CR72

Disability claim – whether complainant can be considered totally disabled if he is capable of performing a part-time occupation only.

Background

The complainant worked as a hospital senior administrative officer performing supervisory and administrative/clerical work. He developed sciatica (myositis ossificans affecting the sciatic nerve) manifesting as severe right leg pain and numbness, described by the neurologist who treated him as “inoperable and incapacitating”.

The complainant alleged that he was unable to sit for long periods due to pain in the right thigh and when he was working he frequently had to leave work early as pain became unbearable. He was repeatedly absent from work, as confirmed by the report of his supervisor. He reported pain and difficulty when driving, getting into and out of a bath and fastening his shoes. He stated further that he suffered from sexual disfunction and that his participation in household duties was considerably reduced. He was forced to take pain killers on a daily basis. He had last attended work at the hospital were he was employed in February 2002 and he was medically boarded with effect from 1 March 2004.

The complainant had a loan protection policy with the insurer and in February 2004 he submitted a disability claim. The policy had a disablement provision defining occupational disablement as

“injuries to or illness of the insured person that result in his permanent disablement for a continuous period of more than six calendar months from following his usual occupation or any other that he may reasonably expect to follow having mind of his education, training, knowledge, ability and age”.

In order to assess the extent of the complainant’s disability the insurer arranged for an assessment by an occupational therapist. She concluded that there were pain management, ergonomic and psychological interventions that could be made, but that even so the complainant could probably only work in a reduced capacity, ie a part-time position.

The insurer repudiated the complainant’s claim for disability on the grounds that he was not incapable of working. The complainant approached our office for assistance.

Discussion

In assessing this case we took into consideration the occupational therapist’s view that the complainant was essentially not in a position to carry out a full day’s work but could perform sedentary work in a reduced capacity e.g. part-time work with appropriate accommodations. We forwarded to the insurer an opinion by Prof. Richard Christie QC with regard to a different case where, although the facts were not identical, the issue of part-time or reduced capacity was raised. We took the view that the general principles as espoused by Prof. Christie were applicable in this case. We suggested that the question to be answered by the insurer was

“whether in normal times and most places an employer would consider the complainant capable of playing a worthwhile part in the conduct of the employer’s business by performing the complainant’s substantial and material clerical duties with reasonable and substantial regularity and continuity and whether the employer would pay more than would amount to a mere nominal gain or profit”.

We stated our view that in this case it was likely that the market place would reject the complainant in the circumstances of his functional impairment and reduced capacity, and we requested that the insurer reconsider its repudiation of the claim.

Following receipt of our letter on 29 November 2004 the insurer advised us by e-mail that it had reviewed the claim and had concluded that the complainant should be considered disabled. The insurer therefore agreed to pay the claim. On 30 November 2004 we sent a letter to the complainant advising him of the insurer’s decision. Shortly thereafter on the same date we received an e-mail from the insurer requesting us not to advise the complainant as the general manager of the insurer was reconsidering the situation. On 8 December 2004 we were advised by the insurer that it had erroneously advised us that it would admit the claim and that it had now decided not to admit liability.

The insurer furnished a further assessment from the occupational therapist in which she had investigated the options which would be open to the complainant if he was unable to work a full day. Her report followed enquiries to various potential employers, and reflected that there were a number of alternatives open to the complainant where his extensive experience in an administrative environment would stand him in good stead. The positions she had considered were available on a flexi-time basis, and employment equity legislation in South African would mean that employers would be prepared to accommodate him (as a black disabled person) by making the necessary changes to his working conditions and environment. The insurer concluded that even if the complainant’s pain was as severe as he had indicated, the occupational therapist’s report showed that there were occupations available to him where the environment and working conditions would be adapted to suit his needs and where his experience would make him employable. The insurer’s view was thus that the complainant could not be considered as totally and permanently disabled.

The insurer’s submission raised certain pertinent questions. Firstly, was it possible for an insurer to change its mind after having made a decision to pay the claim, when this decision had been conveyed to the complainant? If the answer was in the affirmative, we had to consider whether the further submissions made by the insurer were convincing. Secondly, should employment equity considerations be taken into account when assessing a claim for disability?

With regard to the second question, we considered that the general principle applicable was that occupational disability benefits cover the ability to work and not the availability of work i.e. one is insured against disability and not unemployment. We were further of the opinion that affirmative action should not be a factor routinely taken into account. The focus should properly be on whether a person with the specific degree of impairment is capable of playing a worthwhile part in the conduct of an employer’s business, such that an employer would not reject his application for part-time employment on the basis of his impairment/lack of capability. If this question is answered in the affirmative i.e. that the market place would accept such a person, it is irrelevant whether he would be employed more easily because of the affirmative action principle. If he is not totally disabled his claim need not be paid. If the question is answered in the negative i.e. the market place would reject him, it is also irrelevant if he would more easily be employed because of the affirmative principle as he is totally disabled and would not be accepted in the market place, irrespective of whether he was black or white.

Result

Following an adjudicative staff meeting at which all facts and information were considered, including the insurer’s change of mind, we decided that the insurer should be approached with a view to a possible settlement of the complaint. The insurer conceded that it had handled the claim in an ambiguous manner and agreed to make the complainant an ex gratia offer of one half of the claim in full and final settlement. The complainant accepted.

SM
October 2005