Justice v. Accident

• Decision Date: 08 February 2011
• Docket Number: CA 10-0624-KD-C
• Court: U.S. District Court — Southern District of Alabama
• Parties: WILEY H. JUSTICE, M.D., Plaintiff, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, et al., Defendants.

WILEY H. JUSTICE, M.D., Plaintiff,

v.PROVIDENT LIFE & ACCIDENT

INSURANCE COMPANY, et al., Defendants.

CA 10-0624-KD-C

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Dated: February 8, 2011

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1), plaintiffs motion to remand (Doc. 5; see also Doc. 6), the response in opposition filed by defendant Provident Life & Accident Insurance Company (Doc. 12), ¹ plaintiff's reply (Doc. 13), and Provident's motion to strike reference to factual findings in other case (Doc. 14). ² Upon consideration of the foregoing pleadings, the Magistrate Judgerecommends that the Court GRANT plaintiff's motion to remand and remand this action to the Circuit Court of Mobile County, Alabama.

FINDINGS OF FACT

1. Sometime in 1991, defendant Edwin ("Pete") Peters approached plaintiff about purchasing a disability insurance policy (Doc. 1, Exhibit B, COMPLAINT, at ¶ 4). Dr. Justice relayed to Peters that he sought disability insurance for his specific occupation which he described as surgery of otorhinolaryngology with his exact duties being ear, nose and throat surgery. (Id. at ¶ 6)

Peters represented that upon Provident's acceptance of Dr. Justice's application for insurance and premium payment, Provident would provide a disability income insurance policy for Dr. Justice's specific occupation.³ Consistent with the training and information provided to Peters by Provident, Peters represented to Dr. Justice that if he became disabled from performing surgery, Provident would pay the disability benefits provided for in his policy. Peters represented that Provident's disability policy was a "specialty" disability policy, meaning that it would cover Dr. Justice's specialization as a surgeon and provide benefits in the event he was unable to perform surgery.⁴ These representations were also made by Provident to Peters, such that Peters made these representations and assurances to Justice on his own behalf and on behalf of Provident.

(Id. at ¶ 7) Therefore, on July 3, 1991, plaintiff made application to Provident for disability benefits based upon his occupation as an otorhinolaryngology surgeon (Doc. 1, Exhibit C, Application).⁵

2. Provident approved plaintiff's application for disability income insurance and issued a disability income policy, Policy No. 06-337-7066319, to him on August 6, 1991 (Compare Doc. 1, Exhibit B, COMPLAINT, at¶ 8 with id., Exhibit C, DISABILITY INCOME POLICY, at 3).⁶

Total Disability or totally disabled means that due to Injuries or Sickness:

1. you are not able to perform the substantial and material duties of your occupation; and

2. you are receiving care by a Physician which is appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to you.

your 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.

(Id. at 4)

3. On or about August 8, 2008, plaintiff was injured in an accident and, as a result of the accident, suffered permanent numbness in his left hand. (Doc. 1, Exhibit B, COMPLAINT, at ¶ 11)⁷ Because of the permanent numbness, Dr. Justice has been unable to perform otorhinolaryngology surgeries. (Doc. 1, Exhibit B. COMPLAINT, at l 11) Therefore, on October 7, 2008, Dr. Justice submitted a claim for disability benefits to Provident. (Id. at ¶ 12; see also Doc. 6, Justice depo., at 100)⁸ Plaintiffs description of his injury on the October 7, 2008 claim form was "cervical fracture with cord compression and nerve damage due to mountain biking accident in Park City, Utah, on August 8, 2008[.]" (Id. at 101-102)⁹ Thereafter, in a supplemental statement submitted to Provident on November 20, 2008, Dr. Justice acknowledged that he began seeing patients in clinic again on August 28, 2008 diagnosing and treating ear, nose and throat illnesses but that he was unable to perform surgery in his "recognized specialty of otolaryngology[.]" (Doc. 6, CLAIMANT'S SUPPLEMENTAL STATEMENT) By way of further explanation, Dr. Justice stated that he scheduled surgery on two occasions after his accident under the supervision of one of his partners, Dr. John Wilson, anddetermined that it was in the best interests of his patients that he "cease performing surgery." (Id.)

4. Provident notified Dr. Justice by letter dated January 6, 2009, that it was denying his claim for total disability benefits. (Doc. 1, Exhibit E) This letter reads, in relevant part, as follows:

We received a letter from Attorney Shirley Justice dated October 9, 2008 stating that she is representing you. We have spoken previously with Attorney Justice regarding your claim and we would like to take this opportunity to request confirmation from you as to Attorney Justice's involvement with your claim. If Attorney Justice or other legal council (sic) is representing you for this claim, we ask that you provide our office with a statement verifying this representation.

At this time, we are writing to update you on the status of your claim for Total Disability benefits.

Our medical department has recently completed a review of your file. Our clinician, who reviewed the file, stated that the medical documentation supports restrictions and limitations for your fine motor skills and pushing/pulling at this time with your left hand.

Our vocational department has also recently completed a review of the CPT reports provided to our office. In 2007, you had total charges of $1,699.757.74 with average monthly charges of $141,646. Surgical procedures represented 24% of total charges. In the months of2008 prior to your accident, 26% of total charges were from surgical procedures.

Based on review of your CPT reports, we determined that you performed the duties of an ENT physician with a surgical component to your practice prior to your accident. Your duties included seeing patients in the office for exams and performing surgical procedures as needed. The performance of surgical procedures was not the only duty of your occupation.

You reported that you returned to work on August 28, 2008. As such, we also reviewed CPT reports for September and October 2008 to determine the duties you are currently performing. In September 2008 and October 2008, your charges were $64,801.95, and $125,368.82, respectively. Insurgical charges accounted for 13% of total charges and in October surgical charges accounted for 6% of total charges.

In the period prior to your accident, the ten surgical procedures that accounted for the highest number of charges included create eardrum opening, remove tonsils and adenoids, removal of tonsils, diagnostic laryngoscopy, repair of nasal septum, resect inferior turbinate, remove impacted ear wax, clean out mastoid cavity, and control of nosebleed. Of these, the only two procedures which you did not perform in September and October 2008 were repair of nasal septum and resect inferior turbinate.

The substantial and material duties of your occupation include seeing patients in the office for exams and performing surgical procedures as needed. Review of CPT reports for September and October of 2008 reflect that you have returned to seeing patients in the office for exams and performing some surgical procedures. As such, you have not satisfied the Total Disability terms of your policy.

(Doc. 1, Exhibit E (emphasis supplied))¹⁰

5. On June 18, 2009, Dr. Justice penned a letter to Provident (Doc. 1, Exhibit D), same reading, in relevant part, as follows:

I am writing in response to your letters of April 3, 2009, as well as May 12, 2009. There are several matters that need clarification, and I would ask that you reconsider your determination that I am not disabled as defined by my disability insurance policy.

[Y]our May 12, 2009 letter reiterates UNUM's position that I am not disabled based upon a two-month examination of my CPT code reports. A fair and thorough analysis of my claim does not support your conclusion for a number of reasons. First, a CPT code analysis, standing alone, does not provide an accurate assessment of the material duties of my occupation. Your CPT code review does not take into account that consultations, reviews, or follow up work may not be generated by a surgeon who is not performing surgery. Further, simply because a CPT code may be classified as being "surgical" does not mean that a physician is able to perform the material duties of his occupation.

Despite the inherent limitations and impropriety of limiting your claim review solely to a CPT code analysis, because you have asked for CPT code reports from December 2008 to the present, copies of those reports are enclosed herein.

In your correspondence, you noted that I continued to perform certain surgical procedures after returning to work in September of 2008. As I noted in my reports to UNUM, there were two (2) occasions after I returned to work when I attempted to perform surgical procedures. On these occasions, another surgeon was present to assist and provide medical oversight. After these attempts, in consultation with my personal physician and my partners, I concluded that I could no longer safely perform surgery because of my injuries. Since that time, I have not performed surgery. Further, because of my physical limitations and inability to perform surgery, my partners have not included me in any call rotations since the date of my accident.

At the time I applied for and obtained my disability benefits policy, I indicated that my occupation was the "surgery of otolaryngology." My application discloses that my duties were "ear, nose and throat surgery." The policy provides that my occupation means that which I...