CR339
Disability

Could the complainant be considered totally disabled if she was capable of performing a part-time job only, and was she suited to the alternative occupations suggested by the Occupational Therapist?

Background

1. The complainant was employed as an Estate Agent (Manager) from 2005 until she was diagnosed with SLE (Systemic Lupus Erythematosis) in April 2007. Her complaints were related to her skin with painful lower limbs, she was intolerant of bright light and she suffered from itchiness of the skin. As a result of the severity of her illness she was completely housebound during the period between 2007 and mid-2009. In March 2009 she took up work with another company on a part-time basis but chose to work from home because of the increasingly debilitating effects of the SLE.

2. Pursuant to the above, the complainant submitted claims for occupational and capital disability benefits to the insurer on her various policies with them. Some of these policies provided her with occupational disability benefit cover and others with capital disability benefit cover.

3. The occupational disability benefits were defined as follows:

“A Occupational Disability Benefit claim will be admitted once (the insurer) has established:

• that the Life Assured is totally and permanently disabled and incapable of performing the duties of their own occupation, or of any other occupation which could reasonably be expected to follow, taking into account their education, previous training and work experience.”

And the capital disability benefits were defined as follows:
“A Capital Disability Benefit claim will be admitted once (the insurer) has established:

• that the Life Assured is totally and permanently disabled and incapable of performing the duties of their own occupation, or of any other occupation which they could reasonably be expected to follow, taking into account their education, previous training and work experience.”

4. Subsequent to the submission of the complainant’s claims, the insurer made an arrangement for her to be assessed by an occupational therapist (OT) in order to evaluate the extent of her disability. The OT considered a number of documents and made the following observations:

“The fact that (the complainant) is still working on a part-time basis indicates that she remains capable of performing the duties of an Estate Agent but with limited endurance to do so on a full-time basis. As an alternative to her current occupation as a part-time Estate Agent she would also be capable of managing an estate or letting agency albeit perhaps also on a part-time basis. This would allow her to work entirely indoors, which may in fact be more suitable than the job that she is doing currently, which requires her to spend some of her time outdoors.”

5. The OT also acknowledged that the condition of SLE had affected the complainant to some extent in all aspects of her life i.e. work, home, personal and emotional. She expressed the view that the cyclical nature of SLE would result in alternating periods of relapse and remission and the complainant would have to endure the effects of the condition and the possible progression of the disease for the rest of her life.

6. The insurer declined the complainant’s claim on the ground that she was still working and not totally and permanently disabled as defined in the policy documents. The complainant then lodged a complaint with our office questioning the conclusion reached by the OT and contended that she could not be exposed to sunlight and air conditioning environments.

Discussion

7. The matter was discussed at the meeting of adjudicators where the grounds relied upon by the insurer for the repudiation of the claims were considered. The meeting noted that SLE is a progressive disease, such that the complainant would probably qualify at some stage for the payment of the benefit. In view of the above a recommendation was made that the insurer should consider making an offer to pay a monthly income or a percentage of the benefits instead of the lump sum.

8. The insurer refused to do so, saying that the complainant’s occupation was that of an administration manager doing 100% administration. The insurer submitted that the complainant would be capable of performing a more office bound administrative job, one not requiring travel or exposure to bright light as per the occupation stated when applying for her policies. Moreover, the insurer averred that if they accede to the recommendation they would set a precedent that they could not sustain. They stated that there are products that insure against partial loss of income as a result of an illness or injury. These products, they claimed, were more expensive than the lump sum benefits, and the complainant had taken the cheaper option. As a result, they said, she did not qualify for a valid claim under her policies.

9. We noted that the insurer’s response was not entirely correct insofar as the complainant’s occupation was concerned. We pointed out that the complainant had a number of policies and there was only one policy in which her occupation was recorded as 100% administration.

Result

8. The insurer decided to accept liability towards the claims and payment was made accordingly.

NS
Feb 2013