CR371 Accident Claim for accidental benefit due to bodily injury

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CR371
Accident
Claim for accidental benefit due to bodily injury
Background:
1. The complainant had a laminectomy and fusion of vertebrae. The operation was deemed successful but in time she suffered chronic back pain and was declared permanently disabled for her own occupation by her employer. Some time after she had been boarded, she experienced severe pain in her back. X-rays revealed that some of the steel rods inserted in her back during the operation, about three years previously, had broken. She submitted a claim in terms of the Accidental Protection Plan held with the insurer, but it was declined on the basis that she did not fulfil the following definition of “accident”:

“Accident means a sudden and fortuitous event occasioned by visible, violent and external means.”

2. The insurer stated that the complainant had also failed to show that a “Bodily Injury” defined as follows had occurred as the breaking of the rods had occurred through a degenerative process:

“Bodily Injury means traumatic destruction of any part of the body, excluding mental or psychological impairment other that incurable insanity caused by Bodily Injury. Bodily Injury does not include sickness or disease or their consequences (except bacterial infections consequent upon Traumatic Bodily Injury), nor Bodily Injury due to a gradual operating cause or naturally occurring or degenerative process or to pregnancy or its consequences. Bodily Injury is deemed to include the direct results of exposure to the elements.”

3. The insurer was also of the view that the claim did not fall within the “Scope of Insurance” as the event had not occurred solely and independently as set out below:

“We will pay the Benefit shown in the Table of Benefits if during the Period of Insurance an Insured Person sustains Bodily Injury which results solely and independently of any other cause within 12 months of the date of Accident in Death or Permanent Disability.”

4. Apart from having to show that the claim fell within the definitions of “Accident” and “Bodily Injury” and within the “Scope of Insurance”, to qualify for the accident benefit the complainant also had to show that she was permanently and totally disabled as a result of the bodily injury, set out in the Table of Benefits.

Discussion:
5. The complainant argued that the breaking of the rods was sudden, unexpected, visible on the x-rays, forceful and caused by external means and
not through a degenerative process or a natural wear and tear process. She was of the view that the surgery was not the cause of the breakage. She obtained a medical opinion which stated that the operation had been extremely successful; that the type of steel rods inserted do not erode or degenerate through a natural process and that such breakage was an event which was unrelated to and independent from the operation. An orthopaedic specialist stated that the cause of the breakage of these rods may be ascribed to the fusion not solidifying, and that this occurred in about 5 % of cases. His conclusion was also that the breakage was an independent incident from her original pathology.
6. The insurer persisted that if the complainant had not undergone the fusion operation to her back, she would not have had the rods inserted and therefore the breakage of these rods was not an independent incident, but directly related to the surgery which had proven not to be successful after a number of years.
Result:
7. After due consideration of the matter, this office found in favour of the insurer as the complainant had not met the criteria of the definition of “Accident”. She was unable to state when exactly the requisite sudden fortuitous event had occurred and although the breakage may have been a violent event and visible on x-rays the definition requirement of “external” would also have been problematic for her to prove because the forces were all generated within the body.
8. It appeared that the pain in her back gradually escalated and therefore she had also failed to show that the event occurred within the period stipulated at “Scope of Insurance”. The definition of “Bodily Injury” does not include a degenerative process and more weight was given to medical evidence that the breakage of the rods was not an uncommon occurence after a fusion operation. Medical opinion submitted indicated that the breakage was caused by the non-adherence of the fusion and the instability of the spinal structures, placing abnormal stress on the screws and rods.
9. Apart from having regard to the specific definitions, the office also considered if the event occurred solely and independently from any other cause. This is usually understood to transpire when the chain of causation is operative until there is an intervening cause. Had she not had the fusion operation whereby rods were inserted in her back, there would not have been breakage of the rods, which caused her excessive pain and consequent inability to work and the reason she applied for the benefit. From this it follows that the breakage was not an intervening cause, but was dependent on the fusion operation some years previously.
10. The complainant sought leave to appeal the office’s final determination in favour of the insurer, which was granted to her. The appeal was dismissed, the appeal tribunal stating:

“My finding that the breaking of the rods was not an ‘accident’ or a ‘bodily injury’ as defined in the policy is decisive of the appeal. It renders unnecessary any discussion of other contentious matters raised at earlier stages such as causative importance of the operation, whether the breaking of the rods as distinct from the underlying pathology resulted in the state of total disability, and whether ‘solely and independently of any other cause’ can and should be interpreted against the insurer as was found to be so in relation to the policy considered in *Concord Insurance Co Ltd v Oelofsen NO 1992 (4) SA 669(A).”
(*In this case it was decided by the court that the words, “independent of any other cause” do not refer to a pre-existing condition that had merely contributed to the permanent disability and thus excluded the insured’s pre-existing health condition.)
NvC
April 2016

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