In July 2014 Ben claimed for a total disability benefit under his insurance policy. Ben had been suffering from back pain for some years, and had closed his business in March 2014 after feeling unable to continue work due to pain and sleeplessness.
A week after Ben lodged his claim, the insurance company requested a medical certificate. At the end of August 2014 the insurance company wrote to Ben again, as it had not received a response to its request for a medical certificate.
In early September 2014 Ben’s doctor, wrote to the insurance company confirming the cause of disability was complex anxiety with extreme malaise and clarifying that Ben was also suffering lower back pain causing difficulty sleeping. Later that month, Ben sent another letter to the insurance company along with supporting documents. Ben said chronic back pain was causing fatigue, tiredness and anxiety.
In early October 2014 the insurance company requested a further medical certificate to clarify the respective contributions of Ben’s anxiety and back pain on his ability to work. At the end of October Ben called the insurance company explaining he had provided all relevant medical information. The insurance company told Ben that it needed another medical certificate because anxiety was excluded from cover under Ben’s policy, so Ben’s claim could only be assessed in relation to his chronic back pain.
In early November 2014 the doctor sent another report stating the primary cause of disability was lower back pain causing difficulty sleeping, resulting in Ben being unable to work. The doctor explained that Ben’s anxiety did not contribute to his loss of employment because Ben previously coped with anxiety while working.
The dispute
In early March the insurance company wrote to Ben confirming its position that Ben was not totally disabled under the policy. Ben did not agree and contacted FSCL.
We recommended Ben see an occupational health specialist (OHS) for an independent report. At the end of May 2015 the specialist completed her report. The insurance company did not change its decision to decline Ben’s claim.
Ben’s position
Ben believed he had been totally disabled from approximately July 2013 due to consistent back pain rendering him unable to perform the substantial duties of his business. Ben felt he remained unable to work while waiting for surgical intervention to relieve his back pain, and he was unable to perform usual everyday activities.
The insurance company’s position
The insurance company believed Ben was partially disabled, not totally disabled. The insurance company had already paid out Ben’s partial disability benefit under his policy.
Review
When assessing the merits of a case we must give fair regard to the law and industry practice. The primary issue to be determined was whether Ben was totally disabled as defined under his insurance policy.
Under Ben’s insurance policy ‘partially disabled’ was defined as “the inability to perform one or more, but not all of the substantial of your business or occupation”. ‘Totally disabled’ was defined as “the inability to perform each of your substantial duties of your business or occupation”.
We considered these definitions were intentionally different, and an appropriate test for total disability was that Ben must have been reasonably unable to perform each of the core roles of his employment.
We considered evidence of Ben being able to carry out some of his usual activities such as hunting, mowing the lawns, going for walks and using the computer and internet. The OHS stated in her report that Ben did not have discomfort removing shoes and socks, or sitting in the waiting room for an hour. The specialist’s opinion was that Ben was not totally disabled from his back pain, however he may have been partially disabled for some types of work.
Ben felt we did not give due regard to two letters from his doctor and a further letter from an orthopaedic surgeon. We considered the letters did not contain sufficient information to find Ben totally disabled.
We believed it was reasonable for the insurance company to give weight to the specialist’s report.
Resolution
We found the insurance company correctly declined Ben’s claim of total disability under his policy. We empathised with Ben’s position and accepted that Ben’s back pain was causing significant discomfort, however we found it has not been proved that Ben was unable to perform each of his daily activities. It followed that Ben was not totally disabled under the definition in his insurance policy.
Ben may be able to have the insurance company re-assess his claim for total disability at a later date if he is able to produce medical evidence that his health has deteriorated further.
