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Doe v. Provident Life & Accident Insurance Co.

March 9, 2009

JOHN DOE, M.D., PLAINTIFF,
v.
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, DEFENDANT.



MEMORANDUM OPINION AND ORDER

A physician, John Doe, M.D. ("Doe"),*fn1 alleges that he suffers from Post Traumatic Stress Disorder ("PTSD") and, as a result, is disabled from his occupation as an emergency room ("ER") physician. He filed this suit against his disability insurance provider, Provident Life and Accident Insurance Company ("Provident"), when Provident refused to pay his claim for disability benefits. Doe's complaint asserts causes of action for breach of contract and "bad faith" in the administration of his insurance policy.*fn2

Before the court is Provident's motion for summary judgment [#35]. Upon consideration of the motion, the opposition thereto, and the summary-judgment record, the court concludes that the motion should be granted in part and denied in part.

I. BACKGROUND

Doe earned his M.D. in 1975. In the late 1970s, he began seeing a psychiatrist, Constantine Kyropoulos ("Kyropoulos"), to address certain psychological issues. Doe completed his residency and was board-certified in emergency medicine in 1981. After his residency, Doe, an Air Force Academy graduate, worked as an ER physician at Andrews Air Force base and other military hospitals until 1984. While working for the military, Doe also worked part-time as an ER doctor for Capital Emergency Associates ("CEA"). Once he had fulfilled his military obligation, Doe began working full-time at CEA and became a partner there in 1985 or 1986. While working full-time at CEA, Doe averaged 24-30 clinical hours and 6-8 non-clinical hours per week. As a partner, his annual income was approximately $150,000 to $250,000 per year.

While working full-time at CEA, Doe applied for a disability insurance policy from Provident. Doe's application provided: (a) "Occupation: Physician"; (b) "Exact duties: E.R. Physician"; (c) "Employer: Capital Emergency Associates, P.A."; and (d) "Nature of business: Emergency Medicine." (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 3 at 1.)*fn3 The Policy provides, in relevant part:

Sickness means sickness or disease which manifests itself while your policy is in force. (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 2 at 4.)

[Y]our occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. (Id.)

Total Disability means that due to Injuries or Sickness: (1) you are not able to perform the substantial and materials duties of your occupation; and (2) you are under the care and attendance of a Physician. (Id.) (emphasis added).

[Partial/]Residual Disability means that due to Injuries or Sickness: (1) you are not able to do one or more of your substantial and material daily business duties or you are not able to do your usual daily business duties for as much time as it would normally take you to do them; (2) you have a Loss of Monthly Income of at least 20%; and (3) you are under the care and attendance of a Physician. (Id. at 7.)

A company called Em Care ("EC") purchased CEA in 1994 or 1995. As a partner of CEA, Doe was required to remain with EC for two years following the acquisition in order to obtain his full share of the proceeds from the acquisition. Doe fulfilled that two-year obligation, but during that time began to experience serious psychological symptoms, which he alleges were a result of his work in the ER. (See Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 38 at 118-19.) Doe discussed his symptoms with Kyropoulos, with whom he had consulted about psychological issues including hypersensitivity, anxiety, depression, irritability, and a facial spasm since the 1970s. During 1997, Doe also took medication to manage his symptoms, and he began to reduce his work hours in the ER. This reduction coincided with his receipt of the full proceeds from the sale of CEA, which Doe testified provided him with the means to pursue a semi-retirement. It is from this time, when Doe began to reduce ER work in 1997, that he claims Residual Disability. In 1999, Doe began counseling sessions with a clinical social worker, John Schwartz ("Schwartz"), with whom he discussed his desire to semi-retire as well.*fn4 (See Def.'s Mot. for Summ. J. [#35], Ex. 7.)

In 2000, Doe began working in internal medicine ("IM") at Price Medical ("Price") to supplement his reduced ER work. According to Doe, he can work as an internist because it carries with it less pressure than ER work. His regular schedule at Price is part-time, but Doe works full-time when he needs to cover for other physicians. According to Doe, the transition from ER to IM carried with it a significant loss of income. Doe later entered therapy with another clinical social worker, Kevin Spera ("Spera"), from January 2003 through December 2004. That therapy addressed Doe's previous psychological issues as well as anxiety relating to ER work, aging, and a new romantic relationship. (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 7 at 1; Def.'s Reply to Opp'n to Mot. for Summ. J. [#48], Ex. 15 at ¶ 2.) In 2004, Doe ended his treatment with Spera and withdrew from ER work completely. It is from this date, when Doe ceased all ER work in 2004, that he claims total disability. Although Doe typically works a part-time schedule at Price, he has not attempted to take on a full-time schedule nor has he sought other work as an IM physician.

In 2005, Doe read an article about PTSD and concluded that his symptoms fit the disorder. In July 2005, Doe consulted a psychiatrist, Gale Neufeld ("Neufeld"), about PTSD. Neufeld diagnosed Doe as suffering from "Axis I: Post-traumatic Stress Disorder, Chronic (309.81)." (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 9 at 8.) Neufeld then referred Doe to a psychologist, Thomas Gilmore ("Gilmore"). Gilmore diagnosed Doe as suffering from an adjustment disorder with anxiety and in August 2005 began treating Doe for essentially the same symptoms for which Spera had treated him. In contrast to Neufeld and Gilmore, Spera never diagnosed Doe as suffering from post-traumatic stress disorder or any other disorder,*fn5 (Def.'s Reply to Opp'n to Mot. for Summ. J. [#48], Ex. 15 at ¶ 4), although Spera did observe that Doe's anxiety and depression would make it difficult for him to continue working in the ER, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 7 at 1).*fn6

In December 2005, Doe submitted a disability claim to Provident, along with a required Physician Questionnaire, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 15), and Gilmore's Attending Physician Statement, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 14), which indicated that Doe suffered from PTSD. In January 2006, Provident acknowledged receipt and appointed an agent, Diane Freeman ("Freeman"), to handle Doe's claim. Thereafter, Doe signed an authorization to release records of Gilmore's treatment, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 19), interviewed with Freeman via phone, (see Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 20), and Provident received Neufeld's evaluation diagnosing Doe with PTSD, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 9 at 8). After Provident informed Gilmore that a summary of treatment in lieu of records was fine, (see Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 21), Gilmore provided Provident with a summary, which diagnosed Doe as suffering from PTSD, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 22). Based on the foregoing, Provident informed Doe that it would consider August 2005 - when he began treatment with Gilmore - as the onset of his alleged disability. (See Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 23 at 2.)

Provident then requested additional materials from Doe to complete the evaluation of his claim including a supplemental statement from Doe, his personal tax returns, a primary care physician questionnaire, medical records from Spera, and employment verifications. (See id. at 4.) Doe provided Provident with some of these materials, namely his supplemental statement, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 24), and primary care physician questionnaire, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. [#41], Ex. 25). Also, Spera sent a letter to Provident summarizing Doe's treatment. The letterdid not mention PTSD or any other disorder, but it did describe Doe's ER-related anxiety and Spera's opinion that Doe could not continue working as an ER physician.*fn7 (Pl.'s Mem. in Opp'n to Mot. for ...


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