CR378 MODEL CASE SUMMARY SAMONS JPE vs. HOLLARD LIFE

MODEL CASE SUMMARY CR378
SAMONS JPE vs. HOLLARD LIFE
The complainant, who was represented by his mother, challenged the repudiation of his claim for a Comprehensive Critical Illness benefit claim. The claim was based on his having been diagnosed with chronic fatigue syndrome and chronic multiple infections, namely Typhoid, H.pylori, salmonella, Rickettsia and Lyme disease, which the complainant ascribed to his having been bitten by a tick while he was on employer IT business in Ghana during April 2013.
The basis for the repudiation was that the diagnosed medical condition was not one of the listed critical illnesses set out in the policy contract; did not fall within any of the specified benefit groups; and also did not meet any of the contractual qualifying criteria.
On behalf of the complainant it was contended that although the diagnosed condition is not one of the listed critical illnesses, the claim should have been assessed as Major Head Trauma, in that the complainant had suffered a traumatic injury to the brain, which was manifested by the symptoms of chronic fatigue; fibromyalgia; impaired cognitive function and concentration; loss of ability to think; continuous brain fog and persistent headaches. All those symptoms, it was contended, caused the complainant to be incapable of performing the stated Activities of Daily Living (ADLs).
The insurer refuted the complainant’s contention by arguing that the complainant’s inability to perform the stated ADLs resulted from the effects of infectious conditions, which are internal illnesses, rather than from an external physical force. It further contended that no causal link had been established between the alleged tick bite and the complainant’s condition; and concluded that the complainant had not suffered a traumatic brain injury as defined in the policy contract.
The issue that came up for determination was whether the complainant had suffered a traumatic injury to the brain as envisaged in the policy contract. The applicable policy provision stipulates as follows:

“9. Trauma and Musculoskeletal Benefit Group

Major Head Trauma
A traumatic injury to the brain caused by an external physical force, resulting in significant and permanent neurological deficit measured by the inability to perform Activities of Daily Living. Severity levels will be assessed by a full neurological examination by a specialist neurologist any time after three months.
The inability to perform 6 or more Advanced Activities of Daily Living 75% of Benefit Amount
The inability to perform 3 or more Basic Activities of Daily Living 100% of Benefit Amount…”
A report from a neurologist who consulted with the complainant during May 2014 indicated that the complainant’s symptoms were possibly related to a salmonella type of infection, while in another report from a second neurologist with whom the complainant consulted in February 2015 his diagnosis was confirmed as being chronic fatigue syndrome with fibromyalgia. The report further indicated that the diagnosed conditions impaired all aspects of the complainant’s functioning, including work and all ADLs.
In support of his contentions, the complainant relied on the opinion of Dr CL Jadin, as expressed in 2 reports that she had compiled after consulting with him during November 2014 & December 2015, and a supplementary report that was drafted in July 2016.
In her first report, Dr Jadin stated that the cause of the complainant’s dread disease was “Chronic multiple infections; typhoid – salmonella infection with hospitalization; Rickettsia infection”. She concluded that all of the above were “due to virus/germs contracted on Employer IT business in Ghana in April 2013”. In her second report, Dr Jadin expressed the opinion that the complainant had “suffered a traumatic injury to the brain caused by an external physical force, i.e. the tick or other pathogen, resulting in significant and permanent neurological deficit…”
It is interesting to note that in both reports the doctor neither gave any reasons or motivation for her opinion that the complainant had sustained a traumatic injury to the brain, nor unequivocally stated that the alleged traumatic injury to the brain was caused by the tick bite. It is only in the supplementary (2016) report that the doctor expressed the opinion that the complainant’s entire condition was caused by a Rickettsia-infected tick, which she regarded as an external physical force. Yet again, she did not set out any reasons leading to her conclusion that the complainant had sustained a traumatic brain injury.
Although other reports from three different medical specialists confirmed that the complainant’s neurocognitive functioning had severely declined between the years 2012 and 2016, not a single one of those medical specialists confirmed that the complainant had suffered a traumatic injury to the brain.
In dismissing the complaint, we found that the complainant had not discharged the onus of proving that he had suffered a traumatic brain injury within the meaning of and as required by the relevant policy provision. We pointed out that the definition is not met by mere proof on its own of the impairment of the brain’s functional effectiveness: there must be proof of a traumatic injury to the brain.
We further pointed out that the onus is not discharged by merely proving that the diseases of Rickettsia and Lyme’s disease can cause brain injury; or that the complainant suffers from symptoms that may indicate that he sustained an injury to the brain: the complainant has to prove on a balance of probability that he suffered a traumatic brain injury within the meaning of and as required by the policy provision.
The complainant’s application for leave to appeal was refused.
CNN
October 2017

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