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The casenote of the month is from the Disability E-News Alert! a monthly newsletter describing new disability insurance developments.  For subscription information, e-mail Mark DeBofsky or visit www.disabilityenewsalert.com .

Abdel-Malek v. Life Insur.Co. of North America, 395 F.Supp.2d 912 (C.D.Cal. 2005)(Issue: Risk of Disability) .  The plaintiff, a physiatrist, developed coronary artery disease.  After undergoing bypass surgery, he returned to work on a part time basis, at 80% of his prior workload.  Shortly thereafter, LINA terminated benefit payments, asserting that the plaintiff was capable of full time work.   After a pre-suit appeal was unsuccessful, a lawsuit was filed and the parties engaged in early mediation which resulted in a settlement agreement that provided for a portion of the past-due benefits to be paid to the plaintiff and an entitlement to future benefits dependent on a medical and vocational evaluation.  The vocational evaluation was performed by Intracorp, which deemed the plaintiff’s occupation to have a stress level of 8-10/10.  The parties also agreed on the independent examiner, Harvey Alpern, M.D., a cardiologist.  Dr. Alpern concluded after examining the plaintiff that he was capable of working on an 80% basis but was limited due to fatigue and that he faced a risk of a future cardiac event due to stress.  Based on that report, LINA again terminated benefits; and in the ensuing litigation, Dr. Alpern testified to the following at his deposition:

1. Plaintiff has a significant risk for a future cardiac episode if he continues to work in his present work environment, and the risk is "substantially higher" than for someone not in the same environment. Stipulation, Ex. 6 at p. 25 (at Deposition p. 26.)

2. Plaintiff was playing "Russian roulette" with a future cardiac event that would likely be catastrophic, and if he remained at his current work capacity, such a catastrophic heart attack was likely to happen. Id. at pp. 25-26 (at Deposition pp. 28-30.)

3. Plaintiff was capable of working 100% at his current job, but by doing so, he was at a higher risk of a future coronary event as a result of the stress associated [*8]  with his job than an employee who had never had a coronary event. Id. at p. 22 (at Deposition pp. 16-17.)

4. Increasing plaintiff's work load by 20% would not be significant; however, he would have problems performing the material duties of his job on a 100% basis due to "persistence in pace" and fatigue. Id. at p. 23 (at Deposition pp. 20-21.)

5. Increasing plaintiff's workload an additional 20% would not be significant compared to the overall stress of the day. Id. at p. 24 (at Deposition p. 25.)

6. If plaintiff were a patient of Dr. Alpern, Dr. Alpern "very well might" advise him to stop working in his job because of the higher risk of a future cardiac event. Id. at p. 22 (at Deposition p. 14.)

LINA nonetheless took the position that there was no medical basis for the reduction in work duties; therefore, it refused to pay additional benefits.  When the matter was brought back before the court, the trial judge [Magistrate Judge Paul Abrams] was intrigued by what was described as “an element … apparently not contemplated by the parties -- whether plaintiff should be working at Permanente at all in light of his condition. The Court believes that the resolution of this case turns on the answer to this question.”

Because there was no dispute as to the stressful nature of the plaintiff’s occupation, the court relied heavily on Lasser v. Reliance Standard Life Insur.Co., 344 F.3d 381 (3d Cir. 2003)(October 2003), which recognized “that an effort to work-even when it is to the individual’s detriment-does not equate with a finding of lack of disability.”  The court elaborated:

"A claimant's return to work is not dispositive of his or her disability when economic necessity compels him or her to return to work." Lasser, 344 F.3d at 392. As in Lasser, that principle is especially valid here where plaintiffs "disability was not observable and did not make it physically impossible for him to perform his job for a limited period." Id.; see also Marecek v. BellSouth Telecommunicationsm, Inc., 49 F.3d 702, 706 (11th Cir. 1995) (an individual's attempt to work "does not forever bar . . . collection of sickness disability benefits."); Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003) ("[a] desperate person might force himself to work despite an illness that everyone agreed was totally disabling"); Stark v. Weinberger, 497 F.2d 1092, 1100 (7th Cir. 1974) (the question is whether an individual was disabled within meaning of Social Security Act "notwithstanding the fact that [plaintiff] actually did work."); Gross v. UnumProvident Life Ins. Co., 319 F.Supp.2d 1129, 1158 (C.D. Cal. May 18, 2004) ("[t]he fact that the insured may do some business duties during the time for which he claims indemnity for total disability or even the fact that he may be physically able to do so is not conclusive evidence that his disability is not total, if reasonable care and prudence require that he desist." (quoting Fitzgerald v. Globe Indemnity Co., 84 Cal.App. 689, 697, 258 P. 458 (1927)). Here, while "reasonable care and prudence" perhaps should lead plaintiff to cease working at Permanente, or seek employment in a less stressful environment if one exists, defendants should not benefit from his decision to continue working. *12-*13.

From that finding, the court then summarized its conclusion: “According to the evidence presented to the Court, plaintiff should not be working at Permanente at all. If plaintiff had ceased work altogether, defendant may well be paying him 100% of his disability benefits. The fact that plaintiff has chosen to work 80% of the time, against medical advice and to the detriment of his health, relieves defendant from paying plaintiff 80% of the benefits to which he may be entitled. It does not relieve defendant of its obligation to pay him for the 20% of the time that he does not work.”

This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .