210, 214 (Ark. 1952); Pacific Mut. Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W.2d 1052 (Tenn. 1930). See generally, E. L. Kellett, Annotation, Insurance: "Total Disability," 21 A.L.R.3d 1155 (1968). The 1984 policy in issue before the court explicitly incorporates the legal standard exemplified in these cases, for it provides that in order to be considered disabled, a claimant must be unable "to perform the material and substantial duties of the insured's occupation." Def. Exh. A. To defeat defendant's motion for summary judgment, plaintiff must establish that practicing surgery constituted a material and substantial part of his responsibilities at the time he became disabled. Accordingly, plaintiff maintains that prior to the onset of his visual impairment he was "actively engaged in the practice of surgery," a claim that the defendant disputes. Pl. 3(g) Stat. Para 1. But what is not disputed is that while plaintiff may have scheduled patients for surgical procedures during the eight weeks after reinstatement of his medical license, the time during which he claims to have become disabled, he admits he did not actually perform any surgery during that period, and, indeed, also concedes that his eyesight during this entire period was so compromised that he was unable to perform podiatric surgery. Brumer Dep. 72-76.
The determination whether a particular injury renders a claimant disabled from performing the material and substantial duties of his or her occupation depends on the nature of a claimant's particular occupation. Arthritis will disable a pianist, but perhaps not an opera singer or a museum curator. See Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S.W.2d 310 (Ark. 1930) ("Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged."). When faced with a claimant who had been engaged in diverse activities, a court must first determine whether that claimant was engaged in a single occupation that required the performance of many duties, or whether the claimant was actually engaged in more than one occupation. A claimant who performed duties of both a clerk and a manager prior to his injury, for example, was considered to be engaged in a single occupation with many duties. Burgess, 245 S.W.2d at 210 (Ark. 1952); cf. Matza, 375 N.Y.S.2d at 578.
Certainly, there are instances in which the practice of surgery will be considered a separate occupation from that of practicing medicine. Thus, an internist who practiced both surgery and internal medicine was considered to be engaged in two separate occupations, that of a physician and of a surgeon. Aetna Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W.2d 651 (Ark. 1943). However, an osteopath who occasionally performed minor surgery was considered to have been working in a single profession and, despite his inability to continue to perform surgery, he was not disabled. DiTommaso v. Union Cent. Life Ins. Co., 1991 U.S. Dist. LEXIS 17079 (E. Pa. November 22, 1991). The reasoning of the DiTommaso court is that to determine a claimant's occupation at the time of a disability's onset, it is necessary to ascertain how the claimant was earning his "primary living" at the applicable time. That court considered that the osteopath's practice of surgery was peripheral to his other functions and, accordingly, classified him a physician.
The Second Circuit, applying New York law, has held that a claimant who purchased an occupational disability policy which insured him against the inability to practice as a "physician and a surgeon," and who, for a considerable time prior to the onset of his disability, was exclusively engaged in practicing surgery, was totally disabled within the meaning of the disability policy there in issue though he retained a residual capacity to practice as a physician. Dixon v. Pacific Mut. Life Ins. Co., 268 F.2d 812 (2d Cir. 1959), cert. denied, 361 U.S. 948, 4 L. Ed. 2d 381, 80 S. Ct. 403 (1960). By devoting himself exclusively to the practice of surgery for almost two decades, the claimant in Dixon had become a specialist in surgery, and that specialty was considered a separate occupation distinct from the general practice of medicine. Id. at 815. Similarly, the New York Court of Appeals upheld a finding of total disability for an OB/GYN physician who later was employed as the director of a family planning clinic. The jury's finding that the plaintiff was totally disabled from performing the duties of his occupation after suffering a heart attack was sustained notwithstanding the fact that as the clinic's director, he performed some of the same tasks an OB/GYN physician would perform at a salary comparable to that he had earned prior to the onset of his illness. Management of the family planning clinic was considered an occupation distinct from that of an OB/GYN physician because his responsibilities at the clinic did not "involve any substantial part of the ordinary duties of his former occupation." Niccoli v. Monarch Life Ins. Co., 70 Misc. 2d 147, 332 N.Y.S.2d 803 (Sup. Ct. 1972), aff'd, 45 A.D.2d 737, 356 N.Y.S.2d 677 (App. Div. 1974), aff'd 36 N.Y.2d 892, 334 N.E.2d 594, 372 N.Y.S.2d 645 (N.Y. 1975). These cases would indicate that management of a health-care facility, even where that position requires performance of tasks only a physician may perform, including some of the same chores as the physician's prior responsibilities, may well constitute an occupation separate and apart from that of a practitioner of medicine or surgery.
A doctor who maintained both a private practice and worked as a professor of ophthalmology was held to be engaged in a single occupation, and that doctor's inability to continue his private practice did not render him totally disabled under the terms of a disability policy that required that a claimant be disabled from performing "any and every duty of his occupation." Takerta v. Nationwide Mut. Ins. Co., 91 A.D.2d 568, 457 N.Y.S.2d 53 (App. Div. 1982), aff'd 59 N.Y.2d 743, 450 N.E.2d 247, 463 N.Y.S.2d 441 (N.Y. 1982). This is not the standard that must be applied in a case, such as this one, involving an inability to perform the substantial and material tasks required by a claimant's prior occupation.
Defendant NLV has failed to submit any evidence in support of its motion with respect to the various duties performed by the plaintiff in the period just prior to the onset of his disability. Were it established that Dr. Brumer was actively engaged in more than the management of his podiatric clinics, he might be considered to have a separate occupation as a manager of clinics and, in addition, another occupation as a doctor of podiatric medicine and a surgeon. Were it established that the extent of plaintiff's managerial duties were such that operation of his clinics was a separate occupation, he would not be totally disabled under the policies in issue, regardless of an inability to continue to perform surgery. See Orr, 169 S.W.2d at 651. Because plaintiff is able to function in his managerial occupation, an inability to perform surgery would not render him totally disabled. Alternatively, were one able to find that the plaintiff's managerial activities were peripheral or incidental when considered in light of the medical or surgical tasks he performed, the court would have to find that he did not have a separate occupation as a medical administrator. On the present state of the record, however, the court can make no finding on the question whether plaintiff was engaged in two separate occupations. It will, therefore, be assumed that his administration of podiatric clinics was an investment or a separate occupation.
Still, whether or not plaintiff was engaged in a separate occupation as a medical administrator, he cannot succeed unless he is able to establish that the practice of podiatric surgery constituted a material and substantial part of the role he performed at the time of the onset of his visual impairment. The plaintiff has failed to demonstrate that this is the case.
The onset of plaintiff's disability occurred either during the eleven month period that his license was suspended or, as plaintiff would have it, during the period between the time of his reinstatement and the date on which he filed a claim with the defendant claiming that he had become permanently disabled.
If the onset of plaintiff's disability occurred during the period that his medical license was suspended, he would not be entitled to receive disability payments pursuant to the terms of the policies in question because his occupation at the time the disability arose was not that of a surgeon or even a physician. "It is a general rule that disability insurance policies . . . provide coverage for factual disabilities . . . and not legal disabilities." See Goomar v. Centennial Life Ins. Co., 855 F. Supp. 319 (S.D. Cal. 1994). Concededly, plaintiff was not engaged in the practice of podiatric surgery during the period that he was suspended from practice and the insurance policies in question condition benefits on an inability to perform tasks which the claimant was engaged in at the time the disability arose. In my view, plaintiff's deposition establishes the compelling inference that the disability occurred during the period of plaintiff's suspension from practice or legal liability. Strangely, though, defendant does not base its motion on this basis. The reason for this probably lies in the fact that plaintiff lists the onset of disability as January 26, 1991. At trial, this would hardly be sufficient to make a jury question of the issue in the face of plaintiff's admissions in his deposition.
Nevertheless, even if I assume that the onset of his disability occurred between the time his license to practice was reinstated and the time he filed his disability claim with NLV, he still cannot prevail. Between the end of his legal disability (November 25th) and the definitive diagnosis of micropsia (January 28th), the fact remains that plaintiff performed no podiatric surgery during the 8 1/2-week period; at most, he claims to have scheduled patients for surgery for March, although he concedes that at no point between November 25, 1990, and January 28, 1991, was he able to perform podiatric surgery.
Thus, the plaintiff has not even made a minimal affirmative showing that a material and substantial portion of the work he performed during the period prior to the date he alleges he became disabled included the practice of podiatric surgery. Whatever medical tasks he performed were limited to examination of patients for surgery and the scheduling them for surgery -- tasks which he can perform until this day. Certainly, plaintiff would not claim that examining patients and scheduling them for surgery is the same as performing podiatric surgery. And even if these tasks constituted the practice of "podiatric surgery," plaintiff is still able to perform them.
Inasmuch as plaintiff admits that his visual impairment precluded him from performing podiatric surgery during his post-suspension period, and since it is conceded that the last time plaintiff actually performed surgery was no less than thirteen months prior to the time he claims he became disabled, it follows that podiatric surgery was not a material and substantial part of his occupation "at the time [his] disability began" in January 1991. Plaintiff, therefore, is not entitled to the disability payments he claims under the three policies at issue. Defendant NLV's motion for summary judgment is granted.
Dated: Brooklyn, New York
January 23, 1995
David G. Trager
United States District Judge
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