The Downs case involved Dr. Maureen Downes, a 69-year-old pediatrician who ceased working in March 2020 to undergo surgery. (The plaintiff’s name was misspelled in the case caption.) Shortly after the surgery, the COVID-19 pandemic began, which resulted in California issuing a statewide stay at home order to limit the spread of the virus. The court recounted that Downes claimed she was unable to return to work following her surgery based on a heightened risk of acquiring a severe COVID-19 infection due to both her occupation, as well as on account of multiple chronic illnesses she had, including diabetes, heart disease and a history of cancer. She also cited her advanced age.
The plaintiff sought disability insurance benefits on account of that risk, along with symptoms from her chronic medical conditions, but her disability insurer, Unum, determined those conditions were not severe enough to cause disability, and that the risk of contracting COVID-19 was not a valid basis to support a disability benefit claim. Unum acknowledged the risk Downes faced, but maintained she could mitigate the risk with personal protective equipment.
The court disagreed and ruled for Downes.
The court noted there was no dispute as to the heightened risk Downes faced, but Unum asserted that the plaintiff made a “decision” not to work rather than it being a necessity due to her medical condition. However, the court observed that Downes’ concerns were not “trivial,” since the plaintiff’s occupation exposed her to patients with known or suspected COVID-19 infections.
Unum argued that under Downes’ theory, “every healthcare worker aged 65 and up would have been deemed disabled had they made a claim for disability benefits during the pandemic.” But the court disagreed, finding the defendant’s argument ignored the plaintiff’s underlying medical issues and because the disability claim was focused on the period before vaccines became widely available.
The court cited several cases which had ruled that “prophylactic restrictions are not precluded from consideration in disability determinations under the terms of the LTD policy.” (Evans v. UnumProvident Corp., 434 F.3d 866, 879 (6th Cir. 2006); also see Saliamonas v. CNA, Inc., 127 F. Supp. 2d 997, 1001 (N.D. Ill. 1991) (“To suggest, as CNA does, that a permanent heart condition that may be aggravated by stress can only rise to the level of a disability when and if the insured suffers a heart attack is unreasonable.”)
In addition, the court was guided by two other cases that found plaintiffs disabled when they faced a significant risk of relapse if they returned to work. Both Colby v. Union Security Insurance Company, 705 F.3d 58, 66 (1st Cir. 2013), and Kufner v. Jefferson Pilot Fin. Ins. Co., 595 F. Supp. 2d 785, 796 (W.D. Mich., 2009), determined that the insurers were engaged in a form of “benefits Russian roulette” when they refused coverage unless the insured first returned to work and suffered a relapse.
The plaintiff’s work was also a significant factor in the court’s analysis since Downes could not mitigate the risk of exposure. The court cited Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp. 2d 619, 628 (D. N.J. 2001), aff’d, 344 F.3d 381 (3d Cir. 2003), where an orthopedic surgeon was found disabled due to the risk of a serious, if not a fatal, heart attack due to the stress of surgery and taking emergency calls, which were unavoidable duties in his profession.
“Not only do the material duties of [Downes’] work put her at severe risk of COVID-19 due to her underlying medical impediments, but she was counseled against returning to work by her physician,” the court said.
The court was also critical of Unum for failing to specify what risk mitigation steps it thought Downes could take prior to the availability of vaccines and because studies showed that even with adequate personal protective equipment, health care workers suffered a high rate of COVID-19 infections. Thus, the court ruled for the plaintiff.
The issue in Downes’ case is usually raised in two situations: Claimants who have labile heart conditions and health care workers with access to narcotics at work who became addicted. The principle that payment of disability benefits should not be conditioned upon someone suffering either a serious illness or death if they were to return to work is applied in those cases and in Downes’ case as well.
The court was ultimately persuaded in Downes’ case because the plaintiff had numerous underlying chronic conditions that put her at risk of serious illness or death due to COVID-19, and because her claimed period of disability was limited to the time of the pandemic that preceded the widespread distribution of vaccines. Her doctors’ advice that she avoid work was also a critical factor that undermined the defendant’s argument that Downes made a voluntary choice not to work. Moreover, the relative rarity of cases such as Downes’ belies a concern that a floodgate of similar cases will be opened.
The COVID-19 pandemic had a huge impact on the insurance industry. The Centers for Disease Control reported more than 1.1 million deaths in the United States due to the virus, and many of those who died due to COVID-19 had life insurance, which, according to the American Council of Life Insurers, led to record payouts. In addition, the Wall Street Journal reported in August that long COVID is estimated to have “pushed one million Americans out of the labor force.”
Thus, the burden of that illness on insurers has been immense. That is no excuse, however, for disability insurers to shirk their contractual obligation to pay benefits when they are due, as the court made clear in Downes’ case.
Mark D. DeBofsky is the name partner of DeBofsky Law Ltd. — on the web at debofsky.com. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage issues. He can be reached at [email protected].
Mark DeBofsky is a shareholder at DeBofsky Law Ltd.
This article was first published by Chicago Law Bulletin on September 11, 2024.
