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Determination
Case number | 12-00-809595 |
Financial firm | Zurich Australia Limited |
Case number: 12-00-809595 1 October 2024
The complainant was working as a truck driver. He suffers from osteoporosis, spinal fractures and systemic mastocytosis. He made a total and permanent disability (TPD) claim. The insured benefit is $36,000. The insurer rejected the claim. It says the complainant is not TPD because he could work in other lighter jobs.
No. The insurer has identified work which fits with the complainant’s existing education, training and experience. None of the doctors says the complainant is unfit for that work. However, there is no medical opinion that the complainant is fit for that work. The insurer must ask the treating doctors about the complainant’s fitness for that work and then make a fresh decision on the claim.
Fairness requires the reasonable expectations of the parties to be met. The complainant cannot reasonably expect to be paid a benefit when the insurer has identified work which fits within his education training and experience, and for which none of the doctors says he is unfit. However, he can reasonably expect the insurer to put the relevant questions to his treating doctors.
This determination is partly in favour of the complainant. The insurer is not required to pay a benefit at this stage. However, it must seek a further opinion from the treating doctors, as described in section 2 below and then make a fresh decision on the claim.
No. The insurer has identified work which fits with the complainant’s existing education, training and experience. None of the doctors says the complainant is unfit for that work. However, there is no medical opinion that the complainant is fit for that work. The insurer must ask the treating doctors about the complainant’s fitness for that work and then make a fresh decision on the claim.
The complainant is covered by a TPD policy held by his superannuation fund. He made a claim, and his claim was rejected by the insurer and the trustee.
This complaint is being considered in AFCA’s non-superannuation jurisdiction, with the insurer the only respondent. AFCA makes no findings about the conduct of the trustee.
The insurance policy has two different definitions of TPD. If the complainant satisfies the requirements of either definition, he is entitled to a benefit.
The only definition which the complainant says he satisfies is TPD Definition 1:
An Insured Member satisfies all of the following (a), (b), (c) and (d):
(a) is aged less than 65 years of age on the Event Date;
(b) is Gainfully Working on the day immediately prior to the Event Date;
(c) has been employed for at least the Minimum Average Hours; and
(d) in our opinion based on medical or other evidence satisfactory to us, solely because of the same injury or illness the subject of the Event Date, the Insured Member:
(i) has not worked (whether or not for reward) during the entire Waiting Period;
(ii) since the Event Date, has continuously been Following The Advice Of A Medical Practitioner in relation to the injury or illness for which they are claiming; and
(iii) as at the Date of Disablement, is unlikely ever to work in any Gainful Employment for which he or she:
• is reasonably suited to by Previous Education, Training Or Experience; or
• may become reasonably suited to due to Reasonable Retraining.
I have not considered and make no findings on whether the complainant satisfies the other TPD definition.
The complainant has systemic mastocytosis. That condition may have caused, at least in part, severe osteoporosis. In turn, that condition likely played a part in the complainant suffering several spinal fractures.
The complainant has had treatment and his condition has improved somewhat. However, there is no dispute that he is not fit to return to work in his last occupation, which was truck driving and involved heavy lifting, or other heavy manual work. The question is whether he is unlikely to work in any other gainful employment for which
he may become reasonably suited due to Reasonable Retraining.
The complainant had provided a letter which shows that another insurer accepted the complainant’s TPD claim. He says two other superannuation funds have accepted TPD claims. I have not given these facts any weight. Another insurer or another superannuation fund’s decision is not binding on the insurer in this case. However, I have considered the material gathered for other claims, including medical reports.
The treating endocrinologist, Dr JS, says in a report dated 15 April 2020:
Although spontaneous spine fractures have been seen with severe osteoporosis, his occupation involving heavy lifting clearly promotes the incidence of these fractures. Therefore, he should not be involved in an occupation involving heavy manual work as his osteoporosis is likely to be semi-permanent, depending on response to treatment… He remains at risk of osteoporotic fractures and avoidance of significant physical stress to the spine is advised.
Dr JS completed a TPD certificate for another insurer, dated 9 June 2020, where he said
the complainant was fit for ‘duties which do not involve heavy lifting, bending or twisting of his back’
he expected the complainant to have a capacity to return to full or part time work in the future, in ‘duties which do not involve manual stress on his spine… uncertain if his usual occupation can accommodate this’.
Dr JS completed a certificate for a superannuation fund, dated 9 June 2020, where he certified
Due to their ill-health, it is unlikely that my patient can ever be gainfully employed (meaning employed or self employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment) in a capacity for which they are reasonably suited by education training or experience.
The treating GP, Dr A, filled in the same certificate and made the same certification.
Dr JS completed a TPD certificate for another insurer, also dated 9 June 2020, where he said:
the complainant ‘may be able to work in areas that do not involve any heavy lifting or significant stresses to his spine’
‘I do not believe [the complainant] will be able to return to his usual or similar occupation. The choice of other work is limited by his vocation and training -> essentially as a driver with manual labour’.
Dr JS filled in another certificate, again dated 9 June 2020, saying
In my opinion, because of this ill-health the member is unlikely to ever be gainfully employed in a capacity for which he or she is reasonably qualified because of education, training or experience.
Dr A completed the same certificate and made the same certification.
All of the doctors agree that the complainant has restrictions. In addition to the treating doctors’ opinions above:
> has a lifting limit of 10kg
> should avoid sustained or highly repetitive forward stooping or bending
> could do truck driving where manual handling is not required, although he noted ‘such duties are limited’
> could do forklift driving where significant manual handling is not required
> could do training and assessment
> could do delivery driving of moderately light items
> It is reasonable that he is certified as permanently unfit for work associated with repetitive bending and lifting more than 15kg
The insurer says that it has identified other work which the complainant could do:
truck driver without heavy lifting
delivery driver
bus driver
transport allocator
trainer and assessor.
The insurer has provided a report by Mr H, a rehabilitation counsellor, dated 23 April 2021. That report says:
the complainant is fitted by his existing education, training and experience for work as a Transport Allocator, Light Delivery Driver, and Bus Driver
each of those occupations appears to fit within the complainant’s physical capacity for work
the occupation of trainer and assessor was considered, but dismissed because the complainant would need further training and further experience before he was ‘competitive for employment’.
The only expert evidence on the kind of work the complainant may be suited to is Mr H’s opinion. The complainant says he rejected Mr H’s findings but has not explained why he is not suited for work as a bus driver, light delivery driver or transport allocator by his existing education training and experience. I accept Mr H’s opinion that the complainant is suited, by his existing education, training or experience for work in those occupations.
I also accept Mr H’s opinion that the complainant will require further training and experience to be competitive for work in training and assessment. The TPD definition allows consideration of work for which a person might be suited by ‘reasonable retraining’. In its submissions to AFCA, the insurer does not appear to press a case that relies on work in training and assessment. Accordingly, I have disregarded that work.
I accept that Mr H is an expert on work. However, he is not a doctor. He cannot give a reliable opinion on whether the complainant’s medical condition will allow him to work as a bus driver, transport allocator or light delivery driver.
The insurer did not put Mr H’s report to any of the doctors and ask them whether the complainant was fit for work in the occupations identified. Although the doctors agree the complainant has residual capacity, although with a restriction on heavy lifting and heavy manual labour, it does not follow that the complainant is fit for the work identified by Mr H. I note that Dr TH’s opinion was given before the complainant was diagnosed with Systemic mastocytosis.
There is no medical opinion that the complainant cannot do that work either. There is just no reliable medical opinion on the question at all. That is a significant problem for both sides of this complaint. Because I have found there is work the complainant may be suited for, and no doctors say the complainant cannot do that work, he has not established his case and is not entitled to a benefit. However, the insurer has an obligation to properly investigate the claim and to make a decision based on reliable evidence. It should not reject a claim based on the opinion of Mr H, who is not a medical expert, on a medical question. Putting the relevant medical questions to the treating doctors is a routine part of claims assessment – taken by all insurers in almost all cases. I am satisfied good industry practice requires it in this case.
For these reasons:
I am not satisfied the complainant is entitled to the benefit
The insurer is not required to pay the claim at this stage
The insurer must put Mr H’s report to the treating doctors (and any other medical experts it may choose) and ask their opinion on the complainant’s fitness for work as a Transport Allocator, Bus Driver and Light Delivery Driver.
The insurer must then make a fresh decision on the claim.
Fairness requires the reasonable expectations of the parties to be met. The complainant cannot reasonably expect to be paid a benefit when the insurer has identified work which fits within his education training and experience, and for which none of the doctors says he is unfit. However, he can reasonably expect the insurer to put the relevant questions to his treating doctors.
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. 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.
