[00:00:00] Speaker 01:
And may it please the court.

[00:00:02] Speaker 01:
My name is Russell Petty and I'm representing the plaintiff and appellant, Dr. Gordon Osborne.

[00:00:11] Speaker 01:
I don't think that there's any serious dispute that by the time he filed his disability claim, it would have been extremely risky to Dr. Gordon's health for him to attempt to resume practice as an oral surgeon.

[00:00:29] Speaker 01:
And it's typically the case in disability cases.

[00:00:32] Speaker 01:
There are a number of factors that go into creating that danger.

[00:00:37] Speaker 01:
One of them is, of course, the COVID pandemic.

[00:00:41] Speaker 01:
A second factor is Dr. Osborne's pre-existing conditions, his hypogama, the immune deficiency, and his chronic asthma.

[00:00:51] Speaker 02:
Well, then he'd say that if he had gotten the PPE equipment, he would have been happy to reopen.

[00:00:58] Speaker 01:
Well, you know, there are three or four responses to that, and let me sort of walk down them.

[00:01:05] Speaker 01:
One of them is that

[00:01:07] Speaker 01:
You know, that statement was directly related to the period of time in May of 2020, which is prior to Dr. Osborne suffering his pulmonary embolism.

[00:01:21] Speaker 01:
And it's, you know, five, six months before he actually decided to file a claim for disability benefits.

[00:01:29] Speaker 01:
That's that's argument point number one point number two remember This is a summary judgment case, and we've got a statement by dr. Doherty you know a medical professional who states that That the the dr. Osborne was disabled at at that point and in addition your honor

[00:01:48] Speaker 01:
You know, I think that people didn't necessarily appreciate the risks of the pandemic when it first happened.

[00:01:57] Speaker 01:
I remember in late February of 2020, I had a status conference in front of Judge Dean Preggerson.

[00:02:06] Speaker 01:
It was all very informal.

[00:02:07] Speaker 01:
We're in chambers.

[00:02:08] Speaker 01:
You know, we're all talking about this COVID.

[00:02:10] Speaker 01:
He asked me what I thought of it.

[00:02:12] Speaker 01:
And I said, Your Honor, it's the flu with better public relations.

[00:02:16] Speaker 01:
That's what people thought and the realization as to how serious the COVID was going to be and the risk to the health that was going to occur.

[00:02:26] Speaker 03:
Mr. Petty, I need you to help me with some timeline issues that are a little fuzzy to me.

[00:02:33] Speaker 03:
Did Dr. Osborne's doctors recommend that he discontinue his practice?

[00:02:37] Speaker 01:
Yes, Your Honor.

[00:02:38] Speaker 03:
And when was that?

[00:02:39] Speaker 01:
Dr. Kouchu, his immunologist, stated

[00:02:46] Speaker 01:
She testified at deposition that she told all her patients with hypogama, the compromised immune system, that they should stay home during the pandemic.

[00:02:57] Speaker 02:
But now he did not remember that.

[00:02:59] Speaker 01:
He did not remember that, and that's also not in her notes, but she did testify at deposition that that's what she told everybody.

[00:03:07] Speaker 02:
Is it sufficient, even on a summary judgment standard,

[00:03:11] Speaker 02:
where she says, well, I told everyone this, but I don't have any notes of telling this specific person, and this specific person doesn't have any recollection of me telling them.

[00:03:23] Speaker 01:
Well, you know, Your Honor, I think it is especially because Dr. Daugherty also said at deposition that he told Dr. Osborne something along the lines of, you know,

[00:03:36] Speaker 01:
People can make their own decisions, but you've got you've got bad lungs and you're high risk.

[00:03:41] Speaker 03:
And Mr. Petty, I'm sorry.

[00:03:43] Speaker 03:
I still need an answer to mine.

[00:03:44] Speaker 03:
When was that?

[00:03:46] Speaker 01:
What month?

[00:03:46] Speaker 01:
What?

[00:03:47] Speaker 01:
No, that would have been the day before Dr. Osborne closed his office.

[00:03:52] Speaker 01:
So that would have been in March of 2020.

[00:03:56] Speaker 01:
At any rate, the fixation that the court below had on, well, he's got to be told before he goes out on disability.

[00:04:06] Speaker 01:
I mean, I've done hundreds of these cases.

[00:04:08] Speaker 01:
That's typically not the case.

[00:04:10] Speaker 01:
Typically, the case is that the claimant decides he can't work anymore and leaves work.

[00:04:19] Speaker 02:
Well, forgive me, but I appreciate your experience, but it's not part of the record of this case, is it?

[00:04:26] Speaker 02:
Your experience?

[00:04:28] Speaker 01:
No, I'm sorry, Your Honor.

[00:04:29] Speaker 01:
My experience is not part of the record, but I do think that it's, I can say that it's

[00:04:36] Speaker 01:
typical for the doctor to weigh in on whether somebody is disabled after the fact.

[00:04:44] Speaker 01:
I don't think there's any legal requirements, certainly no policy requirement that the physician weigh in prior to somebody leaving office.

[00:04:54] Speaker 01:
I think that's sort of a

[00:04:57] Speaker 01:
You know, fixating on that, I think, takes us away from the real issue, which is what the doctor's opinions are.

[00:05:03] Speaker 01:
And we've got two physicians here whose opinions are that Dr. Osborne was disabled because of his high-risk situation.

[00:05:15] Speaker 03:
Was it just the high-risk situation, or was it high-risk situation and inability to get PPE?

[00:05:20] Speaker 01:
Well, you know, sort of you're working back into where I started.

[00:05:27] Speaker 01:
There's the fact that he's high risk, his conditions would have

[00:05:32] Speaker 01:
made it more likely for him to contract COVID and make it more serious if he did contract it.

[00:05:38] Speaker 01:
Later on, he had a pulmonary embolism.

[00:05:40] Speaker 01:
That adds to the danger.

[00:05:42] Speaker 04:
After the pulmonary embolism is the argument, your client's argument, that even with PPE, it then wasn't safe for him to continue his business practice?

[00:05:55] Speaker 01:
Well, I don't think it was ever.

[00:05:57] Speaker 01:
safe for him to continue in his business practice.

[00:05:59] Speaker 01:
And Judge Seaborg, in the Downs case, specifically addressed the issue.

[00:06:05] Speaker 01:
You and him argued, well, this pediatrician could have protected herself with PPE.

[00:06:10] Speaker 01:
And Judge Seaborg cited to medical studies standing for the proposition that, no, PPE might help you a little bit, but it's not full armor against this.

[00:06:22] Speaker 04:
OK, so really with or without it, starting in March.

[00:06:25] Speaker 04:
The argument is that he was totally disabled.

[00:06:29] Speaker 01:
But at any rate, and also when you consider the risk factors, Your Honor, I mean it's working as an oral surgeon in your

[00:06:37] Speaker 01:
You're working in close proximity to patients unmasked mouths with a, you know, a cloud of, you know, aerosol cloud of the patient's blood and saliva.

[00:06:49] Speaker 01:
It's, it is truly very risky.

[00:06:52] Speaker 01:
And the failure to get PPE, and the point is, is it,

[00:06:57] Speaker 01:
Which of those factors is more important?

[00:07:00] Speaker 01:
You know, the relation of those factors to another, you know, if you pulled one out.

[00:07:04] Speaker 01:
I mean, that's an extremely factual issue.

[00:07:07] Speaker 03:
Mr. Petty, explain to me, I'm a little, I'm trying to get this timeline in my head.

[00:07:14] Speaker 03:
So Dr. Osborne chose to close his practice in June of 2020 because he could not obtain adequate PPE.

[00:07:21] Speaker 03:
Is that correct?

[00:07:21] Speaker 03:
At that point, he thought, if I get adequate PPE, I'm going to keep working.

[00:07:25] Speaker 01:
That is correct, Your Honor.

[00:07:26] Speaker 03:
Okay.

[00:07:26] Speaker 03:
And it wasn't until August when he had the pulmonary embolism.

[00:07:31] Speaker 03:
Now, at that point, was he explicitly told, and does he remember he was told, you shouldn't work anymore?

[00:07:36] Speaker 01:
I don't think that he had any conversations.

[00:07:38] Speaker 01:
I mean, he wasn't working.

[00:07:40] Speaker 01:
There's really no reason to, you know, for a doctor to say, you know, you should stop working when he hasn't worked for some time.

[00:07:47] Speaker 01:
So, no, there's nothing in the record, and I doubt, frankly, that there was anything in

[00:07:51] Speaker 03:
And then it's my understanding that he was able to start getting like more consistent, I guess, PPE in August.

[00:07:59] Speaker 03:
Is that correct?

[00:08:00] Speaker 01:
No, Your Honor.

[00:08:01] Speaker 01:
Okay, explain.

[00:08:02] Speaker 01:
Ms.

[00:08:02] Speaker 01:
Craven testified that she had attempted back in March to obtain

[00:08:07] Speaker 01:
a variety of PPE, masks, booties, gowns, gloves, face shields.

[00:08:14] Speaker 01:
She testified at deposition that sometime in either late July or early August, she had received some masks, but there's no evidence that the full suite of PPE, which was necessary to protect a dentist working in that environment,

[00:08:30] Speaker 01:
was ever available at any time in the record.

[00:08:33] Speaker 01:
And so that's really one of the factual errors that the district court made.

[00:08:37] Speaker 03:
And let me just make sure I understood you earlier.

[00:08:39] Speaker 03:
Did you earlier state that even if he had everything, all the PPE, given his pre-existing conditions,

[00:08:45] Speaker 03:
He still should not or would not have returned to work or should not have been working.

[00:08:50] Speaker 01:
The risks were too high.

[00:08:53] Speaker 01:
And I note that Dr. Dougherty, in his conversation with Unum's doctor and Tiki, told him, look, he was disabled.

[00:09:02] Speaker 01:
And even if he wanted to go back to work, he shouldn't have gone back to work.

[00:09:06] Speaker 02:
Can I shift gears for a second to your claim under the BOE policy?

[00:09:14] Speaker 02:
I understand.

[00:09:15] Speaker 02:
how you might have a claim until mid-June when he finally closes office, but not after that.

[00:09:22] Speaker 02:
What's the basis for the claim after he fully closed down the office?

[00:09:27] Speaker 01:
Well, you know, you still have expenses that relate to shutting down his business even after the business physically closes.

[00:09:39] Speaker 01:
And when you think about it, Your Honor, I mean the purpose of purchasing the

[00:09:45] Speaker 01:
you know, business overhead coverage is to, you know, to pay bills like that in the event you become disabled.

[00:09:51] Speaker 01:
And the notion that, well, you're disabled and so therefore your expenses aren't going to be covered sort of defeats the purpose of having that.

[00:09:58] Speaker 01:
In the UNO case, which applied to Oregon law, the physician closed his practice and

[00:10:08] Speaker 01:
continued to do some collections and respond to inquiries, but was no longer treating patients, closed his medical practice.

[00:10:19] Speaker 01:
And the court held that those were still recoverable expenses under the BOE policy, because it defined operation broadly.

[00:10:32] Speaker 01:
The judges below decision turned on the definition of operation of your business being the treating of patients.

[00:10:39] Speaker 01:
Operation of your business is not defined in the policy.

[00:10:42] Speaker 01:
Under California law, that term should be defined broadly in order to meet the reasonable expectations of the insured.

[00:10:48] Speaker 01:
And so, as long as it's a regular operation that's necessary to carry on the business, it should be covered.

[00:10:57] Speaker 04:
What were the regular operations that were happening after your client stopped seeing patients?

[00:11:04] Speaker 01:
There were some collection activities.

[00:11:09] Speaker 01:
There were some, you know, responding to patient inquiries, responding to inquiries from other, you know... But wasn't that all in the period between March and June?

[00:11:23] Speaker 01:
You know, I suspect, Your Honor, that the great bulk of the expenses we're talking about were incurred during that period.

[00:11:30] Speaker 01:
I think you're right about that.

[00:11:31] Speaker 01:
I think they're actually, I'm not sure there were any invoices that were submitted.

[00:11:37] Speaker 02:
And so even though we're here on summary judgment, if there was nothing in the record indicating any expenses after mid-June or so, then your adversary would be entitled to summary judgment for that period after that, yes?

[00:11:56] Speaker 01:
Well, I mean, the summary judgment was granted.

[00:11:58] Speaker 01:
over the period from March through June?

[00:12:02] Speaker 02:
We understand.

[00:12:03] Speaker 02:
By assuming that we were to agree with you on the period from March to June.

[00:12:10] Speaker 02:
Is there anything in the record that shows any expenses being incurred after mid-June?

[00:12:16] Speaker 01:
You know, Your Honor, I would just have to look at that.

[00:12:18] Speaker 01:
I mean, there's several hundred pages of invoices.

[00:12:20] Speaker 01:
As I sit here, stand here, I can't recall any of them being generated after June when the office was actually closed.

[00:12:31] Speaker 01:
But I just can't say that with any certainty.

[00:12:33] Speaker 01:
It's just not an issue that arose below.

[00:12:35] Speaker 01:
You know, so I just, you know, until the court pointed it out, it never really considered that.

[00:12:41] Speaker 03:
Counsel, I don't want to cut into your time too much, but I do want to ask you about Paul Revere versus Ward.

[00:12:46] Speaker 03:
Are you familiar with that case?

[00:12:48] Speaker 01:
I lost that case at the Ninth Circuit, Your Honor.

[00:12:50] Speaker 03:
Okay.

[00:12:51] Speaker 03:
Then why is this not, why shouldn't we treat it the same?

[00:12:55] Speaker 01:
I'm sorry, Your Honor.

[00:12:58] Speaker 01:
I don't understand the question.

[00:13:00] Speaker 03:
Why shouldn't we treat

[00:13:01] Speaker 03:
Dr. Osborne the same way, his case the same way that we treated Paul Revere versus Ward.

[00:13:08] Speaker 01:
Oh, I'm sorry, Your Honor.

[00:13:09] Speaker 01:
I'm thinking of a different case.

[00:13:10] Speaker 01:
I'm not familiar with Paul Revere versus Ward.

[00:13:13] Speaker 01:
Okay.

[00:13:13] Speaker 01:
I'm thinking of Unum versus Ward.

[00:13:15] Speaker 03:
Okay.

[00:13:15] Speaker 03:
Thank you.

[00:13:17] Speaker 01:
I'm sorry.

[00:13:17] Speaker 02:
I thought you were going to say that because you lost once and I think we should be fair.

[00:13:24] Speaker 01:
That would be a wonderful, wonderful result, Your Honor.

[00:13:27] Speaker 01:
So, I mean, I'm sorry.

[00:13:29] Speaker 01:
The court's question is?

[00:13:32] Speaker 03:
So Paul Revere versus Ward was a case where a plaintiff was an attorney.

[00:13:36] Speaker 03:
The attorney was being looked at for ethical violations, so he voluntarily stopped practicing.

[00:13:45] Speaker 01:
Yes, I'm sorry, that case is in the record.

[00:13:47] Speaker 01:
Well, you know, the legal disability cases all have one thing in common.

[00:13:51] Speaker 01:
Ward is one of them, and I'm sorry, I should have recognized the case.

[00:13:54] Speaker 01:
Ward is one of them because

[00:13:58] Speaker 01:
All of those insureds are suffering from some legal reason why they can't continue to do their work.

[00:14:05] Speaker 01:
In Ward's case, it was because of his legal problems.

[00:14:08] Speaker 01:
Dr. Osborne here has no legal problems.

[00:14:10] Speaker 01:
Those cases are all inapplicable because they only apply to people who have some legal infirmity that prevent them from working.

[00:14:18] Speaker 01:
I will reserve, if there's no further questions, I'd like to reserve the minute I have remaining.

[00:14:22] Speaker 04:
Okay, yeah, I'll put two minutes on the clock for your rebuttal.

[00:14:24] Speaker 01:
Thank you, Your Honor.

[00:14:25] Speaker 04:
Thank you.

[00:14:44] Speaker 00:
Good morning again, Your Honor.

[00:14:46] Speaker 00:
May it please the court, I'm Dan McGuire, here to represent Paul Revere.

[00:14:50] Speaker 00:
We would respectfully request that the court affirm the lower court judgment because all material facts are undisputed and the district court properly interpreted the contract as a matter of law.

[00:15:02] Speaker 02:
So the district court

[00:15:06] Speaker 02:
based its decision on part on, quote, no doctor recommended that Dr. Osborne stop work.

[00:15:16] Speaker 02:
But isn't that belied by the record?

[00:15:21] Speaker 00:
No, Your Honor.

[00:15:22] Speaker 02:
Well, there was testimony that was just referred to about how one of the physicians said she recommended it to all.

[00:15:35] Speaker 02:
her patients, they stopped work in this situation.

[00:15:38] Speaker 02:
He didn't expressly remember that, but that doesn't mean if the jury credited her testimony and applied it to him that there wasn't a jury issue, was there?

[00:15:50] Speaker 00:
There was no jury issue, and here's why, Your Honor.

[00:15:52] Speaker 00:
This is Dr. Katru, and she is the immunologist.

[00:15:55] Speaker 00:
So he saw Dr. Katru on March 8th.

[00:15:59] Speaker 00:
He continued to work full time before, during, and after that visit.

[00:16:04] Speaker 00:
Dr. Kachru's notes don't contain any restrictions or limitations.

[00:16:09] Speaker 00:
In fact, his conditions were under control.

[00:16:11] Speaker 00:
Dr. Kachru's advice that you just reiterated was general advice given to all her patients, which basically amounted to be safe out there.

[00:16:20] Speaker 00:
And if you need a note for your employer, please come back and see me and I'll give you one.

[00:16:24] Speaker 00:
Here it's interesting to note that Dr. Osborne didn't file a disability claim until eight months after that, and he never went back to her to get an attending physician statement

[00:16:34] Speaker 00:
in the way that she suggested.

[00:16:36] Speaker 00:
So Dr. Osborne had practiced for decades carrying the same diagnoses, including through the flu seasons.

[00:16:43] Speaker 00:
And I hope that answered your question, Your Honor, on Dr. Katru, but I'd be happy to elaborate.

[00:16:47] Speaker 02:
Well, now wasn't there also in Paul Revere's own notes an indication that Osborne was, quote,

[00:16:59] Speaker 02:
advised not to perform dentistry and oral surgery due to COVID pandemic, close quote.

[00:17:06] Speaker 00:
And he had no PPE, and that's really the heart of the case, Your Honor, is on a causation analysis with the policy definition of disability.

[00:17:15] Speaker 00:
The inability to work must arise from an injury or sickness.

[00:17:19] Speaker 00:
There's that causation between the injury and sickness and the reason he didn't work.

[00:17:23] Speaker 00:
And in this case, the reason he didn't work didn't have anything to do

[00:17:26] Speaker 00:
with any doctor's advice or anything else other than the dental board suggesting to its members that they restrict their treatment to emergent procedures.

[00:17:40] Speaker 02:
The, I'm searching for it now but isn't there a gloss on that under California law so it's not quite as direct a causation issue as your,

[00:17:55] Speaker 02:
indicating, I'm sorry, I don't have that citation right in front of me, but.

[00:18:00] Speaker 00:
Is it the definition of disability that your honor refers, may I?

[00:18:03] Speaker 02:
Yes, yes.

[00:18:05] Speaker 00:
So in California, a particular part of that policy is given a certain definition by reason of the California Department of Insurance.

[00:18:13] Speaker 00:
And it means that total disability means that because of injury or sickness, the insured is unable to perform

[00:18:19] Speaker 00:
the substantial and material duties of his or her occupation with reasonable continuity in the usual and customary way.

[00:18:29] Speaker 00:
However, that part of the definition isn't what's at issue here.

[00:18:32] Speaker 00:
What's at issue here is the causative link between an injury and sickness on the one hand and the reason that Dr. Osborne is not working.

[00:18:41] Speaker 00:
If he's unable to work due to a reason other than injury or sickness, then the causation argument fails.

[00:18:47] Speaker 00:
He's got the burden of proof.

[00:18:48] Speaker 00:
He hasn't shown that.

[00:18:50] Speaker 00:
No benefits are payable.

[00:18:52] Speaker 02:
What about after he suffered a pulmonary embolism?

[00:18:57] Speaker 00:
At that point, this is in August now of 2020, he had already closed his practice permanently for reasons obviously unrelated to the pulmonary embolism he would later experience.

[00:19:07] Speaker 00:
But that was treated.

[00:19:08] Speaker 00:
And on August 4th of 2020, he reported

[00:19:11] Speaker 00:
into the doctor to follow up on that and the doctor said that he was clear and the company found that he was unable to work for a certain amount of time because of that, 27 days I believe it was, but because that didn't exceed the elimination period of 30 days, no benefits were payable.

[00:19:32] Speaker 00:
So I'm sorry, Your Honor, were you going to ask me something else?

[00:19:34] Speaker 00:
No, go ahead.

[00:19:35] Speaker 00:
Okay.

[00:19:36] Speaker 00:
So the material factual question really just comes down to an interpretation of the contract.

[00:19:40] Speaker 00:
It's an issue of causation.

[00:19:42] Speaker 00:
And the question is, why did Dr. Osborne stop working?

[00:19:46] Speaker 00:
If the reason he stopped working was because he was injured or sick and he couldn't do it, then that's what this policy pays benefits for.

[00:19:53] Speaker 00:
But if the answer is he left work and didn't return to work because of a reason other than injury or sickness, then there's no benefits payable because there's no factual disability.

[00:20:02] Speaker 02:
So my understanding, correct me if I'm wrong, is it's sort of in between here because he had, even before the pulmonary

[00:20:15] Speaker 02:
problem, he had a medical condition that made him so susceptible to death if he contracted COVID that he was advised not to take a risk, at least not without getting very full PPE.

[00:20:37] Speaker 02:
So wasn't it a combination of the outside situation and the inside situation?

[00:20:45] Speaker 00:
No, Your Honor, and here's why.

[00:20:47] Speaker 00:
So we know that he had these conditions for decades.

[00:20:50] Speaker 00:
He practiced for decades full-time, before, during, and after the visit to Dr. Katru.

[00:20:55] Speaker 02:
Yeah, but that was before COVID.

[00:20:57] Speaker 00:
It was before COVID.

[00:20:57] Speaker 00:
That's right.

[00:20:59] Speaker 00:
March 8th.

[00:20:59] Speaker 00:
So at March 8th, he leaves the office of Dr. Katru, and he doesn't say, well, Dr. Katru just told me to stop working.

[00:21:05] Speaker 00:
It's too dangerous.

[00:21:07] Speaker 00:
Let's cancel all the patients.

[00:21:08] Speaker 00:
He went back to work and worked for another, so another week's full of patients.

[00:21:12] Speaker 00:
Then I just want to mention Dr. Doherty since it came up in the court's questioning earlier.

[00:21:18] Speaker 00:
He saw Dr. Doherty on March 12th, and that was the last day he saw patients.

[00:21:23] Speaker 00:
But he was planning to see patients on that next Monday, March 16th, until the AAOMS had suggested that procedures be restricted to emergency procedures.

[00:21:34] Speaker 00:
That's when he came in.

[00:21:36] Speaker 00:
He told his office people, cancel all the patients,

[00:21:40] Speaker 00:
that we don't have any PPE, we can't do it safely.

[00:21:44] Speaker 00:
And now Dr. Doherty first opines that Dr. Osborne is unable to work as of March when?

[00:21:51] Speaker 00:
In November.

[00:21:52] Speaker 00:
So it's a hindsight analysis.

[00:21:55] Speaker 00:
He's had two office visits at least since then between the time he left work and the time he signed the attending position statement.

[00:22:01] Speaker 00:
Neither of them referred to any advice that he stopped work.

[00:22:05] Speaker 00:
And then he's going to sign an APS to essentially rewrite history and say he couldn't work since March.

[00:22:11] Speaker 00:
Well, why didn't you tell him that?

[00:22:12] Speaker 00:
And if you did, why didn't you put it in your notes?

[00:22:14] Speaker 04:
But these all sound like disputes that could be

[00:22:18] Speaker 04:
decided at trial.

[00:22:19] Speaker 04:
I'm not sure that any of what you're saying means that summary judgment is appropriate.

[00:22:24] Speaker 04:
I guess, is your argument essentially that because he went back to work after the Dr. Kachru appointment that that, as a matter of law basically, she could not have told him to stop working at that point in time.

[00:22:38] Speaker 04:
He couldn't have been thinking about it, debating about it, trying to figure out what to do.

[00:22:44] Speaker 00:
Well, the answer to your honor's question is it was proper for summary judgment because there's no dispute that the reason he left work had nothing to do with anything Dr. Katru or any other doctor said.

[00:22:54] Speaker 00:
Instead, it had to do with advice given to him by the dental board.

[00:22:59] Speaker 00:
And the reason he didn't return to work was because he couldn't get the PPE.

[00:23:04] Speaker 00:
So the advice by the dental board to restrict to emergent procedures is not an injury or sickness.

[00:23:10] Speaker 00:
The inability to get PPE due to a supply chain issue is not an injury or sickness.

[00:23:16] Speaker 00:
When he decided to close the business permanently three months after he first left work, sell his house, move away, try to sell his equipment, that was not an injury or sickness.

[00:23:25] Speaker 00:
That was a self-created barrier to returning to work.

[00:23:28] Speaker 04:
Because at that point he can get PPE at this later point.

[00:23:32] Speaker 04:
Right.

[00:23:33] Speaker 00:
So whether he actually got the PPE in June, July, August, September, I mean, it doesn't really matter.

[00:23:39] Speaker 00:
It's not a material fact because the reason he didn't work was because he couldn't get the PPE.

[00:23:44] Speaker 00:
And the reason he closed was because he didn't know when he could get it.

[00:23:48] Speaker 03:
So, counsel, what is the expectation then for Dr. Osborne, given that you're saying, look, not being able to get the PPE and being in a pandemic is not enough?

[00:24:01] Speaker 03:
because it's not injury and it's not sickness.

[00:24:03] Speaker 03:
So should he have been risking?

[00:24:04] Speaker 03:
I mean, they were pretty certain.

[00:24:08] Speaker 03:
Everybody was pretty clear about the fact that given his hypogama, he was very susceptible to getting very sick if he contracted COVID.

[00:24:18] Speaker 03:
So what is someone in his position to do to be able to get coverage and be safe?

[00:24:23] Speaker 00:
He gets coverage under this kind of policy if he's injured or sick, and that causes him not to work.

[00:24:28] Speaker 00:
If there's a pandemic, if the building burns down, if there's a mold infestation in the building, those are all reasons why he can't go to work either.

[00:24:36] Speaker 00:
But those are not risks that the policy insured against.

[00:24:39] Speaker 00:
To answer your COVID question, the remedy is to do it exactly what he did, to play it safe, to be careful.

[00:24:45] Speaker 00:
He went into the office every day.

[00:24:47] Speaker 00:
It wasn't like he was afraid to get out of the house.

[00:24:49] Speaker 00:
But then he submitted an application for a PPP loan, like many, many businesses did at the time.

[00:24:55] Speaker 00:
And then he submitted an application for

[00:24:57] Speaker 00:
to waive, or I forgot the word, but to forgive, I'm sorry, that loan.

[00:25:04] Speaker 00:
So that was what the situation was that presented itself.

[00:25:08] Speaker 02:
Assuming for the sake of argument that we thought there was a jury question under the first policy, where does that leave the second policy?

[00:25:20] Speaker 00:
So the causation issue would apply to both policies, and your Honor's question is... Right, right.

[00:25:25] Speaker 02:
I'm assuming, arguing that we think the causation issue was not sufficiently resolvable on summary judgment.

[00:25:34] Speaker 00:
If the Court were to reach that issue, then the analysis is whether covered monthly expenses are payable.

[00:25:40] Speaker 00:
Covered monthly expenses are ordinary and necessary

[00:25:44] Speaker 00:
in the operation of the business.

[00:25:46] Speaker 00:
The business was treating patients.

[00:25:48] Speaker 00:
He had treated no patients since March 12 of 2020.

[00:25:51] Speaker 00:
The case law says that winding up expenses is not running an office.

[00:25:55] Speaker 00:
Operation means ongoing.

[00:25:58] Speaker 00:
His people were with him for years.

[00:26:00] Speaker 00:
Did he want to cut him loose and send him on the street?

[00:26:02] Speaker 00:
No.

[00:26:02] Speaker 00:
Was that commendable?

[00:26:04] Speaker 00:
Yes.

[00:26:04] Speaker 00:
Was it an operation of his business?

[00:26:06] Speaker 00:
No.

[00:26:07] Speaker 00:
Their job was administrative in nature, to keep the patients informed when they call in, apply for the PPP loan, and do the administrative aspects of the office.

[00:26:28] Speaker 00:
I see I have three minutes left.

[00:26:30] Speaker 00:
I'm not going to give them to Mr. Petty, but I will please invite any of the three Your Honors to ask me any questions you might have so that I can direct my comments to any concerns.

[00:26:46] Speaker 04:
Do you have any other questions?

[00:26:53] Speaker 04:
I don't think we have any other questions for you.

[00:26:55] Speaker 04:
If there's anything else you'd like to tell us, you've got three minutes left.

[00:26:58] Speaker 04:
Otherwise, we'll happily accept the time back.

[00:27:01] Speaker 00:
OK, well, I'll take one of the three.

[00:27:03] Speaker 00:
Perfect.

[00:27:04] Speaker 00:
We'll compromise on that.

[00:27:04] Speaker 00:
So in conclusion, we would respectfully request your honors to uphold and affirm the lower court's judgment for the following reasons.

[00:27:14] Speaker 00:
Plaintiff has the burden of proof that he's unable to work because of injury or sickness.

[00:27:19] Speaker 00:
It's a causation analysis.

[00:27:21] Speaker 00:
The reason he left work was because of advice he received from the dental board, not an injury or sickness.

[00:27:28] Speaker 00:
The reason he didn't return two to three months after that was because the PPE supply chain was interrupted.

[00:27:35] Speaker 00:
Supply chain interruption is not an injury or sickness.

[00:27:39] Speaker 00:
The reason he didn't return to work after the end of May or beginning of June was because he voluntarily walked away, in his own words, from the practice.

[00:27:47] Speaker 00:
Voluntary closure of a business is not an injury or sickness.

[00:27:51] Speaker 00:
So because under those facts, which are undisputed, the appellant fails the causation test, no benefits are payable, and we would request respectfully your honours affirm.

[00:28:00] Speaker 04:
Thank you very much.

[00:28:01] Speaker 04:
Thank you.

[00:28:13] Speaker 01:
First, thank you, Your Honor.

[00:28:16] Speaker 01:
First, Judge Thomas, I mean, was exactly correct.

[00:28:20] Speaker 01:
I mean, when she pointed out that Mr. McGuire's very excellent argument was really more like a jury argument than it was anything else.

[00:28:28] Speaker 01:
I mean, we have a summary judgment case that Dr. Osborne was not medically disabled in spite of the fact that we've got two physicians who state very clearly that they believe

[00:28:43] Speaker 01:
that he was disabled because of his medical condition, pulmonary embolism, the immune deficiency, and the chronic asthma.

[00:28:52] Speaker 01:
And so, you know, the reasons when asked, well, you know, why is this still a summary judgment case?

[00:28:59] Speaker 01:
It's, well, you know, I mean, he accused Judge Dougherty of rewriting history when he stated very firmly in the attending physician statement in November that he believed that

[00:29:13] Speaker 01:
Dr. Osborne was disabled because of his medical condition.

[00:29:17] Speaker 01:
And I submit that that is a jury question, which should have gone to the jury and should not be decided on summary judgment.

[00:29:25] Speaker 01:
I'm going to raise an issue which isn't in my papers, it sort of occurred to me later.

[00:29:32] Speaker 01:
I spoke at the beginning of my argument as to how there are a number of factors involved, which is more important than the other.

[00:29:40] Speaker 02:
Can I go back just one second to the Doherty issue?

[00:29:45] Speaker 02:
And I'm sorry that I don't have the citation to the record.

[00:29:48] Speaker 02:
Tell me exactly what he said or recorded in his notes.

[00:29:54] Speaker 01:
If you're talking about his November 2020 notice, he said that due to, well, I have the.

[00:30:18] Speaker 01:
Well, what he basically said, patient advised, this is in the record at 2ER 262, patient advised not to perform dentistry or oral surgery due to COVID pandemic.

[00:30:31] Speaker 01:
He is a high risk individual due to age and labial extrinsic asthma.

[00:30:36] Speaker 02:
And just so I'm clear, that is a statement of what he said then or what he said earlier.

[00:30:44] Speaker 01:
That is what he wrote in November of 2020.

[00:30:49] Speaker 01:
What he testified that he told Dr. Osborne back in the time is, I'm not going to make any decisions for you, but you've got bad lungs and you're high risk.

[00:31:00] Speaker 02:
All right.

[00:31:00] Speaker 01:
That was his testimony of what he said.

[00:31:03] Speaker 01:
Can I have 30 seconds just to make that?

[00:31:06] Speaker 04:
Yeah, you can take 20 more seconds.

[00:31:07] Speaker 04:
Go ahead.

[00:31:08] Speaker 01:
Thank you.

[00:31:10] Speaker 01:
The AD&D policies, and this court has addressed those in numerous cases, they are triggered by an accident.

[00:31:18] Speaker 01:
And they all have language excluding other causes from the accident.

[00:31:22] Speaker 01:
The accident has got to be the sole cause of the injury.

[00:31:25] Speaker 01:
If Paul Revere wanted to have this policy where the sickness or injury is the sole cause and we shouldn't look at external factors, they should write that into the policy.

[00:31:36] Speaker 01:
They failed to do that and Paul Revere is attempting to have

[00:31:39] Speaker 01:
this court write an exclusion for a policy when that exclusion is not in the policy itself.

[00:31:44] Speaker 01:
If there are any further questions, I'm happy to take them.

[00:31:47] Speaker 01:
I appreciate the court's indulgence in letting me run a little over.

[00:31:52] Speaker 04:
Thank you.

[00:31:53] Speaker 04:
All right.

[00:31:53] Speaker 04:
Thank you.

[00:31:54] Speaker 04:
Thank you very much, Mr. Petty.

[00:31:55] Speaker 04:
Thank you, Mr. McGuire, for your helpful arguments this morning.

[00:31:58] Speaker 04:
This case is submitted, and we are adjourned for the day.

[00:32:01] Speaker 04:
Thank you.