Our client, a periodontist, was injured as a result of a fall in his home in which he severely fractured his left hand and wrist. His doctors attempted to surgically repair the breaks by inserting a 3 inch long metal plate into the client’s wrist, held in place with 10 screws. As a result of the surgery, the joint spaces never returned to normal and the onset of arthritis in the joints left the client in constant pain. When the client filed his total disability claim, it was approved only on the basis of residual disability on the grounds that he was still performing some surgeries. The insurer reasoned that the while the client’s left hand and wrist had been injured, the client was right handed and was continuing to perform roughly 1/3 of his surgical procedure,s and nearly all of his nonsurgical procedures, as well as his regular administrative duties in running his practice.
Our position was that he was unable to perform his substantial and material duties in the usual and customary manner and with reasonable continuity and therefore he was totally, and not residually, disabled. We also pointed out that by insisting on placing its insured on residual, rather than total, disability the insurer was saving over a million dollars over the life of the policy.
Result: Settled in the amount of $3,000,000.