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Determination
Case number | 12-00-1087500 |
Financial firm | NIB Travel Services (Australia) Pty Ltd |
Case number: 12-00-1087500 30 August 2024
The complainant holds a Comprehensive Annual Multi Trip Travel Insurance policy with the financial firm (insurer). The policy was issued on 16 January 2024 and was for travel between 27 January 2024 and 26 January 2025
The complainant departed Australia on 27 January 2024 a flew to Bali, Indonesia.
He was hospitalised on 1 February 2024 with nausea and vomiting.
During his hospital stay the complainant was diagnosed with a pleural effusion, possible pneumonia and a blood clot. He was told by the treating doctor he was unfit to fly home commercially and needed to arrange an air ambulance with a medical escort due to the risk of respiratory failure or developing a pneumothorax.
The insurer has declined the claim. It says the hospitalisation and repatriation was due to the complainant’s mesothelioma which is pre-existing and excluded by the policy.
The complainant disagrees. He says he sought medical treatment for vomiting, not his mesothelioma. He further says he believes he did not have pneumonia or a blood clot, and the air ambulance was not necessary.
No, the hospital records show the complainant was hospitalised for vomiting. The insurer has not explained how the vomiting was related to the complainant’s mesothelioma.
No, the complainant was told he had to return to Australia in an air ambulance following a diagnosis of pneumonia and then a blood clot. The insurer has not proven the pneumonia or blood clot were because of the complainant's mesothelioma.
The outcome is fair because the insurer has relied on information from the treating doctor which appears to be untrue and unsubstantiated. While it is not in dispute that the complainant was diagnosed with mesothelioma before he took out the policy, I have not been persuaded the vomiting, pneumonia or blood clot was because of it.
This determination is in favour of the complainant.
The insurer is required to reimburse the complainant for all expenses incurred, subject to the terms of the policy
The insurer is required to cover any non-refundable cancellation expenses, subject to the terms of the policy
The insurer is required to refund the cost of any expert or medical reports incurred by the complainant
Pursuant to section 57 of the Insurance Contracts Act 1984, the insurer is required to pay interest on any amounts paid by the complainant, from the date the amounts were paid by the complainant, until refunded by the insurer.
No, the hospital records show the complainant was hospitalised for vomiting. The insurer has not explained how the vomiting was related to the complainant's mesothelioma.
It is accepted in insurance that the initial onus lies with the insured person to prove that, on balance, they have suffered a loss which is covered by the policy. Once this has been established the onus transfers to the insurer to consider if any exclusions or conditions apply.
The policy provides cover for medical expenses incurred due to a new illness.
Therefore, the complainant must prove, on the balance of probabilities, he was admitted to hospital for treatment of the new illness.
The insurer says the proximate cause of the complainant's hospitalisation was a pleural effusion. It says the pleural effusion was present before the policy was issued and is related to the complainant's pre-existing mesothelioma.
The hospital records from BM show the complainant was transferred from an island with weakness due to vomiting.
The BM records show on the second day of his admission, the complainant was feeling better. He reported no new symptoms. He had a chest x ray where the treating doctor noted a pleural effusion.
The complainant says he did not seek treatment for his mesothelioma or pleural effusion. He says he went to hospital because he had been vomiting and he believes he caught a ’stomach bug’ or gastro unrelated to his mesothelioma.
The complainant further says the treating doctor wanted to do a chest X ray after he informed the Doctor he had mesothelioma, not because he was vomiting.
I have reviewed the admission information from BM which shows the complainant was hospitalised for weakness due to vomiting.
It is accepted by all parties the complainant had a history of pleural effusion because of his mesothelioma, which was pre-existing. However, the first mention of a pleural effusion was on 2 February 2024 after a chest ray was done. He has no wheezing, cough or shortness of breath.
Therefore, I am satisfied the the reason the complainant sought treatment and was hospitalised, is vomiting and weakness.
There have been several possible explanations given for the complainant’s vomiting.
The complainant says he felt well for the first days of his trip to Bali then suddenly felt nausea and began to vomit. He believes he caught a ’stomach bug’.
He has also provided a letter from his regular General Practitioner who says the vomiting may have been a side effect of the complainant’s medication for Rheumatoid Arthritis.
The complainant has also provided a letter from his Oncologist who says the vomiting may have been caused by a Urinary Tract infection (UTI). This is supported by the hospital summary from FSH, where the complainant was diagnosed with a UTI on 10 February 2024.
FSH refers to the complainant’s ordinary retention and painful but unsuccessful attempts to insert a catheter for the air ambulance as being consistent with a UTI.
The insurer originally declined the claim saying the complainant’s vomiting was a chemotherapy side effect and was therefore excluded as arising from a pre-existing medical condition.
The insurer relied on information from BM which stated:
ASSESSMENT
[...]
Nausea and vomiting ec susp chemotherapy induced dd acute gastritis
I am satisfied that this statement was incorrect. While it is not in dispute that the complainant has mesothelioma, he had not been treated with chemotherapy. The insurer accepts that this was incorrect, but maintains the vomiting was most probably related to the complainant‘s mesothelioma.
I am not persuaded by the insurer‘s argument.
The BM notes suggest the connection between the vomiting and mesothelioma was chemotherapy treatment, not a symptom of the condition itself. The insurer’s doctor has not explained how, in the absence of chemotherapy treatment, the vomiting arose because of mesothelioma.
Significantly, the treating doctor provided a differential diagnosis of acute gastritis which the insurer has not commented on.
After carefully reviewing all the medical information and considering each possible explanation for the vomiting, I am satisfied the complainant has established a claimable loss and the vomiting was caused by a new illness. On balance, the vomiting was caused by acute gastritis or a UTI.
I am not persuaded the vomiting arose because of complainant's pre existing mesothelioma.
No, I am not satisfied that the insurer has proven the need for an air ambulance repatriation was due to the complainant’s pre-existing medical condition.
During the complainant’s hospitalisation for vomiting a chest x ray was done and it noted signs of a pleural effusion.
The treating doctor attempted to insert a pleural catheter to drain fluid from the complainant’s lung. The procedure failed with no fluid being drained. It is noted on the hospital records a blood clot was found.
The treating doctor said the complainant would have to return to Australia via an air ambulance and with a medical escort because of the risk of a pneumothorax or respiratory failure.
The insurer agreed the complainant should not fly commercially and provided non financial assistance in arranging the air ambulance but declined to pay the cost.
The complainant believes he was misdiagnosed, and his air ambulance repatriation was unnecessary. He relies on the medical reports from FSH which state there was no change in the mesothelioma and no signs of pneumonia or a blood clot.
The insurer says there is a possibility that the pneumonia was successfully treated by the anti biotics during the complainants hospitalisation in Bali. .
I am more persuaded by the arguments presented by the complainant’s regular doctors in Australia. There were no signs of shortness of breath and the scans were the same as before the trip.
In any event, if I were to accept that the pneumonia was the reason for the air ambulance, the insurer has not demonstrated how it is related to the complainant’s pre-existing diagnosis of mesothelioma.
It is unclear if there was a blood clot or if this was also a misdiagnosis made by the treating doctor at BM. The records from FSH do not refer to any blood clot and state the chest x rays performed on the complainant’s return to Australia had not changed since his departure from Australia.
Even if I was to accept that a blood clot was an accurate diagnosis, the insurer has not explained how the blood clot arose because of the mesothelioma.
The insurer’s clinical team states:
We are unable to determine indefinitely if the blood clot is related to his pre-existing condition of mesothelioma. It is possible that it is a complication of his mesothelioma diagnosis.
....
Patients undergoing chemotherapy are also at a higher risk of developing blood clots due to the damage chemotherapy can cause to the lining of the blood vessels, altering the balance of clotting factors in the blood and reduced physical activity resulting from fatigue.
As confirmed, the complainant did not have chemotherapy. Further, a possible complication and heightened risk is not enough to prove a causal link between the mesothelioma and blood clot.
The policy excludes expenses that arise from a medical condition that was diagnosed before the policy was issued. (Please refer to section 3.2 below for definitions and wording).
Arise is defined in the policy as:
Caused by or resulting from
Based on the exchanged information, I am not satisfied that an increased risk of a blood clot is sufficient to say the blood clot was caused by or was a result of the mesothelioma, assuming a blood clot was a correct diagnosis in the first place.
The result is that the insurer is to pay the complainant in accordance with the terms and conditions of the policy and the provisions of this determination.
AFCA has determined this complaint based on what is fair in all the circumstances, having regard to:
the legal principles
applicable industry codes or guidance
good industry practice
previous decisions of AFCA or its predecessor schemes (which are not binding).
The respective parties have completed a full exchange of the relevant information, and each party has had the opportunity to address any issues raised. We have reviewed and considered all the information the parties have provided.
While the parties have raised several issues in their submissions, we have restricted this determination to the issues that are relevant to the outcome.
AFCA is not a court of law. We do not have the power to take or test evidence on oath, or to require third parties to give evidence.
When we assess complaints, we consider:
available documents
the recollections of the parties
all relevant circumstances.
We give more weight to documents created at the time the events occurred. If there are no relevant documents, we will decide what most likely occurred based on the available information.
If there are conflicting recollections and these are evenly weighted, we may find that a claim cannot be established.
Page 22
[...]
Arise: caused by or resulting from
[...]
Page 24
Existing medical condition:
any medical condition which:
at the time you buy your policy is:
> chronic; or
> displaying symptoms; or
> under investigation; or
> pending follow-up consultation, treatment
> or surgery; or where these are
> recommended or planned; or
> metastatic; or
> terminal; or
in the six months prior to the time you buy your policy there has been:
> treatment by a medical practitioner; or
> medication prescribed; or
> Surgery.
Page 32 – 33
This section is divided into different benefits which apply depending on the plan, limits and any optional benefits you have chosen. The plan and any applicable limits appear on your Certificate of Insurance.
You must read this section together with the General exclusions as these may affect your cover.
We will cover you under this Cancellation and additional expenses section in respect of your planned trip if one of the following events occurs after the issue of the Certificate of Insurance:
you are unable to start or finish the trip because of the death, sudden serious illness or serious injury that occurs before or during the trip of:
> you; or
> a member of your travelling party; or
> a close relative or business partner who is a resident in Australia or New Zealand.
However, before we will cover you, you must provide us with proof that:
you or a member of your travelling party were certified medically unfit to travel by a medical practitioner; or
the death has occurred, or
in the case of a close relative or business partner, the death has occurred, or the illness or injury required hospitalisation or for you to care for them
Page 36 - 37
You are covered for this benefit under the Comprehensive, Essentials and Annual Multi Trip Plans.
We will cover you for:
1. reasonable and necessary emergency medical, hospital and ambulance expenses that you incur arising from your death or your new illness or injury, specified medical condition, or automatically covered condition;
2. a return economy class airfare and reasonable accommodation for a friend or relative to travel directly to you, if you are hospitalised with a sudden, life-threatening injury or illness during your trip;
3. dental treatment expenses you incur arising from an injury to healthy natural teeth and which cannot be delayed until your return to Australia
Page 38 - 39
You are covered for this benefit under the Comprehensive, Essentials and Annual Multi Trip Plans.
You must read this section together with the General exclusions as these may affect your cover
We will cover you if you have to interrupt your trip after it has begun because you have suffered an illness or injury while you are on your trip, and based on the reasonable recommendation of a medical practitioner appointed by us, you need to be evacuated or repatriated.
We will pay transport and accommodation expenses which we believe are reasonable and necessary to bring you back to your home in Australia, or to another destination of our
choice.
The decision to evacuate or repatriate you is ours, and we will not pay for any evacuation or repatriation expenses unless you have received our consent.
We will pay for expenses for transporting your remains to a funeral home in Australia if you die during the trip.
We will either:
return you to your home in Australia with a medical attendant; or
pay for a return economy class airfare, reasonable accommodation and additional expenses for a friend or relative to fly to, remain with and escort you in place of a medical attendant; or
return you to your home in Australia without an attendant.
Under the Comprehensive and Annual Multi Trip Plans, we will also pay you for necessary home services provided by a registered home services business if you have been repatriated to your home in Australia by us during your trip and your illness or injury restricts your ability to perform these duties. You must have our consent before you incur any costs for home services.
Page 54
These general exclusions apply to all sections of this policy, unless otherwise described in the exclusion.
You should read them, together with the cover and the specific exclusions referred to under each section of cover.
We will not cover any of the following:
[...]
5. A loss arising from any existing medical condition of you, a member of the travelling party, a non-travelling close relative or business partner. This exclusion will not apply to your specified medical condition(s) or to your Automatically covered conditions.
