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Dowdle v. National Life Insur.Co., 2005 U.S.App.LEXIS 9033 (8th Cir. 5/19/2005)( Issue: Total Disability-Job versus Occupation) . This ruling affirmed a decision from the district court about which we wrote favorably - Dowdle v. National Life Insur.Co., 2003 U.S.Dist.LEXIS 15093 (D.Minn. 8/28/03)( September 2003 ). The issue is a familiar one. The plaintiff was an orthopedic surgeon who could no longer perform surgery due to orthopedic injuries suffered in a plane crash. He had both total and residual disability coverage, as well as a business overhead expense policy, and he made claims for total disability even though he continued to perform office consultations and independent medical examinations, as he had done prior to the onset of his disability. The district court ruled in Dr. Dowdle's favor, finding that the inability to perform surgery justified a finding of "total" disability. The Eighth Circuit affirmed.
The district court's finding was based on the following conclusion: "[S]ince Dr. Dowdle is unable to perform any orthopedic surgery, he is unable to perform the substantial and material parts of his occupation in the customary and usual manner and with substantial continuity. Accordingly, Dr. Dowdle is entitled to 'total disability' benefits" under both policies." On appeal, the insurer contended that Dr. Dowdle should have only received "residual" disability benefits given his ability to perform office work and IMEs. However, the Court of Appeals rejected defendant's arguments.
Because the case involved individually purchased policies, it was not governed by the ERISA law; and the court applied the law of the governing jurisdiction, Minnesota. Applying precedential Minnesota case law, the court found the policy was ambiguous since the definition of "total" disability was subject to multiple interpretations. Thus, under Minnesota law, the interpretation most favorable to the insured applied. The court outlined the competing arguments as follows:
In interpreting total disability policies with similar language, courts have taken one of two approaches. National Life urges us to apply the line of cases in which courts have interpreted similar language in total disability policies to mean an insured must be unable to perform "all" of his material and substantial duties to be considered totally disabled. See Giustra v. UNUM Life Ins. Co. of Am., 2003 ME 8, 815 A.2d 811, 814 (Me. 2003); Falik v. Penn Mut. Life Ins. Co., 204 F. Supp. 2d 1155, 1157 (E.D. Wis. 2002); Yahiro v. Northwestern Mut. Life Ins. Co., 168 F. Supp. 2d 511, 517-18 (D. Md. 2001); Dym v. Provident Life & Accident Ins. Co., 19 F. Supp. 2d 1147, 1150 (S.D. Cal. 1998). These courts have held an insured's ability to perform just one material and substantial duty precludes a determination of total disability.
The other approach, adopted by the Minnesota Supreme Court in Weum v. Mutual Benefit Health & Accident Ass'n, 237 Minn. 89, 54 N.W.2d 20, 31-2 (Minn. 1952), assesses a total disability if the insured's inability to perform certain duties precludes continuation in his or her regular occupation. In Weum, the insured, an obstetrician and gynecologist, sustained an injury which impaired his ability to deliver babies. Id. at 24-25. For some time, the insurance company paid total disability benefits. Id. at 24. When the insurance company ceased making total disability benefit payments, Dr. Weum sued. Id. Dr. Weum claimed he was totally disabled because, after his accident, he was unable to perform the work required of an obstetrician. Id. at 25. *11-*12.
Following the Weum ruling and its progeny, the Eighth Circuit ruled that under Minnesota law, "an insured may be entitled to total disability benefits, regardless of the number of important duties an insured still can perform in isolation." *14. Hence, based on National Life's concession that Dr. Dowdle cannot perform orthopedic surgery, "which is clearly the most important substantial and material duty of [his] occupation as an orthopedic surgeon...he is entitled to total disability benefits under Minnesota law." *14-*15.
Discussion: We have covered a number of cases presenting this issue; and Dowdle represents the majority viewpoint. For example, Lasser v. Reliance Standard Life Insur.Co., 344 F.3d 381 (3d Cir. 9/18/03)( October 2003 ) ruled that an orthopedic surgeon who was limited in performing orthopedic surgery qualified for disability benefits even though he was capable of performing other medical tasks. Likewise, Giampa v. Trustmark, 73 F.Supp.2d 22 (D.Mass. 1999) ruled that a chiropractor who could not perform manipulations but who ran chiropractic clinics qualified for disability benefits. Also see, Gammill v. Provident, 346 Ark. 161, 168, 55 S.W.3d 763 (2001)(cardiologist able to perform majority of pre-disability duties still qualified for total disability benefits if 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. Nor does the mere fact that one continues to work at his regular job 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 ."). Also see, Freling v. Reliance Standard Life Insur.Co., 315 F.Supp.2d 1277 (S.D.Fla. 2/24/2004)( May 2004 )(ob/gyn found disabled because unable to perform the two material duties of his occupation as he performed it due to traumatic amputation of a finger); Kraft v. Massachusetts Casualty Insur.Co., 320 F.Supp.2d 1234 (N.D.Fla. 2004)( August 2004 )(specialty letter issued by insurer required that in evaluating insured's regular occupation, that his specialty be considered, and that an inability to perform the duties of that specialty required payment of total disability benefits even though plaintiff continued working in a more general field of medicine); Gross v. Unum Provident Life Insurance Company,2003 U.S.Dist.LEXIS 23520 (C.D.Cal. 11/11/03)( January 2004 )(court refused to grant summary judgment to the insurer in a case involving an orthopedic surgeon who was unable to perform surgery due to peripheral neuropathy, although he was able to perform office consultations. The court ruled that there was an issue of fact as to whether the doctor was totally or residually disabled; also see Gross v. Unum Provident Life Insurance Co., 319 F.Supp.2d 1129 (C.D.Cal. 5/18/2004)(same)( June 2004 ). But see, Guistra v. Unum Life Insur.Co. of America, 2003 Me.LEXIS 16 (Sup.Jud.Ct. of Me. 1/22/03)( March 2003 )(court ruled that orthopedic surgeon who could no longer perform surgery but still engaged in office work was not totally disabled). See, House v. American United Life Insur.Co., 2004 U.S.Dist.LEXIS 6942 (E.D.La. 4/20/2004)( May 2004 )(trial attorney with cardiac condition could elect total disability or partial disability but could not receive both). Also see, Hamaker v. Paul Revere Life Insur.Co., 2004 U.S.Dist.LEXIS 7796 (S.D.Ind. 4/2/2004)( May 2004 )(surgeon able to continue performing some surgical duties was residually, not totally disabled.).
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