Disability Law

Lawyer is still entitled to disability benefits for depression linked to law practice, 6th Circuit rules

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A former Traverse City, Michigan, personal injury lawyer is entitled to continued monthly payments under his disability insurance policy because of evidence that his recurrent depression makes him unable to work as a trial attorney, a federal appeals court has ruled.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled for lawyer Mark M. Messing in a Sept. 9 opinion.

The appeals court cited evidence that Messing’s recurrent depression is triggered by stress, including the stress of law practice.

Messing’s 1985 policy with the Provident Life and Accident Insurance Co. entitled him to $3,080 monthly payments for life if he suffered a total disability because of sickness after 1988 but before he reached age 65. Total disability was defined as “not able to perform the substantial and material duties” of the occupation in which the policyholder is “regularly engaged” at the time of becoming disabled. The policyholder must also be under a doctor’s care.

Messing was hospitalized for nearly a month for depression in January 1997. Afterward, he returned to work part time. In March 1998, he filed a disability claim with Provident. The claim was initially approved and then denied. Messing sued in 1999, and a 2000 settlement provided for resumed payments.

Messing received the monthly payments from 2000 to 2018. Messing sued after Provident quit paying and Provident counterclaimed to recover the payments that it had already received.

Messing’s treating psychiatrist said in a report to Provident that he had “major depressive disorder, recurrent, minimal to mild.” She said Messing no longer used medication to treat his depression, had been “stable for the most part,” and was better able to tolerate normal stress. But she said he must avoid highly stressful situations as best he can.

A psychiatrist hired by Provident said Messing had major depressive disorder, but he was not experiencing significant symptoms and was in remission. There was no objective evidence that Messing would not be able to practice law if he desired to do so, the psychiatrist said.

Messing hired another expert who said Messing was in remission because of his diligence in avoiding significant stressors, and he “clearly remains disabled to tolerate the stresses associated with work as an attorney.”

Messing also submitted affidavits from three lawyers who said lawyering is a stressful occupation, and Messing lacks the ability to deal with stress.

Provident investigated further and found that, between 1999 and 2013, Messing had performed legal services 13 times that included filing briefs, interviewing clients, negotiating settlements, appearing for a bench trial, negotiating plea agreements, examining witnesses and performing legal research.

A trial judge found that Messing was not disabled as defined by the policy but ruled against Provident on the counterclaim.

The 6th Circuit ruled for Messing on both points.

“Messing must show by a preponderance of the evidence that he remains unable to return to work as a personal injury trial attorney,” the 6th Circuit said in an opinion by Judge Eric L. Clay. “Considering the doctors’ reports and the affidavits together, Messing has met this burden.”

The appeals court also said Provident had failed to show that statements by Messing induced it into making payments that it otherwise would not have made. In any event, it would be illogical to hold that Provident is entitled to repayment in light of the determination that Messing remains disabled, the 6th Circuit said.

Hat tip to Reuters, which had coverage of the opinion.

The case is Messing v. Provident Life and Accident Insurance Co.

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