CR271

Non-disclosure – bipolar mood disorder – dispute about whether diagnosed before inception of the policy – onus on insurer.

BACKGROUND

Through her employment the complainant was a policyholder in a group scheme for which she was covered inter alia for permanent disability. The policy’s inception date had been in November 1995, and it was more than seven years later, in March 2003, that she became unable to work any further. When she then lodged a claim under the policy, for which she was at all times represented by her husband, the cause of her disability was stated to be bipolar mood disorder.

There was no dispute about her condition and the fact that she was permanently and totally disabled. The insurer denied liability, however, on the ground that when taking out the policy in 1995 the complainant failed to disclose that she had been treated for, and was suffering from, the very disorder that in 2003 caused her disablement. Its stance was that although it would have been prepared to issue a policy had a proper disclosure been made in that regard, it would have done so on “very different terms”, and would in particular have excluded all disability cover.

DISCUSSION

In alleging the non-disclosure the insurer was unable due to the passage of time, however, to find and therefore to produce the application that had been filled out by the complainant when she proposed the insurance in 1995.

The insurer’s allegation that there had been non-disclosure was based instead on what it contended must be deduced from the information contained in the various documents attached to the claim when it was lodged with the insurer in February 2007. In this regard the doctor who signed the medical report, Dr V, stated therein that her condition was bipolar disorder and in answer to the question when it had been diagnosed said that it was in 1998. In the section of the claim signed by the complainant’s husband on her behalf her husband stated, however, in answer to the question when it had been diagnosed, that it was in September 1989. The insurer claimed that these answers were sufficient to prove that the diagnosis of bipolar mood disorder had been made prior to the inception date of the policy in September 1995, in particular in 1989.

When the complainant’s husband’s attention was drawn to his answer in the claim form that “the condition” had been diagnosed in 1989, he responded by denying the accuracy of that statement, and by confirming Dr V’s statement that the symptoms had started in 1998. He added that although the complainant had consulted a Dr J in 1989, it had been for no more than depression and stress.

The view of the office was that although the complainant had been treated for depression and stress by Dr J in 1989, all that could be deduced therefrom was that the complainant had had symptoms of what was possibly some or other mental disorder at that stage. There was no indication, however, as to how serious those symptoms had been and there was certainly no indication that she had been diagnosed with bipolar mood disorder at that stage. Such a disorder could also not be deduced, furthermore, from the manner in which the complainant’s claim form had been filled in. The relevant answer on the form signed by her husband might well have been the result of his mistaken understanding of the term “diagnosis”. The year, which at best must have been an estimation, did not in any event accord with the year 1998 furnished by Dr V as being the date on which the diagnosis had been made, and which was more likely to have been the accurate date. According to Dr V, the symptoms of bipolar mood disorder had only commenced in 1998, and he had first seen her for that condition in 2003.

The office invited the complainant’s husband to provide further details about the consultation with Dr J in 1989, but hardly surprisingly he was unable to do so.

CONCLUSION

In all of the circumstances the office’s provisional ruling was that there was insufficient on which to conclude on a balance of probability that the condition of bipolar mood disorder had been known to the complainant when she applied for insurance in 1995, if indeed it had ever been diagnosed before then.

Despite a further search, the insurer remained unable to trace the application form or itself to make contact with Dr J. In the circumstances the insurer accepted the provisional ruling, and duly paid the claim.

SM
January 2009