By A. Christopher Wieber (Law Office of Mark Scherzer)
Clients sometimes ask me: “If my doctor says going to work puts my health at risk, is that enough for me to claim disability? What if measures the doctor tells me to take for safety interfere with my work duties?”
Some disabilities limit what you can do physically. A computer programmer who suffers wet macular degeneration to the central vision of both eyes will be unable to see well enough to perform tasks requiring computer work and near acuity. A restaurant chef who, after an attack of MS, suffers from tremor, weakness, and stiffness in the dominant hand, along with blurry vision, will be limited from using fine knife techniques, maneuvering pans, and similar tasks requiring hand-eye coordination.
In the context of other disabilities, the limitations aren’t so much about what the claimant can’t do, but what the claimant shouldn’t do. Doctor’s may restrict a person’s activities if they unreasonably endanger either the person’s life/health or the health and safety of others. Courts have generally recognized that such prophylactic/protective restrictions must be considered for a fair and reasonable determination of a claimant’s entitlement to disability benefits. In a recent case, Osborn v. Paul Revere Life Insurance Co., 2024 U.S. Dist. LEXIS 41683 (E.D. Cal., Mar. 8, 2024), a court took a strict view, however, about when such protective restrictions may substantiate a disability claim. In Osborn, the court concluded that an oral and maxillofacial surgeon was not entitled to disability benefits under his Paul Revere disability income insurance policy when he discontinued surgical duties and closed his office in March, 2020, out of concern that the COVID pandemic, increased the risk to his life and health because of his pre-existing diagnoses of asthma, hypogammaglobulinemia, and hypertension. His health concerns were heightened because of his office’s inability to obtain adequate supplies of protective personal equipment (“PPE”).
The District Court addressed a separate issue under Dr. Osborne’s business overhead expense policy, which is discussed here: Business Overhead Policy Covering Ordinary Operational Expenses Inapplicable to Winding Down Costs.
Osborn Facts
As a self-employed oral and maxillofacial surgeon in Bakersfield, CA, Dr. Osborn regularly performed third molar surgeries, reconstructive jaw surgeries, and single and multiple extractions of teeth. In 1989, Dr. Osborn purchased a disability income insurance policy and a business overhead expense policy from Paul Revere Life Insurance Company. The disability income policy provided that Dr. Osborn would be considered “totally disabled when [he was] rendered unable to perform with reasonable continuity the substantial and material acts necessary to pursue [his] usual occupation in the usual and customary way.” He was entitled to benefits as of the 91st day of disability.
In the years leading up to 2020, Dr. Osborn was diagnosed with asthma, allergic rhinitis, hypogammaglobulinemia, and hypertension. These conditions were “well-controlled” and did not — prior to 2020 — limit Dr. Osborn’s performance of his occupational duties.
At the onset of the COVID pandemic, Dr. Osborn’s primary care physician and his allergist/immunologist both advised him that he was at “high risk” should he contract COVID-19. However, it does not appear that either doctor specifically directed him to cease work. Meanwhile, the American Association of Oral Maxillofacial Surgery issued a directive that limited practicing to only urgent and emergent procedures and restricted the frequency for which an operation room could be used.
On March 12 or March 13, 2020, Dr. Osborn stopped working and on Monday, March 16, 2020, he suspended his practice and sent all his employees home. His practice managers continued to work remotely and an employee responsible for office supplies attempted to purchase PPE, without success, during the period from March through June, 2020. Meanwhile, the Occupational Safety and Health Administration (“OSHA”) issued guidelines categorizing routine dental procedures — due to the probability of aerosolization during such procedures — as a “very high risk activity,” and recommending higher level PPE such as N95 masks.
Dr. Osborn decided to close his practice in June, 2020, terminating all but 2 of his employees (who were kept on to assist with billing, accounts receivable and other administrative tasks), putting the practice up for sale, listing his California home for sale, and moving to his home in Colorado. Dr. Osborn took no steps to reopen or restart his business when, in late July or August 2020, his practice received PPE and N95 masks. Nor did Dr. Osborn renew his dental license to practice in Colorado or take any steps to work as an oral surgeon in Colorado.
During this time frame, Paul Revere developed internal guidelines for the handling of claims based on COVID risk:
If the insured’s condition did not or would not medically restrict him/her from performing the occupational duties outside of the COVID environment and if the medical status has been stable, the reviewer should address whether the insured is restricted from working in the COVID environment with the proper use of appropriate PPE… If someone claims to be unable to use appropriate PPE because of a medical impairment, then the reviewer must determine whether the medical evidence supports such a statement.
In November, 2020, Dr. Osborn submitted a claim for disability income benefits to Paul Revere. Paul Revere denied the claim, and Dr. Osborn filed a lawsuit in state court. The suit was removed to the U.S. District Court for the Eastern District of California.
The Recognized Relevance of Prophylactic Restrictions in Disability Claims
It is a longstanding principle of disability insurance law that “[t]he insured is considered to be … disabled where it is impossible for him to work without hazarding his health or risking his life.” Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp. 2d 619, 628 (D.N.J. 2001) (quoting 1C Appleman, Insurance Law & Practice § 651 at 241 (1981)), aff’d, 344 F.3d 381 (3rd Cir., 2003), cert. denied, 541 U.S. 1063 (2004). Indeed, it is standard practice for insurers to ask treating doctors to identify both limitations (what the person cannot do) and restrictions (what the person should not do).
Despite this rule, when the disability claim rests principally on restrictions imposed for the person’s safety, it is not uncommon for disability insurance carriers to reject claim on the ground that the restriction is “speculative,” “overly protective,” or “premature.” Many courts have rejected such insurer reasoning: Lasser, 334 F.3d at 391 (“[O]nce a claimant makes a prima facie showing of disability through physicians’ reports — as Dr. Lasser has done here through physicians’ reports stating that stress will exacerbate his heart condition — and if the insurer wishes to call into question the scientific basis of those reports …, then the burden will lie with the insurer to support the basis of its objection”); Bishop v. Long Term Disability Income Plan of SAP Am., 2007 U.S. App. LEXIS 10848 (10th Cir., May 7, 2007) (claim administrator failed to make adequate findings where, inter alia, it “failed to address the effect job stress would have on Bishop’s ability to perform all the essential duties of his job”); Miller v. Am. Airlines, Inc., 632 F.3d 837, at *44-46 (3d Cir., 2011) (where medical consultant “conclu[ded] that Miller could perform as a pilot, without explaining how his claimed anxiety and latent risk of psychosis would be compatible with this uniquely stressful position” and where the claim administrator in turn “fail[ed] to address the specific demands that Miller would face as a pilot,” this constitutes “a significant oversight that suggests the decision was arbitrary and capricious”); Aisenberg v. Reliance Standard Life Ins. Co., 2023 U.S. Dist. LEXIS 28820, at *12 (E.D. Va. Feb. 21, 2023) (“Defendant abused its discretion in failing to consider and assess the risk of future harm that Plaintiff faced from returning to his high stress position”).
Some examples of successful and unsuccessful claims based on prophylactic restrictions may illuminate how and when such restrictions can be effective in substantiating a disability claim. The Lasser and Serrato cases underscore the importance of united medical opinion in support of restrictions that are well within the medical profession’s standard of care. Dr. Lasser was an orthopedic surgeon employed by a medical group along with four other physicians. In 1996 he suffered a heart attack, having suffered from coronary artery disease for many years and undergoing coronary bypass surgery ten years earlier, in 1986. After the 1996 heart attack, Dr. Lasser’s cardiologist prescribed a change of diet, exercise, drug therapy, and a reduction of his work-related stress. Dr. Lasser returned to work in September, 1996, with a 50% patient load, and exemptions from on-call and weekend duties, and from emergency surgeries. The insurance carrier for his long-term disability plan, Reliance Standard Life Insurance Company (“Reliance”), approved Dr. Lasser’s application for partial disability benefits under the plan.
However, in December 1997, Reliance terminated Dr. Lasser’s disability benefits after it received an opinion from Dr. William Burke (hired by Reliance to perform an “independent medical evaluation,” including a treadmill test) that Dr. Lasser “does not demonstrate any cardiovascular disability.” Reliance also relied on an earlier treadmill test performed by Dr. Steven Roth in April 1997, during which Dr. Lasser “achieved greater than 90% of age-predicted maximum [heart rate]” and experienced only “mild fatigue [after] 14 minutes,” and on nuclear planar imaging of Dr. Lasser’s heart — conducted during the cardiovascular testing — demonstrating a “very small and probably clinically insignificant” heart defect.
In contrast to Dr. Burke, three of Dr. Lasser’s treating physicians and two physicians hired by Reliance all opined — to greater or lesser degree — that Dr. Lasser should avoid stressful situations (such as surgical emergencies) and grueling hours (such as on-call and weekend duties). While these physicians acknowledged that Dr. Lasser’s cardiac function had vastly improved since his heart attack, nonetheless, these kinds of work stressors put Dr. Lasser at increased risk of a heart attack, would lead to poorer control of his hypertension and lipid therapies, and might lead to failure of an already-compromised vein graft performed during the 1986 coronary artery bypass procedure.
The Third Circuit Court of Appeals concluded that Reliance’s termination of Dr. Lasser’s partial disability benefits was arbitrary and capricious because “all evaluating physicians — with the exception of Dr. Burke, whose report the others discredited — agreed that Dr. Lasser’s heart condition precludes him from safely performing on-call duties and emergency surgery.” It found that Reliance erred in terminating benefits on the grounds that these physicians had failed to demonstrate a concrete “range of the probability or actual proof that Dr. Lasser was at increased harm.” Finally, the fact that Dr. Lasser returned to full duties sometime between December, 1997, and April, 1999, did not preclude him from claiming benefits for that period because “Dr. Lasser disputes that he has resumed performing these duties with the same frequency as before 1996” — a “factual question that we do not resolve on appeal.” Moreover, a “claimant’s return to work is not dispositive of his or her disability when economic necessity compels him or her to return to work,” particularly where, as with Dr. Lasser, “there is substantial medical evidence that … he is doing so to his detriment,” and his “disability was not observable and did not make it physically impossible for him to perform his job for a limited period.”
In Serrato v. Lear Corp. Short Term Disability Income Plan, 2009 U.S. Dist. LEXIS 19745 (W.D. Mich. Mar. 12, 2009), the claimant, in her fifth month of pregnancy, was restricted by her obstetrician, inter alia, from lifting more than 20 lbs. As an OP Technician, classified as a “heavy position,” Ms. Serrato was expected to lift heavy amounts of over 60 pounds several times per hour. Her claim for short-term disability benefits was denied by the plan’s claim administrator, Cigna, because she had no complications to her pregnancy and because the restrictions were “prophylactic” and “preventative.” The District Court rejected these arguments, concluding that “the Plan does not preclude ‘prophylactic’ restrictions from establishing disability.” Moreover, “a pregnancy, without complications, is a condition that can prevent a woman from performing all the material duties of her job” and, as a consequence, Cigna’s requirement that the pregnancy be complicated “adds requirements not dictated by the plan.” While Cigna might have argued that Ms. Serrato’s restrictions were unreasonable, it failed to do so: “[Cigna] does not show that the restrictions were medically unnecessary or not consistent with contemporary standards of sound prenatal care” and “Cigna did not have the file reviewed by a qualified physician, whether an independent examiner or one of its own, for an opinion about whether the restrictions were medically supportable.” In the absence of countervailing evidence, the prophylactic weight-lifting restrictions set forth as medically necessary by Ms. Serrato’s obstetrician appeared to be well within the obstetrical standard of care and rendered her disabled from her job as an OP Technician.
The case of Evans v. UnumProvident Corp., 434 F.3d 866 (6th Cir. 2006), underscores that prophylactic restrictions can be for the purpose not just of protecting the patient’s health but also of protecting others. Ms. Evans began to experience complex intractable seizures, a form of epilepsy, in 1994, while working as a nursing home administrator. By 1996, she was employed by Sunbridge as a senior nursing home administrator, which required her to travel between three nursing homes on a daily basis in order to oversee their operations, and to engage in top-level decision-making on resident care, financial, budgetary, and personnel issues. Despite her diagnosis and a medication regimen, Ms. Evans’s seizures worsened, becoming more frequent, typically lasting three to five minutes, and unexpectedly occurred during and after work. By 1999, during a 3-day medical observation, she experienced 6 seizures in three days. She was disoriented after these seizures, unable to remember what had just happened or what she was supposed to do in the near future. Additional medications were tried without any positive impact. Ultimately, her two treating physicians advised Ms. Evans that she should take an extended medical leave of absence because the stress associated with her administrative duties was responsible for the severity and frequency of the seizure episodes. She was also restricted from driving — both for her own safety and the safety of others.
The claim administrator, Unum, approved disability benefits from 2000 to 2003. In 2001, Ms. Evans began experiencing a decrease in seizure activity. By September, 2003, a new medication regimen appeared to largely control her seizure activity. Nonetheless, her treating physician Dr. Abou-Khalil continued to observe increases in seizure activity as a response to stress throughout the period from 2001 to 2003. Relying on this improvement, Unum terminated Ms. Evans’s disability benefits, citing her treating physician’s restrictions as “very prophylactic.” On appeal, Dr. Abou-Khalil wrote:
The issue of stress provoking seizures is a real one. Stress is probably the most important seizure-provoking factor in all patients, and not just Ms. Evans. The position of Nursing Home Administrator carries an enormous amount of responsibility. Since Ms. Evans has been away from her work environment, her seizures have improved. I agree that it is hard to eliminate stress from life. Nevertheless, if seizures are not fully controlled without stress, they will not be controlled in the presence of stress.
Unum upheld its termination of benefits, relying on the opinion of its own neurologist that medication adjustments, not Ms. Evans’s absence from employment, caused the reduction in the frequency of her seizures.
Evans thus illustrates a common theme in prophylactic restriction cases. The employee’s medical condition is exacerbated by employment-related stress until an acute breakdown is triggered. The employee takes a medical leave and is approved for disability benefits. The absence of work stressor during the medical leave leads to improvement in the employee’s condition. The insurance carrier, seizing on that improvement, argues that the employee is now capable of returning to work (and the associated stressors) — without properly considering whether that return to work will, in fact, trigger the same medical/psychiatric deterioration and breakdown. The Sixth Circuit rejected Unum’s decision:
[D]espite the unwavering expert medical opinion of plaintiff’s treating physician, neurologist Dr. Abou-Khalil, that stress is probably the most important seizure-provoking factor in all patients, and not just plaintiff, and that plaintiff’s high-stress position would exacerbate her condition, defendant nonetheless unreasonably discounted stress as merely a “prophylactic” factor that should be accorded minimal, if any, weight in its determination of disability. The physicians in defendant’s employ who conducted the file reviews characterized the stress restriction as speculative and unverifiable, despite documented instances when stressful situations precipitated plaintiff’s seizures. The district court, in its well-reasoned opinion, accurately noted that so-called “prophylactic” restrictions are not precluded from consideration in disability determinations under the terms of the LTD policy…. Furthermore, … defendant’s vocational analysis ignores unrefuted evidence that plaintiff’s position as the senior nursing home administrator in charge of three health care facilities was a demanding and stressful occupation and, hence, incompatible with her condition.
The court reinstated Ms. Evans’s benefits.
As in the Lasser and Evans cases, many disputed prophylactic restrictions involve the reduction/elimination of work stress (in the context of conditions such as cardiac disease, migraine headaches, depression, anxiety, PTSD, irritable bowel syndrome, etc., that are particularly susceptible to exacerbation in response to such stress). However, as in the Serrato case, prophylactic restrictions may involve the avoidance of specific work-related tasks. Pregnancy and degenerative disc disease may result in restrictions against lifting weight above a certain poundage. Sustained computer use may need to be restricted in those migraine patients whose headaches are triggered by such visually demanding tasks. Occupational driving may need to be restricted in cases of daytime hypersomnolence and narcolepsy. An anesthesiologist or pharmacist with persistent substance abuse relapses may need to be restricted from the ready access to medication that their occupations require. Persons with MS, sleep disorder, and migraine headaches may need to avoid job requirements for long hours, on-call duties, and/or international travel in order to avoid exacerbation of their symptoms.
Prophylactic restrictions have been rejected as a basis for disability by the courts in cases where the restriction was not supported (or only equivocally supported) by the claimant’s treating physicians, the restriction was out-of-step with standard medical practice, the risk/danger presented by a return to occupational duties was extremely low or speculative, and/or the occupational stress demands were not documented/quantified. E.g., Wilcox v. Dearborn Life Ins. Co., 652 F. Supp. 3d 1136 (C.D. Cal. 2023) (where claimant Director of Employee Benefits at Amgen Corporation was approved for disability after workplace discord contributed to his panic attacks, difficulty completing work tasks, and lack of concentration, he failed to demonstrate that restrictions against workplace stressors precluded employment in “any occupation”; “Dr. Hager does opine that work-related stress can contribute to a finding that Plaintiff is disabled, but this observation is insufficient to establish that Plaintiff meets the definition of total disability” where, inter alia, “in light of the ‘any occupation’ definition at issue, Dr. Hager’s express reference to Plaintiff’s previous level of employment is unhelpful to Plaintiff’s claim”); Irgon v. Lincoln Nat’l Corp., 2014 U.S. Dist. LEXIS 198424 (D.N.J., Oct. 13, 2014) (under arbitrary and capricious standard, CEO/President with Chronic Lymphocytic Leukemia “had not presented sufficient evidence that his risk of infection would severely limit his ability to perform sedentary work as a President”); Clarke v. Aetna Life Ins. Co., 2009 U.S. Dist. LEXIS 111400, *54, 57 (S.D.N.Y. Dec. 1, 2009) (“Though Clarke’s depression certainly disabled him for some period in 1998, he has not proven that at any point after his benefits were terminated on October 24, 2001, he has suffered from such a severe, untreatable, and persistent vulnerability to stress that it would be dangerous for him return to work as a senior partner at a large law firm”).
Osborn’s Holding
The District Court in Osborn concluded that Dr. Osborn failed to establish prophylactic restriction sufficient to support a disability claim. Critically, “no doctor recommended he stop work.” Moreover, “any temporary lack of PPE did not render it impossible for Plaintiff to return to work” because “there were mitigating steps Plaintiff could have taken to be proactive about working with comorbidities in the presence of COVID-19,” such as “wearing PPE when it was re-stocked, taking temperatures, requiring negative COVID tests from patients,” etc. And, “the record demonstrates Plaintiff chose to not return to work, despite obtaining PPE in July or August.”
The court specifically distinguished Lasser:
In Lasser, the material duties of the plaintiff’s job caused a sufficiently high risk of future harm so as to render him disabled. The plaintiff received recommendations from multiple medical professionals not to return to his practice. Additionally, the work itself threatened the plaintiff’s health, there was nothing he could do to meet the occupational requirements of his position without risk, and, hence, he was deemed disabled.
In contrast, Plaintiff’s performance of his occupational duties alone did not create a risk of future harm. Instead, Plaintiff only posits a risk of harm due to a temporary shortage of PPE. While Plaintiff’s treating and examining physicians highlighted the risks of COVID, none explicitly recommended Plaintiff discontinue his practice. Unlike the plaintiffs with heart conditions in which the mitigating step was to stop working, here, Plaintiff could have chosen to mitigate his risk and still performed his material duties.
Accordingly, Plaintiff is not entitled to benefits under the IDI policy because his actions and decisions, and not his comorbidities, made it “impossible” for him to return to work.
The court suggests that even in the absence of PPE, the risks to Dr. Osborn of continuing his practice might have been manageable through alternative procedures, such as taking patient temperatures and requiring negative COVID tests. In any event, because the PPE shortage was temporary and short-lived (lasting only from March to June, 2020) — barely enough time to satisfy the 90 day waiting period — the court effectively concluded that working without PPE was not an occupational requirement.
Key Takeaways for Making Claims Based on Prophylactic Restrictions
It is impossible to know whether Osborn will be used by insurers as authority for denying all COVID-related prophylactic restrictions, or whether people with conditions that more seriously compromise their immunity might succeed in disability claims based on prophylactic restrictions. In light of Osborn and the other cases discussed above, the following guidelines should be kept in mind for any claimant attempting to establish a disability based on a prophylactic restriction:
- It is imperative that a treating physician impose and strongly support the restriction (even better if multiple physicians unanimously endorse the restriction).
- As much as is possible, the claimant and his physicians should rely on scientific literature or other evidence to establish that risk/danger to be avoided by the restriction is real/proven, and not insubstantial or speculative. If there is any potential risk to public safety, this should also be underscored — particularly for safety sensitive occupations, such as a surgeon, pilot, operator of heavy machinery, jobs requiring driving a car, etc.).
- Any physician supporting a work restriction should do so as clearly, quantifiably, and consistently as possible. A restriction against “sustained computer use” is not as clear and quantified as one against “sustained computer use exceeding 15 minutes.” A restriction against “stress” is not as clear and quantified as one against “the stress of handling emergencies and making split second life/death decisions.” If one treating doctor restricts lifting weight in excess of 25 lbs., it is optimal that other treating physicians endorse the 25 lb. limit, rather than endorsing other weight poundages.
- Claimants and their physicians should seek to establish that all restrictions are in accordance with standard medical practice. This can be done through published practice guidelines, medical journal articles, patient organizations, letters from other specialist-credentialed physicians, etc.
- To the extent the claimant has experienced any improvement while on disability, treating physicians should be careful to explain that this improvement is largely/wholly due to the absence of the work condition/stressor, and point to any evidence supporting that conclusion (such as return of symptoms with attempted return to work, etc.).
- If the insurance carrier presents a medical consultant opinion that has side-stepped the prophylactic issue, by focusing on current improvement and capacity (and ignoring the risks presented by re-exposure to negative work conditions and/or stressors), present questions back to the medical consultant that directly frame the relevant prophylactic restriction/standard of care, and demand that the consultant answer whether he or she rejects that prophylactic restriction/standard of care, and on what basis. At best, the consultant will concede the issue, once directly presented. At worst, the consultant will reject the restriction/standard of care, but the issue will at least be out in the open. If the consultant refuses to respond, it will be clear that the insurance carrier is seeking to avoid/ignore the issue, which, as noted above, is treated by the courts as a clear sign of arbitrary and capricious decision-making.
- Unless the relevant disability policy/plan contains an exclusion for disabilities based on prophylactic restrictions (a rarity, in my experience), the claimant should underscore in correspondence to the insurance carrier that there is no contractual basis for any failure on its part to consider well-supported prophylactic restrictions.
~Legal Assistance for a Long-Term Disability or Disability Income Policy Claim
If your claim is based on prophylactic or preventative restrictions, please contact our attorneys to help you strengthen your claim and maximize the possibility of receiving the disability benefits you’re entitled to. See “Get Your Disability Claim Off to the Right Start.” Or, if your insurance carrier is improperly refusing to consider prophylactic/preventative restrictions, our lawyers can challenge the insurance company in your behalf and ensure that your rights are fully protected.
