CR383

Disability claim – mineworker – hearing loss

Group scheme claim lodged in 2017 – insured passed fitness examinations and worked on mine for ten years before being declared unfit because of hearing loss – insurer declining claim on basis insured was already unfit for his position when first employed by mine in 2007 – whether insurer declining liability was fair.

Background:

1. The complainant was employed as a miner in 2007 and became a member of the employer group scheme with the insurer.  He passed  fitness examinations and was declared “Fit” to work by the occupational health practitioner every year from 2007 until 2017.  He in fact did work for those ten years. 

2. The complainant had been compensated in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA) for some hearing loss in 2006, when he was working for another employer.  This compensation was based on a percentage disability (PD) of 11%, in turn based on a percentage hearing loss (PHL) of 17% and pure tone average of 27.5 dB (which became the baseline at his entry into the job in 2007).  His hearing remained relatively stable until 2016 when deterioration took place.  An audiology test dated 3 February 2017 confirmed a PHL at that stage of 27%.  At this point, after a 10% shift from baseline, the occupational health practitioner decided to declare him not fit to work, for his own protection against any further hearing loss.  He could not be accommodated in a less noisy setting and sought payment of a disability benefit. 

3. The insurer declined the disability claim.  The insurer stated that according to the minimum standards of fitness to work on a mine issued by the Department of Minerals and Energy, a person aged 40 and above (which the complainant was in 2007) should have a pure tone average of 25 dB or less on audiometric screening.  At 27.5 dB the complainant’s level was already over this limit, and he had even been compensated for hearing loss.  The insurer’s defence was therefore that, at the time when the complainant joined the scheme on employment in 2007, he was in fact already unfit to occupy the position as a miner. 

Discussion:

4. The disability definition in the policy read as follows:

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 Momentum, injury or illness has rendered him totally incapable of engaging in his Own Occupation during the first twenty-four months of disability.

5. A clause in the policy stated: 

For those medical conditions that both impact on the Member’s ability to perform his Own Occupation safely and are governed by the Mine Health and Safety Act of 1996 and the Occupational Health and Safety Act of 1993, the Date of Disablement will be the date that the occupational health practitioner determines the Member’s medical condition to be below the mandatory requirements applicable at that date. [my emphasis]

These conditions include and are limited to:

• Loss of vision
• Loss of hearing
• Epilepsy
• Cardiac function
• Insulin dependent diabetes; and
• Hypertension                  

6. We put it to the insurer that an employee may be compensated more than once in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA), depending on the injury/disease, and the level thereof.  Having been compensated does not in itself mean that an employee is prohibited from working.  Furthermore having been compensated cannot be seen in itself as an indication that the complainant was disabled as defined by the Momentum policy – he clearly was not totally incapable of engaging in his Own Occupation of a miner at that stage, as he did engage in it full-time for the next ten years.

7. We noted that the insurer did not appear to have requested proof of insurability at the time when the complainant became a member, and the insurer accepted premiums in respect of his disability cover for ten years.

8. We suggested that it was not for the insurer to decide after the fact (ten years later) that the complainant’s medical condition had been below the mandatory requirements at the date he commenced employment.    In terms of the policy, it is the occupational health practitioner, not the insurer, who must make the determination as to the date on which the member’s medical condition is below the mandatory requirements.  In this case the occupational health practitioner in fact certified the complainant fit to work in 2007, and each year until 2017, when the occupational health practitioner for the first time determined his medical condition to be below the mandatory requirements.

9. We examined the minimum fitness standards referred to by the insurer.  While the Department of Minerals and Energy Guideline for the Compilation of a Mandatory Code of Practice (“the Guideline”) indicated at clause 8.3.5.2.1 an audiometric standard for a person age 40 and above as “pure tone average of 25 Db  or less”, the same document also indicated at clause 8.4.1 that a discretion was afforded to the occupational health practitioner when determining fitness for work, taking into account such factors as the period of further exposure, the experience of the employee, personal protective equipment, supervision at work, etc.  An example was given at 8.4.1.3: “Where serious, permanent disablement could result, further exposure is undesirable thus eg an employee with more than 60Db average pure tone hearing loss (0,5 kHz, 1,2 and 3 kHz) is not fit to work in a noise zone at a mine”.  We pointed out to the insurer that 60Db pure tone hearing loss was considerably more than that suffered by the complainant. 

10. It was also stated at clause 8.4.1.7 that: “The OMP may consider declaring a person fit to continue working subject to certain conditions such as closer supervision and monitoring which may include reduction in exposure and more frequent medical surveillance”.

11. It was a matter of record that the complainant had been closely monitored by the occupational health practitioner at the mine, regularly received hearing loss counselling, and was compliant with the use of protective devices. 

12. It was also stated in the Guideline at clause 8.3 that “an OMP may apply more or less stringent standards depending on circumstances or risk assessment, at a specific mine.  For specific fitness requirements for job placement consult Annex 1. (Annex 1 must be complied with.)”   We noted that Annexure 1 “Schematic Guideline for Job Placement Evaluation” did not in fact make it clear, in respect of hearing, that a person may not work if they have the pure tone average hearing loss for different ages listed in Annexure 1.  The word “exclude”, employed for other conditions in Annexure 1, was not used in respect of hearing loss.

13. The South African Society of Occupational Medicine Guideline “Audiometry in the Workplace” (2011 Revision) stated at clause 6.11 that “Workers should preferably be removed from the noise area when their PLH is more than 15%, but definitely at more than or equal to 30%”. [my emphasis]  This underlined the use of discretion by the occupational medicine practitioner. 

14. In the context where the occupational medical practitioner had exercised a discretion to declare someone fit to work although he had mild (and compensable) hearing loss in 2007, and to continue to declare him fit annually until his hearing loss deteriorated to such a degree that he no longer considered him fit to work in 2017, we argued that it was unfair for the insurer to deny liability once disability and a date of disability had been determined by the occupational health practitioner to be in 2017, on the basis that the degree of hearing loss fell below a certain standard in 2007.

15. It appeared that it was the insurer’s argument that the employer/ occupational health practitioner should not have allowed the complainant to work, because of the level of his mild hearing loss in 2007.  The implication was that his recourse would thus be against his employer.  We stated that if that was the argument, the result was inequitable.  The complainant would clearly not be in a position to sue his employer for having employed him for the last ten years, and it was fanciful to suppose that the employer would agree to pay him a salary for the next four years now that he was considered disabled, despite having insured itself against such an eventuality. Having rendered service for ten years, with premiums having been paid to cover him for disability, the complainant would in all likelihood, despite being disabled, be without an income for the four years until his retirement date.

16. We stated our view that, taking into account all the factual circumstances and evidence, as well as considerations of equity, the claim should be paid.

Result:

17. The insurer agreed to pay the claim.