Summary
In Paulin, the issue before the court was insured's claim that notwithstanding a 180-day provision in the policy, a period of disability ensuing more than 180 days after sustaining an injury could be treated as a disability due to injury rather than due to sickness.
Summary of this case from Herrera v. Benefit Trust Life Insur. Co.Opinion
No. 73-425
Decided February 27, 1974.
Insurance — Accident and sickness disability — Disability deemed due to sickness, when — Findings of trial court — Appeal — Court of Appeals bound by record — May not base judgment on extraneous facts — Evidence.
APPEAL from the Court of Appeals for Mahoning County.
Appellee is the insured under an accident and sickness disability income policy issued by appellant insurance company to the appellee in July 1966. The policy provided monthly benefit payments to the insured in the event he became totally disabled due to injury or sickness. Under Item 2 of the policy, if the insured's total disability was due to sickness, monthly benefits were payable for a maximum period of one year. Under Item 1, if total disability resulted from injury, monthly benefits were payable for the duration of the total disability, for a maximum period of the insured's lifetime. The second paragraph of Item 1 of the policy provides:
"If a period of total disability of the insured thus caused [by injury] commences while this policy is in force but more than 180 days after such injury is sustained, such total disability shall, for purposes of this policy, be deemed to have been due to sickness."
Appellee is a self-employed contractor-carpenter. On May 7, 1968, while handling plywood on a site at which he was working, he slipped, fell and sustained injuries. He was totally disabled and unable to work the following three days. The record indicates that appellee was also totally disabled on November 4 and 5, 1968, plus other isolated, but unspecified, days in 1968. The evidence also shows that appellee missed work a number of times to consult various doctors and chiropractors, including several days in September, October and November 1968, and on December 23, 1968. Other than those instances, it appears that appellee worked continuously from the day of his injury until June 16, 1969, when he became permanently and totally disabled.
Appellee filed a claim with appellant for benefits under his policy for total disability due to injury for the period of disability which commenced on June 16, 1969. Since this last period of disability ensued more than 180 days after the injury, appellant treated the claim as a claim for disability due to sickness, entitling appellee to a maximum of 12 months' benefits.
Appellee then instituted an action in the Court of Common Pleas, contending that, notwithstanding the 180-day statement of the policy, he was entitled to benefits for disability due to injury. Appellee argued at trial that the 180-day provision created only a rebuttable presumption that a period of disability ensuing more than 180 days after the sustaining of an injury was a disability due to sickness. Appellant replied that, under the clear terms of the policy, such disability can only be treated as a disability due to sickness. The Court of Common Pleas, sitting without a jury, rendered judgment in favor of the appellant, and from that decision appellee appealed to the Court of Appeals.
In their briefs before the Court of Appeals, the parties continued to argue upon the basis of the proper interpretation of the policy's 180-day provision. The Court of Appeals, sua sponte, raised for the first time the issue of the applicability to the case of the "recurrent disabilities" provision of the policy. Item 4 of the policy provides:
"4. Recurrent Disabilities. If, following a period of total disability for which a monthly benefit has been payable under this policy, the insured shall perform, on a fulltime basis and for a continuous period of at least 6 months, every duty pertaining to any reasonably gainful occupation, business or employment for which he is or may be fitted by education, training or experience, any subsequent period of total disability, due to injury sustained or sickness commencing while this policy is in force and resulting from causes which are the same as or related to the causes of such prior period of total disability, shall be considered as a new period of total disability to which the appropriate elimination period shall apply; but if said period during which the insured so performs such duties shall be less than 6 months, such subsequent period of total disability shall be considered as a continuation of such prior period of total disability for the purpose of determining the maximum period of monthly benefit."
Invoking that provision, the Court of Appeals found that the disability, commencing June 16, 1969, was a continuation of the prior periods of disability in 1968; that it was, therefore, a disability due to injury, as defined in the policy, entitling the appellee to monthly benefits for the duration of the total disability. The court held that appellee filed a notice of claim within a reasonable time as required by the policy.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Theodore R. Cubbison, for appellee.
Messrs. Wright, Harlor, Morris Arnold and Mr. Bartley Arnold, for appellant.
To support its reliance upon the "recurrent disabilities" provision of the policy, the Court of Appeals found it necessary, in effect, to make two additional findings of fact: (1) That appellee suffered periods of total disability prior to June 16, 1969; and (2) that such prior periods of disability occurred at least through December 16, 1968. Neither of those findings contradicts the pertinent finding of the trial court that:
"5. On or about June 16, 1969, plaintiff became totally disabled, said disability being caused by an injury sustained by plaintiff on May 7, 1968."
However, the power of a reviewing court to base its judgment upon independent factual conclusions, so long as they do not contradict those determined by the trial court, is circumscribed by the rule that the Court of Appeals is bound by the record before it and may not consider facts extraneous thereto.
In the case at bar, we find no evidence in the record which supports the conclusion of the Court of Appeals that appellee was totally disabled at any time during the six months immediately preceding June 16, 1969, a necessary prerequisite to recovery under the "recurrent disabilities" provision of the policy in the circumstances of this case. Therefore, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Although appellee was absent from work on December 23, 1968, to consult a physician, mere absence from work does not constitute total disability under the terms of the policy.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.