CR71

Disability claim – insurer declined on basis of alternative occupation – is the suggested alternative occupation reasonable?

Background

The complainant had been a life-guard for some 21 years, but suffered from two medical problems which had a negative influence on this condition, namely a lung as well as a back problem. His lung problem had started in 1987 which the complainant had described as “the lung pops” which was actually five spontaneous pneumothoraces. He had been treated for this problem and in February 2002 surgery was performed by a thoracic surgeon. The problem was not resolved as he still experienced feelings of intense pain and breathes with difficulty.

His back problem started in 1997 when he was injured by a wave. He initially consulted his general practitioner who had treated him conservatively, but when the pain persisted he referred him to a neuro-surgeon, who diagnosed mechanical back pain with right leg pain. He recommended rehabilitation and that the complainant discontinue craft rescues. He was advised to swim more to improve his endurance in order to do rescue by swimming instead of by craft, but due to the lung operation, which affected his breathing, the swimming became difficult.

His lung and back problems lead to his employer retiring him due to permanent ill-health on 30 June 2003.

The complainant was a member of a group insurance scheme, which included a lump sum disability benefit. He lodged a claim with the insurer for payment of the disability benefit. The insurer declined the claim based on the contractual definition of disability which required that the complainant had to be totally and permanently disabled from carrying out his own occupation or any other occupation which he could reasonably be expected to follow, taken into account his age, education, training, knowledge, status, ability or experience. Whilst acknowledging that the complainant had a confirmed disabling medical condition , the insurer had concluded that there was no evidence to support the fact that his medical condition could prevent him from performing a sedentary type of occupation.

The complainant referred the matter to our office for assistance.

Assessment

Following enquiries from our office, the insurer confirmed its initial decisition to decline the claim. The insurer had considered the medical evidence as contained in the different medical reports concerning the complainant’s condition and alleged that both the neuro-surgeon and the bio-kinetikus, who had treated the complainant, had not considered the complainant totally prevented from performing functions that would enable him to generate an income. Their recommendations had merely been that the complainant was to avoid strenuous and heavy impact physical components of his occupation which would aggravate his pain. The insurer expressed the opinion that as a senior life guard the complainant would have had administrative responsibilities and given his background and education, he could be utilised in an alternative occupation where the jarring motion of a speedboat on the sea would not be required. The insurer suggested that the complainant explore a reasonable alternative occupation, sedentary in nature as there was no clinical evidence to support total and permanent disability.

We reminded the insurer that, from the statement of claimant form lodged by the complainant, the educational details and work experience were indicated as having passed standard 8 (grade 10) and tertiary education at a Technical College for a period of three months where he attempted to obtain qualifications as an elevator mechanic. He, however, failed the trade test and subsequently had not completed a course to qualify as a can maker. Furthermore, he did not have a driver’s licence as he froze behind the steering wheel when attempting to drive. His previous employment history prior to becoming a lifeguard was also limited and we therefore requested the insurer to specify which alternative occupations it suggested the client could perform and also requested it to motivate its reply.

The insurer subsequently arranged for the complainant to be examined by an orthopeadic specialist and dependent on his evaluation, the insurer would consider sending the complainant for an extended occupational evaluation.

The complainant was subsequently examined by both the orthopeadic surgeon as well as an occupational therapist and following receipt of their resports, the insurer again declined the complainant’s claim. The insurer decided, having taken cognisance of all the medical information on file, that the complainant clearly was not considered totally prevented from performing functions, less physical in nature than his previous occupation as a lifeguard, which would enable him to generate an income. The insurer expressed the opinion that the complainant was able to return to the open labour market given his educational background, age, training and knowledge.

After perusal of the reports from the orthopeadic specialist and the occupational therapist, we advised the insurer that we shared its view that the complainant could no longer be a lifeguard. We requested the insurer to provide us with full details/analysis of the suggested alternative occupations that it expected the complainant to follow, taking into account his education, age, training and knowledge. We also requested the insurer to confirm that the complainant was capable to meet the requirements.

The insurer responded by suggesting alternative occupations to include environmental safety, a traning instructor (not at sea), teaching water safety and first aid to children or adults at a municipal swimming pool which is a calmer environment, public relations officer or an administrative officer within those departments concerned with recreation. Referring to the occupational therapist’s report, the insurer suggested further that it would not be unreasonable to expect the complainant to perform functions such as office duties, answering the telephone or any other duty requiring basic communication skills. The insurer suggested that in this environment the complainant would be able to utilise his experience, training and knowledge gained whilst working as a lifeguard. He would also be able to alternate between sitting, standing and walking. The occupational therapist also suggested that the complainant consider employment in a surfing shop as in that environment he would be able to apply his knowledge and training. He would be able to share his knowledge, experience and training in things like surfer clothing items, rubber ducks and other equipment used by surfers and lifeguards in particular.

We responded by reminding the insurer of certain aspects which had been raised previously, namely the limited education and training which the complainant had had, other than his lifeguard duties and we also referred the insurer specifically to the occupational therapist’s report where she had referred to alternative occupations. She had investigated various alternative possibilities and found that in most of them, the complainant had lacked the training as he had never worked in such an environment. She found also that if he was to get employment as a cashier or serving clients in a shop environment, it had to be borne in mind that the complainant had never done anything like that and we therefore rejected the suggestion that the complainant be employed as an assistant in a surf shop.

Result

At an adjudication meeting presided over by Mr Justice PM Nienaber it was unanimously decided that since it had not been conclusively shown that the complainant had the ability to perform the suggested alternative occupation, taking into account his age, education, training, knowledge, status, ability or experience, that the insurer should meet the claim. We so duly advised the insurer of our provisional ruling and gave the insurer a further opportunity to advise why the ruling should not be made final.

The insurer accepted that provisional ruling and advised that it was proceeding with the payment of the disability claim.

HE October 2005