CR391 – Alleged misrepresentation of allocation of duties

A. Background:

  1. When Mr V, a self-employed builder, with three labour assistants, applied for his policy he stated his occupation as “Construction”.
  2. He allocated his tasks as follows in the application:
    • Admin – 40%
    • Manual labour – 40%
    • Supervision (manual labour) – 10%
    • Travel – 10%
  3. The policy was approved, covering life, comprehensive disability and comprehensive critical illness.
  4. One evening, about six weeks after the inception date of the policy, a neighbour asked Mr V if he would assist her to gain access to her house as she had locked her keys inside. He assisted her and upon leaving her house, her dog, a boerboel, bit him in the left lower limb and ankle.
  5. The medical reports showed that as three vital nerves were wholly severed, with “unquestionable severe traumatic neuropathy” and “serious trauma induced disability” said to be “irreversible”, Mr V was deemed permanently unable to follow his own occupation as a builder. Both the occupational therapist and the specialist vascular surgeon found that he was totally and permanently medically incapacitated to continue to work as a builder. Because of the low temperature of the affected limb and other test results, it had been assessed that he suffered from unbearable pain (and it is not only self-reporting), taking various pain relief treatments up to eight times a day. The specialist recommended amputation below the knee as soon as he lost about 40kg. Mr V also consequently suffered from depression, anxiety and fear of dogs.
  6. The disability benefit covers own occupation or any other occupation as well as impairment, that is, loss of or loss of the use of a limb or foot. The critical illness benefit covers loss of or the loss of the use of a limb.
  7. The insurer declined the claim on the basis of alleged misrepresentation of duties at application.
  8. Intheclaimformtheclaimantisrequestedtoallocatepercentagestocertaintaskstotalling 100%. The duties, other than manual, do not include administration or supervision, only “prolonged travelling”, “prolonged sitting” and “computing”. Mr V made the allocations within the framework of the functions mentioned on the claim form and the insurer responded that his duties now indicated 80% manual, contrary to the allocation of 40% in the application form.
  9. Mr V replied as follows:
    • It is so that he performed much of the manual duties himself, as his competitive edge in his home town was that he was a hands-on builder, working along his assistants, but it was impossible to be totally accurate as “each week brings its own new challenges”. He mainly did renovation of properties.
    • A year after the application of the policy his adviser suggested that he increases the manual component to 60%. At that time, although he struggled with his leg, he was still hoping that it would recover from the bite as he was undergoing treatment. As he was self-employed, he continued to work after the accident, to best provide an income for his family.
    • As his home town experiences very cold winters, up to – 6 degrees, they cannot do building, tiling, plumbing etc in winter. People do not employ him and his team as it is bitterly cold and workers moving in and out of homes add to the cold. Thus in the winter months he did a lot of his administration, sourcing materials, doing quotes, his accounts, planning etc.
    • When he completed the application form, the adviser stated that he must allocate percentages of his overall duties, averaging over a year. He noted that the supervisory duty refers to manual work, thus with the allocation of 10% to it and 40% to manual labour, it was his view that it accurately reflected his duties, spread over the year and taking the quiet winter months into account.
    • He said that he is just a normal person, with no insurance experience, and he completed the forms as best as he could and how he understood the requirements.
    • He did not ask to be bitten by a dog, rendering him incapable of performing his core duties as a builder, at a very young age, and he felt aggrieved that the insurer now denied disability cover based on his honest allocation of duties and that the disability claim was therefore also declined.
    • It was his view that the insurer did not ask the occupational therapist to assess impairment or the loss of the use of his leg – only the disability aspect. This may be because the insurer had indicated that its view was that he would recover the full use of his leg.
  10. The insurer advised that the percentage allocations, submitted by Mr V, of the manual duties varied in that the application reflected 40%, thereafter the policy was amended to reflect 60% manual and the claim form showed manual duties as 80%. The insurer advised him that they do not offer disability cover if the percentage allocation for manual duties is higher than 60% and the disability claim could not succeed and there had not been evidence at that stage that he had permanent loss of the use of his leg.
  11. Mr V approached this office and it was decided at an adjudicators’ meeting that a hearing be held with Mr V and the insurer. Before the claim could be addressed, it was important to establish if there had been misrepresentation of duties and whether the insurer could deny cover based on it.

B. Hearing

  1. Mr V arrived at the hearing, with a medical kit as he required injections into the leg regularly to relieve the pain and also with invoices of many years, meticulously setting out the client’s name, contact details, dates, work done and costs charged. He explained the work and physical component of it that he had performed, where he supervised, what administration was required, what travelling he had done and what his assistants’ duties were. He also explained that much of the supervision is done by him manually showing the assistants what was required. He added that being a large man, there was work that he physically was not able to do, such as climbing onto roofs and into confined spaces and where the assistants would take over. As the assistants became more efficient, he could divide his time on running the business but he was generally very much hands on.
  2. Mr V pointed out that the application form and the claim form do not refer to the various duties in the same manner and he reasonably completed these forms in view of his varied duties and how these fluctuate over a period in accordance with workload, weather conditions and his capabilities based on the type of work the client required. He noted that the percentage allocation request in the claim form does not cover the administration duties and as he had to allocate percentages up to a total of 100%, there is an explanation of the presumably skewed view of his duties in relation to the percentages allocated in the application form.
  3. The insurer had an opportunity to address some issues with Mr V at the hearing. The insurer explained that it was dependent on the applicant to provide accurate information to properly assess the risk and that the allocation of percentages to the various duties was of utmost importance to apply underwriting principles but concurred that variances existed in the type of work that Mr V performed as a self-employed person in construction and hence the allocations.
  4. Itwasthisoffice’sviewthatMrVhadprovidedasatisfactoryexplanationofhisduties, and with supporting documents on the work, he showed there had not been any intention to mislead the insurer and that in the instance of a self-employed manually- based occupation there may reasonably be variances of tasks over a period.

C. Conclusion

The insurer responded promptly after the hearing stating that they accepted that the declaration of tasks at claim stage was incorrect and the disclosure of the tasks at application was correct. They found that he had reflected the tasks of his business as a whole instead of focusing on his own particular tasks only, and that Mr V did not

misrepresent his duties in view of the explanations put forward by him at the hearing. With application of the reasonable man test, it was concurred that he had reflected his duties as accurately as possible and to the best of his ability. His disability claim was assessed by the insurer in accordance with the definition of disability and approved.