CR279
Evidence
Permanent incapacity benefit – insurer failing to advise at claim stage that enhanced benefit payable if disability caused by an accident – whether complainant prejudiced by insurer’s failure – whether evidence proved on balance of probabilities that stroke due to accident – medical evidence.
Background
The complainant, an advocate, had been with his family on a skiing holiday in Austria when he fell heavily on his coccyx on hard ice. He felt pain at the site and also in his neck. He remembered noticing his right foot troubling him either the same day or the next day but thought nothing of it at the time. The next day he stayed in his hotel room and that night at dinner his right arm and hand became clumsy and he could not feed himself. His wife called an ambulance and he was taken unconscious to a clinic, where he was diagnosed as having had a stroke. He had cognitive impairment and has been unable to speak fluently ever since. The insurer commenced paying him a total permanent incapacity benefit.
Some nine years later a representative of the insurer happened to mention to the complainant’s wife that if the claim had been accident-related, considerably better benefits would have been paid. The complainant and his wife, assisted by a friend of his, then submitted a claim for the increased benefits, on the basis that their understanding had always been that the stroke was caused by the fall, which was an accident. A neurologist report was submitted, stating that the history appeared typical of a post-traumatic stroke.
The insurer at first pleaded prescription but the complainant pointed out that he had been mentally incapacitated by the stroke, and that prescription does not run against such persons. The insurer agreed to consider the claim on receipt of additional information. It thereafter declined to pay the increased benefits.
Discussion
The two points for decision were:
(i) whether the claim for increased benefits, on the grounds that the claim allegedly arose from an accident, was correctly rejected as unproven on a balance of probabilities; and
(ii) whether the insurer was not responsible for the fact that the claim was initially processed as non-accidental, having allegedly failed at the time of the claim to advise the complainant (or his wife) of the contractual provision for increased benefits, given that his wife all along maintained that the claim was due to an accident and that the complainant was not in a fit state to speak for himself; and whether he had not thus been materially prejudiced in his ability to prove the validity of his claim by the elapse of time since the stroke.
The first aspect
Unfortunately the initial radiological scans and cerebral angiograms taken at the clinic in Austria could no longer be located, although the radiologist’s reports were found. The only other evidence from the time of the accident was the clinic’s report, written by the head of the neurology unit. This report concluded that the complainant had suffered from an intracranial haemorrhage. The report also mentioned that the complainant had had 5 beers and 6 schnapps the evening before, which could have contributed as a risk factor for intracranial haemorrhage. The insurer’s medical team pointed out that, while cerebral arterial dissection from trauma could cause an ischaemic stroke, a haemorrhagic stroke involved an active bleeding into the brain, which could not have been caused by the fall onto his coccyx.
The complainant then furnished a report from a professor of neurology. This report reviewed all the information and also discussed the mechanisms of stroke following traumatic extracranial carotid or vertebral artery dissection, which leads to a clot travelling into the cerebral circulation to block off a blood vessel in the brain (an ischaemic stroke). According to the professor this has a characteristic appearance on the scan, different to that of an intracranial haemorrhage. He also looked at the possibility that the fall had caused a delayed intracranial haemorrhage, via trauma to the head, but concluded that, while possible, this was unlikely in the absence of any other evidence of brain contusion and the 26 hour delay between the fall and the symptoms of intracranial haemorrhage. He concluded that the complainant had not sustained a traumatic dissection of his carotid artery following the skiing accident.
The complainant pointed out that, in coming to his conclusion, the professor had taken into account the clinic report’s mention of the 5 beers and 6 schnapps. According to the complainant and his wife, however, this was “lost in translation”, as he had actually only had 5 or 6 drinks, beer and schnapps. Furthermore the professor had referred to the complainant’s loss of control of his foot, which was apparent before the onset of obvious neurological symptoms the next evening, as being a transient symptom, whereas the complainant maintained that his foot symptoms troubled him continuously after the fall and were not transient.
Our office considered all the evidence and decided to seek a further expert opinion from another professor of neurology, who was senior to the first one. He was asked to review the case, and to comment specifically on the “wrong assumptions” which the complainant maintained the first professor had made.
The senior professor stated that the alcohol issue was not relevant in this case, as the recognised increase of cerebral haemorrhage is in persons with high chronic daily intake of alcohol, and there was no evidence that this applied to the complainant. He also dismissed the foot issue. It was irrelevant, he said, in attempting to determine the nature of the stroke, as it did not appear that the complainant’s difficulties with his foot were apparent immediately after the fall. In fact it appeared that immediately after the fall there were no neurological symptoms of weakness.
The senior professor also agreed with the first that one must assume the accuracy of the radiologist’s interpretations of the scans as showing a large cerebral haemorrhage in the basal ganglia region of the left cerebral hemisphere. He agreed that traumatic dissection of the carotid or vertebral arteries does not result in such an intracerebral haemorrhage, and that the evidence did not support a finding of delayed post-traumatic haemorrhage (in which the brain is contused at the moment of injury).
In the senior professor’s view the most probable explanation for the stroke was a spontaneous cerebral haemorrhage, unrelated to the fall. He stated that “the temporal relationship between the fall and the stroke is not sufficient grounds for connecting the two in the absence of a clinically likely mechanism”. He dismissed the only other possibility, that pain and distress from the fall caused a rise in blood pressure which resulted in cerebral haemorrhage, as being “an outside possibility which I cannot regard as probable”.
Taking all the evidence into account, the view of the office was that, on a balance of probabilities, the stroke had not been caused by the accident.
The second aspect
The second aspect for decision was whether the complainant had been prejudiced by the fact that at the time of claim the insurer had not advised him of the greater benefits available if the claim was proved to be accidental, the resulting considerable delay having made it impossible for him to present better facts.
The difficulty here was that in order to show prejudice he would have had to show, on a balance of probabilities, that if he or his wife had been informed at the outset of the increased benefit for claims arising from an accident, he would have been able to prove that his claim arose from an accident and that he would therefore have qualified for the increased benefits. In other words, he would have had to show that the further evidence he would have been able to present, such as the actual scans taken at the Austrian clinic, would have been likely to indicate that the stroke was caused by the accident. If such further evidence (the “better facts” he referred to) would have been unlikely to indicate this then the prejudice could not be established.
Even if it could be said that the insurer had had a duty to inform his wife that he could submit the claim to be assessed as accident-related, it would nevertheless appear to be more probable than not that the direct evidence of the scans and the testimony of the staff at the clinic would have confirmed the facts indicated by the scan reports and the recorded medical history, and therefore also the findings of the two professors, as well as the head of neurology clinic in Austria. There was no reason to believe that the scan reports did not accurately describe what the scans themselves indicated. The head of the clinic neurological unit who wrote the report had been aware of the skiing accident, but noted that the complainant did not lose consciousness, did not complain of headaches and did not vomit at the time of the accident. His diagnosis too was of a spontaneous intracererbral haemotoma.
Result
The office made a provisional ruling that on a balance of probabilities the stroke was not caused by an accident, and the claim for higher benefits had been correctly rejected by the insurer; further, that the missing facts would not, on a balance of probabilities, have assisted him and that therefore he had not shown that he had been prejudiced by any failure of the insurer to advise him to submit the claim as accident-related.
The complainant accepted the provisional ruling.
SM
October 2009
