ALBANY, N.Y., December 3 – The definition of total disability in a disability income insurance policy is not ambiguous, according to a decision by the New York Court of Appeals.

Dr. John White, Jr., who specialized in orthopedic spinal surgery, was forced to retire from his surgical practice due to an arthritic hip problem and filed a claim for total disability under his policy with Life Insurance Company of Boston & New York (LICOBNY), although he informed the insurer he was continuing to perform independent medical examinations and provide second opinions.

The claim was denied because he did not meet the policys definition of total disability. White commenced this action to recover benefits.

The policy stated, Total disability means that due to injury or sickness, you: (1) Are unable to perform the substantial and material duties of your occupation (2) Are not performing the duties of any gainful occupation for which you are reasonably fitted by education, training, or experience

Supreme Court dismissed the complaint and the Appellate Division, Fourth Department affirmed in a 3-2 decision. The majority rejected the doctors contentions that the policy provisions were ambiguous and would render the disability coverage illusory.

While they concluded White could not perform the duties of a surgeon, they said, as a matter of law, he maintained his medical practice in which he renders second opinions with regard to surgery, performs independent medical examinations, and provides expert medical testimony, all in connection with spinal injuries.

The dissent felt the evidence raised a viable issue of fact whether the doctor is totally disabled within the policys definition of total disability.

Judge Eugene F. Pigott, Jr., writing for the Court of Appeals, said that contrary to the doctors assertion, the policys definition is reasonably susceptible of only one meaning, and thus, is clear and unambiguous.

In addition, he continued, although the question of whether a policyholders condition falls within the policys definition of total disability is typically one for a jury, [h]ere, plaintiff failed to present any evidence demonstrating the existence of a triable issue of fact concerning whether he is totally disabled under the policy.

However, as to the second provision, the evidence in the record demonstrates that plaintiff renders second medical opinions on spinal surgery, performs independent medical examinations, and serves as an expert medical witness. Therefore, the courts below correctly determined that, as a matter of law, plaintiff is performing the duties of [a] gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience, and thus, he is not totally disabled within the meaning of the policy.

He said the order of the Appellate Division should be affirmed, with costs.

Chief Judge Judith Kaye and Judges Carmen Ciparick, Victoria Graffeo, Susan Read, Robert Smith and Theodore Jones concurred.