CR363 Disability claim Reasonableness of alternative occupation

See too: CR, Disability,

CR363
Disability claim
Reasonableness of alternative occupation

The applicable definition of “Occupationally Disabled” read thus:

“The Life Covered is Occupationally Disabled if he or she is unable, due to illness or injury, to perform the duties of any occupation which the Life Covered could reasonably be expected to follow, taking into account his or her education, training, experience and employment history.”

It was common cause that at all relevant times the complainant was employed as a so-called “paramedic”; that, as a result of being injured, the complainant was permanently and totally unable to perform the duties of a paramedic, and that he was
employed as an administrative clerk by the same employer for which he worked as a paramedic.

The question which had to be answered in this complaint was whether, having regard to the said definition and the facts, it was reasonable to expect the complainant to work as an administrative clerk?

For the reasons which follow a meeting of Adjudicators in the office answered the said question in the negative:

• The complainant enjoyed his work as a paramedic and that work had a measure of glamour and prestige to it. The complainant was suitably trained as a paramedic and met all the requirements for that position which he held for nearly 20 years. The complainant’s work as a paramedic involved a small component of administrative work and he did not receive any training to work as an administrative clerk. The complainant enjoyed the status which comes with his registration as a paramedic with the Health Professions Council of South Africa. As a result of his injury the complainant terminated this registration.
• The complainant did not function in the way in which a normal, healthy administrative clerk would work. The insurer submitted that the complainant had been “reasonably accommodated”, but in the report of an Occupational Therapist, it was said that the complainant “will require to work alternating between sitting and standing positions or be permitted to take frequent posture breaks”.
• The evidence established that the complainant was a fit, healthy paramedic who performed an exciting job, but now worked as an administrative clerk for whom adaptations had to be made in his workplace and who had to be “accommodated”. The complainant said that as a result of his inability to sit for any extended period he has to avoid getting caught in the traffic when he drives to work. This meant that he has to leave home at an inordinately early hour to avoid the rush hour traffic.
• The complainant’s employer wanted to retrench him, but he was not prepared to accept that. An agreement was reached in terms of which the complainant was “accommodated” as an administrative clerk at the same salary which he was earning at the time. It did not appear to the meeting that the insurer grasped the full import of the change in the complainant’s occupation, which involved the following adverse consequences:

o The complainant suffered a substantial reduction in his “take home pay”. This was so because he no longer received overtime remuneration and so-called “danger pay”.

o As a result of the fact that he was appointed as an administrative clerk at the same salary which he received as a paramedic, it was unlikely that the complainant would ever enjoy any real salary advancement in his current position.

o The complainant lost the opportunity to receive salary increases which he would have received as a paramedic.

o Significantly, the complainant lost the career advancement opportunities which would have been open to him as a paramedic. The complainant said that there was a demand for South African trained paramedics in Australia and New Zealand and that he had been “accepted” in New Zealand.

The complainant said the following about the effect of his injury:

• “Would you employ someone like me with no formal qualification in administration or computer literacy and has to work under the influence of narcotic medication and has to have a special standing desk and can’t drive a manual transmission for more than 20 minutes?”
• “Will I be able to obtain employment in the field that I have been practising for the past 20 years should I leave my current employer. Please keep in mind because of my injury that I will be trapped in my current post till the day I can no longer work.”
• “You should also consider my disability and the chances of migration into the real job market with me not having any formal qualifications and experience in administration. This challenges the phrase in the contract with regards to fair or reasonable alternative employment. The job status (registered with the Health Professionals Council of South Africa) and salary of a Paramedic (Paramedic salary goes up to R 375000.00 in 2014) is way higher than an administrative clerk (administrative clerks salary starts at R92000 in 2015).”
• “It is also very clear when you look at these two professions, (the insurer) is not making a fair interpretation as there is a massive salary discrepancy between these two occupations….”
• “No person that does administrative work could ever do what a paramedic does.”
• That he explained that he may undergo an operation which may alleviate his pain. This treatment depends on the availability of funding. If the operation is successful it would only help for his pain and not for his disability.

The insurer relied on the policy provision “that (it) is entitled to require that the life covered undergo a reasonable amount of re-skilling before we assess a claim”. In this regard the meeting concluded as follows:

• At no time did the insurer request any “re-skilling”.
• It was pointless to refer to the “re-skilling” requirement in vacuo.
• The insurer had not suggested any work which the complainant “could reasonably be expected to follow” taking into account the factors stated in the said definition, other than the administrative position which the complainant held.
• That the meeting could not think of any “reasonable alternative position” for which the complainant could be trained.

On a conspectus of all the relevant facts the meeting was quite satisfied that the complainant had established, by a comfortable balance of probability, that the present position which he holds is clearly not one which he “could reasonably be expected to follow, taking into account his … education, training, experience and employment history”.

It was pertinently pointed out that the conclusion reached by the meeting did not remotely imply that any onus rests on the complainant to prove what he succeeded in proving. The stance of the office with regard to the onus in a case such as this is clear – see CR132 on our website (www.ombud.co.za) and Life Insurance in South Africa by Nienaber and Reinecke page 359.

After the provisional ruling had been made settlement negotiations ensued between the parties, which culminated in a meeting at our offices at which the insurer agreed to pay the insured benefit to the complainant.

RM
April 2016

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