CR275
Disability
Total temporary disability – whether the complainant can be considered totally temporarily disabled from performing her own occupation if her problematic reactions are triggered mainly at her workplace.
Background
The complainant worked as a receptionist and her duties entailed switchboard duties, ad hoc typing of documents, receiving visitors and directing them to the relevant person, and the administration and co-ordination of the overnight bag. The job required continuous concentration, communication and memory, and occasional planning, problem solving, decision making and calculations.
In early 2004 she started experiencing numerous symptoms when she was at work which comprised a burning, tight chest; burning throat resulting in hoarseness at times; a full feeling coming up from the stomach; a “heavy” feeling in the lungs; itching, dry and blotchy skin; a “soda-like” taste in the mouth; poor memory; and lethargy, backache and pain in the arms, legs, flank and right posterior chest.
After she had consulted a medical practitioner for an unrelated condition in April 2004 she subsequently reported health problems at work which were suspected to be due to environmental pollution and resulted in her suffering from hay-fever, headaches and sore throats. During July 2004 she consulted another medical practitioner for a “wide variety of complaints”. The practitioner could not detect any significant clinical abnormalities which could suggest that the symptoms were due to occupational exposure.
When the complainant continued to experience the symptoms at work, the employer recommended that she submit an application for disability benefits in accordance with the Compensation for Occupational Injuries & Diseases Act (COIDA). The medical practitioner who examined her for the purpose of preparing a report in terms of COIDA visited the complainant’s workplace, conducted an assessment and interviewed four of the seven employees working there who had complained of experiencing similar symptoms. He thereupon concluded that the complainant had “sick building syndrome” with a possibility of multiple chemical sensitivity due to the gases and fumes emanating from the different buildings. He recommended that she be booked off from work for a month, with a plan to remove her from the building after her return to work.
The complainant was again examined, this time by yet another medical practitioner, on 27 October 2005. He noted her major complaints as being pain in the right posterior chest and flank; wrist pain; poor memory; inability to cope with day-to-day activities and lethargy.
He noted non-specific abdominal tenderness; pain/tenderness in the region of the right scapula resulting in limitation of movement of the right arm, and a few mild papules around the chin and mouth. He recommended that since the symptoms were triggered in the workplace, the complainant should be booked off work.
As the complainant continued to experience the symptoms already referred to, a number of which related to the respiratory tract and skin, she again consulted the medical practitioner during November 2005, who recorded that she had reported that she felt better when she was at home on leave although the pain persisted, and that the symptoms were triggered by specific production activities upon her return to work. His conclusion was that at that point there was no unifying diagnosis, but that her condition was compatible with the multiple chemical sensitivity syndrome. Because there was an occupational trigger for her symptoms, he recommended inter alia that an appropriate adjustment or accommodation be made at her work. As accommodation had apparently been tried at work with no success, he thereupon booked her off for 3 months on temporary disability under COIDA and referred her for a psychiatric assessment.
The psychiatrist who examined the complainant during November 2005 noted that in addition to the back pain, mucous membrane symptoms and muscular spasms, she complained of persistent lethargy, amotivation, lack of enjoyment and decreased interests despite being off work over the previous 2 to 3 months. He also noted that she was in great panic about her somatic symptoms and had a hypochondrial fear that she might be suffering from a cancer that had yet to be identified. He agreed with the assessment of chemical sensitivity syndrome and fibromyalgic symptoms, and concluded that she definitely warranted treatment for depression.
During January 2006 a further assessment for the purposes of COIDA was done, and the doctor came to the opinion that little would be gained by the complainant’s return to work at that stage as it was likely that her ill health complaints would make it difficult for her to meet her job requirements. He put her off work again for a further month and suggested that the prospect of permanent disablement for her current work, at least in her present state, be considered. His concluding view was that this “is a complicated case and it is unlikely to admit of a single unifying diagnosis”.
The complainant thereupon submitted a claim for a temporary total disability benefit against the group temporary disability income assurance policy. Clause 3.6.1 of the policy provided as follows in this regard:
“A Member shall be regarded as Disabled and entitled to his Benefit as from the expiry of the Waiting Period if, in the reasonable opinion of the insurer, injury or illness has rendered him totally incapable of engaging in his Own Occupation”.
The insurer repudiated the claim on the grounds that while she was incapable of performing the occupation of a receptionist at the particular workplace where she was employed, she had not been rendered totally incapable of engaging in her own occupation at different premises or with a different employer.
She approached our office for assistance.
Discussion
In assessing the case, we considered the medical evidence all of which was to the effect that most, if not all, of the complainant’s reactions were triggered at the workplace, at the particular premises at which she worked. There was no doubt that they significantly interfered with the claimant’s ability to perform her duties at the particular building where she was employed. There was no indication, however, that due to her condition she had been rendered totally incapable of performing her own occupation anywhere else. In addition to the medical evidence, we also took into account the statement of the HR Manager at the complainant’s workplace who, in completing the job description questionnaire on 30 September 2005, opined that the claimant was capable of performing the occupation of a receptionist or telesales agent in a different building.
Result
We issued a provisional ruling upholding the insurer’s decision to repudiate the claim. As no additional submissions or information were received from the complainant within the period set out in the provisional ruling, the provisional ruling subsequently became final.
CNN
October 2009
