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state that petitioner’s psychological condition made him
presently unemployable.
Dr. Butzine did not testify, nor is any copy of any report
by him in the record. However, attached to Dr. Moote’s expert
testimony is a letter from Dr. Butzine to Aetna Commercial
claims, dated March 9, 1988, acknowledging Aetna’s request for
the results of a psychiatric evaluation done on petitioner
“regarding the issue of disability.” In that letter, Dr. Butzine
refuses to provide any information on the grounds that he
believed that his interview with petitioner was not to be used
for purposes of determining disability, and petitioner had made
him promise that he would not reveal that information to anyone
else. He states that the information he has “might well directly
relate to the issue of disability”. Petitioners did not show
that Dr. Butzine was unavailable to testify. We shall assume
that Dr. Butzine’s testimony would have been adverse to
petitioner. Wichita Terminal Elevator Co. v. Commissioner, 6
T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
We are convinced that, in November 1989, when the Committee
determined that petitioner was totally and permanently disabled
within the meaning of section 9.3 of the Plan, petitioner was
disabled from the practice of dentistry. We are unconvinced,
however, that he was disabled from any employment, or that the
Plan required such total disability from any employment before
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