Third Circuit works through occupation-specific disability definition

This article was initially published in the Chicago Daily Law Bulletin on December 6, 2018.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at [email protected].

This is the second of a two-part column. The first part was published on Wednesday.

In Part 1 of this column, we discussed a disability income insurance claim filed by Dr. Kevin McCann and the ruling issued by the 3rd U.S. Circuit Court of Appeals, focusing on the ERISA aspects of the case. In Part 2, we turn to the merits of the dispute.

The court explained there were three questions presented:

  • What was McCann's "occupation" at the time he became disabled?
  • What were the "substantial and material duties" of that occupation?
  • Do McCann's medical conditions prevent him from performing those duties?

The court began with the following definition contained in the policy: "[Y]our occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree or license, we will deem your specialty to be your occupation."

Provident maintained that McCann practiced primarily as a diagnostic radiologist, but the plaintiff argued his "recognized specialty" was interventional radiology, which involves "stressful, intrusive medical procedures and weekend and night call."

The court agreed with McCann. Although the policy definition references the occupation "in which you are regularly engaged at the time you become disabled," it is qualified by recognition that specialization be taken into account.

Thus, the court held: "Because the record demonstrates diagnostic radiology was a component of Dr. McCann's responsibilities as an interventional radiologist, we conclude Provident's final determination regarding Dr. McCann's occupation was incorrect."

The court explained its rationale from several viewpoints: First, McCann was board certified as an interventional radiologist and was hired to work in that capacity.

Second, McCann's duties included interventional radiology as much as 20 hours per week. Moreover, the court downplayed a comparison between the number of interventional and diagnostic tasks because it "fails to account for the time dedicated to each type of work."

The court cited evidence in the record showing that "in the same amount of time it can take to do an interventional procedure, e.g., an angioplasty, he can probably read more than 10 MRIs."

Third, interventional radiologists also perform diagnostic radiology and the American Board of Radiology recognizes a specialty in "interventional radiology and diagnostic radiology" distinct from a specialty in "diagnostic radiology."

Thus, since the policy recognizes occupational specialization, and McCann was performing interventional radiology, his occupation of interventional radiologist was established.

Turning next to McCann's substantial and material duties, the court found those duties "include both his ability to perform interventional procedures and his ability to do so on nights and weekends." McCann was hired by the clinic that employed him because he was an interventional radiologist and his duties, including on-call responsibilities, were shared with two other interventional radiologists.

The court was also critical of Provident's focus on McCann's billings - although more than 80 percent of his billings were for diagnostic radiology codes, the court explained that "a single interventional procedure can take significantly longer to perform than a diagnostic procedure."

The court went further, though, and pointed out, "dollar value of billings is only one measure of 'substantial and material' - it does not eclipse all other aspects of Dr. McCann's occupation, particularly when Dr. McCann's policy defines his occupation as limited to his specialty."

The court then observed, "The record makes clear that diagnostic radiology is one component of an interventional radiologist's specialty, but not the only component. We will not define Dr. McCann's occupation and its 'substantial and material duties' solely by counting up billing units."

Finally, the court determined that on the issue of whether McCann could perform the "substantial and material duties" of his practice as an interventional radiologist, there was a dispute of material fact.

While the court acknowledged "some level of consensus" on the question of whether McCann could work as an interventional radiologist, one report differed and thus raised a factual issue the court remanded to the district court.

As to the merits, the court distinguished a prior 3rd Circuit ruling, Lasser v. Reliance Standard Life Insurance Co., 344 F.3d 381 (3d Cir. 2003). However, following Lasser should have led to the same outcome. In Lasser, an orthopedic surgeon who could no longer take call or perform certain surgeries was found disabled because the court determined he was unable to practice orthopedics.

The court rejected Reliance Standard's position that Lasser could still be considered an orthopedic surgeon even if he did not perform surgeries or take call because those were essential elements of practice in that specialty. The court focused in McCann on the definition of "your occupation," but gave little consideration to the disability definition, which states:

"Total [d]isability or totally disabled means that due to [i]njuries or [s]ickness:

"1.[Y]ou are not able to perform the substantial and material duties of your occupation; and

"2.[Y]ou are receiving care by a [p]hysician which is appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to you."

McCann's inability to perform interventional radiology, his recognized specialty, should have been enough to qualify him to receive benefits. This was not a situation where a surgeon had stopped performing surgery and was only seeing patients in the office but claimed he was disabled because he could no longer perform surgery.

Since McCann was performing interventional radiology at the time he became disabled, and was no longer able to perform such duties, which formed a substantial and material part of his overall practice, he should be found disabled.

This policy did not define "disability" as the inability to perform all of the insured's substantial and material duties, but even if it did, courts have found that terminology ambiguous - it could mean unable to perform each and every duty or it could be interpreted as unable to perform all of the material duties.

Thus, the court could easily have found that McCann, who was hired and listed as an interventional radiologist and who regularly performed services within that specialty, was unable to perform his occupation when he could no longer perform interventional services.

The McCann ruling shows that cases involving occupational disability benefits often turn on very narrow interpretations of terminology that is exceedingly difficult to draft without including inherent ambiguities.

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