CR374 Disability

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CR374
Disability

Insurer ignoring relevant considerations concerning job description and physical nature of occupation; selectively relying on certain medical evidence while ignoring contradicting medical evidence

Background

1. The complainant, a farm manager, injured his right leg, knee and ankle in a tractor accident in 2012 (the tractor drove over his leg). After surgery and rehabilitation he still had pain, stiffness, swelling and impairment of range of motion, especially in his ankle, and walked with a crutch. He lodged a complaint with our office after his claim for an accidental injury benefit was declined, because the insurer maintained that he did not have the requisite “50% loss of lower limb function”. After extensive investigation, our office upheld the insurer’s decision on this claim.

2. The complainant had all along stated that he was struggling to work because of his injury, and he pointed out that: “The nature of my work is extremely physical and involves a significant degree of mobility, getting around the farm supervising employees in the orchard and fields”. We noticed that there was also disability for regular occupation cover on the policy, and asked the insurer to assess a claim for this.

3. The policy requirement for this benefit was that the insured be “totally, permanently and continuously unable to fulfil the occupational demands of the occupation engaged in for income immediately before the disability”.

4. The complainant’s treating orthopaedic surgeon stated in a report dated 25 September 2014 that “it is my professional opinion that [the complainant] cannot perform the work as manager of the farm as he cannot walk over uneven ground to check the farm workers. Even if an arthrodesis operation of the right ankle is performed, he will still not be able to walk on uneven ground, because of the stiffness of his ankle”.

5. A foot specialist (who did a paper review but did not see the complainant) stated that the symptoms appeared to be out of proportion to the x-ray changes, and that the impairment of the lower limb was 16%.

6. Although the insurer had mentioned that an occupational therapist report, employer declaration and job description would be needed to assess the disability claim, it apparently made a decision without this information, relying only on the medical evidence available, after obtaining an additional orthopaedic surgeon report.

7. The decision was to decline the claim. The insurer stated that the new orthopaedic surgeon opinion had indicated a stable right ankle with slight impairment in range of movement and only slight degenerative changes. The insurer was of the view that the claimant could not be regarded as totally, permanently and continuously unable to fulfil the demands of his occupation as a farm manager “which involves administrative work and supervising the activities of the farm workers”.

8. The complainant was not happy with the insurer’s decision, and we pursued his complaint.

Discussion

9. We firstly requested a copy of the new orthopaedic surgeon report from the insurer. This was provided, and we noted that the doctor had in fact concluded his report with the words:”Dit sal nie aangedui wees om lang afstande te loop veral oor ongelyke terrein soos op ‘n plaas oppervlakte nie, maar kantoorwerk kan sekerlik uitgevoer word”.

10. At this stage we requested to see any claim documentation taken into account by the insurer, including the employer claim form, job description and occupational therapist report.

11. The insurer provided a copy of an OT report (which it had commissioned). The OT stated, inter alia, that the complainant’s occupation was of a physical nature, and that he was required to walk most of the day to supervise farm workers, over uneven surfaces. After an extensive physical and functional assessment (testing posture, mobility and gait, balance, range of motion, functional muscle strength, sensation, endurance, pain, etc), she noted impaired range of motion in the back, hip, knee, ankle and foot, and limited movement and poor muscle strength in the right ankle and foot. She concluded that chronic ankle pain, inability to walk far, difficulty with climbing steps, weight bearing or standing for long periods, etc, “supports that the client is unable to perform his duties as a farm manager. Due to the longdurity of the client’s pain and the degenerative nature of his injury, his prognosis is poor. It is highly unlikely that the client will ever be able to perform an occupation of a physical nature even if an arthrodesis is performed”.

12. The OT report had not been mentioned by the insurer in the reasons given for its decision to decline the claim. When we challenged this, the insurer stated that the range of motion noted by the OT was impaired due to pain, which was “out of proportion to the pathology noted by the various specialists”.

13. We then asked the insurer again for the documentation detailing the complainant’s specific duties/job description, and the employer claim form, as this still had not been provided. The insurer then informed us that it had not received this information from the complainant, and had made its decision without this information.

14. We followed up with the complainant and obtained the job description and completed employer claim form, which we sent to the insurer. The employer indicated in the form (signed on 8 September 2015) that the complainant had last actively performed his work on 27 August 2012 (the date of the accident), and while his employment had not been terminated he had had extensive periods of sick leave, and his work status was marked “sick leave”. The job description indicated that, inter alia, a required competency was “good health and physical ability”, and that the farm manager was responsible for co-ordinating and controlling farming activities on the research farm, managing orchards, maintaining farm infrastructure, training trainees and emerging farmers, being responsible for harvesting and marketing of farm produce, etc.

15. We asked the insurer to re-evaluate the claim, now that it had complete information. The insurer responded that “it has been confirmed that the Declaration by Employer and sick leave records do not influence the decision to decline the claim”.

16. We pointed out to the insurer that this was an inadequate response, and that we required a detailed response, setting out the definition and illustrating how it had been applied in evaluating the claim, in relation to the medical evidence, the job description, employer’s declaration, sick leave records and the information provided by the complainant in his claim form as well as his correspondence with our office. We stated that each medical/OT report should be separately canvassed, and if there were any contradictory findings these should be extensively dealt with.

17. In response we received a determination from the insurer’s internal arbitrator, dismissing the complaint. From the reasons given it was apparent that the job description and physical nature of the complainant’s work had not been taken into account at all. Much reliance was placed on the fact that the complainant had not been officially discharged from service, which was taken as an indication that he was still able to perform his occupation. It was stated that “the current functional loss … is not permanent and would to a large extent improve”.

18. At this stage we decided to telephone the insurer, and again point out some of the problems with its approach. An undertaking was given by the insurer to obtain a further opinion from a doctor well versed in insurance claims.

19. This doctor promptly provided an opinion, in which he canvassed all the medical reports and other evidence, concluding that there was no dispute that the bulk (60-70%) of the complainant’s duties entailed physical work. He stated: “He is covered for regular occupation, which means that he needs to be assessed for his ability to do a physical work. Adapting his job output to a more sedentary type of work is not a policy requirement.” As he was unable to fulfil 60-70% of his duties, it was “fair to assume that he is totally disabled”.

20. The doctor pointed to the objective evidence of sequelae of the initial injury: “A CT-scan and bone scan demonstrated active arthritis with degenerative changes of the tibiotalar and subtalar joints to the extent that a subtalar fusion has been proposed. This is confirmed by constant pain and reduced range of motion of the ankle joint. Treatment options have almost been exhausted. The only remaining option is an arthrodesis. The success of this operation can unfortunately not be guaranteed, and it has inherent risks; therefore such surgery cannot be enforced as a treatment option. Therefore for practical reasons the condition should be regarded as having reached maximal medical improvement (MMI), implicating that it is permanent”.

21. The doctor was also of the view that the weight of the medical evidence (two orthopaedic surgeons and the OT) supported disability. Only one doctor found the symptoms incongruous with the pathology. The doctor stated: “However, with the added objective proof of active arthritis on CT-scans, and the proposal by the treating doctors to do an ankle fusion, one has to conclude that the client is disabled as defined”.

Result

22. The insurer then paid the claim. Interest was also paid in respect of the long delay in reaching the decision to admit the claim.

SM
April 2016

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