Disability Claims Concerning Physicians
Determining the Physician’s “Occupation”
A critical issue for the lawyers of MyLTDbenefits.com in physician disability cases is determining a physician’s occupation. We often present evidence that the physician’s regular occupation is a specialty or sub-specialty as opposed to a broader occupational category. For example, the court held in a recent long term disability benefits case that a physician’s regular occupation was a “urologist” even though the group disability plan categorized the claimant as a “physician.” The insurer argued the claimant’s regular occupation should be considered a general practice physician, in line with the group policy. The court noted that although the group policy might be for “physicians,” the total disability clause defined total disability as an inability to perform the material and substantial duties of “your occupation.” Accordingly, the court reasoned, the policy contemplated an analysis of each group member’s actual duties in determining what constituted their regular occupation. The court pointed out that the physician was working as a urologist at the time of the disability. Indeed, the claimant was performing a urological surgical procedure at the precise moment of his injury. Consequently, the court held the claimant’s regular occupation was that of a urologist.
In another recent case, the court determined that the ability of an emergency room cardiologist to perform the duties of a cardiologist was irrelevant in determining his disability. Since the cardiologist could not run to his emergency cardiac patients due to a leg injury suffered in an automobile accident, the court concluded the insured was totally disabled from his occupation as an emergency room cardiologist.
Is Surgery a Material and Substantial Duty?
A recurring issue seen by MyLTDbenefits.com attorneys in physician disability claims is whether a doctor’s inability to perform surgery renders him or her totally disabled. These generally are fact-intensive inquiries.
For example, in a case brought by an orthopedic surgeon who could no longer perform the duties of an orthopedic surgeon due to a cardiac condition, the Court reasoned that the materiality of a given occupational duty depends upon the importance of that duty to the claimant’s professional endeavors, measured as a combination of the amount of time the activity consumes and its qualitative importance to the professional mission. A duty is “material” when it is sufficiently significant in either a qualitative or quantitative sense that an inability to perform it means that one is no longer practicing the “regular occupation.”
The insurer argued in a case brought by a urologist that he was not totally disabled under the occupational disability policy, because his back injury only precluded him from performing surgery, which was not a material and substantial duty of his occupation. The court, however, denied the insurer’s motion for summary judgment on whether the claimant was partially disabled under the policy, noting that a genuine issue of fact remained for a jury as to whether the claimant suffered from post-traumatic stress disorder and whether that disorder prevented him from practicing ER medicine. Surgery, according to the insurer, only provided “between one-fifth and one-third of [the claimant’s] billing income prior to his injury.” The insurer further pointed out that “’80 percent of [the claimant’s] duties consisted of treating patients in the clinic and conducting hospital consultations’ while ‘[t]he other 20 percent of [the claimant’s] duties involved the performance of surgery[.]'” The court rejected the insurer’s quantitative approach to determining whether surgery constituted a material and substantial duty, and instead focused on what duties the claimant was “expected” to perform as a urologist. Pointing to the expert evidence in the record and the description of urology in the DOT, the court observed that urologists were “expected to perform some surgery and one cannot be a urologist unless one can perform some surgery.” Thus, the court concluded that all urologists are “normally required” to perform surgery and that the duty to perform surgery “cannot be reasonably omitted or modified” from the practice of urology. As a matter of law, therefore, surgery constitutes a “material and substantial duty” of a Urologist, the court held.
Does Manner Matter?
Given that the quality of work performed in the medical profession can have a life or death impact on its patients, MyLTDbenefits.com legal experts raise an interesting question as to whether a physician is disabled when his disabling condition renders him unable to perform the material and substantial duties of his medical occupation in the same way.
The most often cited case in this area of the law involves a chiropractor who did not perform any chiropractic manipulations but continued to run clinics, earning a higher income than when in active practice. The court indicated that if the claimant could only perform duties incidental to his prior chiropractic practice, he would be entitled to collect total disability.
A dentist suffering permanent nerve damage to his left hand filed for total disability benefits under his occupational disability policy with Northwestern Mutual Life Insurance Co. claiming that because he could not perform the procedures in the same manner he was totally disabled under the policy. It was undisputed that the claimant continued to practice dentistry after the accident, albeit less often, less efficiently, and with the help of an assistant. Before the injury, for example, the claimant performed approximately 355 different billable procedures; after the injury the claimant was unable to perform about 170 procedures. Also, the claimant worked fewer hours during the week. As of mid-April 2007, however, four years after the accident, the claimant was performing routine procedures such as “restorations, fillings, preparing teeth for crowns, replacing crowns, and using hand drills for various dental actions,” within the standard of care. In reviewing the claimant’s claim for benefits, the court noted that the policy awarded total disability benefits if the insured could not perform all of the “principal duties of his job,” and that the plain language of the contract did not impose a standard of customary or usual manner in the performance of those duties. Rather, the court pointed to the partial disability clause in the contract, noting that relief might be more appropriate because the insured can partially perform his job.
In Kaelin v. Tenet Employee Benefit Plan, the Court analyzed the duties of an orthopedic surgeon, and commented, “A doctor credentialed as an orthopedic surgeon who conducts only office hours and administrative duties is obviously not performing the material duties of the usual work of an orthopedic surgeon; that is, conducting orthopedic surgery.” Kaelin, a Board Certified orthopedic surgeon became unable to perform surgery following an accident, but remained able to see patients in his office. His office practice was merely incidental to the performance of surgery. As with most surgeons who become disabled, since Dr. Kaelin, can no longer perform surgery, “an inability to perform [surgery] means that one is no longer practicing the regular occupation of an orthopedic surgeon. Rather, he or she is an orthopedist.”
In another case, a cardiologist who was able to perform a majority of his pre-disability duties still qualified for total disability benefits if he was unable to perform any material duty of occupation-“It is only necessary that it be shown that he is unable to perform any one or more of the substantial or material acts of his occupation in his usual and customary manner.” The attorneys of MyLTDbenefits.com have successfully argued that the mere fact one continues to work at his regular job does not establish a lack of disability. It is only a factor to be considered, and where an insured is able to continue his employment with the aid of his fellow employees or in some manner other than his usual and customary one, he may still be “disabled”.
Contact the attorneys of MyLTDbenefits.com to discuss your long-term disability benefits claim in detail.