C77

Disability claim – repudiated on grounds that complainant capable of light physical and sedentary aspects of her employment – weight of expert evidence to the contrary.

Background

The complainant was a child care worker, employed by a children’s home. In July 2000 she fell and injured her right hip. She continued working until she underwent surgery in October 2001 to remove fragments from the hip. She was pain free for a short period following surgery but when the pain returned, she felt that she was unable to continue working. With effect from January 2002 she took early retirement and received a retirement benefit from the pension fund to which she belonged. She also applied for a disability benefit from an income continuation scheme underwritten and administered by the insurer.

In terms of the policy disability was defined as

“a state of total incapacity sustained by a member after his admission date and before his termination date, arising from injury, illness or disease, which in the opinion of the assurance company results in his being unable to perform the normal duties of his plan occupation whereby he/she suffers the loss of all earned income from such occupation.

If following the two year period … the insurance company is satisfied that the member is unable to follow any occupation for which he is suited by his education, training or earnings ability the full benefit will continue to be paid”.

The insurer did not feel that the evidence furnished by the complainant was sufficient and requested an up-to-date report by an orthopaedic surgeon, as well as a report from an occupational therapist of the insurer’s choice. The orthopedic surgeon was of the view that the complainant should be considered as permanently disabled as she walked with great difficulty and experienced considerable pain with activity. The occupational therapist’s assessment led her to believe that the complainant, because of her condition, could not be relied upon to respond quickly in the event of an emergency and that she would have great difficulty attending to the personal needs of younger children. The occupational therapist concluded also that the complainant would have difficulty even in an entirely sedentary/clerical job due to pain and limited tolerance of sitting.

Despite these expressed views of the orthopaedic surgeon and the occupational therapist, the insurer declined the claim, on the basis of its view that the complainant was not totally incapacitated to perform the sedentary and light physical duties of her job, and that she had maintenance staff to assist her with physically demanding tasks. The insurer took the view that the children she cared for were older, and able to see to their physical needs independently.

Discussion

Following examination of the documentation presented to us we were of the opinion that the weight of the expert evidence commissioned by the insurer, namely, the reports of the orthopedic surgeon and the occupational therapist, significantly supported the view that the complainant was unable to perform the normal duties of her plan occupation, that of a child care worker.

The orthopedic surgeon noted in his clinical diagnosis that the complainant had neuroma of her cluneal nerves, a known complication of surgery. He stated that the onset of the pain and other symptoms so much later could have been the result of the greater mobility she experienced in the area of her right crista iliaca after the accident and the surgery that had been performed. He noted that she walked with difficulty, with a crutch, and experienced considerable pain that lessened with diminished activity. He did not foresee much chance of surgery assisting her and stated his view that she was permanently and totally disabled as a worker with children in a hostel.

The occupational therapist conducted an extensive assessment of the complainant’s functional abilities and reported that there were limitations in all areas of the complainant’s daily living. She pointed out that while most of the complainant’s duties as a child care worker were sedentary or light physical in nature, the fact that she carried responsibility twenty-four hours a day for the care of fourteen young boys meant that general physical and psychological endurance and the ability to walk, stand and sit alternatively throughout the day were essential, on an “on demand” basis. The occupational therapist concluded that the complainant suffered from pain in her right hip that significantly limited her ability to perform all activities of daily living. She did not witness evidence to suggest any exaggeration of symptoms for secondary gain.

The insurer’s claims assessment report acknowledged that the complainant’s pain was real but expressed the view that the complainant had not investigated all the possibilities for managing her pain. The report emphasised that while the complainant had acknowledged physical limitations, her duties were relatively light, she had breaks from the children while they were in school, and they were of an age (between 7 – 14 years) that did not require much physical assistance. The assessor acknowledged that long hours were required and that walking to buildings such as the administration building and the kitchen, which were some distance from the house where she lived with the children, was unavoidable, but stated that the walking trips could be minimized or planned to accommodate her situation.

In our view the claims assessment report underestimated the fact that the complainant was required to be responsible for children 24 hours a day and that this constituted a psychological as well as a physical demand. She was also required to live on the premises and thus was always “on call”; she had only one day off a week and one weekend off per month. This clearly made for a demanding job with limited personal freedom. By its nature, the job, which included such requirements as reacting quickly in emergencies, coping with difficult children and generally meeting the needs of children from unfavorable home circumstances in her care, was not easily adaptable to her limitations.

In our view the insurer had placed undue emphasis on the fact that the complainant could still manage light physical work and sedentary work to some degree, and did not appear to have taken the overall picture into account, which was that, given her pain and physical limitations, she was unable to meet the endurance demands of her particular occupation and that she would therefore appear to be unable to perform her normal duties in an ongoing, sustained and required fashion.

Result

The insurer acknowledged that some information submitted in respect of the claim could be interpreted to weight a decision in favour of benefits while other information might be used to argue against a case of total disablement. Having reconsidered the situation the insurer felt that on balance they concurred with our argument. The insurer therefore agreed to pay the disability benefit.

SM
October 2005