By Matt Lalande in Long-Term Disability on January 17, 2019
4 Minute read from Hamilton’s Long-Term Disability Lawyers
This was a good case* decided out of British Columbia not too long ago concerning a young woman with MS that:
1) tried to get back to work and;
2) was doing drugs to deal with her symptoms.
Unfortunately Empire Life denied her monthly disability benefits because of both reasons.
The disability claimant, Noha Tanious, was diagnosed with MS in February of 2005. On January 10, 2012, she became occupationally totally disabled by MS and symptoms related to it, notably, anxiety, depression, and fatigue.
The twist in the case arose from implications arising from the claimant’s use of drugs, notably crystal crystal meth and because of this, she needed to prove that her MS was the proximate cause of her disability and that it was occupationally disabling. In other words, if the claimant could not work because of her MS, she qualified for benefits, irrespective of her having used drugs which may have aggravated her MS symptoms.
Empire Life, the plaintiff’s disability carrier, took the position that the Noha was not entitled to her long-term disability insurance benefits because:
1) she was working and not totally disabled at the time of her termination and alternatively:
2) she was disabled by an excluded illness, i.e. a substance use disorder.
The defendant relied on the disability policy’s use of exclusion of coverage for a disability caused by a “substance use disorder” and took the position that to the arguable extent the if claimant was totally disabled, it stemmed from an addiction to crystal meth and other substances, not MS.
The policy was clear that no Long Term Disability Benefit were payable for disabilities that result from alcohol, drug or other substance use disorder, unless the Insured Employee was receiving and complying with continuous treatment for such Total Disability from a rehabilitation centre, a provincially designated institution, or is actively involved in and following a program of rehabilitation which is supervised by a Physician and approved by the Company.
Judge Brown noted that the most oft-cited test to determine whether an individual is totally disabled was as follows:
“The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.”
He also noted that being able to perform one or more important aspects of the occupation separately will not necessarily disqualify an insured person like Noha from coverage – i.e. she does not need to be totally helpless. What matters is that Noha was unable to perform substantially all of the duties of that position.
Judge Brown found that the underlying cause of the claimant’s disability was her MS and not the usage of Crystal Meth.
Although the claimant’s MS was sometimes in remission after the first diagnosis in 2005, it progressed between then and 2012, and to the present. The Judge noted that this was evident from objective changes shown in the claimant’s MRIs after 2005, her increasing (or new) problems with mentation, mood, control of her emotions, depression and anxiety, and her physical functioning MS. Several doctors that testified noted that the changes were linked to:
-loss of executive function
-global changes in brain function
-psychiatric illnesses of depression
-bowel and urine incontinence
-difficulties walking (balance, gait, foot drop, eyesight, focus, grip strength, and other symptoms.
The Judge found that the claimant’s symptoms caused by MS made the plaintiff’s performance of both activities of everyday living and work increasingly difficult. He found that because she was motivated to try to increase her energy and improve her life, the claimant tried crystal meth.
Judge Brown found the plaintiff’s purposes of doing crystal meth were not self-gratification or thrill-seeking, or prompted by a personality trait, such as an addictive personality, rather to help her perform better at work.
It was explained by medical experts at trial that people with MS:
…especially younger patients, are aware of, and much attuned to their cognitive decline, and seek ways to resist it. They may resort to amphetamines, which, if medicinal and carefully supervised, can provide some benefit for cognition and energy.par. 242, Sub-Par 2C
Judge Brown found that Noha should not be punished because she tried to work after her Doctor told her she was disabled. He noted that the law is clear that a person can still be considered totally disabled even if they return to work for a short time during recovery, or after benefits have been terminated by the insurer.
The proximate cause of the plaintiff’s disability was not substance abuse. It was not crystal meth. MS was the proximate cause of the plaintiff’s anxiety, depression, emotional liability, paranoia, loss of executive function, and neurological deficits. The plaintiff’s use of crystal meth aggravated the plaintiff’s anxiety and paranoia, but the claimant would have suffered those disabling conditions irrespective of her illicit use of crystal meth. She used drugs to cope with her symptoms. She hoped to increase her energy levels. It was not the smartest things to do – but she was not totally disabled because she used drugs, she was totally disabled because she had MS.
If you or a loved one has been denied or cut-off long-term disability benefits due to substance abuse or ms related difficulties call our disability lawyers at 905-333-8888 for a free consultations. We understand that being denied your benefits in times of need can be a brutal disaster for individual and/or their families.
* 2016 CarswellBC 160, 2016