Unum’s Denial of Opioid Overdose Deaths

New Orleans, LA The giant insurance company Unum—also known as First Unum -- typically denies accidental death benefits (as do most other life insurance companies) by excluding in their policy coverage for deaths related to prescription overdose or for medical or surgical treatment of a sickness or disease. But Unum’s denial didn’t sway Judge Martin Feldman this past August.

Litigation under federal benefits law involving overdose deaths and accidental benefits is rare under ERISA, the Employee Retirement Income Security Act, but Unum will get another shot at providing more information about its denial of accidental death benefits to Kevin McCusker, the widower of Dominique McCusker who died of prescription drug overdose in their New Orleans home one day before her 45th birthday.

McCusker v. Unum Lawsuit

In this civil enforcement action, Mr. McCusker is seeking accidental death insurance benefits, which he claims are due to him under the terms of Mrs. McCusker’s employee welfare benefit plan governed by ERISA. Unum refused to pay the policy’s accidental death benefits after concluding that the death was not accidental within the meaning of the policy.

According to the claim, Mr. McCusker’s policy also contains certain exclusions from coverage. In “WHAT ACCIDENTAL LOSSES ARE NOT COVERED UNDER YOUR PLAN,” the policy states that it “does not cover any accidental losses caused by, contributed to by, or resulting from the use of any prescription or non-prescription drug, poison, fume, or other chemical substance, “unless used according to the prescription or direction of your physician” , and “disease of the body or diagnostic, medical or surgical treatment or mental disorder as set forth in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders”.

Opioid Prescriptions

Mrs. McCusker was under long-term medical treatment with her psychiatrist and Dr. Dery, her pain management doctor, and was prescribed opioids for both physical and mental ailments. Dr. Dery was prescribing Mrs. McCusker MSContin 60 mg every 12 hours; Methadone 10 mg every six hours; and Oxycodone 10 mg every four hours. Dr. Pejic was prescribing Mrs. McCusker 2 mg of Xanax, as needed at night; 300 mg of Wellbutrin daily; and 10 mg of Elavil twice daily.

Upon receiving proof of Mrs. McCusker’s death, Unum advised Mr. McCusker that he was entitled to the $400,000 group basic life insurance benefits payable to him as beneficiary under the policy. However, after receiving the coroner’s report noting that the death was ruled an accident, Mr. McCusker filed a claim for accidental death benefits in May of 2016. Two months later, Unum’s senior clinical consultant, a registered nurse, opined that it was reasonable to conclude that Mrs. McCusker’s death was caused by multiple drug toxicity. An autopsy revealed prescription drugs not taken as prescribed in combination with an over-the- counter drug and alcohol.

Judge Feldman of the U.S. District Court for the Eastern District of Louisiana, held that Unum’s reasons for denying benefits were considered in a “conclusory fashion,” and the insurer failed to invoke a reason under an exclusion in its life insurance policy. Unum argued that the woman’s death was not accidental because it was caused by medication the woman took during the course of medical treatment. Feldman added that Unum’s administrative process was flawed and violated ERISA’s requirement of a full and fair review. “For the first time in the litigation, defendant asserted that the claim should also be denied based on the medical treatment exclusion in the policy. The court found that the case should be remanded back to defendant because the medical treatment exclusion is, essentially, a new basis for the denial,” according to erisaboard.com.

Judge Feldman concluded: “Because Unum’s administrative process was procedurally flawed and violated ERISA’s requirement of a full and fair review, remand to the plan for a full and fair review is warranted.” The case is McCusker v. Unum Life Insurance Company of America, et. al. 2:17-cv-01214.