CR73

Disability claim – insurer’s reliance on specialist’s medical opinion in repudiating claim – whether the weight of evidence regarding the influence of impairment on the complainant’s ability to work in accordance with the requirements of the definition had been properly taken into account.

Background

The complainant was an electrical training officer who stopped working due to ill health after December 2003 and was subsequently retrenched. His duties involved training and development of electrical apprentices and learner technicians. 70% of his day was spent actively training students, supervising them to ensure safety, and demonstrating equipment, and 25% of his day was spent doing administration. His work therefore involved working and interacting with people as their teacher most of the time.

In March 2002 the complainant was diagnosed with ulcerative colitis and although he was treated with medication for a period of nine months, there was no improvement. He underwent a total procto-colectomy in January 2003 and a closure ileostomy in April 2003, after which he suffered “smouldering inflammation in the rectal remnant”. Some consequences of his symptoms were extreme discomfort and excessive bowel movements resulting in his taking excessive sick leave and being unable to do his job properly. His condition also had implications for his activities of daily living as he always had to be close to a toilet. His employer made efforts to accommodate him, in line with the recommendations of the Labour Relations Act Code of Good Practice, by allocating an additional trainer, when necessary, to assist in the training activities. The employer also permitted him to go home when he did not feel well. However the employer’s view was that his condition appeared to be deteriorating, and there was no suitable alternative work they could offer him that would fit in with his medical condition. A report from the complainant’s attending doctor confirmed the complainant’s statements regarding his limitations, and stated that the disability was of a permanent nature. His further conclusion was that the condition severely handicapped the complainant from performing his duties as a training officer.

A specialist physician who examined the complainant in March 2004 confirmed the condition of the complainant but concluded that “there is no objective evidence on which to base the conclusion that he is permanently and totally disabled”.

When the complainant claimed the disability benefit under his policy, the insurer relied on the specialist’s statement and interpreted it to mean that the complainant was not disabled for his job. The claim was declined, and the complainant approached our office for assistance.

Discussion

Disablement was defined in the policy as

“a state of ill health or incapacity due to the member’s injury or illness which results in the member suffering a reduction in earnings and being unable to carry on his/her job or other job for a period of twelve months from commencement of the disablement, and after the end of the aforementioned twelve month period, any job”.

Further definitions applicable were the following:

“Job”: “the job that the employee normally carried on with the employer immediately before his/her disability started.”

“Other job”: “any other job with the employer for which an employee is reasonably suited taking into account his/her standard of education, training, experience, ability and the bona fide efforts of the employer to comply with the Labour Relations Act No. 66 of 1995.”

“Any job”: “any job that the employee can reasonably be expected to perform taking into account his/her standard of education, training, experience, ability and potential for retraining.”

The insurer had concluded that, in the light of all the medical information received and particularly that of the specialist physician, the complainant was still capable of performing his own occupation, namely that of electrical training officer.

We took the view that the specialist physician’s conclusion was not based on any assessment of whether the complainant could, in terms of the definition of disablement in the policy, perform his “job” or “other job” or “any job” as defined. The specialist physician’s report essentially outlined the extent of the complainant’s medical impairment. We suggested to the insurer that it was not correct to assume that the specialist physician had concluded that the complainant was not disabled for his job. The assessment of disability is a legal process rather than a medical one. An assessment of disability must be made taking into account the medical evidence of impairment, as well as the evidence regarding the influence of the impairment on the complainant’s ability to perform an occupation in accordance with the particular requirements of the policy definition of disablement.

The evidence as presented by the complainant, his employer and his treating physician had all indicated that the complainant was unable to perform his “job” or “other job”. The complainant was clearly limited in performing his work as a training officer, which required constant interaction with the students, by his pain and his constant need to use the toilet which caused both stress and embarrassment. Although his employer had attempted to accommodate him for some time, the arrangements had not been satisfactory for either the complainant or the employer. It appeared to us that the limitations imposed on the complainant by his illness would also preclude him from performing any “other job” or “any job” as defined; the complainant’s education, training, experience, and ability were geared towards the occupation of teaching and interacting with others and it would not be reasonable to expect him to perform a job that did not include these components, for which he was trained and experienced.

We therefore recommended to the insurer that the weight of evidence in the case seemed to indicate that the complainant was indeed disabled from working in his own or a similar occupation.

Result

The insurer was at first reluctant to accept our recommendation and arranged for the complainant to be examined by a gastroenterologist. Following this examination, and discussions between the insurer’s Chief Medical Officer, the gastroenterologist and the complainant’s attending doctor, the insurer decided to admit the claim.

SM
October 2005