The opinion of the court was delivered by: Stengel, J.
Anne Marie Bybel was a practicing obstetrician/gynecologist until she suffered a shoulder injury as a result of an accident that occurred while she was delivering a baby. When her injuries prevented her from performing her duties and she was terminated from her hospital position, she made a claim under her disability insurance policy. The defendant, her insurer, denied it. Dr. Bybel has filed suit against the defendant for breach of contract and bad faith arising out its refusal to award her total or partial disability benefits. For the reasons set forth below, I will deny the defendant's motion for summary judgment on her claims.
At all times material to this action, Dr. Bybel was a board certified obstetrician/gynecologist ("OB/GYN") practicing full time with Northern Lancaster County Medical Group ("NLCMG"), a group affiliated with Ephrata Community Hospital ("ECH"). Def.'s Statement of Undisputed Material Fact ("SUF") ¶ 11. While in practice, obstetrics made up 50% of Dr. Bybel's practice, and gynecological duties comprised the other 50%.*fn2 Def.'s SUF ¶ 11. She claims the main duties of an OB/GYN include "independently delivering babies by whatever means necessary (natural, causarean, forceps-assisted, vacuum-assisted); independently performing gynecological surgeries; and on-call work, which requires the ability to independently perform the delivery and surgical functions described above." Bybel Compl. ¶ 18. On December 23, 2005, Dr. Bybel was pushed in the right shoulder (her dominant one) by an obese patient during a delivery. Pl.'s SUF ¶ 13. She worked through pain in that shoulder until March of 2006, when it became so intense she was admitted to the emergency room. Id. ¶ 13. She then began to see an orthopaedic surgeon, Dr. Thomas Renz, who attempted to treat Dr. Bybel without surgery. Id. ¶ 13. When that proved unsuccessful, she had an operation on September 21, 2006. Id. That, too, was ineffective. Id. Despite seeking treatment from multiple orthopaedic surgeons and attending physical therapy regularly, Dr. Bybel continues to have disabling pain and weakness in her right shoulder. See Pl.'s SUF ¶¶ 13, 28.
Between the initial injury and subsequent surgery in September, 2006, Dr. Bybel continued to work on a full-time basis. Def.'s SUF ¶ 13. When she returned to work in December, 2006, it was part time and with restrictions. Id. at ¶ 13, 28. Specifically, Dr. Bybel was unable to perform major surgeries, caesarian sections, difficult deliveries, including those involving vacuums or shoulder dystocia, obstetrics, emergency room work, or outpatient surgery. Pl.'s SUF ¶ 28, Pl. Ex. 21. Shortly after her return to work, the other OB/GYNs in NLCMG wrote to ECH to complain about Dr. Bybel's inability to provide full on-call coverage, because it required them to provide coverage for her. Pl.'s SUF ¶ 30(a). On February 27, 2007, ECH wrote to Dr. Bybel noting that:
Since your surgery on September 21, 2006, you have been under work restrictions that have impacted your ability to perform all of the essential functions of your position as an [OB/GYN] physician. It is our understanding that you are presently unable to perform work that requires sustained pushing or pulling with more than 32 pounds of force. This restriction impacts your ability to perform vacuum deliveries and other surgery and further impacts your on-call responsibilities.
Pl.'s Ex. 25. On March 2, 2007, ECH wrote to Dr. Bybel again, this time stating that, because she was "unable to perform all of the full-time duties of an OB/GYN physician" upon which her compensation was based, it would be reduced by 59% "to reflect the value of [her] services[.]" Pl.'s Ex. 26. On March 8, 2007, the other physicians in NLCMG decided that Dr. Bybel would only be allowed to perform gynecological office work. Pl.'s Ex. 27. Again, on May 9, 2007, ECH wrote to Dr. Bybel confirming her physical limitations:
You are not currently performing all of the essential functions of your job, namely surgeries, deliveries, and on-call responsibilities. These are major components of your position as an OB/GYN physician. We agreed only to temporarily modify your responsibilities in this regard, and we will not nor can we excuse you on a permanent basis from performing these essential responsibilities.
Pl.'s Ex. 28. ECH later denied Dr. Bybel's request to perform surgery, noting that her doctor did not release her to perform surgery, that performing surgery would conflict with the evaluation of her functional capacity by the Philadelphia Hand Center, and that her condition would require the presence of a back-up surgeon were an emergency to arise. Pl.'s Ex. 29. Finally, on July 25, 2007, she was terminated. The termination letter she received from ECH stated:
For a period of more than (6) months, you have been unable to perform all of the essential functions of your job, namely vacuum deliveries and surgeries. There are no reasonable accommodations that would enable you to perform these essential functions. Furthermore... you will continue to be unable to perform all of your essential job functions for a minimum of four (4) to six (6) months, at which time the doctor could only verify that you should be re-evaluated, not that you would resume performing your essential functions.
Pl.'s Ex. 30. In conjunction with her termination, ECH offered Dr. Bybel a position doing gynecological office work only and not performing surgeries or OB/GYN deliveries. Pl.'s Exs. 31, 32. She rejected the offer because it would have precluded her from performing obstetrics for a period of two years and upon completion of those two years, she would have to obtain the approval of the hospital administration to resume these duties. See Pl.'s Ex. 12, Bybel Dep., 218:9--220:19. Dr. Bybel was under the impression at the time of her termination that with continued therapy, she could be able to return to her full capacity at work. Bybel Dep. 181:1--20.
Following her termination, Dr. Bybel filed a discrimination complaint with the EEOC, arguing that she was fired because she had previously accused another doctor in her group of sexual harassment, and because of her disability. See Def. SUF ¶ 17. The EEOC ruled against her, finding that she was unable to perform vacuum extractions, surgery, and on-call duty, and that, under the ADA, the hospital was not required to provide her with an accommodation by requiring that other physicians be made available to assist her in performing the essential functions of her job. Pl.'s Ex. 13 ("[F]or Dr. Bybel to rely on the on-call physician to perform an essential function of her job is tantamount to reassigning essential functions.").
Dr. Bybel has offered evidence in the form of independent functional evaluations and expert reports that she is fit for office work only, has impaired right hand coordination, decreased right shoulder range of motion and strength, and that she can only push or pull up to 30 pounds with her right arm. See, e.g. Pl.'s Ex. 8, Raptosh Evaluation; Pl.'s Exs. 38, 40 Dantuluri Evaluations; Pl.'s Exs. 18, 19, Chesky Evaluation & Notes (finding that Dr. Bybel could not lift or carry or forcefully push or pull more than thirty pounds with her right arm and clearing her to perform deliveries and surgeries "as long as assistant available in house to assist in deliveries and surgeries should complications arise necessitating need for additional force being applied [greater than] thirty pounds[.]"); Pl.'s Ex. 35, Oxendine Evaluation. Her expert, Dr. Arnold Cohen, opines based on his experience as a obstetrician/gynecologist that Dr. Bybel is "unemployable as a fully functioning obstetrician/gynecologist" because her shoulder injury "continues to limit her abilities to care for the acute, unexpected events that occur in providing surgical and obstetrical care." Cohen Report, Pl.'s Ex. 42. He explains that:
"[t]here is no way to predict when surgery will require acts that she no longer can perform or when a difficult delivery will require forceps application or a vacuum extraction. If Dr. Bybel were to assume the function of an obstetrician it would be unpredictable whether she could or could not deal with a specific case management based on the amount of force or endurance required for that individual delivery."
Since her termination, Dr. Bybel has remained unemployed. Def.'s SUF ¶ 20. She claims she would be able to perform office-based gynecology work but has been unable to find a position. Id.; see Bybel Dep. 26: 10--13. She admitted during her deposition that she can perform "the entire gamut of office-based gynecological services," "the overwhelming majority of obstetrical services, with the exception of a vacuum extraction delivery that requires the exertion of forces in excess of 50 pounds," and that she could perform call "with the necessary accommodation of an assistant in the event of a vacuum extraction as required or a physician to perform surgical services." Id. at 186:7--187:24.
Dr. Bybel has had a disability income insurance policy with Lincoln National Life Insurance Company since 1991.*fn3 Def. SUF ¶ 1. It provides that she is entitled to benefits for either total or residual disability. See Insurance Policy of Anne Marie Bybel, Ex. A to Affidavit of Kris Anderson ("Policy"), at 5. The policy provides:
"Total Disability" means that because of Injury or Sickness:
a. You cannot do the main duties of Your Occupation
b. You are under a Physician's Care; and
c. You are not engaged in any other gainful occupation "Residual Disability" means that during the Elimination Period ...