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Hershman v. Unumprovident Corp.

September 25, 2009


The opinion of the court was delivered by: Richard J. Holwell, District Judge


Dr. Ronnie A. Hershman brings this breach of contract action alleging that his inability to practice invasive cardiology entitles him to "total disability" benefits under an occupational insurance policy. The parties cross-moved for summary judgment after completion of discovery. For the reasons stated below, defendants' motion is granted and plaintiff's motion is denied.


Beginning in 1989, Dr. Hershman practiced invasive cardiology in the catheterization laboratory of St. Francis Hospital in Roslyn, New York. (Pl. 56.1 ¶ 8.) "Invasive cardiology," as plaintiff defines it, is "a specialty within the field of cardiology involving the insertion of instrumentation into the human body [through a catheter] to examine and diagnose the structures of the heart and to perform certain therapeutic procedures on various coronary arteries if blockages in the arteries exist." (Pl. Opp. Br. at 1.) The specialty requires extensive training, which Hershman acquired through a fellowship in invasive cardiology at Mount Sinai Medical Center. He had previously completed a residency and fellowship in general cardiology at the same institution. (Pl. 56.1 ¶ 1, 3.) Invasive cardiac procedures include, among others, angioplasty and cardiac catheterization. (Pl. 56.1 ¶ 6.) Between 1989 and 2003, plaintiff performed, on average, about 1,000 invasive cardiac procedures per year, more than the vast majority of physicians in the United States who perform such procedures. (Pl. 56.1 ¶ 10.)

Alongside his hospital work at St. Francis, Hershman also practiced cardiology from private medical offices. There, he performed the patient consultations, examinations, analysis, and other non-operating duties that comprised, by his own account, a substantial portion of his practice. (Pl. 56.1 Ex. G at 00939, Ex. S at 17:6 -- 18:4, 30:6-18.) Dr. Hershman conducted this office work as a member of a large group cardiology practice until 2000, when he founded his own private practice, Ronnie A. Hershman M.D., P.L.L.C., with an office in Lake Success, N.Y. (Pl. 56.1 ¶ 24.) He continues to practice cardiology from that office today.

In 1994, Hershman purchased an occupational insurance policy from The Paul Revere Life Insurance Company ("Paul Revere"). The policy insured him against the possibility that a "total disability" or "residual disability" should prevent or impede performance of his "occupation." (Pl. 56.1 Ex. C.) It contains the following pertinent definitions:

"Your Occupation" means the occupation or occupations in which You are regularly engaged at the time Disability begins. "Total Disability" means that because of Injury or are unable to perform the important duties of your occupation. "Residual Disability".means that due to Injury or Sickness which begins prior to age 65.You are unable to perform one or more of the important duties of Your Occupation.

In the event of total disability, the policy provides for a monthly benefit payment of $20,000 for the duration of the disability, up to age 65 (until December 2023, for Dr. Hershman). Id. at 3.

For a residual disability, the policy entitles Hershman to benefits corresponding to the percentage of total earnings lost, so long as the disability causes a threshold earnings decline of at least 20%. Id. at 8. The policy does not provide benefits for a partial disability that results in less than a 20% earnings decline. To maintain the policy, Hershman paid an annual premium of $8,942. Id. at 3.

The policy documentation contains varied descriptions of Hershman's occupation. In an application for coverage dated January 1, 1994, Hershman described himself as a "Physician- Catherizing [sic] Angioplasty," who "specializ[ed] in cardiology." (Def. 56.1 Ex. 1.) He also included the notation "Invasive Cardiology" in a space provided for additional details. Id. In a separate letter issued to clarify the policy's definition of "occupation," Paul Revere wrote that it understood Hershman's occupation "to be that of a specialist in the field of cardiology." (Pl. 56.1 Ex. A.) The letter reiterated, however, that Hershman's "occupation" would be defined as "the occupation or occupations in which you are regularly engaged at the time disability begins," and noted that his ability to work "in some other occupation or specialty would not preclude the payment of Total Disability Benefits." Id.*fn2

In late 2003, Hershman began to feel severe pain in his lower back, a condition likely caused and certainly aggravated by the heavy lead apron physicians must wear in the catheterization lab. Wearing the apron, Hershman experienced numbness down his left leg and back pain so intense that he frequently had to rest in the middle of invasive procedures. After attempting to work through the condition for several months, in January 2004 Hershman decided that his symptoms were interfering with his clinical judgment and that it was no longer safe for him to conduct invasive procedures. Since then, he has not returned to the catheterization lab, though he continues to practice what he calls "consultative" cardiology, examining patients in his office. (Pl. 56.1 Ex. F.) For summary judgment purposes, defendants do not dispute that Hershman's condition is genuine and that it prevents him from performing invasive cardiac procedures.

Hershman filed a claim for total disability benefits under his policy in May 2004. He noted on the claim application that he continued to work full-time as a "non-invasive" cardiologist. (Pl. 56.1 Ex. E.) After reviewing the report of a field representative who interviewed Hershman and examined his financial information, Paul Revere agreed in August 2004 to begin paying total disability benefits on the policy. (Pl. 56.1 ¶¶ 42-43.) In a letter communicating the decision, Paul Revere stated that it would make the payments under a "reservation of rights" and requested further information about Hershman's pre-disability occupational duties, including data breaking down the various cardiology services he provided his patients. (Pl. 56.1 Ex. M.) Subject to a continuing review of such information, Paul Revere made the $20,000 monthly payments until December 2005. (Pl. 56.1 ¶ 46, Ex. N.)

As indicated, Paul Revere continued its investigation of Hershman's claim, requesting additional data by letter and calling Hershman to discuss its analysis of his billing records. (Pl. 56.1 Ex. N, Ex. P.) Sixteen months after it began payment, the insurer determined that Hershman was not "totally disabled" under the policy, pointing to billing records it believed showed that non-invasive cardiology had accounted for roughly 80% of Hershman's pre-disability revenues. (Pl. 56.1 Ex. P. at 0004.)

Before the disability, Hershman divided his time between the hospital and his consultative office in Lake Success. He spent each Tuesday at the hospital performing invasive surgeries. During the rest of the week, he performed invasive procedures for two and a half hours at the hospital and saw patients in his office for eight hours. (Pl. 56.1 Ex. S. at 19:19 -- 22:5.) Plaintiff estimated in his claim filings that, in total, he spent an average of 40 hours per week in his office and 28 hours at the hospital. (Pl. 56.1 Ex. G.) He now claims that he erred in making that estimate and that he in fact spent 50% of his time in the office and "50%.on invasive procedures in the hospital, rounds on patients in the hospital, and being on call." (Pl. Counter 56.1 ΒΆ 28.) He also was sole owner and supervisor of a non-invasive cardiac diagnostic laboratory, Long Island Cardiac Care, which he founded as a subsidiary of his independent practice in 2000. The laboratory is located in a separate part of plaintiff's Lake Success office. (Pl. 56.1 Ex. S ...

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