CR277
Disability

Disability claim – complainant a mine shift boss suffering from epilepsy – whether capable of engaging in an alternative occupation for which he was or could reasonably be expected to become qualified – settlement

Background

1. The complainant was a shift boss working underground on a platinum mine. On 7 May 2007 he suffered convulsions at work, and his employment was terminated on grounds of incapacity at the end of May 2007. He was diagnosed with primary generalised epilepsy, and despite treatment continued to suffer from seizures approximately twice a month. His neurologist stated that he could not continue to work underground or in any situation involving machinery, as a loss of consciousness would endanger his life or the lives of his colleagues. He was also not permitted to drive.

2. The group disability scheme policy which covered the complainant (for a lump sum benefit of three times annual salary) defined disability as:

“a condition in which, in the opinion of [the insurer], the eligible member has been so disabled by injury or disease as to be continuously, permanently and totally incapable of engaging for remuneration or profit in his own occupation or in another occupation for which he is or could reasonably be expected to become qualified by virtue of his knowledge, training, education, ability and experience.”

3. The insurer agreed that the complainant was permanently and totally incapable of engaging in his own occupation. The dispute revolved around whether he could engage in an alternative occupation for which he was or could reasonably be expected to become qualified.

4. The complainant had several mining qualifications and had worked on the mines all his working life from 1995 to 2007, save for the year 2004 when he was the co-owner of a motorcycle business. The insurer was of the view that he could work in a motorcycle business again, but the complainant maintained that he had not developed the necessary business skills and, as he could no longer drive, the sales and delivery type work he had done during his year in the business would be precluded.

5. After the complaint was lodged the insurer decided to send the complainant for an occupational therapist assessment. The report was not that helpful. The occupational therapist found that the complainant had functional capacity to work a full day and that he could work as a storekeeper/sales attendant in a motorcycle dealership; he could not recommend any other specific alternative occupations as his “evaluation [did] not include interest and aptitude testing”. The complainant’s attorney objected, stating that the complainant’s skills were far too industry and post specific to transfer to another occupation, that it was highly unlikely that the level of income attached to his post as a shift supervisor could be equalled in an occupation such as a sales attendant, and that his loss of employment had caused him financial difficulties which would make it impossible for him to obtain support/training.

6. The insurer then arranged an evaluation by an industrial psychologist, whose report indicated that the complainant had the aptitude, motivation, interest and some skills that would enable him, with the necessary support and retraining, to follow a different career path, such as running a motorcycle shop or working in internal sales and marketing positions or administrative positions in a technical field such as mining which he knew well. He badly wanted to work, and had the ability to learn new skills. However a number of factors were identified which would make it difficult for him to enter the labour market: no qualification in sales/marketing, administration or small business management; an inability to drive to clients which would reduce his opportunities in sales; employment equity; and lack of capital to start a motorcycle shop.

7. The insurer took the view that, with support and retraining, the complainant would be able to work in one of the alternative occupations suggested. The complainant’s representative argued that his dire financial position did not make retraining a viable option for him.

Discussion

8. Our office expressed the view to the insurer that an ex gratia settlement offer could be appropriate in this case. While there were many positive factors, as pointed out by the industrial psychologist, such as the complainant’s drive, motivation, aptitude, knowledge and experience, which would suggest that it was reasonable to expect him to become requalified, there were also negative factors suggesting that it was not reasonable. Having lost his job through no fault of his own he did not have sufficient financial resources to equip himself with the qualifications required to change his career path. A further factor was the time that would have to be expended on retraining, and the further time needed to build up sufficient experience if he were to earn a salary at the same level as in his previous job. The fact that he could not drive also limited his occupation options.

Result

9. The insurer eventually offered to pay the complainant an ex gratia amount of R50 000 to assist him with the costs of retraining and reskilling. This amount was in line with the amount payable in schemes which had a rehabilitation benefit (the complainant’s scheme did not). The complainant accepted the offer.

SM
October 2009
LASP Fouche/Metropolitan 2008/BG/2658