Lawrence L. and Kathleen J. Kelter - Page 12

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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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