Saturday, 16 May 2009

US court rules: AIDS may not be disabling

Disability insurers may be able to cut off benefits to those with AIDS, a US court has ruled.
Charles Jenkins contracted HIV in 1988 and in 1993 stopped work for Price Waterhouse Coopers due to AIDS. He received disability insurance benefits.

After Mr Jenkins went on a holiday from the US to London, his insurer looked at his case again, sent him to doctors, decided that he was capable of sedentary employment, and in 2006 stopped paying.

Jenkins sued Price Waterhouse Coopers and the insurer, but was unsuccessful. Ultimately, his case ended up in the 7th Circuit of the US Court of Appeals. The case was brought under the US
Employee Retirement Income Security Act, to challenge the decision of the insurer.

The court stated[PDF] that the insurer could make the decision it had made based on the evidence, and:

Nevertheless, Jenkins suggests that it is impossible to reconcile the initial
determination of disability with the later decision that he could attempt full-time sedentary employment. At best, Jenkins argues, the evidence showed that his condition was stable. If that condition was grave enough to warrant disability in 1994, why wasn’t it sufficient in 2006?


But Jenkins fails to recognize what [the insurer] (and the general population, it seems) thought HIV and AIDS meant in the early 1990s. That impression was that HIV (and certainly AIDS) brought rapid death. Thankfully, the prognosis has
changed—in large measure due to new drugs—both for Jenkins and countless others.
It was not “downright unreasonable” for [the insurer] to shift its position along with that change when the medical evidence supported it.


The court had further comments about the state of HIV/AIDS:




When HIV (the virus that causes AIDS) was first reported in the United States in the early 1980s, it was viewed as a death sentence, and a quick one at that. That was probably an exaggeration, but not a ridiculous one. See Andrew Sullivan, Fighting the Death Sentence, N.Y. Times, Nov. 21, 1995, at A21 (discussing the state of
HIV/AIDS treatment and society’s view of the disease in the early years). Without treatment, a person who is HIVpositive lives on average only 11 years after infection. World Health Organization & UNAIDS, AIDS Epidemic Update, at 10 (December 2007), available at http://data.unaids.org/pub/EPISlides/2007/2007_epiupdate_en.pdf .

But new medicines (where available[Sub-Saharan Africa being a tragic exception.]) have slashed the death rate and raised the life expectancy of a diagnosed individual dramatically. “A patient diagnosed at 20 today can expect to live to nearly 70, research shows. At 35—the average age of diagnosis in the UK—life expectancy is over 72.” Jeremy Laurance, New Drugs Raise Life Expectancy of HIV Sufferers by 13 Years, The No. 08-1909 32

Another long-time victim of HIV was on national display over the last several weeks. Three decades ago, in a game universally recognized as having changed the face of college basketball, the Michigan State Spartans, ed by Earvin “Magic” Johnson, beat Larry Bird and the Sycamores of Indiana State to win the 1979 NCAA basketball championship. Magic Johnson, of course, went on to a brilliant professional career with the Los Angeles Lakers. But in 1991, at the age of 32, he publicly announced that he had HIV. Yet there he was over the last several weeks, with his famous smile ablazing, rooting on the Spartans as they made it into the championship game of the 2009 NCAA Basketball Tournament. In his post-basketball life he formed the Magic Johnson Foundation which is dedicated to combating HIV. Independent (July 25, 2008). So, while HIV remains a grave disease—and no cure has yet been found—things have improved. Jenkins is hopefully benefitting from these advances.

In a footnote, the court stated:

We don’t mean to oversimplify or trivialize Jenkins’s disease. AIDS is a scourge, and a complicated one at that. For instance, there is question about the significance of T-cell and viralburden figures, particularly when pharmaceuticals are in the equation. See, e.g., Elinor Burkett, The Gravest Show on Earth: America in the Age of AIDS, at xv (Picador 1996) (“Scientists have become increasingly skeptical about the value of drug induced increases in T cells, since a number of studies have suggested that
while the natural level of T cells are good predictors of the progress of AIDS, drug-provoked increases to do not correlate to longer life.”). Fortunately, we need not
understand every detail about AIDS or how it has affected Jenkins’s life. We simply have to discern whether CGLIC’s conclusion was rational.

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