and how significant the risk of relapse
really was,” says Mala Rafik, managing partner at Rosenfeld Rafik &
Sullivan, and lead counsel for Colby
in this case.
In the face of this evidence, USIC
argued that “a doctor’s opinion that
there is a high probability of relapse
is not objective or even reliable evidence of a current disability.” But the
court felt that USIC was just reiterating the same argument: that no risk
of relapse could qualify for LTD benefits under its policy, when in fact no
such exclusion existed.
“The discretion of a plan administrator is cabined by the text of
the plan and the plain meaning of
the words used,” the court wrote.
“Plucking an exclusion for risk of
relapse out of thin air would undermine the integrity of an ERISA plan.”
“If [USIC was] that adamant that
the policy never contemplated doing
it, then why didn’t [it] write it that
way?” says Peter Kochenburger, executive director of the Insurance Law
Center at University of Connecticut
School of Law.
The 1st Circuit also noted that
such an exclusion would encompass
physical as well as mental conditions. The court drew a comparison
between Colby and an air traffic controller with a seizure disorder who is
disabled by flickering lights on the
“[The court] understood the
medicine of addiction and really,
without saying [it was] doing it, cre-
ated a decision that was as much a
mental health parity case as anything
else,” Rafik says.
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