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Determination
Case number | 12-00-1077013 |
Financial firm | Clearview Life Assurance Limited |
Case number: 12-00-1077013 31 July 2024
The complainant fell from a horse and suffered serious pelvis injuries. She made a claim on her trauma insurance policy. The insurer rejected the claim, saying that there is not enough evidence that the complainant’s disability is permanent and irreversible, as required the policy.
No. The medical evidence does not show that the complainant’s disability is permanent or irreversible at this stage.
Fairness requires the reasonable expectations of the parties to be met. The complainant cannot reasonably expect to be paid a benefit when she has not established that her disability is permanent or irreversible.
This determination is in favour of the insurer. The insurer is not required to pay a benefit at this stage.
No. The medical evidence does not show that the complainant’s disability is permanent or irreversible at this stage.
The policy pays a benefit if the complainant suffers from one of the trauma conditions listed and defined in the policy. One of the trauma conditions is ‘loss of independent existence’ (LOIE).
Page 56 of the policy document dated 16 April 2012 issued to the complainant states:
Loss of Independent Existence
As a result of sickness or injury:
• there is permanent and irreversible inability to perform without the assistance of another person any two of the Activities of Daily Living or all of the Home Duties (defined below), or
• the person insured suffers cognitive impairment that results in the person insured requiring permanent and constant supervision for a continuous period of at least six months. The person insured’s permanent and irreversible impairment must be established by a medical practitioner nominated by us.
Loss of Independent Existence as a result of alcohol or non-prescribed drug intake, or AIDS is excluded.
Activities of Daily Living
Home Duties
This refers to the tasks performed by the person insured if the person insured’s sole occupation is to maintain the family’s usual place of residence (home) being:
• cleaning the family home
• shopping for food and groceries for the household
• preparing meals for the household
• performing laundry services for the household including washing and ironing, and
• caring for dependent children (where applicable).
For the avoidance of doubt, the person insured will not be considered unable to perform home duties, if the person insured can perform at least one of these duties.
Home duties do not include duties performed outside of the person insured’s home for salary, reward or profit.
Importantly, whether the disability is for the activities of daily living, or home duties, the disability must be ‘permanent’ and ‘irreversible’.
There is no doubt the complainant suffered very serious injuries and significant disability in her fall on 16 October 2023. She had surgery on 19 October 2023.
Immediately after surgery, on 20 October 2023, Dr AB, an orthopaedics resident at the hospital said:
Going forward, she will require multiple follow up appointments under the orthopaedic surgery team at the [hospital]. She will also require physiotherapy and analgesia long-term to regain her mobility and function.
Functionally, she will only be able to touch weight bear on her left leg for 4 weeks, after which she will gradually increase her weight bearing capacity over likely a 3-month period. It is unclear at this stage whether her nerve damage will resolve.
An orthopaedics specialist at the hospital, Dr PT, described the complainant’s injuries in a medical certificate form dated 1 November 2023:
Significant pelvic fractures requiring surgical fixation.
The treating orthopaedic surgeon, Dr NJ, gave an opinion dated 5 February 2024. He says:
[The complainant’s] diagnosis [sic] remains difficult to predict. She currently, has debilitating symptoms, and this is likely to prove ongoing for 18-24 months. It is too early to state whether this is permanent, but this is severely affecting and will have a very slow recovery.
[The complainant] has recovered well from her surgery from a skeletal stability point of view.
Unfortunately, she has debilitating symptoms affecting her left leg and foot. Of particular note she describes dysaesthesia, colour changes and sensory deficits in the distribution of the Sl nerve roots, significant enough that she is unable to tolerate having her foot on the ground and weightbearing. [The complainant] still mobilises with crutches…
[The complainant’s] treatment will focus on nerve conduction studies and titration of Lyrica. She has a referral to the pain specialist, [Dr BM] in February and I think a referral to [Dr TLW] at SBNN is important as he has a special interest in peripheral nerve injuries, and I am asking the question as to whether there is anything to be done for her debilitating Sl dysaesthesia.
I will see [the complainant] again in 2 months' time with a repeat x-ray.
The most recent opinion is from Dr JH, the treating GP. In a letter dated 5 June 2024, she said:
[The complainant] continues to have significant disability.
She has ongoing moderately severe pain. She is mobile on crutches.
Her leisure activities have been severely restricted.
[The complainant] is independent in activities of daily living, as defined in your document.
She is unable to perform the following home duties listed in your document:
- cleaning family home
- shopping for food and groceries for the household
- preparing meals for the household
- performing laundry service for the household
[The complainant’s] prognosis is uncertain. Her rate of improvement has slowed. It is likely that her symptoms will persist for an extended period.
While it is clear the complainant is still seriously disabled, it is not clear she will always be.
The complainant says:
[the complainant] has suffered a loss of cognitive function, and as there has been no improvement to nerve damage since the incident (16 October 2023), it is unfair to take the view that this will improve in the future.
…
In addition we believe that [the complainant’s] condition meets your definition of permanent (shown below), as her condition is lasting and intended to last indefinitely.
“The word “permanent” is defined in the Macquarie Dictionary as:
lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding
The strongest evidence supporting the complainant’s case is her GP’s opinion that her disability will ‘persist for an extended period’.
A disability which is likely to ‘persist for an extended period’ is not necessarily ‘permanent’ or ‘irreversible’.
Dr NJ is best placed to give an opinion on whether the disability is permanent, because he is a specialist and because he has been treating the complainant. He says it is ‘too early to state whether [the disability] is permanent’ and explains the further testing and treatment which is underway and planned.
I accept Dr NJ’s opinion.
It may be that the complainant’s condition does not improve, and that she remains disabled. It may be that she can establish, with later medical evidence, that her disability is permanent. But on the current evidence, I am not satisfied her disability is permanent or irreversible.
She is not entitled to the benefit at this stage.
I note that the complainant also relies on the fact that the policy says that the trauma benefit can be paid if the complainant survives for 14 days after an incident. That is a condition of the policy, but it does not mean that the complainant does not have to show her condition is permanent and irreversible.
Fairness requires the reasonable expectations of the parties to be met. The complainant cannot reasonably expect to be paid a benefit when she has not established that her disability is permanent or irreversible.
AFCA has determined this complaint based on what is fair in all the circumstances, having regard to:
The respective parties have completed a full exchange of the relevant information, and each party has had the opportunity to address any issues raised. I have reviewed and considered all of the information the parties have provided.
While the parties have raised a number of issues in their submissions, I have restricted this determination to the issues that are relevant to the outcome.
