WHITE PLAINS, N.Y. – A New York jury on Jan. 23 ruled that an orthopedic surgeon who could no longer perform surgery after falling down a flight of stairs, injuring his shoulder and incurring nerve damage, was disabled under an own occupation policy (Jonathan A. Korn v. First Unum Insurance Co., No. 05958-01, N.Y. Sup., Westchester Co.).
The trial was heard by Westchester County Supreme Court Justice Nicholas Colabella.
2 Suits
The action is two consolidated lawsuits filed by Jonathan Korn against First Unum Insurance Co., seeking benefits under his individual own occupation disability policy and a business overhead expense policy with First Unum. At the time Korn purchased the policy, he worked as an orthopedic surgeon.
According to Korn’s lead counsel, Richard Quadrino of Quadrino Schwartz in Garden City, N.Y., Korn was performing approximately 200 surgeries a year. Quadrino said Korn was injured in 1994 when he fell, headfirst, down a flight of stairs at a hospital. Korn suffered a grade 4 shoulder separation and permanent nerve damage in his shoulder. Korn suffered from hand numbness and tingling and incurred neck injuries and vision problems as a result of the head trauma.
First Unum paid Korn benefits until 1997, finding that he was no longer disabled under the policies. First Unum hired an accounting firm to audit Korn’s practice and his financial records, concluding that he was not totally disabled under the policy.
First Unum questioned Korn’s income, Quadrino said, ignoring the fact that part of that income was attributable to income they paid from his business overhead policy, part was from replacement doctors and part was for surgeries he did years before his injury but was paid for only recently because of litigation. A portion of Korn’s surgeries were on people who were involved in personal injury litigation.
2nd Accident
While in litigation against First Unum for its decision to terminate benefits from the first fall, Korn was in another accident; this time, he was injured when his car was struck head-on by a cement tuck in February 2000. Korn separated his other shoulder and incurred nerve damage as a result of the accident. Korn could no longer even examine patients for office visits, Quadrino said. Korn later filed an action for benefits arising from the car accident. Both actions were consolidated.
Korn argued that he was disabled from his occupation as an orthopedic surgeon since 1994; First Unum countered that Korn’s occupation was not that of a “surgeon.” First Unum argued that Korn was more of a consultant to the legal profession because a large portion of his patients were referred from personal injury lawyers.
The jury answered the first question of whether Korn was disabled from 1994 until the present in the affirmative. The jury did not need to reach the remaining two questions on the verdict form regarding residual disability and whether the second accident was disabling, Quadrino said. The verdict also mooted First Unum’s counterclaim for $860,000 in benefits paid to Korn, according to Quadrino.
Quadrino said the verdict includes $1.3 million in back benefits, plus interest.
Experts
Testifying for the plaintiff included two treating physicians, Thomas Kolb, M.D., a radiologist in New York; and Ali Guy, M.D., a physiatrist, a doctor of physical medicine and rehabilitation. Testifying for First Unum was Ernest Smith of Callaghan & Nawrocki in Melville, N.Y., an accounting firm.
Korn is represented by Quadrino, William O’Mahony and Michael Sepe of Quadrino Schwartz. First Unum is represented by Evan Gordon of New York and Patrick Begos of Westport, Conn.
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