CR13
Disability claim – total permanent disability – elements of definition – interpretation of word “suited” in definition
The complainant, a bus driver, suffered a gunshot wound. As a result his left leg was amputated above the knee, and he now wears a prosthesis. He was dismissed from his employment on grounds of incapacity, and has not worked since. He had cover in terms of a group insurance scheme arranged by the company which gave him a housing loan.
The definition of disability in the policy is as follows:
“A life assured shall be regarded as totally and permanently disabled if in the opinion of the insurer, he has been so disabled by injury or illness as to be continuously, permanently and totally incapable of engaging for remuneration or profit (a) in his own occupation, or (b) in any other suited occupation for which he is or could reasonably be expected to become qualified by his knowledge, training, education, ability and experience.”.
An Occupational Therapist (“OT”) who assessed the complainant reported a number of ongoing physical limitations and pain, and stated her opinion that he was totally and permanently compromised for his occupation as a bus driver. However she was of the view that he had the potential for retraining for semi-skilled, sedentary occupations to which he would be suited, such as machine operator.
The insurer pointed out that the housing loan company which arranged the group insurance had selected cheaper cover with a stricter than usual definition of disability. The insurer accepted that the complainant could not perform his own occupation as a bus driver. However it applied criteria in the Dictionary of Occupational Titles and concluded that there were many types of “light work” machine operator jobs (28 examples were listed) for which, with reference to the definition wording, it could reasonably be expected that the complainant could become qualified. It could also reasonably be expected that he develop the necessary physical capacity through a vocational rehabilitation programme. He had even done some machine operator work for a period before, in the early 1980’s. The insurer maintained that on the evidence he was not permanently incapable of performing an alternative occupation, and rejected the claim.
The Ombudsman’s office took the view that “any other suited occupation” must be interpreted to refer to an occupation in which a person of the insured’s level of knowledge, training, education, ability and experience could engage, but which a person of lesser knowledge, training, education, ability and experience would not be able to follow – in other words it is not referring to an occupation at a lower level. It would be unreasonable to hold that the insured fell outside the requirements of the definition, on the grounds that he was capable of engaging in some job at a lower level than the job he previously held.
The complainant’s work history, as outlined in the OT report, indicated that over the 22 years of his working life he had gradually bettered himself and his prospects. Starting out as a handyman, he later became a machine operator, which would have involved some specific training. Thereafter he left for “better prospects” to become a truck driver; this would have involved the training needed to obtain a specific licence. After five years he obtained a bus driver’s job, which came with improved benefits, and he gained experience and salary increases by working in this position for eight years. To expect the complainant to work as a machine operator at this stage, or to start out in some other form of semi-skilled sedentary work, would be to expect him to work at a lower level than at the time of his disablement, in an occupation which cannot be seen as another suited occupation.
The definition also envisages the possibility of further training: to be considered disabled, the insured must be incapable of engaging in any other suited occupation for which he could reasonably be expected to become qualified. However this must imply that any further training would be towards the end of qualifying him for a job at the same level as the one he is incapable of performing (“own occupation”), or a higher level, but not a lower level.
The amputation of the complainant’s leg above the knee had left him considerably impaired, with a reduced range of movement, pain, muscle weakness, poor dynamic balance, reduced physical and mental stamina and an inability to tolerate prolonged sitting without discomfort. He could not drive, or even use public transport without the help of an attendant. His level of education was not high (standard 7) and his literacy and numeracy skills were average or below average. All these factors would strongly indicate that the complainant was not able to perform his own or any other suited occupation, nor could he reasonably be expected to become qualified for a suited occupation, taking into account his knowledge, training, education, ability and experience.
It did not seem on a balance of probabilities that the complainant was capable of working full-time in light physical work. In any event whether he could perform any alternative occupation was not the test engendered by the definition; the insured should be regarded as totally and permanently disabled if he could not do his own or any suited occupation, at the same level. The Ombudsman’s office made a provisional ruling that the claim should be admitted and paid, and the insurer thereafter admitted the claim.
SM
