CR355
Disability

Claim for disability benefit on psychiatric grounds declined by insurer – insurer not attaching sufficient weight to available evidence, and misdirecting enquiry to consider chronicity of condition, not required by the policy definition

Background

1. The complainant worked as a general manager for a car dealership. His duties included managing financial returns, staff and branding, and the experience required for the job included leadership and financial understanding. 60-70% of his work was administrative, and the rest of his time was spent with staff and customers.

2. In about 2002 the complainant was diagnosed with diabetes, hypertension and hypercholesterolaemia. By 2006 he was suffering from fatigue, related to poor control of his blood glucose. In 2011 he saw his doctor with symptoms of stress and anxiety and was started on medication for anxiety. A diabetes educator indicated that he struggled to control his blood sugar because he was under stress at work.

3. In 2011 the complainant’s employer submitted a claim for a total disability benefit on his behalf, against its group scheme policy. The employer claim form stated that he had stopped work in May 2011. According to the employer he was no longer able to handle the stress and responsibility of his title; he had become forgetful, staff showed him no respect, and he was not producing the financial return required by shareholders. In an attempt to accommodate him, the employer had transferred him to a smaller dealership in another town, but he had not improved.

4. The insurer declined the claim, on the grounds that episodes of hypoglycaemia could be managed and there was no objective evidence supporting disability.

5. A further claim was submitted some months later, with a report from a physician, who recommended that the complainant consult a psychiatrist and a psychologist. There was also a report from a psychiatrist whom he had consulted. The psychiatrist indicated a diagnosis of generalised anxiety disorder and major depression, which had become progressively worse over the previous two years. This had a negative effect on his cognitive functioning, and the psychiatrist was of the view that he had a poor prognosis, given his age. He was on treatment (anti-depressants, anxiolytics and sleeping tablets), but had not responded well.

6. The claim was again declined, on the grounds that there was limited objective evidence of a total inability to perform his occupation. The insurer was of the opinion that the symptoms related to changes at work, and that this was an employer-employee issue.

7. The claim was resubmitted with an occupational therapist (OT) report. The OT found that the complainant had poor concentration, poor memory, slow thought processes, poor motivational levels, high levels of depression, anxiety and irritation, frustration and aggression. She concluded that he was not able to cope with his job demands.

8. The insurer declined the claim for a third time, stating that the complainant’s hypertension and diabetes were reasonably well-controlled on medication, that there were no objective test results to support the reported cognitive impairment, that there was no evidence that the complainant had seen a psychologist (as recommended by the physician), and that he had only been seeing the psychiatrist for about three months when the psychiatrist reported that he was not responding to treatment. The insurer mentioned that ASISA guidelines on the management of psychiatric disability claims clearly state that “no specific psychiatric disorder is in itself an indication for permanent disablement”. The insurer also stated that a psychiatric disorder “can only be specified as chronic after the full criteria have been met continuously for at least the past two years”. In the insurer’s view there was a lack of objective evidence to support the complainant’s total disability, and it was not prepared to pay the benefit.

9. The complainant then lodged a complaint with our office.

Discussion

10. We examined the medical and other evidence, including the complainant’s job requirements, and considered the requirements of the policy. We then wrote to the insurer, raising several concerns.

11. The benefit for the first 24 months (after the expiry of a waiting period of three months) would be paid if it was determined that the insured member had been rendered totally incapable of engaging in his own occupation by injury or illness.

12. It was obvious that the complainant’s occupation had high cognitive demands. According to the employer these were not being met. The employer had tried to accommodate him, but the transfer to a smaller dealership had in some ways exacerbated his stress, as he had to travel a longer distance to get to work.

13. The insurer had made much of the fact that the complainant’s hypertension and blood glucose were controlled on treatment, and had emphasised that “the claimant needs to take responsibility for adhering to optimal medical management of his disease”. However, we were of the view that insufficient account had been taken of the particular pressures and stresses of the complainant’s occupation. The report of the diabetes educator indicated that the complainant was ‘conscientious in doing everything in his power to keep his blood sugar under control. He exercises on the Orbitrek regularly and his wife makes sure that his meals are healthy… He monitors his blood sugar regularly but still is unable to keep his blood sugar stable and controlled”. She pointed out that the complainant had tremendous stress at work and found it difficult to eat on time because of the nature of his work, which sometimes led to his experiencing hypoglycaemia. She had recommended a reduction in work stress. We pointed out to the insurer that transferring the complainant to a smaller dealership in an attempt to reduce his stress had not helped much. In our view this indicated that there was an inherent level of stress associated with the occupation of general manager, and a limit to the scope for reducing such stress.

14. The insurer had taken the view that there was limited objective evidence of the complainant’s psychiatric condition, and that three months treatment was too short a period. In our view the insurer had failed to take proper account of the psychiatrist’s remarks that “Late onset depression has a worse prognosis than early onset and treatment is usually more difficult and will have to be for life. Response to treatment also takes longer later in life”. The complainant’s age (62) should have been given due weight in the circumstances.

15. We also pointed out that the definition of disability in the policy did not require permanence (or chronicity) of a condition, but only that the member be “totally incapable of engaging in his own occupation”. In any event, latest approaches in assessing permanence of disability did not necessarily require adherence to a timeframe of two years treatment, the acceptable standard being that major depression, for example, could not be considered permanent until it had been shown that a reasonable attempt had been made by the claimant and his treating psychiatrist to comply with internationally accepted treatment guidelines, and that such treatment had proved unsuccessful. As stated however, permanence was not the issue in this case.

16. The psychiatrist’s opinion was that “Taking age, reason of onset into account as well as slow response, I am of the opinion that he is medically unfit to return to work and even if he responds reasonably well to treatment he will relapse on returning to work. The depressive episode has had an extremely negative impact on his self esteem, decision making and drive-energy in his post which required a high functioning self assured individual”.

17. The psychiatrist also stated that the depression and anxiety disorder had had a negative effect on the complainant’s cognitive mental functioning and memory, leading to impairment in judgement and processing of data in his work place, which in turn led to mistakes. According to the psychiatrist this worsened his depression and self esteem and ability to cope in a competitive working situation – “so-called ‘Burn out syndrome’”. The insurer had taken issue with the fact that there was no evidence of testing the complainant’s cognitive abilities. In our view the psychiatrist’s professional opinion that the complainant’s depression and anxiety disorder had had a negative effect on his cognitive functioning was a prima facie indication that this was so, and if the insurer wished to investigate this further it should arrange a neuropsychological testing and evaluation, at its own cost.

18. Our investigation revealed further that the complainant had continued treatment with his psychiatrist, seeing him regularly over a total of ten months, during which time the psychiatrist had booked him off work. In our view the fact that he did not consult a psychologist should not be regarded as adverse. It was not always appropriate to be treated by a psychologist as well as a psychiatrist. The complainant was under the regular care of a psychiatrist, who had presumably advised him as to how his condition should best be treated.

19. We put it to the insurer that the complainant had not worked for a year, having been certified unfit to work by his psychiatrist. This must carry considerable weight in an assessment as to whether he was totally incapable of engaging in his own occupation.

Result

20. After considering our letter, the insurer stated that it would like to refer the complainant, at its expense, to an independent psychiatrist for an opinion. We agreed that this was a reasonable proposal. An opinion from a doctor who is not treating the claimant is of considerable value in a disability assessment, and adds to the body of information available so that a fair decision can be taken. The complainant accepted this proposal as well.

21. The insurer arranged a consultation for the complainant with a psychiatrist of its choice. The psychiatrist delivered a report, concurring with the diagnosis of general anxiety disorder and major depression, and noting that the complainant’s symptoms had never been in remission. His mental state examination revealed mild to moderate impairment in concentration, short term/working memory, and executive functioning, with depressed, anxious and irritable mood. The medication he had been taking was well known and established, but he had not responded well to treatment. The perceived prognosis was poor, due to his poor response, age, underlying medical conditions and sustained work situation.

22. The insurer admitted the claim and immediately commenced paying the monthly income benefit.

SM
September 2014