- 12 - 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 beforePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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