When a disability insurance claim becomes litigated, what is often significant, if not crucial, to the claimant being able to succeed in establishing their claim is their presenting and being accepted by the court as honest and reliable (and also, arguably, worthy of sympathy).
The corollary of this is if, during the assessment of the claim, the life insurer can gather information which demonstrates that a claimant has not been reporting the truth to the life insurer, or some other person of relevance in respect of the claim (for example, a treating medical practitioner or a medico legal practitioner) regarding certain matters (for example, their level of social or recreational activities), then the court may be slow to accept that the claimant is a witness of truth generally. This is particularly so if the claim concerns a medical condition that is difficult to objectively verify (for example, by an MRI or X-ray), or where there is inconsistency between what can be verified and what is self reported by the claimant in terms of symptoms and restrictions.
In certain circumstances, the court may form the view that the claimant is, indeed, not suffering from any medical condition at all or, if there is a medical condition, the symptoms are not so disabling as to cause incapacity for work. If conclusions in medical reports have their foundation in self reporting of such disabling symptoms, then the court may give little or no weight to those conclusions. However, such findings are rare, as the level of evidence required for the court to form such a view is very high.
What can also occur, if a court finds that a claimant is not an honest witness, is that it will, in turn, rely much more heavily on the conclusions reached by the medical practitioners.
An illustration of this is the recent County Court of Victoria decision of Fenton v AIA Australia Ltd. Ms Fenton was a project co-ordinator. In October 2009, while on holiday in Cuba, she ingested toxic fish and became ill. She was subsequently diagnosed as suffering from ciguatera poisoning. There was no clinical test available to detect ciguatera poisoning.
From 20 January 2010 until 6 September 2014, the life insurer paid Ms Fenton a monthly Total Disability benefit. However, based on the report of an occupational physician which said Ms Fenton could work in a reduced capacity, the life insurer considered Ms Fenton was only Partially Disabled and, from 7 September 2014, paid Ms Fenton a Partial Disability benefit. Then, based on a report from a multidisciplinary panel comprising a consultant physician in infectious diseases and travel medicine, a consultant psychiatrist and a consultant occupational physician, the life insurer ceased paying benefits to Ms Fenton. Ms Fenton then commenced legal proceedings alleging that, from 7 September 2014 to date, she continued to be Totally Disabled.
The life insurer contended that Ms Fenton was not a credible witness in light of the following:
- Ms Fenton’s reluctance to return to work, despite the absence of medical advice supporting this. For example, she turned down a number of positions, despite either not consulting a medical practitioner on, or around, that date or receiving a certification for some work hours on that date;
- Ms Fenton displaying lack of interest in seeing the medical opinions upon which the life insurer relied on when terminating her insurance benefits, which the judge considered unusual, given Ms Fenton said that she had researched the illness on the internet and had reported her interest in her medical condition to another medical practitioner;
- Ms Fenton’s extensive overseas travel from 2010 to 2016. In summary, she was overseas for 69 days in 2010, 34 days in 2011, 69 days in 2012, 36 days in 2013, 25 days in 2014, 24 days in 2015 and 40 days in 2016 in destinations including Switzerland, Northern Italy, Spain, Tonga, New York, Los Angeles, San Francisco, Mexico and New Caledonia. A number of the medical witnesses observed that this level of travel was inconsistent with Ms Fenton’s assertions that her illness sometimes caused her significant incapacity, such as being bedridden for lengthy periods of time; and
- Ms Fenton’s ability to engage in social activities in a manner which appeared inconsistent with the level of functioning she was reporting. For example, in a week in 2015 she attended a rugby game on Monday, a golf lesson on Tuesday, a State of Origin rugby game on Wednesday, a ball at Crown Casino on Thursday and a Richmond AFL game on Friday. However, in a claim form covering this claim period, Ms Fenton stated that she was unable to perform all of her work duties due to ‘frequent severe bouts of illness‘, and described her daily activities as having done ‘very little as I’ve been very unwell‘. The judge found Ms Fenton’s explanations for her social and recreational activities most unconvincing.
Although the judge accepted that Ms Fenton was pleasant, articulate and answered all questions asked of her at trial, in light of the above and the objective evidence of a number of expert medical practitioners (who concluded that Ms Fenton was either no longer suffering from ciguatera poisoning and/or was able to return to work), the judge also found that Ms Fenton was not a convincing and reliable witness. Accordingly, the Judge was persuaded by the objective medical evidence in determining whether Ms Fenton was continuously Totally Disabled.
That objective medical evidence, in particular from a consultant physician in infectious diseases and travel medicine (the leading expert in Australia for ciguatera poisoning), led the judge to conclude that Ms Fenton had ceased to suffer from ciguatera poisoning as at 10 July 2015. The medical evidence from the occupational physician also allowed the judge to conclude that Ms Fenton, by 2014, could in fact perform one or more of the duties of her occupation (as a project co-ordinator at a bank), which meant that she failed to satisfy the second limb of the definition of Total Disablement.
This article was written by David Arribas, Senior Associate and Philip Battye, Partner.