Opinion
62918.
DECIDED NOVEMBER 6, 1981.
Action on policy. Fulton Superior Court. Before Judge Hicks.
James C. Watkins, Edward E. Carter, for appellant.
J. Allen Maines, for appellee.
The plaintiff brought suit to recover benefits under a policy of insurance issued by the defendant. The policy insured plaintiff against total disability to perform his duties as a "Physician — Private Practice of Medicine (Medicine and Surgery)." The alleged disability followed cataract surgery.
The plaintiff's primary contention is that he is basically a surgeon and that he is unable to maintain a full-time surgical practice because the contact lenses required after his surgery will not permit it. He admits in his deposition that the lenses give him adequate vision to perform his tasks and that he can perform just about any task he could perform before his surgery. His deposition shows his concern with the annoyance and inconvenience of using contact lenses including the need to remove the lenses to rest the eyes. The plaintiff also stated in his deposition that he is now qualified and able to practice general medicine. This appeal is from the grant of summary judgment for the defendant. Held:
The trial court did not err in granting summary judgment in favor of the defendant. The plaintiff's reliance upon Mut. Life Ins. Co. v. Binion, 72 Ga. App. 173 ( 33 S.E.2d 448) (1945), is misplaced. In that case, the evidence showed that the claimant was totally disabled to practice medicine. "Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he depends for a living . . . It follows . . . that the insurer is not liable as for a total disability when the accident or disease has merely prevented the insured from doing as much in a day's work as before. Such lessened earning capacity may be a case of partial disability, but not a case of total disability." Cato v. Aetna Life Ins. Co., 164 Ga. 392, 398 ( 138 S.E. 787) (1927). The undisputed evidence in this case shows the plaintiff is able to perform the duties of his profession.
Judgment affirmed. Deen, P. J., and Carley, J., concur.