off her rear and make something of what is left in her career. Her current decision to invest her future in the pursuit of ‘disability as career’ demonstrates amply that she is low life trash.
As you might guess from this, helping colleagues with drug dependence is a tough love project. If we are not tough, then we will find them dead in the call room from overdose (done that twice too many times.)

5 Richard Nieporent 01.21.13 at 10:49 pm

I read through the decision and it appears that the Court was upset that the Insurance company, USIC, did not take a more nuanced approach to the disability claim. It was annoyed that USIC insisted on arguing that the “risk of a potential future disability is not considered a current disability for which benefits are available”. The Court stated that by adhering to the language of the Long Term Disability policy they were being “arbitrary and capricious”. The Court felt that USIC should have provided Dr. Colby more time to recover from her condition. If you read the whole decision it is apparent that Dr. Colby, although released from the rehabilitation clinic, was not in any way rehabilitated.

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