PRECEDENTIAL
`
`Filed September 18, 2003
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`No. 02-4123
`
`STEPHEN P. LASSER
`v.
`RELIANCE STANDARD LIFE
`INSURANCE COMPANY,
`Appellant
`
`Appeal from the United States District Court
`for the District of New Jersey
`(D.C. Civil Action No. 99-cv-04131)
`District Judge: Honorable Alfred M. Wolin
`
`Argued April 24, 2003
`Before: SCIRICA,* Chief Judge, AMBRO and
`GARTH, Circuit Judges
`
`(Opinion filed September 18, 2003)
`Joshua Bachrach, Esquire (Argued)
`Rawle & Henderson
`One South Penn Square
`The Widener Building
`Philadelphia, PA 19107
` Attorney for Appellant
`
` *
`
` The Honorable Anthony J. Scirica became Chief Judge on May 4, 2003.
`
`

`
`2
`
`Lewis Stein, Esquire (Argued)
`Nusbaum, Stein, Goldstein,
` Bronstein & Kron, P.A.
`20 Commerce Boulevard
`Succasunna, NJ 07876
` Attorney for Appellee
`
`OPINION OF THE COURT
`
`AMBRO, Circuit Judge:
`Reliance Standard Life Insurance Company argues that
`the District Court incorrectly held arbitrary and capricious
`its determination that Stephen Lasser was not disabled
`within the terms of his disability insurance policy. We
`conclude that the Court did not err and therefore affirm.
`
`I. Background
`Dr. Stephen Lasser is an orthopedic surgeon who was
`employed
`by
`Townsquare Orthopedic
`Associates
`(“Townsquare”), a four-doctor practice group. He sued to
`obtain disability benefits he alleges Reliance Standard Life
`Insurance Company
`(“Reliance”) owes him under the
`disability insurance policy Townsquare purchased from
`Reliance (the “Policy”). The Policy pays disability benefits
`when, because of injury, illness or disease, a claimant “is
`capable of performing the material duties of his/her regular
`occupation on [only] a part-time basis or [only] some of the
`material duties on a full-time basis.”
`Dr. Lasser suffers from coronary artery disease. In 1986,
`at age 46, he underwent coronary bypass surgery. As later
`became apparent, the surgery was not correctly performed.1
`
`1. Rather than performing an artery graft, Lasser’s surgeon conducted a
`vein graft procedure. Whereas artery grafts have a relatively high success
`rate, vein grafts have a significant failure rate — according to Lasser’s
`physicians, between 50% and 60% after ten to fifteen years. Moreover,
`Lasser’s vein graft, rather than being connected to another artery (as it
`should have been), was sewn to two diagonal branches, only one of
`which was supplying blood to the anterior descending artery.
`
`

`
`3
`
`Although Dr. Lasser did not experience symptoms for the
`next decade following the 1986 surgery, in 1996 he suffered
`a myocardial infarction (colloquially, a “heart attack”). Dr.
`Robert Aldrich, Lasser’s treating physician, prescribed a
`treatment regimen of change of diet, exercise, and drug
`therapy. Dr. Aldrich also advised Lasser to reduce his
`stress level, including work-related stress. Accordingly, in
`September 1996 Dr. Lasser returned to work on a reduced
`schedule. He decreased his patient load by 50%, he was no
`longer “on-call” at night or on weekends, and he did not
`perform emergency surgery. On December 26, 1996,
`Reliance approved Dr. Lasser’s application for long-term
`disability benefits under the Policy.
`However, in December 1997, after a periodic review of Dr.
`Lasser’s condition — and primarily in response to a medical
`evaluation issued by Dr. William Burke, whom Reliance
`hired to evaluate Dr. Lasser — Reliance terminated Lasser’s
`benefits on the ground that he was not disabled as defined
`by the Policy. Dr. Lasser invoked Reliance’s administrative
`appeal procedures, which prompted Reliance to obtain two
`additional medical opinions — from Drs. Karel Raska and
`John Field — as well as to commission a labor market
`survey to determine the material duties of Dr. Lasser’s
`general occupation. Based on these medical opinions and
`the survey — as well as the fact that Dr. Lasser returned to
`work at a
`full-time schedule
`(including on-call and
`emergency surgery duties) — in April 1999 Reliance
`concluded
`that Dr. Lasser was not disabled
`from
`performing the material duties of his occupation and
`affirmed its earlier denial of benefits.
`Dr. Lasser then filed a complaint in the District Court. In
`a February 8, 2001 opinion, it denied both parties’ cross-
`motions for summary judgment and stated that it would
`hold a hearing to determine the proper standard of review.2
`
`2. The Court’s stated basis for denying summary judgment was that “a
`court could find for either party when considering the administrator’s
`resolution of these factual questions under the heightened standard of
`arbitrary and capricious review,” and that “the parties have advanced to
`the Court some factual support for each of their positions on the
`underlying merits of the claim as well as on the extent to which the
`
`

`
`4
`
`Lasser v. Reliance Standard Life Ins. Co., 130 F. Supp. 2d
`616, 630 (D.N.J. 2001). After holding that hearing and
`deciding that a moderately heightened arbitrary and
`capricious standard of review was appropriate, the Court
`reviewed the record before Reliance. On the basis of its
`review, it held Reliance’s determination of nondisability
`arbitrary and capricious and that Dr. Lasser was entitled to
`benefits. Reliance appeals.
`
`II. Jurisdiction
`The insurance policy at issue is covered by the Employee
`Retirement Income Security Act of 1974 (“ERISA”), 29
`U.S.C. § 1001, et seq. Dr. Lasser sued to recover benefits
`under the Policy, and ERISA preempts state-law claims in
`this context. Id. § 1132(a). Thus, the District Court had
`jurisdiction pursuant to 28 U.S.C. § 1331. We exercise
`appellate jurisdiction under 28 U.S.C. § 1291.
`
`III. Standard of Review
`The standard-of-review inquiry is more involved in this
`case than in most. The Supreme Court has mandated that
`courts review under the arbitrary and capricious standard
`claim denials in ERISA cases if “the benefit plan gives the
`administrator or
`fiduciary discretionary authority
`to
`determine eligibility for benefits or to construe the terms of
`the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
`101, 115 (1989). “Under the arbitrary and capricious
`standard, an administrator’s decision will only be
`overturned
`if
`it
`is without reason, unsupported by
`substantial evidence or erroneous as a matter of law [and]
`the court is not free to substitute its own judgment for that
`of the defendants
`in determining eligibility
`for plan
`benefits.” Pinto v. Reliance Standard Life Ins. Co., 214 F.3d
`
`administrator’s decision was tainted by his self interest.” Id. at 626-27.
`Our dissenting colleague suggests that the District Court erred by
`considering extra-record evidence in resolving the merits. We disagree.
`The District Court recognized that its review was limited to the record
`before the claims administrator. Id. at 630.
`
`

`
`5
`
`377, 387 (3d Cir. 2000) (internal quotation marks omitted).
`Here both parties agree that the Policy grants Reliance such
`authority.
`However, if the same entity that determines whether a
`claimant is disabled must also pay for disability benefits,
`that entity has a financial incentive to find him or her not
`disabled. Thus, we have noted that, when the insurer of an
`ERISA plan also acts as a claims administrator, there is a
`structural or inherent conflict of interest that mandates a
`“heightened” arbitrary and capricious standard of review.
`Id. at 378. In Pinto we employed a “sliding scale” approach
`in which the level of scrutiny applied to the fiduciary’s
`decision is “a range, not a point.” Id. at 392 (quoting
`Wildbur v. Arco Chem. Co., 974 F.2d 631, 638 (5th Cir.
`1992)). It is “more penetrating the greater is the suspicion
`of partiality, less penetrating the smaller that suspicion is.”
`Id. at 392-93.
`The District Court held a hearing on the extent of
`Reliance’s conflict of interest to determine the standard of
`review. Because the Court found no evidence of conflict
`other than the inherent structural conflict, it held that the
`correct standard of review was “at the mild end of the
`heightened arbitrary and capricious scale,” and thus
`afforded a “moderate degree of deference” to Reliance’s
`determinations. Neither party disputes this conclusion on
`appeal. However, Reliance argues that the District Court
`misapplied the standard by not deferring to Reliance’s
`allegedly reasonable conclusions.3
`
`3. The dissent criticizes the District Court for making de novo findings of
`fact on the basis of the Ninth Circuit’s decision in Kearney v. Standard
`Ins. Co., 175 F.3d 1084 (9th Cir. 1999), and notes that our Court has
`never adopted the Kearney approach. We agree with the dissent that
`Kearney is not the law in our Circuit and that de novo factfinding is
`improper in reviewing a claims administrator’s decision under the
`arbitrary and capricious standard of review. But we do not believe that
`the District Court’s reference to, and implicit endorsement of, Kearney
`constituted reversible error, for its reference to facts was explicitly
`“limited to that evidence before the claims administrator.” 146 F. Supp.
`2d at 621.
`
`

`
`6
`
`IV. Discussion
`A. Dr. Lasser’s Regular Occupation
`Under the explicit terms of Dr. Lasser’s Policy, he is
`disabled, inter alia, if as a result of injury, illness or disease
`he is capable only “of performing the material duties of
`his/her regular occupation on a part-time basis or some of
`the material duties on a full-time basis.” To determine
`whether Reliance correctly decided that Dr. Lasser did not
`qualify for disability benefits, we first determine what is his
`“regular occupation,” as the Policy
`leaves this term
`undefined. Reliance argues that “regular occupation” is
`broad, indeed generic. In initially denying Dr. Lasser
`benefits in December 1997, Reliance said that “regular
`occupation is not your job with a specific employer, it is not
`your job in a particular work environment, nor is it your
`speciality in a particular occupational field. In evaluating
`your eligibility for benefits, we must evaluate your inability
`to perform your own or regular occupation as it is
`performed in a typical work setting for any employer in the
`general economy.”
`We recognize that, if the meaning of “regular occupation”
`is ambiguous, Reliance’s definition is entitled to deference
`under the applicable arbitrary and capricious standard of
`review. Skretvedt v. E.I. DuPont de Nemours & Co., 268 F.3d
`167, 177 (3d Cir. 2001) (insurer’s interpretation of an
`ambiguous insurance provision is entitled to deference
`unless it is contrary to the plan’s plain language). However,
`we believe that “regular occupation” is not ambiguous. The
`Policy states that it protects the insured from inability to
`“perform the material duties of his/her regular occupation.”
`Both the purpose of disability insurance and the modifier
`“his/her” before “regular occupation” make clear that
`“regular occupation” is the usual work that the insured is
`actually performing
`immediately before the onset of
`disability. Applying the text as written, Dr. Lasser’s regular
`occupation was as an orthopedic surgeon responsible for
`emergency surgery and on-call duties in a relatively small
`practice group and within a reasonable travel distance from
`his home in New Jersey.
`Even assuming “regular occupation” is susceptible to
`multiple
`interpretations
`and
`therefore
`ambiguous,
`
`

`
`7
`
`Reliance’s definition of the term nonetheless must be
`reasonable before deference is conferred. See Skretvedt, 268
`F.3d at 177
`(noting that courts defer to a claims
`administrator’s interpretation if it is not arbitrary or
`capricious). Yet Reliance’s definition is different from that in
`the caselaw pertaining both to it and disability policies
`containing the “regular occupation” modifier. See O’Bryhim
`v. Reliance Standard Life Ins. Co., 188 F.3d 502 (Table),
`1999 WL 617891 (4th Cir. 1999) (unpublished per curiam)
`(on arbitrary and capricious review, holding that claimant
`could not perform material duties of his regular occupation
`and defining “regular occupation” with reference to specific
`duties performed for his employer).
`Even were a court not to limit itself exclusively to the
`claimant’s extant duties, that person’s “regular occupation”
`nonetheless requires “some consideration of the nature of
`the institution [at which the claimant] was employed.”
`Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d
`243, 253 (2d Cir. 1999). Moreover, Kinstler adopted the
`reasoning of an earlier district court case, Dawes v. First
`Unum Life Insurance Co., 851 F. Supp. 118, 122 (S.D.N.Y.
`1994), which defined “regular occupation” as “a position of
`the same general character as the insured’s previous job,
`requiring similar skills and
`training, and
`involving
`comparable duties.” Id. at 122. Notably, Dawes was decided
`before Dr. Lasser applied for disability benefits.
`The plain meaning of “regular occupation” is one of which
`both parties were aware when the Policy began on June 1,
`1993. There is no reason to believe that Dr. Lasser was
`aware of Reliance’s different definition until it denied him
`benefits in December 1997. Because Reliance has shown no
`intent to “opt out” of this plainly understood term (indeed,
`it had the opportunity to do so each June when the Policy
`came up for renewal), it is unreasonable for it to argue it
`has done so post hoc. Even if we fall back to the
`interpretation of “regular occupation” imparted by Dawes
`and Kinstler,
`it
`too undermines Reliance’s generic
`understanding. Compare also Gaines v. The Amalgamated
`Ins. Fund, 753 F.2d 288, 290 n.5. (3d Cir. 1985) (deferring
`to a plan administrator’s construction of an ERISA-
`governed insurance policy when there was no caselaw
`
`

`
`8
`
`interpreting the provision at issue); Epright v. Envtl. Res.
`Mgt., Inc. Health & Welfare Plan, 81 F.3d 335, 340 (3d Cir.
`1996) (holding a plan construction unreasonable when,
`among other deficiencies, the administrator pointed to no
`statutory provision to interpret the term and when its
`definition seemed self-serving).
`In this context, it is unreasonable for Reliance to define
`“regular occupation” differently from its plain meaning or
`even the somewhat more relaxed understanding of Dawes
`and Kinstler without explicitly including that different
`definition in the Policy.4
`B. Material Duties of Dr. Lasser’s Regular Occupation
`Having determined that Dr. Lasser’s regular occupation
`under the Policy was that of an orthopedic surgeon in a
`four-person practice group in New Jersey, and that it was
`unreasonable for Reliance post hoc to argue that the
`Policy’s plain language was otherwise, we turn to what Dr.
`Lasser did in the course of his regular occupation. He saw
`patients during office hours, performed scheduled
`surgeries, took night call, and performed emergency
`surgeries. When he no longer handled night call and
`emergency surgeries, were they material? The District Court
`answered yes. 146 F. Supp. 2d at 641.
`The Court’s conclusion is supported by comparing Dr.
`Lasser’s pre-disability earnings with his post-disability
`earnings
`from a reduced schedule. The Townsquare
`shareholders’ agreement requires reduction by one-third of
`a doctor’s salary when he or she no longer takes night call.
`Moreover, Dr. Lasser’s
`salary was,
`on
`average,
`approximately $26,000 per month when he was performing
`all duties, but fell to between $4,000 and $6,000 per month
`immediately before Reliance terminated benefits. During
`this latter period, however, Dr. Lasser was working less
`than forty hours per week, as he reduced his patient load
`by one-third and no longer was operating in the afternoon
`after seeing patients in the morning. Even assuming he was
`working twenty hours per week instead of forty (an
`
`4. As noted below, the generic ex post interpretation of Reliance is even
`at odds with the majority of survey responses solicited by Reliance.
`
`

`
`9
`
`assumption supported by record evidence), and assuming
`that he would have made $8,000 to $12,000 per month had
`he worked forty hours per week (i.e., double his twenty-
`hour-per-week earnings),
`it stands out that, by not
`performing on-call or emergency surgery duties, Dr.
`Lasser’s earnings have declined by over 50%. This
`substantial earnings decline lays out as little else can the
`materiality of those activities to his regular occupation.
`Looking at the occupation of an orthopedic surgeon
`generically without reference to Dr. Lasser’s particular
`duties, Reliance commissioned a labor market survey to
`determine whether performing emergency surgery and
`being on-call are material duties for an orthopedic surgeon.5
`The survey asked:
`In general, in your experience is it reasonable that an
`Orthopedic Surgeon can practice in this field if one:
`[1.] Cannot perform “on-call” duties, do night calls, or
`carry a pager[;]
`[2.] Cannot perform emergency surgery (even if one
`can do non-emergency, elective surgery)[;]
`
`5. Reliance also consulted the Dictionary of Occupational Titles (“DOT”)
`to aid its analysis. It points out that the DOT contains no separate
`listing for an orthopedic surgeon, which appears as an undefined related
`title under the “surgeon” heading. Therefore, applying the definition of
`surgeon, which does not refer to on-call and emergency duties, Reliance
`argues that these duties are immaterial. We agree with the District Court
`that the DOT’s silence about this critical issue makes the DOT unhelpful
`and thus, to the extent that Reliance’s conclusion is based on the DOT’s
`definition of surgeon, that conclusion is unreasonable.
`
`Ironically, in arguing that Dr. Lasser’s duties should be evaluated with
`reference to the surgeon title in the DOT, Reliance acknowledged that
`surgery — rather than orthopedics — is the broader “occupational field”
`in which Dr. Lasser conducts his “regular occupation.” However, in
`relying on the survey to find Dr. Lasser not disabled, Reliance must have
`concluded that his “occupational field” is orthopedics rather than
`orthopedic surgery — i.e., that his “regular occupation” is one in which
`it is reasonable to conduct an office practice only or write reports, which
`some of the survey respondents suggested as available options.
`Reliance’s inconsistency in position renders its ultimate disability
`decision even more suspect.
`
`

`
`10
`
`[3.] If you have responded YES to either, can you
`estimate in your experience the appx. prevalence of
`such jobs for an orthopedic surgeon in the general
`economy where one would not need to perform “on-
`call” or perform emergency surgery duties?
`Reliance’s vendor sent 100 surveys, to which it received
`fourteen responses, only nine of which were returned in
`time to be considered. Five of those nine respondents
`opined that an orthopedic surgeon could “practice in this
`field” without performing on-call or emergency surgery
`duties. On the basis of the survey, and on the absence of
`any affirmative showing from Dr. Lasser that performing
`emergency surgery and being on-call are material duties of
`an orthopedic surgeon generally, Reliance concluded that
`these duties are immaterial, thereby precluding Dr. Lasser
`from disability benefits within his Policy’s terms.
`While Reliance selected survey responses to argue that
`on-call and emergency surgery duties were not material for
`Dr. Lasser, we (like the District Court) conclude that
`Reliance’s survey actually favors Dr. Lasser’s argument that
`these duties are material even on a generic basis.6 When all
`fourteen
`responses are considered and when
`the
`respondents’ comments are viewed along with the answers
`to the yes/no questions, the survey
`indicates that
`performing emergency surgery and being on-call are
`material duties of an orthopedic surgeon. Eight out of
`fourteen responses suggest that practice without these
`duties would be
`impossible or would result
`in an
`occupation
`fundamentally different
`from orthopedic
`surgery. One respondent wrote that the practice Reliance
`proposed would be very unusual and would essentially be
`a non-operative practice. Another stated that “[t]he only
`jobs that I know of that would fulfill your restrictions would
`be someone who restricted themselves [sic] to writing
`reports. Work-comp. or med-legal.” A third respondent
`
`6. And given that doctors will inevitably have less scheduling flexibility
`when they work in smaller rather than larger practice groups, it seems
`only reasonable to conclude that the survey would have been even more
`favorable to Lasser had it taken into account the relevant context of his
`practice at Townsquare.
`
`

`
`11
`
`noted that “[i]n your example, you are describing a
`physician who is not an orthopaedic surgeon, but might be
`considered an orthopaedist. An orthopaedic surgeon should
`be able to fulfill all duties.” Five other respondents flat-out
`said that what Reliance proposed was impossible.
`In this context, both Dr. Lasser’s particular case and the
`survey for orthopedic surgeons in general lead to the
`conclusion that on-call and emergency surgery duties were
`material to his regular occupation.
`C. Ability of Dr. Lasser to Perform the Material Duties
`of His Regular Occupation
`1. Merits
`We next determine whether Dr. Lasser’s medical
`condition precludes him from safely performing material
`duties of his regular occupation. He argues that he cannot
`safely perform emergency surgery or perform on-call duties.
`To fulfill our appellate review function under the arbitrary
`and capricious standard, we examine the entire record to
`determine whether Reliance’s determination is supported by
`substantial evidence. Pinto, 214 F.3d at 387.
`Reliance’s primary motivation
`for discontinuing Dr.
`Lasser’s benefits in December 1997 appears have been a
`report issued by Dr. Burke. He examined Dr. Lasser,
`subjected him to a treadmill test in November 1997, and
`concluded that Dr. Lasser “does not demonstrate any
`cardiovascular disability.”7 During an earlier treadmill test
`performed by Dr. Steven Roth in April 1997, Dr. Lasser
`“achieved greater than 90% of age-predicted maximum
`[heart rate]” and experienced only “mild fatigue [after] 14
`minutes.” A nuclear cardiologist, Dr. Christos Christou,
`noted that planar imaging of Dr. Lasser’s heart conducted
`during the cardiovascular testing revealed only a “very
`small and probably clinically insignificant” heart defect.
`Furthermore, Reliance notes that Dr. Lasser’s physician,
`Dr. Aldrich, considered Lasser to be in New York Heart
`
`7. Dr. Burke described Lasser’s prognosis as “excellent” with a “plaque
`stabilizing regimen” and “ace inhibitors to prevent the slight hypertensive
`response associated with exercise.”
`
`

`
`12
`
`Association Functional Class II (“Patients with cardiac
`disease with slight limitation of physical activity. They are
`comfortable with mild exertion but experience symptoms
`with the more strenuous grades of ordinary activity.”) and
`Therapeutic Class C (“Patients with cardiac disease whose
`ordinary physical activity should be moderately restricted
`and whose more
`strenuous
`efforts
`should
`be
`discontinued.”) — classifications that do not suggest
`significant limitations on Dr. Lasser’s ability to work as an
`orthopedic surgeon.8
`Dr. Lasser, however, contends that Reliance’s conclusion
`is unsupported by substantial evidence. He notes that, after
`appealing the discontinuation of his benefits, Reliance
`engaged two other physicians to evaluate him, both of
`whom issued reports supporting his position. The first, Dr.
`Raska, concluded that Dr. Lasser “should avoid stressful
`situations — i.e., those that require night call [and] medical
`emergencies,” and
`that
`“[a]
`reduced
`stress work
`environment and schedule is absolutely necessary to
`maintain this patient’s health.” Dr. Raska reasoned that
`“[s]tress regardless of exercise tolerance is a recognized
`independent risk factor for recurrent coronary artery
`disease . . . [and that] there are multiple studies . . . which
`demonstrate that stress causes
`flux
`in the
`level of
`catecholamines in the circulation which have been shown
`to be a precipitant of acute myocardial infarction and
`sudden death.”
`In Dr. Raska’s opinion, Lasser’s
`unsuccessful vein graft made stress reduction especially
`important, as increased stress could bring about even
`earlier failure of the graft. In this context, he opined that
`Dr. Lasser’s disability benefits should not have been
`
`8. Reliance also points out that Dr. Burke considered Lasser to be in
`Functional Class I (“Patients with cardiac disease but with no limitation
`of physical activity. Ordinary activity causes no undue dyspnea, anginal
`pain, fatigue or palpitation.”) and Therapeutic Class A (“Patients with
`cardiac disease whose physical activity need not be restricted.”). Dr.
`Raska said that Lasser was in Functional Class I and Therapeutic Class
`C.
`
`

`
`13
`
`revoked because he “cannot safely perform the material
`duties of an orthopedic surgeon.”9
`After receiving this report, however, Reliance realized that
`Dr. Raska had a conflict of interest: he practiced in the
`same physician group as a doctor from whom Dr. Lasser
`previously sought an evaluation, Dr. Lubow
`(whose
`evaluation is discussed below). In response, Reliance
`engaged Dr. Field as another evaluating physician. While
`Dr. Field noted that “[t]here is little definitive evidence that
`emotional or
`job stress
`is causally related
`to
`the
`development or acceleration of coronary artery disease,” he
`did acknowledge that “both physical and emotional stress
`are identified triggers of acute myocardial infarction [heart
`attack].” He concluded that Dr. Lasser could work a forty-
`hour week, but “is not capable of resuming all of the
`customary duties and responsibilities of an orthopedic
`surgeon.” In particular, Dr. Field opined that Lasser should
`restrict his on-call or emergency surgery duties, given their
`stressful nature.
`Dr. Lasser also relies on the evaluation of his treating
`cardiologist, Dr. Aldrich, as well those of Drs. Barry Lowell
`and Lawrence Lubow, who all opined that he is disabled.
`First, Lasser argues that the evaluation issued by Dr.
`Aldrich suggests that he is incapable of working in his
`regular occupation. When Reliance asked Dr. Aldrich to
`complete a form detailing Dr. Lasser’s “current restrictions
`and limitations,” he responded that Lasser should “limit
`exposure to physical and emotional stress.” He noted also
`that “[s]tress is a well-documented risk factor not only for
`
`9. Moreover, Dr. Raska was sharply critical of Dr. Burke’s evaluation, the
`basis of Reliance’s initial decision to terminate benefits. While according
`to Dr. Burke Lasser underwent a treadmill stress test in which he
`exercised to Stage IV of the Bruce Protocol (the standard by which stress
`tests are typically conducted), Dr. Raska pointed out that Lasser was
`only on the treadmill for three minutes and thirty-six seconds, an
`insufficient duration for a patient to reach Stage IV. He also noted that
`Dr. Burke’s examination of Lasser’s records was “sloppy” because it
`described a heart catheterization occurring in October 1996, when in
`fact it was performed in July 1996. To Dr. Raska this error suggested
`that Dr. Burke was insufficiently familiar with Lasser’s case to arrive at
`a reasoned evaluation of his condition.
`
`

`
`14
`
`the development of coronary artery disease itself, but within
`that context,
`to
`the precipitation of a myocardial
`infarction.” As a result, in a letter to Reliance dated June 3,
`1998, Dr. Aldrich expressed to Reliance that he believed Dr.
`Lasser is disabled and incapable of “resuming all of the
`customary duties and responsibilities of an orthopedic
`surgeon on a full-time basis[,] or at least that he could not
`do so without exposing himself to a high degree of risk.” Dr.
`Aldrich’s reasoning underlying this conclusion was that,
`even though “by all objective criteria Dr. Lasser is doing
`very well at this point in time,” work-related stress might
`induce a deterioration in Dr. Lasser’s condition. Moreover,
`according
`to Dr. Aldrich’s
`reasoning, a
`favorable
`classification under the New York Heart Association
`guidelines is of limited use in Dr. Lasser’s situation, as that
`classification system addresses a cardiac patient’s ability to
`perform certain physical tasks without regard to stress.
`Dr. Lowell, who performed a cardiac catheterization on
`Dr. Lasser, also opined that Lasser was disabled. He agreed
`with Dr. Burke that Lasser’s “functional stress test at the
`present time is excellent,” but cautioned that “the stress of
`his profession will contribute to poorer control of blood
`pressure and lipid therapies” and that “a less stressful
`environment would contribute to his graft longevity.” Dr.
`Lowell concluded that “the severity of Dr. Lasser’s heart
`condition, while not readily measured by traditional testing
`methods, renders him just as disabled as the patient whose
`disability would not be questioned because he presents
`with more overt symptoms.”10
`Finally, Dr. Lubow, a physician who examined Dr. Lasser
`at the request of Lasser’s counsel, reached a conclusion
`similar to that of Drs. Aldrich, Raska, and Lowell. He
`opined that, “[b]ased on the recurrence of significant
`arteriosclerotic heart disease manifest[ed] by an acute
`infarction plus the need for urgent angioplasty and stenting
`after a ten year hiatus when he had no symptoms, the
`
`10. He too criticized Dr. Burke’s report for its failure to mention the
`“significant anatomic problems with Dr. Lasser’s coronary anatomy.”
`
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`decision to grant this patient permanent partial disability
`was certainly correct, particularly in view of his anatomy.”11
`Thus, all evaluating physicians — with the exception of
`Dr. Burke, whose report the others discredited — agreed
`that Dr. Lasser’s heart condition precludes him from safely
`performing on-call duties and
`emergency
`surgery.
`Reliance’s conclusion to the contrary thus is arbitrary and
`capricious. To the extent that Reliance’s determination of
`nondisability was that “it was unreasonable . . . to expect
`Reliance . . . to simply accept the opinion [that stress would
`exacerbate Dr. Lasser’s condition] without any range of the
`probability or actual proof that Dr. Lasser was at increased
`harm,” we believe its determination was faulty.
`2. Clarification Regarding Burden of Proof
`We conclude with a clarification regarding the burden of
`proof in disability cases. While the burden of proving
`disability ultimately lies with Dr. Lasser, to require him to
`provide statistics detailing the harm that working in his
`regular occupation might precipitate — as the dissent
`would require — raises the bar too high.12 Most disability
`claimants will not have the means at their disposal
`(financial or otherwise) to obtain this kind of evidence.
`Therefore, once a claimant makes a prima facie showing of
`disability through physicians’ reports (as Dr. Lasser has
`done here through physicians’ reports stating that stress
`will exacerbate his heart condition) and if the insurer
`wishes to call into question the scientific basis of those
`reports (as Reliance has attempted to do here), then the
`burden will lie with the insurer to support the basis of its
`objection. It has not met that burden here.
`
`11. Like Drs. Aldrich, Raska, and Lowell, he also criticized the
`thoroughness of Dr. Burke’s review, as well as the improper manner in
`which he conducted Lasser’s stress test.
`12. The dissent states that the risk that stress will cause future injury
`is insufficient to constitute a present disability. However, whether risk of
`future effects creates a present disability depends on the probability of
`the future risk’s occurrence. While Lasser’s doctors have not precisely
`quantified the risk in his case, their reports suggest that the risk is high.
`While of course stress does not necessarily incapacitate an individual
`(note, for example, Vice President Cheney), in Lasser’s case his doctors
`have opined that stress is incapacitating.
`
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`D. Relevance of Alleged Resumption of Dr. Lasser’s On-
`Call and Emergency Surgery Duties
`Reliance argues that, even if emergency surgery and on-
`call duties are material, Dr. Lasser’s resumption of these
`duties settles whether he is disabled from performing them.
`We disagree. First, because Dr. Lasser disputes that he has
`resumed performing these duties with the same frequency
`as before 1996, this issue involves a factual question that
`we do not resolve on appeal. Moreover, even assuming the
`facts as Reliance has alleged them, Dr. Lasser’s physicians
`— as well as Dr. Field, on whose opinion Reliance has
`placed much weight — have advised that he should not
`perform these duties. Thus, there is substantial medical
`evidence that, if Dr. Lasser is performing on-call and
`emergency surgery duties, he is doing so to his detriment.
`Indeed, Dr. Lasser has argued that, to the extent that he
`has resumed these activities, he did so out of economic
`necessity — because Reliance discontinued his b