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Occupational Classification: 3rd Cir.

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  • Occupational Classification: 3rd Cir.

    In a recent, and rather lengthy, opinion from the Third Circuit Court of Appeals, the court wrestles with the Defendant's occupational classification of the Plaintiff. By way of background, the Plaintiff is a radiologist certified in the specialty of interventional radiology. The Defendant, however, classified the Plaintiff's occupation as "diagnostic radiologist." Given the Plaintiff's occupation, this suit involved a fairly sizable sum at issue. The Defendant initially paid benefits to the Plaintiff, but terminated these benefits in 2009. The Plaintiff appealed, and this suit followed. With respect to the Plaintiff's occupational classification, the court found:

    Beginning with the question of Dr. McCann’s occupation, the relevant policy language states:
    "[Y]our 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."

    In terminating Dr. McCann’s benefits, Provident explained its initial payments were based on an incorrect understanding of Dr. McCann’s occupation and that while “Dr. McCann was hired by and listed by Holzer Clinic as an Interventional Radiologist, his CPT codes clearly reflect[ed] that, in the years prior to disability, Dr. McCann was practicing primarily as a Diagnostic Radiologist.” The District Court agreed with this analysis, see McCann v. Unum Provident, No. CV 11-3241 (MLC), 2016 WL 1161261, at *34 (D.N.J. Mar. 23, 2016), but Dr. McCann maintains the record undisputedly shows his “‘recognized specialty’ is interventional radiology, involving stressful, intrusive medical procedures and weekend and night call.”
    We therefore consider, in light of the policy’s definition, whether Dr. McCann’s occupation is interventional radiology or diagnostic radiology for purposes of evaluating his disability claim.
    As an initial matter, we address Provident’s contention that our decision in Lasser v. Reliance Standard Life Insurance Company, 344 F.3d 381 (3d Cir. 2003) should guide this analysis. There, we considered the meaning of “regular occupation” in an orthopedic surgeon’s disability insurance policy and concluded “‘regular occupation’ is the usual work that the insured is actually performing immediately before the onset of disability.” Id. at 386. But this statement was addressing the insurer’s decision to interpret “regular occupation” based on a typical work setting for any employer in the general economy. Id. at 385. We held that “[b]oth the purpose of disability insurance and the modifier ‘his/her’ before ‘regular occupation’” made clear the analysis had to be conducted based on the insured’s own occupation. Id. at 386. No one disputes Dr. McCann’s own occupation is the relevant scope of analysis. We are also mindful that Lasser, and other cases cited by the parties, turn on the policy language specific to those cases and are therefore of no application to Dr. McCann’s specialty-specific policy.19
    Turning to the policy language at issue here, we agree that particularly the first part of the definition—defining occupation as that “in which you are regularly engaged at the time you become disabled”—supports a practical assessment of Dr. McCann’s pre-disability activities, similar to that in Lasser. But importantly, this language precedes, and is therefore qualified by, the concept that “your occupation [can be] limited to a recognized specialty.” Joint App. at 308. Because the record demonstrates diagnostic radiology was a component of Dr. McCann’s responsibilities as an interventional radiologist, we conclude Provident’s final determination regarding Dr. McCann’s occupation was incorrect.
    First, from a formalistic perspective, it is undisputed that Dr. McCann possesses the qualifications of an interventional radiologist. He is certified in that specialty.20 Dr. McCann was also hired by Holzer Clinic as one of three interventional radiologists, and, in fact, would not have been hired but for his ability to perform some interventional work.
    Functionally, it is also clear from Dr. Long’s job description, detailing Dr. McCann’s duties and responsibilities, that Dr. McCann performed at least some amount of interventional radiology, estimated at as much as 20 hours per week. The District Court focused its analysis on the fact that “the diagnostic duties associated with his occupation accounted for 91% of the procedures he performed each week during the three and a half year period preceding [Dr. McCann’s] application for disability leave.” McCann, 2016 WL 1161261, at *34 (internal quotations omitted). But we note that a purely mechanical comparison of the number of interventional procedures and diagnostic tasks fails to account for the time dedicated to each type of work. Dr. Long explained during Provident’s field visit that in the same amount of time it can take to do an interventional procedure, e.g., an angioplasty, he can probably read more than 10 MRIs.
    Even accepting that diagnostic work accounted for the bulk of Dr. McCann’s billing, the record makes clear that interventional radiologists perform diagnostic radiology. When asked whether Dr. McCann was hired as an interventional radiologist or a diagnostic radiologist, Dr. Long replied “[b]oth” and explained that interventional radiologists do both things. Joint App. at 3148. The first CPT review conducted by Provident produced a similar percentage ratio between interventional procedures and diagnostic readings, and these same percentages were used to support a conclusion that Dr. McCann performed duties related to “Diagnostic & Interventional Radiology prior to disability.” Joint App. at 1514. We also note the American Board of Radiology recognizes a specialty in “Interventional Radiology and Diagnostic Radiology” distinct from a specialty in “Diagnostic Radiology.” See ABMS Guide to Medical Specialties 66–67 (2018),
    Thus, the interventional aspects of Dr. McCann’s practice cannot be cast aside from the definition of his occupation merely by focusing exclusively on the number of “units” of work Dr. McCann billed. The policy explicitly cabins the definition of “occupation” to an insured’s recognized medical specialty, and, in fact, this was a primary selling point in Lucasse’s marketing materials.
    Ultimately, the court vacated the lower court's grant of summary judgement for the Defendant and remanded the case. The full opinion is attached below.
    Attached Files