thank you case number sixteen sixty three seventy two angela blount versus united of omaha life insurance company arguments not to exceed fifteen minutes per side mr wilson you may proceed for the  united of omaha's terminations of long term disability benefits is unusual in that unlike most cases the parodies and not disputing which medical experts opinion should carry the greatest weight instead this case on a pua question of contract interpretation in light of policy language limiting benefits to twenty four months for disability resulting from substance abuse can that limitation be applied to be disabling impact of a prescription pain medication taken in good faith exactly as prescribed there is a substantial divide in the medical opinions of record mr blunt has been followed by two rheumatologists for a number of years each of whom agrees that she suffers from lupus they agree that she suffers severe chronic pain as a result necessitating an opioid pain medication regime and they've consistently assessed disabling restrictions and limitations over a long over a large number of years in the pen cuts rogers mr wills as there is some dispute as to whether  all the doctors of record agree that it's lupus i am saying that her doctors believe it's lupus while i am me is obtained by united of oma dispute that it's lupus one doctor thought that it represented  some orthopedic problems the most recent dr that united of omaha bases its final decision on agreed that she was on employable but he attributed her symptoms actually to being the side effect of the opioid regimen he'd diagnose i thought oh yes he is he diagnosed chronic opioid toxicity as being the cause of the symptoms and then relying on that opinion united of omaha paid an additional two years of benefits and then terminated benefits on the basis of the policies of the few slim it taishan i would i would concede that if we were just looking at a question of whether or not the insurer should pay attention to the opinion of the  versus the opinion of the most recent i am me that that's a that is a choice that is within the discretion of the plan administrator however what is what is our position is that even assuming that they were reasonable in performing the opinion that i am me that it is an unreasonable contract into protection to state that the impact of medications taken in good faith exactly as prescribed constitutes substance abuse  subsequently became addicted regardless of the loss of the addiction all of the doctors have referred to her extensive narcotic regiment and doesn't that all r would come back to the fact that this is that again it is taken as prescribed i would start out with the idea of a dictionary definition of substance abuse being the detrimental state produced by repeated consumption of narcotics or other drugs other than as prescribed by a doctor to treat an illness or other medical condition so the first of all the fact that you do have to give deference to the plan administrator but at the same time the the language has to be construed as it would be understood by an ordinary person and again i would submit that the ordinary person understands that would be a difference between the taking taking opioid medications the way they are prescribed to you by your doctor says taking medications the way you would get them off the street for recreation so that's your to your again talking about the cause of the condition but the policy language says regard lives of cause and the ordinary lay definition of that phrase regardless of calls would mean exactly what it says regardless of cost whether it whether it's according to prescription or illegal things off the street and what you want to do i believe is this regard the plain meaning of those three words regardless of cost i'm not asking you to disregard those three words i am asking you to to recall that th s my position is that united of oma is essentially reading the would abuse out of out of the policy that it that that if you if you simply if you were  to the side effect of medications for for any cause out of the policy you take the would abuse out if you if you by focusing on the on those regardless of that someone was abusing drugs that were prescribed to him by a doctor that doesn't fall apart i mean and people could use that location didn't they i i i i agree that think that what i'm getting at from my perspective is that the would abuse implies misuse that abuse implies using the medications incorrectly distinction between somebody who is in good faith to go into treatment prescribed by a doctor versus someone who's going to the pill mill pretending to have a medical condition to just get the pills was too high but there's no indication that my client is doing that is doing that deliberately doing that in a manner trying to get high there's no indication that this is not the equivalent of someone who is disabled on the basis of alcoholism or addiction this is somebody who is who is in good faith following the advice of their own doctors and that is is not something that i think that the ordinary person would expect to fall under the rubric of abuse into account in deciding that disability limitations on substance abuse disability are also fairly ubiquitous if this was a nor a normal normal interpretation of policies we would have expected to see like this one coming up instead i was only able to find one other case addressing a similar situation this circuit has never addressed the question at all and i would submit that that is an indication that united of omagh has taken an unusual position that is not what the ordinary person would expect  my time a says that my twelve minutes is up and so thank you good morning this is cameron hill from genoa go with her dolphin appreciate your time judges gibbons rogers and donald and i apologize for the awkward nature of the telephonic conversation it's times hard to to discuss policy issues i think the what is known to the court from casual observation of media the past several years reflects a remarkable problem we have with opioid medications in the united states and i don't think claimant really wants to address that issue you don't think the court needs to go there either because this is a fairly straightforward analysis judge stronger decision is very well reasoned articulate and hits the high points very well and very persuasively i will note that as to the language of the plan document there is one additional words that i would add to the court's analysis of the regardless of calls question and that is the word any the word any preceding the words condition or disease there is no dispute whatsoever in the record that  ms blunt takes a remarkable degree and has for years taken a remarkable degree of opioid medication there is in the record dispute regarding whether she in fact fair to and reasonable to interpret that yes she is taking more than she should but calls her own physician once she moved from texas to tennessee she began to seek medical treatment in tennessee and she did i would not treat lupus by this same degree of medication or the same type of medication even that dr wickersham had prescribed clment and texas tennessee we suggest perhaps on the one extreme that that is drug seeking or practice perhaps drug abuse but even if the court doesn't need to go there which i'm not sure that it does it calls into question the propriety of the degree of medication she was taking for not only is there a question about whether in fact she had lupus an underlying disabling condition there is certainly question evidence  her physicians that the medications she was taking was in fact part of if not the primary problem she was unfortunately dealing with and  be it be that as it may and this is a very true this is a very sad circumstance i think it's sad because of the policy reasons i alluded to in the very beginning united concludes that in the absence of these medications this lady had potential to wean yourself from the medications and perhaps actually do something else with her life which is what everybody would hope she would be able to do but given those factual circumstances the dispute about whether she had lupus or any other to say bling condition the dispute among her prisoner own physicians about that the dispute among her own physicians about the degree to which she was taking this medication and whether it was even appropriate to give her that medication firmly drops this case into the analysis of the provision we've just discussed judge donald regarding the any condition or disease regardless of its calls here there's no question about that agree of the medication she was taking there is is a dispute about whether that was appropriate her own physician suggested it was not appropriate at all and because of those circumstances then there is ample evidence substantial evidence in the record to support judge strugglers decision and analysis and to conclude that united was cleaning up the hypothetical a little you have a person who's taking drugs in a way that is excessive most doctors would say  prescribed amount that your doctor said then you would a lot of people would say that's not abuse that's just following your doctor's orders if you took twice the prescription that would be abuse perhaps but if you just take exactly what's prescribe that's not abuse so you know one answer to that is all well she knew or she picked her doctor and so forth which you of which you focus on properly but if you put those aside what's the answer to the argument that if you were just taking what the doctor said that it's not abuse how do you respond to that your honor i have two answers if there were only one physician or if there were multiple physicians and they agreed uniformly that the medication prescribed was appropriate for an actual existing underlying condition i think that that suggests that it's easier to find the word abuse would be inappropriate but that is not the circumstances we have in this case that is not at all the circumstances we have with the facts are there in the record when  not abuse is that what you're going to i'm hesitant to go that far because those aren't the facts we have in this case we have a clear dispute that there is no underlying as a blending of words i'm not trying to ask about a case that's not for some much is trying to get at the meaning of the word the word substance abuse is defined doing those who guard was the cause and seems to me you have to take the position that regardless of cause if you say oh well now substance abuse does a violating your prescription and we have a different you have a different word to applied to the facts before us because the phrase here your honor says any condition and regardless of cause i think those language those phrases those words trump what the definition of abuse might be i think they actually  used to define what is abuse here those words help us to understand what is meant by the concept of excessive use and there is a finding in this particular case that there is excessive use one of our own physician finds that there is excessive use so i think that is that is the answer here is that there can be abuse if it's excessive in nature and there drivers appreciate your time and i have no nothing further to add i think judge trotters decision is well reasoned and our briefs i think cover the issues as well i'll be glad to answer any additional questions if the court has any you have any additional questions no i don't is a problem in in this in this day and age but i and to get away from that emotionally fraught issue i think it would be fair to  in my mind to draw an analogy most most of these policies preclude an award of benefits for a self inflicted injury  somebody has knee problems and they go to one doctor who says you definitely need a surgery and they go to another doctor who says no i don't think you need the surgery at all and the person goes ahead and has that is disabled due to the due to the impact of the surgery it would be unfair to turn that medical dispute about whether or not of the three was necessary in the calling that a self inflicted injury the sure the person chose to have the surgery one doctor said was necessary that one doctor said was unnecessary but that that wouldn't make we wouldn't think that that made the person the injury self inflicted there are always going to be room for doctors to have different opinions about how somebody is medical condition should be treated it's perfectly reasonable that patients will go to different doctors to get second opinions but the fact that the fact that doctors may have different opinions about how a medical condition should be treated shouldn't be then turned in to saying that the person is abusing the medical system and that the policy does use the word abuse no one no one would ordinarily think that following that doctor's instructions constitutes abuse and that that is the main basis point its appeal and i'll be happy to answer any other questions up and i'll have her as soon as i hung up i'll have the operator confirm that as well katie are you there ok before i hang up judge givens i think i sent the assignment sheet to you last week is there anything that any of the judges require at this time the silence i'll take is no so i'll hang up  when i hang up if you would reassure the judges that they are the only ones on the line thank you