LeanOnUs

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10 August 2011

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Dear Ms Dxxxxx

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Mr C H complaint about The Royal London Mutual Insurance Society Limited (trading as Scottish Provident)

 

I am writing to set out my assessment of this complaint. In reaching my assessment, I have considered all the evidence and documents that Royal London and Mr H have sent us.

 

This dispute concerns Scottish Provident’s decision to decline Mr H claim for disability income benefit. Scottish Provident has, however, offered to pay Mr H claim between 21 July 2009 and 19 September 2009 on an ex gratia basis.

 

I understand that this dispute was previously considered by this service and rejected as the adjudicator felt that there was insufficient evidence to support a payment between the above dates. The adjudicator was provided with further evidence by Mr H but felt that it should be referred to Scottish Provident to allow it to reassess the claim. It appears that Mr H submitted this further evidence to Scottish Provident and whilst it was not persuaded that the evidence confirmed that Mr H was incapable of performing two of the six work tasks, it made the above offer in full and final settlement of the claim.

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Mr H was unhappy with this and referred a complaint to this service. He feels that the evidence provided is sufficient for Scottish Provident to accept liability during the time that he was admitted to hospital until 31 January 2010. Furthermore, he is unhappy with how Scottish Provident has gathered its medical evidence. Mr H believes that his consultants were asked to comment upon his current restrictions rather than the restrictions he had whilst under their care and admitted to hospital. He also believes that the evidence from his GP was not given sufficient consideration.

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Having considered the circumstances of this dispute and the evidence provided, I am not satisfied that the claim has been handled well and I am not persuaded that Scottish Provident was justified in declining liability for this claim. I will explain why. I can understand why this claim was initially declined. Whilst the report received from Mr H’s GP was supportive of his claim, the reports received from Dr XX XXXXX and Dr XXXXXX, dated 16 October 2009 and 11 November 2009 respectively, stated that Mr H had no restriction in performing the work tasks at that time. However, it has now been established that these physicians were not reporting on Mr H restrictions during the time he was admitted to hospital.

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It is evident that Mr H provided this service with a letter from Mr XX XXXXXX dated 19 July 2010. This was forwarded to Scottish Provident on 4 August 2010 for it to consider but it required further confirmation from Dr XX XXXX. This was provided on 11 October 2010. In my opinion, Dr XX XXXX letter of 19 July 2010 confirms that Mr H would not have been able to undertake the walking and lifting work tasks whilst he was admitted to hospital. I do not consider that it was necessary to obtain further clarification.

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Whilst I appreciate that Scottish Provident needs to be certain that the claim criteria has been fulfilled, common sense should also be applied. Mr H was admitted to hospital for a period of two months during which time he was seriously ill, losing significant amounts of blood, making him considerably weak. Had Mr H been capable of performing the work tasks it is likely that he would have been discharged from hospital. Given the circumstances, it follows that Mr H was not capable of performing the walking and lifting work tasks.

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In light of the above, I recommend that Mr H claim should be admitted and paid from 21 July 2009 until 19 September 2009.

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Interest should be added to this payment at a gross annual rate of 8% simple from 4 August 2010 until the date of settlement.

In addition to the above, I consider that Mr H should receive £100 to compensate him for the distress and inconvenience caused by Scottish Provident’s failure to accept liability for the claim at this point. I consider that obtaining further information was not necessary in view of the circumstances and that the delays caused by this added to Mr H distress.

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Further to the above, I consider that there is also sufficient evidence to pay Mr H claim beyond this date. Whilst I appreciate that Mr XX XXXX did not consider that Mr H was restricted in performing the work tasks beyond his admission to hospital, there is evidence to suggest otherwise.

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Scottish Provident is in possession of a letter dated 17 December 2010 stating that Mr H was admitted to hospital again on 26 October 2009. Scottish Provident is also in possession of Dr XXXXXXX report dated 19 October 2009 stating that Mr H was incapable of performing the walking and lifting tasks at that time and that Dr XXXXXXX did not expect Mr H bleeding to be controlled until March 2010. There is also a letter from Dr XXXXXXX, Consultant Haematologist, dated 12 January 2010 who advises that in the last five months Mr H had had multiple hospital admissions for rectal blood loss. Whilst Dr XXXXXXXX did not comment upon Mr H ability to perform the work tasks he commented that he was unable to work due to feeling faint.

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In addition to the above, Mr H has provided me with a further letter from Dr XXXXXXXXX (copy enclosed). Dr XXXXXXX has confirmed that Mr H was unable to perform the walking or lifting tasks between the date of his last report and February 2010 without being in severe discomfort or bleeding. This opinion has been reached with reference to Mr H medical records and recorded INR levels (measurement of blood coagulation).

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In view of the above, I consider that it would be fair and reasonable to pay Mr H claim from 20 September 2009 to 31 January 2010, without interest. I have reached this view based upon the evidence referred to above and the fact that I consider Mr H to be a genuine claimant, as he has only claimed until February 2010 despite having further episodes of incapacity since this date.

Because of this, I am of the opinion that the complaint should succeed. If you agree with my conclusions, and are prepared to offer the proposed settlement to Mr H, I would be grateful if you would let me know by 24 August 2011.

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However, if you disagree with my conclusions, please let me know – also by 24 August 2011 – telling me your reasons, and enclosing any supporting documentation or further evidence that you have not already provided. Could you please let me know now, if you plan to reply fully but do not think you will be able to meet this deadline.

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As a reminder, you will also have the right to ask an ombudsman to review the case – as the final stage in our process. But in most cases, complaints will not need to be escalated to that level, and can be resolved at an earlier stage.

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Yours sincerely

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Hannah Wxxxxxx
Adjudicator
 

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Dear Hannah Wxxxx

 

Mr C H Complaint. Your Ref XXXXXXXXXXXXXX

 

I write in response to your adjudication of 10th August 2011. I would advise that I disagree with your conclusions and I will explain my reasons why and address the points you have raised.

 

In paragraph 5 of your letter you suggest that the claim has not been handled well. Whilst I would like you to explain that comment, I would initially respond as follows. Scottish Provident wrote to the doctors and consultants that Mr H advised us to on his claim form at the time and acted upon the information they gave us. On the balance of evidence in the reports received they were clear in that they did not support the fact that Mr H met the claims criteria of his policy. Only on a continued and voluminous correspondence from Mr H have further reports begun to emerge – none of which clearly state how or why Mr H would fail the work tasks. We accept that Mr H has been ill, as do all his physicians, however the policy criteria is clear in that specific tasks must be failed and there is no objective evidence to illustrate that this was the case.

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In paragraph 7 of your letter you refer to Mr XX XXXXX letter of 19th July 2010 – this states that while in hospital “for some of the time” he was on a drip and therefore unable to perform the work tasks. We wrote for Mr XX XXXXX to determine how he came to this conclusion and how long Mr H was on a drip for. The resultant letter you refer to of 11th October does not clarify these points and only reiterates that he could not carry out work tasks whilst he had a drip in and if there were periods when was not on a drip ” he was still confined to a hospital and, would therefore have been unable to carry out his normal employment”. This part of the letter illustrates the confusion over what this policy covers. Mr XX XXXXXX in his letter of 19th July also states “as he was an in patient he could not pursue his job” and “it was patently obvious that he could not drive a car”. We accept that Mr H could not perform his occupation however this policy is based on the ability to perform specific defined tasks. Mr H is claiming he failed the walking and lifting task.

 

I cannot accept the fact that solely because someone has a drip attached to their hand then they would be physically unable to stand up or lift 1kg. This is what we have been trying to establish and as yet there is no evidence to support that. Your adjudication goes on to state “Had Mr H been capable of performing the work tasks it is likely that he would have been discharged from hospital” and “Given the circumstances it follows that Mr H was not capable of performing the walking and lifting work tasks”. As there are of plenty of in-patients suffering from very serious conditions who would be perfectly capable of the walking and lifting tasks to suggest that we use admission to hospital as a proxy for failing the tasks is unreasonable. Can you please explain the rationale behind these statements?

 

In your adjudication you suggest that Mr H claim should be admitted and paid from 21st July until 19th September 2009 also adding interest and compensation. I would point out that as a gesture of good will we had already offered this to Mr H out with the terms of the contract. As we had already made this offer, which Mr H refused to accept, I find it unreasonable that we are being asked to add interest and compensation. Can you again explain the rationale behind this?

 

Your letter then refers to further letters from Dr XXXXXX stating that Mr H is incapable of performing the work tasks again with no explanation of why not, or how this was measured. You also refer to further hospital admissions and that Mr H had further bouts of symptoms. We are not disputing this however again I would point out that this cannot be taken as a proxy for failing Work Tasks.

 

The further letter Mr H supplied to you from Dr XXXXX again reiterates the opinion that Mr H would have failed the walking and lifting tasks without giving any objective evidence as to why that would be the case. Dr XXXXXXX is stating in his opinion from discussion with Mr H and looking at his notes that he “thinks” he would be unable to lift 1Kg or walk 200 metres “without being in severe discomfort”. There is absolutely no evidence to support that the tasks were failed. You have also stated this is supported by INR levels quoted as fluctuating between 1.7 and 3.5. I have discussed this with our Consultant Medical Officer who confirms that an INR level is not relevant as a measure of disability. These are used to measure the effectiveness of blood thinning drugs. The fluctuation of these levels would cause no physical symptoms. I would therefore ask you to confirm to whom have you referred for medical advice in this case as this assumption, in our opinion, is seriously flawed. At every stage we have taken the advice of our Consultant Medical Officer who is a Fellow of the Royal College of Physicians to interpret and give opinion on the medical facts as they have been presented by the attending doctors and consultants. I would be grateful if you can confirm the qualification of the medical specialist to whom you have referred.

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On a final note I would advise that in order to ensure that all TCP considerations were covered in making our decision in this case it was reviewed by our Claims Panel. This consists of managers from areas outside of the claims team such as Marketing and Sales. This is a full review of all the circumstances of the claim and it was unanimous in deciding that there was no evidence to support that the definition was met in this case, in fact it would be unfair to other customers if we were to pay the claim in the manner you have suggested.

 

I would therefore ask you to reconsider your adjudication and if you are not minded to do so then we request this case is reviewed by an ombudsman.

 

Yours sincerely

 

Craig Mxxxxx
Deputy Head Of Underwriting and Claims
Scottish Provident

 

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Sent: 02 September 2011 16:00
 

Subject: XXXXXXXXXX – H against The Royal London Mutual Insurance Society Ltd
 

Dear Ms Dxxxx,

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I am writing in response to Mr M’s letter. Mr M has raised several concerns and I will address each in turn.

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I considered that the claim has not been handled well as I felt that after Scottish Provident received Mr XX XXXX’s letter of 19 July 2010 it should have accepted Mr H claim for the dates during which he was in hospital. I felt that any further requests for information on this point were unnecessary and as such, caused unnecessary delays. My view on this has not changed and this is why I feel that £100 compensationfor distress and inconvenience should be awarded.

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Turning to the validity of the claim whilst Mr H was admitted to hospital, I accept that the policy demands that the claimant be unable to perform the work tasks. However, in my opinion, the spirit of Mr H policy is to provide benefit when he is genuinely unable to work through illness. The work tasks are set as such to include generic tasks that one would need to be able to perform in order to do any job. I accept that Mr H policy does not provide benefit if he is unable to perform his own occupation, but by being physically admitted to hospital Mr H is unable to perform any occupation whatsoever. It is for this overriding reason that I consider Mr H claim to be payable whilst he was a hospital inpatient. However, I also feel that Mr XX XXXX evidence adequately supports the claim.

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I appreciate that Scottish Provident offered to pay Mr H claim for this period on an ex gratia basis on 12 November 2010. However, consider that the claim for this period was payable from receipt of Mr XX XXXX letter, which is why I have recommended that interest should be paid from 4 August 2010 until the date of settlement.

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With regard to Scottish Provident’s liability for the claim between Mr H discharge from hospital and 31 January 2010.1 considered that this was payable in light of Dr XXXXXX evidence. Dr XXXXX explained in his letter of 26 July 2011 that he did not consider Mr H was able to perform the walking or lifting tasks and this opinion was reached based upon entries within Mr H medical records and his fluctuating INR levels. As I am not medically qualified I have deferred to Dr C’s explanation of this, I would be grateful if Mr M could let me know as soon as possible whether Scottish Provident is now willing to settle the claim as recommended in my view or if it still wishes for an ombudsman’s decision.

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I look forward to hearing from you by 16 September 2011.

 

Kind regards,

Hannah Wxxxxx

 

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04/10/2011

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Hannah Wxxxxx Adjudicator Financial Ombudsman Service

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FINAL DECISION complaint by: Mr C H complaint about: The Royal London

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Mutual Insurance Society Limited complaint reference: XXXXXXXXXXX date of decision: 1 February 2012 This Final Decision is issued by me, Greg B, an ombudsman with the Financial Ombudsman Service. It sets out my conclusions on the dispute between Mr H and The Royal London Mutual Insurance Society Limited. Under the rules of the Financial Ombudsman Service, I am required to ask Mr H either to accept or to reject my conclusions, in writing, before 1 March 2012. Summary of complaint Mr H has complained about Royal London’s decision to decline his claim for disability income benefit under an income protection policy.

 

Background to complaint Due to rectal bleeding and associated problems, Mr H stopped working as the managing director and chauffeur of a chauffeur company in July 2009. He was subsequently confined to hospital for extended periods of treatment from 21 July 2009 to 7 January 2010. He made a claim under his policy but Royal London declined it, on the grounds that he was not prevented from carrying out two or more “work tasks”. Eligibility for payment under the policy was dependent on Mr H being unable to carry out at least two of six work tasks, defined as follows:

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(A) Work Tasks Being disabled:

(i) Through illness (other than mental illness of any kind) or injury; and

(ii) To the extent of being unable to do any two of the six work tasks listed below without the help of another person, but with the use of assistive aids and appliances.

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The ‘Work Tasks’ were set out as:

• Walking – The ability to walk 200 metres on level ground with a stick or other aid without stopping or severe discomfort.

• Lifting- The ability to pick up 1 kg from table height and carry it for 5 metres.

• Using a pen/pencil/keyboard – The ability to use a pen, pencil or keyboard with either hand using any aids.

• Hearing – The ability to hear well enough to understand someone speaking a common language in a normal voice in a quiet room with a hearing aid.

• Speech – The ability to be understood in a common language in a quiet room.

• Vision – The ability to see well enough to read 16-point print using spectacles or other aids.

 

Mr H was in hospital from 21 July 2009 to 18 September 2009 and from 26 October 2009 to 7 January 2010. The medical evidence records that he was regularly on a drip, had multiple blood transfusions, frequently felt faint due to blood loss, suffered from severe chest pains, suffered from fits and seizures and was heavily sedated for much of the time. Mr H indicates that his ability to do work tasks was changeable but the walking and lifting tasks would have been problematic throughout this period. Mr H submitted a claim form in September 2009 which indicated that he considered that he had a moderate restriction in his ability to walk, substantial restriction in his ability to carry shopping and was restricted in his ability to read and write due to hand cramps and poor concentration. Dr D, who initially referred Mr H for treatment, completed a report on 16 October 2009 in which he indicated that Mr H had no restrictions in his ability to perform any of the specified tasks. However, Dr D was not Mr H treating consultant. Dr C, Mr H’s GP, completed a report for Royal London, dated 19 October 2009 and indicated that Mr H was not able to perform the walking and lifting tasks and was only partly able to perform the other tasks. Royal London then wrote to Dr A, the consultant surgeon who had treated Mr H. The signature of the consultant surgeon who completed this report is not clear, but it may have been completed by Dr H. The report, dated 11 November 2009, indicated that Mr H should not be restricted in his ability to perform the work tasks. Mr H referred a complaint to this service, which was investigated by one of our adjudicators, under our reference XXXXXXX.

 

Based on the medical evidence, our adjudicator did not think that Royal London had acted unreasonably in declining the claim. Mr H then provided further evidence to Royal London and resubmitted his claim. Royal London considered the additional evidence, but did not think it was sufficient to show that Mr H had been incapable of performing two or more of the work tasks, it did make an offer to pay benefit from 21 July 2009 to 19 September 2009, being the first period during which Mr H was hospitalised, on an ex gratia basis to settle the claim. Mr H did not accept this and it is Royal London’s response to this subsequent claim and further evidence about which Mr H now complains. The further medical evidence submitted was as follows: Dr D wrote to Mr H on 11 December 2009 and said that, clearly, Mr H had been unable to perform his duties as a chauffeur while he was in hospital, but this letter seems to have missed the point that Mr H policy did not pay out based on his inability to carry out his occupation, but based on his inability to perform two or more specific work tasks, as defined in the policy. Dr C said, in his letter dated 27 January 2010, that during July 2009 Mr H was suffering from rectal bleeding, pulmonary embolism and anaemia, plus a reaction to medication that resulted in him suffering seizure-type episodes. Dr C concluded that Mr H would not have been able to carry out any of the listed work tasks in such circumstances. Dr D wrote a further letter dated 19 July 2010 in which he clarified his earlier report. He said that, at the time Mr H had been discharged from hospital he was able to perform five work tasks. He also said that whilst in hospital, Mr H had spent some of the time on a drip and received several blood transfusions and would have been unable to perform the work tasks at those times. He did not indicate how much time was spent on a drip or incapacitated as a result of transfusion. Dr A wrote to Mr H on 25 November 2010 and confirmed that, for the period 21 July 2009 until 21 August 2009 Mr H was unfit for work and unable to carry out general work tasks. Dr D provided a further letter dated 8 April 2011 in which he indicated that he had been sent copies of correspondence from Mr H other specialists. Dr D stated that Mr H was incapable of performing the work tasks while he was in hospital. Dr S, a GP completed a report dated 21 February 2011, in which he stated that due to Mr H low blood count and transfusion in July 2009, he would not have expected him to have been able to walk any distance or undertake heavy lifting at that time. Dr K said, in his letter dated 18 November 2010 that he believed that Mr H could not walk without pain, could not lift general objects and would not have been able to use a computer keyboard or perform general work tasks due to his underlying illness. This specifically related to Mr H inpatient stay between 21 August and 15 September 2009. Our adjudicator recommended that Mr H new complaint should be upheld. She was satisfied that the evidence now supported Mr H claim, and that Royal London should pay benefit from 21 July 2009 to 19 September 2009, with interest. She felt that Royal London had acted unreasonably by not accepting the claim, once it had received and considered the further evidence. She considered that Royal London should pay Mr H compensation of £100 in recognition of the distress and inconvenience it had caused. She also noted that Mr H had provided additional medical evidence, from his GP Dr C, (a letter dated 26 July 2011) which indicated that Mr H had been unable to perform the walking or lifting work tasks from the middle of October 2009 until February 2010.

 

The adjudicator was therefore satisfied that Royal London should also pay further benefit from 20 September 2009 to 31 January 2010, given the new evidence used to support the period of benefit. Royal London disagreed with the adjudicator’s opinion. It accepted that Mr H could not perform his occupation at the material times, but stated that eligibility for policy benefit was based on the ability to perform defined work tasks. It maintained that there was still no objective medical evidence to show that Mr H was unable to perform two or more tasks, and it did not agree that it should have settled the claim sooner. Its Chief Medical Officer had reviewed the case and was also of the view that Mr H ought to have been able to perform five out of six of the work tasks. The adjudicator maintained her view. Although she accepted that the policy was set up on a work tasks definition, she considered that the work tasks were generic tasks that one would need to perform to do any job, and as Mr H had been confined to hospital, she was satisfied that he was unable to perform any job whatsoever. The adjudicator also reiterated that she felt that Royal London should have accepted the claim after receiving the medical evidence from Mr D (dated 19 July 2010) and as it did not, it delayed the claim and caused Mr H unnecessary distress and inconvenience. In the light of the above, the complaint was referred to me to review afresh and reach a decision.

 

My Findings

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I have included only a summary of the complaint (above), but I have read and considered all of the relevant evidence and arguments that have been submitted to me. I have considered, in detail, all of the medical evidence submitted, including letters and notes from GP’s, treating consultants and Royal London’s Chief Medical Officer, amongst others.

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Overall, the medical evidence, such as the letter from Dr K referred to earlier, suggests that Mr H was unable to perform at least two of the six listed work tasks mentioned in the policy, during his initial period of hospitalisation. The medical evidence also corroborates Mr H statements that he developed pulmonary emboli and shaking fits whilst in hospital, up to his discharge on 15 September 2009. Whilst I understand Royal London’s point that there is little objective medical evidence, such as a functional capacity evaluation, to demonstrate that Mr H would not have been able to perform two out of six of the listed work tasks, on balance, I am persuaded by the supportive comments of Mr H various doctors, which indicate that he could not perform the work tasks.

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Overall, I find the doctors’ statements plausible and persuasive, in view of the combination of being confined to hospital, occasional blood transfusions and attachment to a drip, rectal bleeding and feeling faint due to significant blood loss, occasional seizures and pulmonary emboli. I find it likely that these factors limited Mr H ability to walk without discomfort and to lift a 1kg weight. I have also considered the further periods of hospitalisation and incapacity suffered by Mr H, after 19 September 2009. Mr H GP, Dr C, provided a medical statement, on 19 October 2009, in which he confirmed that Mr H was more or less housebound due to his bleeding, for which he was undergoing regular review with Dr D and was on Warfarin therapy. Dr C confirmed that it was hoped that Mr H bleeding would be better controlled in March [2010], and that he was not able to perform the walking or lifting work tasks due to his bleeding. I note that Dr C also wrote to the adjudicator on 26 July 2011 confirming that, having reviewed Mr H notes from the middle of October 2009 to February 2010, he considered that he had been unable to perform some of the work tasks up to that time. Dr C said: “I do think that Mr H would not have been able to, at that time [October 2009 – February 2010], do any lifting (he would have been unable to pick up 1kg from table height and carry it for 5 metres) or walking 200 metres without being in severe discomfort or bleeding” Dr H, Consultant Haematologist, confirmed on 11 January 2010 that Mr H had been admitted to hospital on multiple occasions over the last five months due to rectal blood loss, and that he had been unable to work due to feeling faint. This further supports the view that Mr H problems did not end in September 2009.

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Overall, I am satisfied from the medical evidence, that Mr H claim for further benefit for his subsequent period of incapacity should reasonably be met. The medical evidence available confirms that he was unable to perform the same two work tasks as before, due to his bleeding and discomfort, and that he was unable to work due to feeling faint or indeed simply by being confined to hospital.

 

Royal London has accepted that Mr H could not perform his occupation, but maintains the view that the medical evidence is not sufficient to demonstrate that Mr H was unable to perform the specific work tasks. I do not agree. The medical evidence available suggests that Mr H was unable to perform the necessary two tasks during the numerous periods of hospital confinement and more generally, due to Mr H often feeling faint due to blood loss and anaemia. It seems to me that this situation is akin to other debilitating conditions, such as chronic fatigue syndrome, where I might reasonably expect a business to meet a claim. Whilst there might have been periods during the day when Mr H felt better, or even odd days where he might have been capable of doing more, it seems quite apparent that he was not well throughout this period. Given his multiple periods of hospital confinement, generally feeling faint due to quite significant blood loss, which necessitated occasional transfusions, his anaemia and various other ailments, I am persuaded that the balance of evidence indicates that Mr H was largely unable to perform the specific walking and lifting tasks during his periods of hospital confinement and beyond up to February 2010, and that he was generally unable to undertake his usual work (as accepted by Royal London) over the entire period. This is supported by the medical evidence. On balance, I consider his claim should be met. I agree with the adjudicator that Royal London were provided with sufficient medical evidence to accept and pay this claim earlier and I consider that a modest £100 award of compensation for the additional distress and inconvenience is reasonable.

 

My Final Decision For the reasons set out above, it is my decision that this complaint should be upheld. I therefore require Royal London to pay Mr H claim, in accordance with the remaining policy terms, from 21 July 2009 to 19 September 2009. Interest should be added to the payment made at the gross rate of 8% per year from the date the claim was resubmitted to the date of settlement. I also require Royal London to pay Mr H claim, according to the remaining policy terms, for the period from 20 September 2009 to 31 January 2010. Royal London should add interest to the amount of settlement at the rate of 8% simple per year from the date of claim to the date of settlement. In addition I further require Royal London to pay Mr H £100 compensation in respect of the distress and inconvenience caused.

 

G B Ombudsman

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