When a person suffers from a disability caused by an injury or sickness, the resulting restrictions and limitations, be they physical or mental, can have a devastating impact on that person’s ability to return to work. What is often overlooked, is that the side effects of the medication prescribed to treat a medical condition can themselves also impede a person’s ability to perform in the work place, thus resulting in a long-term disability. Recently, Central District of California Federal Court Judge Percy Anderson, in Hertan v. Unum Life Insurance Company of America, 2015 WL 363244 (C.D. Cal. June 9, 2015), ruled that a long-term disability insurer had to consider how the side effects of an insured’s medication impacted her cognitive abilities, and therefore, her ability to perform her job.
In 2010, Plaintiff Gaye Hertan was diagnosed with a large brain tumor. At the time of her disability, Hertan was the partner in a law firm. Hertan underwent brain surgery to remove the tumor, and during the surgery plates and screws were inserted into her head. A couple of months after the surgery, Hertan returned to work on a part-time basis. While her doctors cleared her return to work, they also stated that she could work no more than 50-70% of the time. Following the surgery, Hertan experienced pain along the incision and under her scalp, for which her physicians prescribed endocet (Percocet). When the pain persisted, she was eventually also prescribed the pain medications of meloxicam, Lyrica and OxyContin.
Unable to return to work on a fulltime basis, Hertan filed a claim for long-term disability insurance benefits under the ERISA-governed long-term disability insurance policy provided by her employer. Hertan reported to Unum Life Insurance Company of America (“Unum”), the Plan’s claim administrator, that the medication made her tired, a little dizzy and made it hard to focus. Unum initially approved Hertan’s LTD claim. However, despite confirming that Hertan was still taking Percocet, and in fact was required to increase her dosage, which also increased the side effects, Unum eventually denied Hertan’s claim for further LTD benefits. On appeal, Hertan and her physicians again confirmed that Hertan’s pain was disabling, and also that the side effects of the pain medication included drowsiness, dizziness, reduced concentration and overall inability to think clearly. These side effects, obviously, negatively impacted Hertan’s ability to return to fulltime work as an attorney. Despite these reports, Unum again denied her disability claim.
Judge Anderson reviewed Unum’s claim decision under the de novo standard of review. In reviewing Hertan’s medical records and Unum’s claim decision, Judge Anderson determined that Hertan’s medical records, which included numerous references to her pain, pain medication and resulting side effects, supported her ongoing claim for LTD benefits, explaining that:
Throughout her claim, Hertan consistently explained that she could only work part-time because her pain would get worse throughout the day until it reached a point where she would need to take her narcotic pain medication. Once taking the medication, she was unable to work as an attorney because the medication made her tired, dizzy, and unable to focus. (AR 196, 248.) Dr. Jordan repeatedly confirmed that the pain medication impaired Plaintiff’s cognitive functioning to the extent that it prevented her from returning to full-time work as an attorney. (AR 1017.)
Judge Anderson criticized Unum for focusing on the physical requirements of an attorney, a sedentary occupation, rather than “address[ing] the cognitive demands of Hertan’s occupation as an attorney.” Finally Judge Anderson rejected Unum’s contention that the side effects of the Percocet might be minimized as she “may have become habituated to the Percocet,” noting that such a conclusion was not supported by the record. After reviewing the record, Hertan was awarded past-due LTD benefits and placed back on claim.
The lesson of Hertan v. Unum Life Insurance Company of America is that, when assessing whether a claimant meets an ERISA Plan’s definition of disability, the claim administrator must evaluate, not only how the underlying disability impacts a claimant’s ability to perform his or her job duties, but also whether the prescribed medication has side effects that might impede a claimant from returning to the work force. What is surprising is that although this decision is correct and logical, not many long-term disability insurance cases under ERISA have focused on the side effects of medication as being disabling, and that an insurer’s decision to discount them is inappropriate.