Income Protection and Permanent Health Decision Reference 2022-0275

• Case Outcome: Rejected
• Reference: 2022-0275
• Date: 22 August 2022
• Year: 2022
• Subject Matter: Income Protection and Permanent Health
• Finantial Sector: Insurance
• Conducts Complained Of: Rejection of claim - did not meet policy definition of disability,Rejection of claim - fit to return to work

Decision Ref:

2022-0275

Sector:

Insurance

Product / Service:

Income Protection and Permanent Health

Conduct(s) complained of:

Rejection of claim - did not meet policy definition of

disability

Rejection of claim - fit to return to work

Outcome:

Rejected

LEGALLY BINDING DECISION OF THE FINANCIAL SERVICES AND PENSIONS OMBUDSMAN

The complaint concerns the Provider’s assessment of the Complainant’s claim under an

Income Protection Plan incepted by his employer. The Complainant made a claim under the

Income Protection Plan in April 2016. The claim along with a subsequent appeal were

declined by the Provider. The Complainant made a complaint to the Financial Services

Ombudsman’s Bureau regarding the declinature of the claim. That complaint was ultimately

the subject of a Legally Binding Decision of this Office dated 16 March 2018.

The Complainant’s Case

The Complainant is represented in this complaint by his wife (“the Complainant’s

Representative”).

In a submission dated 11 July 2019, the Complainant’s Representative says their

understanding of the Legally Binding Decision was that the Provider had failed to adequately

assess the Complainant’s claim and that the Provider was required to re-assess the claim,

particularly in relation to the Complainant’s ability to return to work from the point of view

of his cardiac health. To this end, Complainant’s Representative says, they forwarded a

report from the Complainant’s GP and his Consultant Cardiologist to the Provider under

cover of letter dated 10 October 2018.

- 2 -

/Cont’d…

The Complainant’s Representative says they were surprised when the Provider immediately

requested two medical appointments, explaining it felt like an automatic response rather

than taking into full consideration the Legally Binding Decision. The Complainant’s

Representative says they also queried why the same person was dealing with the

Complainant’s new appeal.

The Complainant’s Representative says the reports of the Occupational Health Physician and

the Consultant Clinical Neuropsychologist (the Neuropsychologist) have added an additional

qualifying stipulation in relation to the Complainant’s return to work and neither have given

a clear express indication or statement on the Complainant’s fitness to return to work

immediately.

The Complainant’s Representative says the Provider’s offer of an ex-gratia payment is

confusing and to date, a clear explanation regarding this offer has not been received. The

Complainant’s Representative says they remained unconvinced of the Provider’s offer of an

additional Independent Medical Examination with a consultant cardiologist, almost a year

after the Preliminary Decision of the FSPO in February 2018. The Complainant’s

Representative says they did not consider the offer of External Case Management, would be

of assistance to the Complainant.

Referring to the following passage from a letter from the Provider dated 31 January 2019,

“… pending the outcome of the reassessment of your claim, and the final decision from the

Financial Services and Pensions Ombudsman”, the Complainant’s Representative submits

this led them to believe that the Provider had already predetermined the outcome of the

re-assessment of the Complainant’s claim even before all further specialist medical evidence

had been obtained.

It is submitted by the Complainant’s Representative that this is not a clear-cut case. The

Complainant’s Representative says the Provider has drafted the wording and conditions of

the policy and submits that the onus is on the Provider to establish “beyond a shadow of a

doubt” that the Complainant is fit to return to work. The Complainant’s Representative says

they feel the Provider has not provided clear and convincing evidence to this effect and the

report of the Neuropsychologist raises more questions than it answers.

The Complainant’s Representative remarks that the only option under the policy is, citing

the relevant policy provision, “… the Insured Person is unable to carry out the duties of his

normal occupation …”. The Complainant’s Representative submits it is quite evident from

the medical reports that the Complainant would be unable to return to his ‘normal

occupation’ and there is no option to avail of a less stressful job within his company, albeit

with a lower salary.

- 3 -

/Cont’d…

The Complainant’s Representative says the Provider has failed “to assess the psychological

input in people who suffer cardiac conditions.” The Complainant’s Representative cites the

following passage from a report from a Senior Clinical Psychologist:

“psychological input is significant in cardiac rehabilitation programmes. Many people

who suffer from cardiac conditions can also suffer from shock and increased levels of

stress and anxiety following their heart event.”

The Complainant’s Representative submits that the Provider has failed to act in a fair and

transparent manner in assessing the Complainant’s claim. Despite the clear finding of the

Legally Binding Decision, the Complainant’s Representative says the Provider appears to

continue on its own protocols in assessing claims. What is unfair, the Complainant’s

Representative says, is that these protocols are not clear and transparent, as is evident from

the Provider’s assertion that Independent Medical Examiners have refused a request for

another party to be present during the assessment. The Complainant’s Representative says

this has never been their experiences with any medical health providers and is one more

instance of the lack of transparency in the assessment by the Provider in its claims

procedure.

The Complainant’s Representative further says that the Provider has not been transparent

in its dealings with them regarding the Complainant’s claim. The Complainant’s

Representative says she understands that internal Provider documentation might not be

available to them as consumers/customers but considers such documentation would be

available to this Office. Following on from the Legally Binding Decision, the Complainant’s

Representative says there must have been an audit of the Complainant’s file regarding the

claim and such audit must have drawn conclusions both in relation to the historic and

ongoing handling of the Complainant’s claim. In the interests of transparency, the

Complainant’s Representative submits it is vital that the Provider pass this, and any

associated documents, to this Office with lists of persons who handled the initial claim and

of those who handled the current appeal together with a note of any protocol, guidelines,

strategies and tactics.

The Complainant’s Representative continues by setting out their financial position. The

Complainant’s Representative says the Provider is at no financial loss whatsoever, in stark

contrast to their present and ongoing financial position. The Complainant’s Representative

says that both she and the Complainant are spiritually and physically exhausted with the

Complainant’s claim. The Complainant’s Representative says that if there was any option for

the Complainant to return to work at anything other than ‘normal occupation’, he would

have taken a job at a lower income. The Complainant’s Representative says they feel the

Provider is “treating this as a Third Party claim rather than a First Party claim.”