Which case won?

casea
The case for the insurer
  • Our investigators have shown that the officer undertakes a variety of normal activities and her Facebook account shows her regularly smiling and socialising with friends. These facts are inconsistent with her claims of total and permanent disability.
  • The vocational assessments that we organised for the officer identify several potential areas of future employment for her.
  • Our expert psychiatrist says there are other treatments available to the officer for her condition and that she has not availed herself of any of those treatments.
  • Indeed, our psychiatrist says the officer’s marriage breakdown and alcohol abuse have contributed to her condition. Those are factors she can overcome.
  • The terms of the relevant insurance policy require an assessment to take place six months after she ceased employment. Medical reports from her own expert psychiatrist from around that period say that she might one day return to work.
  • The officer is exaggerating her condition; the evidence demonstrates that treatment options remain available to her and that she could work in a variety of occupations.
  • The court should find that we are entitled to reject the officer’s claim under the contract of insurance.
caseb
The case for the officer
  • I was advised by my treating psychiatrist that it was good for me to get out of the house and to try to perform normal social activities. I have followed that advice in an effort to improve my condition.
  • The expert evidence shows that undertaking occasional normal activity does not in any way prove that a person suffering from my psychiatric conditions will ever be capable of employment.
  • The insurer’s expert psychiatrist runs a medico-legal practice and has not actually treated any patients for the last ten years. He has had little experience in treating police officers with PTSD and his opinion is far less reliable than that of my treating psychiatrist.
  • All other recent psychiatric reports confirm that after five years of unemployment I am “unlikely ever” to work again in any capacity.
  • My separation from my husband occurred after the deterioration of my mental health and was therefore not a factor in my illness. Abstaining from alcohol for significant periods has not resulted in any improvements in my condition, so this is also not a factor.
  • Contrary to the view of the insurer’s expert psychiatrist, there is no reliable scientific evidence that combining anti-depressant medication would be effective in my case. Indeed, it can be dangerous to do so and there are risks of significant side effects.
  • Over the period of several years after I made my claim, the insurer consistently failed in its duty to act in good faith. It withheld its various investigation, psychiatrist and vocational assessment reports from me and only notified me of its determination shortly before the date set for the court hearing, which has made it difficult for me to properly respond.
  • I paid insurance premiums to the insurer diligently over many years and the court should order that the insurance company now pay my legitimate TPD claim.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a44%
b56%

Expert commentary on the court's decision

“Evidence of sufferers of PTSD and depression engaging in normal pursuits does not necessarily correlate with a capacity to engage in employment.”
Supreme Court decides in favour of officer

In the case of Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534, the NSW Supreme Court decided in favour of the former police officer, Ms Joanne Wheeler, and ordered the insurer, MetLife Insurance Ltd, to pay Ms Wheeler her entitlement under the insurance policy.

Insurer’s error of principle in discounting later medical evidence

In making its decision, the court noted that MetLife relied on the terms of the insurance policy, which required an assessment to take place six months after the insured ceased employment.

The court found that the insurer was wrong to place such heavy emphasis on Ms Wheeler’s medical reports at the date of assessment, six months after she finished working, and to discount the information gathered in the subsequent years of the investigation.

The court pointed out that it was an error of principle for the insurer not to take into account all of the evidence emerging between the date of the assessment and the date of the determination. Consequently, MetLife’s determination that Ms Wheeler was not eligible for a payout on the basis of total and permanent disability was invalid.

Expert evidence that officer was permanently disabled

The court accepted Ms Wheeler’s treating psychiatrist’s opinion that her condition was unlikely to be substantially improved by further treatment or medication.

The court rejected the expert report from MetLife’s psychiatrist, owing to the fact that it was at odds not just with the opinion of Ms Wheeler’s treating psychiatrist, but also other doctors who treated her during her various hospital stays over a number of years.

The court preferred the opinion of Ms Wheeler’s treating psychiatrist, who wrote that it is often dangerous to combine anti-depressant medication as the insurer’s psychiatrist had suggested. He also indicated there is no reliable scientific evidence that that approach would be effective and that there is a risk of significant side effects.

Court rejects diagnosis of secondary PTSD disorder

The court also rejected the opinion of MetLife’s psychiatrist that Ms Wheeler had suffered a major depressive illness with secondary PTSD, complicated by alcoholism.

On this point also, the court preferred the opinion of Ms Wheeler’s own psychiatrist, who commented on the findings of the insurer’s psychiatrist by pointing out that “there is no such clinical entity as a secondary Post-Traumatic Stress Disorder”.

Evidence of normal activities does not displace expert opinion

The court found that MetLife placed unwarranted weight on evidence that Ms Wheeler was capable of engaging in certain activities in the same way as healthy people. That evidence was dispelled by expert evidence, which showed that occasional normal activity is nonetheless possible where someone is otherwise incapable of employment owing to their psychiatric conditions.

Importantly, the judge made the following pertinent observations regarding persons suffering from serious psychological conditions:

…when a person is suffering from these psychological disorders, what you see is not necessarily what you get. The sufferer may, at various times and periods, appear reasonably normal, and capable of engaging in many forms of employment. The presence of the psychological disorders is not necessarily inconsistent with periods of happiness and sociability. Indeed, treating psychiatrists and psychologists are most likely to advise sufferers to do their best to get out into the real world and try to live a normal life, as a remedial exercise.

The judge observed:

In short, the ordinary person cannot safely look at evidence of the occasional day to day activities of a person suffering from PTSD and major depressive disorder, and conclude that the person is not suffering from disabilities that may make the person practically unemployable.

The court rejected MetLife’s submissions that Ms Wheeler was exaggerating her illness and instead found that she had been candid about the day-to-day activities she was able to achieve.

Alcohol abuse not significant

The court rejected the opinion of MetLife’s psychiatrist that treating Ms Wheeler’s alcohol abuse disorder may improve her employment prospects.

The court accepted the treating psychiatrist’s opinion that her alcohol abuse disorder was secondary to her PTSD and that her alcohol consumption fluctuated over time in direct proportion to the amount of distress she was experiencing. Ms Wheeler had stayed alcohol free during hospital stays over extended periods and those periods of abstinence had not improved her underlying condition.

Insurer’s unreasonable delay and lack of good faith

The court noted that no explanation had been provided as to why MetLife had failed to respond to letters sent to it for a period of more than two years. During that time, MetLife did not send its investigation reports to the officer’s treating psychiatrist seeking a response, which the court held was a significant omission.

Having spent years investigating, MetLife provided its preliminary decision to refuse the claim by way of letter only after the proceedings had already commenced. Even then, it was only weeks before the hearing that it provided a final decision. That letter gave Ms Wheeler only 14 days to respond. The court found that MetLife’s actions had not been in keeping with its obligations to act in good faith.

In addition to paying Ms Wheeler’s TPD claim, MetLife was ordered to pay her legal costs.

Importance of engaging lawyers in disputes with insurers

Despite the immense difficulty Ms Wheeler faced in functioning normally, with the assistance of her solicitors she was able to progress her claim in the face of resistance from her insurer. She was able to do so initially by having her solicitors agitate for the insurer to provide a decision one way or the other, and subsequently, by commencing litigation when it became apparent no decision would be provided within any reasonable time frame.

By doing so, Ms Wheeler was able to bring matters to a favourable conclusion. This highlights the importance of engaging appropriately experienced solicitors when facing any kind of dispute with an insurance provider.

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