CR74 Disability claim – whether complainant could perform the material and substantial duties of his regular job


Disability claim – whether complainant could perform the material and substantial duties of his regular job


The complainant worked for a city municipality as a site supervisor, supervising all operations involving the offloading and disposal of solid waste from transfer stations. In 2004 he suffered a basal ganglia stroke (a CVA), following chronic hypertension and hypercholesterolaemia. He was treated in hospital for a few days and then underwent a period of rehabilitation, with physiotherapy. The most recent medical report, from a specialist physician, indicated that a year later he had made a good recovery, although he still had right arm and leg weakness, some mental slowing and impaired speech. His writing speed was slowed and he was not driving. The physician recommended boarding, stating that he would not recover any further function. The complainant then applied for the insured disability benefit available through his pension fund.

The definition in the fund rules stated that a member was entitled to an Initial Total Disability Benefit for the duration of an Initial Period, if, in the reasonable opinion of the insurer, injury or illness had rendered him unable to perform with reasonable continuity, the material and substantial duties of his Regular Job with his Employer at the Date of Disability or any other reasonably suitable job that this Employer could offer him or which was available.

The insurer arranged for two assessments by occupational therapists, six months apart, the second including a work visit. The OT reports both indicated that the complainant was able to perform the same supervisory work he had done before, with some adaptations by the employer, such as the provision of an administrative assistant for writing tasks (which in any event were limited in his job) and transport if necessary, which it appeared the employer was willing to provide. By the time of the later report the complainant had returned to driving, and this was assessed as appropriate in terms of the guidelines for resumption of driving after a CVA.

The insurer declined the claim on the grounds that the complainant had recovered sufficiently from his CVA to be able to return to work. The insurer’s view was that even without the accommodations (which the employer was in any event prepared to make) he could not be considered totally disabled to perform the tasks of his own job with his own employer, or any other occupation they may be able to offer him.

The complainant was aggrieved that the insurer had refused his claim in the face of independent medical specialist reports.


We evaluated all the evidence and came to the conclusion that the insurer’s decision was justified. It was pointed out to the complainant that a decision as to whether he was disabled or not as defined in the rules involves an assessment of medical evidence to establish whether there is impairment, and an assessment of whether this impairment has disabled him in the specific manner provided for in the definition, taking into account his regular job description and personal factors such as education, training and experience, and factors such as the accommodation offered by the employer. The assessment of disability is a legal and not a medical decision, and cannot be made by a medical practitioner alone, although the medical evidence is obviously an important part of the assessment.

It was noted that the medical evidence indicated that he had made a good recovery in general terms, although there were difficulties with writing speed, some mental slowing and slowed speech.

Reports by occupational therapists are particularly useful (in conjunction with medical reports) in assessing whether a claimant can perform a particular occupation or certain aspects of a job. In this instance two comprehensive OT reports indicated that he could do the same supervisory work he had done previously, with some minor adaptations by the employer. It appeared that his functional limitations were not excessive and that he was objectively able to perform the material and substantial duties of his regular job.


The insurer’s decision to decline the claim was upheld.

October 2005