The diagnosis was expressed in answer to that question.
46 Having read Dr Oner's report, Mr Wagner should have recommended that inquiries be made of Dr Oner to establish whether in his opinion Mr Dumitrov fell within the definition and to balance that conclusion against the other reports on file.
47 Furthermore, I am of the view that Mr Wagner did not act reasonably and fairly to Mr Dumitrov by misrepresenting Dr Oner's report.
48 Having dealt with Dr Oner's report, Mr Wagner summarised the member's statement and a letter from Towers Perrin stating that Mr Dumitrov last worked in March 1997 and the company did not get a response from Mr Dumitrov to return to light duties. This was after Mr Dumitrov developed symptoms in his left wrist and he said he was incapable of returning even to light duties.
49 Mr Wagner's report then dealt with surveillance, some of which he did not sight. Others showed Mr Dumitrov driving a motor vehicle. The surveillance material was not tendered at the hearing.
50 Mr Wagner then dealt with a report from Dr Mahoney of May 1999 in which Dr Mahoney expressed the view that Mr Dumitrov had cervical strain with nerve root irritation affecting upper limbs. He required operative treatment for a right De Quervains tendo vaginitis and required operative treatment for the left side. Mr Wagner noted Dr Mahoney's opinion: "I would consider him unfit for work". Mr Wagner added a comment:
"The report of Dr Mahoney does not address the issue of permanency of the unfitness for work. Similarly the report does not address whether Mr Dumitrov meets the TPD definition, in that it does not canvass whether Mr Dumitrov is "unable to ever engage in or work for reward in any occupation or work which he or she is reasonably capable of performing by reason of education, training or experience."
51 Mr Wagner does not refer to Dr Mahoney's report again in his assessment of the file. His failure to recommend that Dr Mahoney's opinion be examined to ascertain whether the doctor was of the view that Mr Dumitrov fell within the definition, and his dismissal of Dr Mahoney's report out of hand constituted, in my view, a further failure to deal reasonably and fairly with Mr Dumitrov. Dr Mahoney's report should have been the subject of further investigation. Mr Wagner should have recommended the adoption of this course.
52 Hannover had Mr Dumitrov examined by Dr David Manohar, a specialist in musculo-skeletal medicine. Dr Manohar saw him on four occasions. His first diagnosis was post surgery, probably De Quervains syndrome, strain of forearm flexors, extensors and trapezius. Mr Wagner summarised Dr Manohar's examination on the second occasion, noting that cervical flexion, extension and rotation were uncomfortable. Side flexion was uncomfortable. Shoulder abduction was reasonably good but uncomfortable and there was swelling of the right wrist. Cervical flexion, extension, rotation and side flexion being uncomfortable was noted with respect to Dr Manohar's third examination together with the observation that shoulder abduction was within normal limits and Mr Dumitrov was able to make a fist. On fourth examination Mr Wagner noted that Dr Manohar had said that cervical flexion of the cervical spine was reasonably good, cervical extension was within normal limits, rotatory movements were 80% of normal range of motion and flexion bilaterally was restricted and painful, shoulder abduction was within normal limits and Mr Dumitrov was wearing a wrist brace.
53 Dr Manohar was awaiting copies of Dr Mahoney's reports, which he never got and Mr Dumitrov did not return after his last visit to Dr Manohar in March 1999. Mr Wagner commented on the absence of Dr Mahoney's reports and said:
"Dr Manohar was unable to comment on Mr Dumitrov's physical capacity and therefore whether he did, or did not, meet the TPD definition".
54 Dr Manohar's report is not referred to again in Mr Wagner's reassessment. But it did indicate some disability and the question remained whether, in Dr Manohar's opinion, Mr Dumitrov fell within the definition. That was never explored because of the limited instructions given to Mr Wagner by Hannover. That Hannover dismissed the reports of a doctor to whom it had referred Mr Dumitrov, that was favourable to him, without further inquiry was to act unreasonably and unfairly to the interests of Mr Dumitrov.
55 Mr Wagner's dismissal of Dr Mahoney's report on the basis that he was unaware of the definition is curious because the instructions to Dr Manohar did not contain the definition.
56 Dr Manohar's report indicated that Mr Dumitrov had been treated by Dr Paul Conneely. No mention is made of this in Mr Wagner's reassessment and no recommendation was made by him that a report should be obtained from Dr Conneely.
57 In circumstances where Hannover had been provided with reports that suggested that Mr Dumitrov was disabled, which contained opinions that Mr Dumitrov was unfit for work, Hannover ought to have further investigated the matter. Its failure to do so constituted, in my view, an unreasonable and unfair approach to Mr Dumitrov and, in the circumstances, it constituted failure by Hannover to act with utmost good faith towards Mr Dumitrov.
58 Hannover sent Mr Dumitrov to Dr Philip David Funnell, a consultant physician in rehabilitation medicine. Again, Dr Funnell's instructions did not include the definition. Dr Funnell saw Mr Dumitrov in December 2000 and Mr Wagner summarised his report including the doctor's statement that there was substantial exaggeration by Mr Dumitrov and the doctor's opinion that there was no reason that he could not return to full time process work with restriction, that he not be required to undertake frequent or heavy lifting or carrying, and that there were no definite or convincing signs of persisting physical injury in the neck or either arm.
59 Dr Mark Burns, an occupational physician, saw Mr Dumitrov in June 2002. Mr Wagner summarised his report and his diagnosis that it would appear that Mr Dumitrov developed a De Quervains tenosynovitis in his right wrist and that it was also likely that he had a similar condition, but less severe, in his left wrist. But there was no evidence that he had a significant organic or structural problem in his elbows, shoulders or neck. Mr Wagner commented on Dr Burns' report as follows:
"Dr Burns believes that Mr Dumitrov meets the definition of TPD.
Dr Burns believes that Mr Dumitrov is TPD because he cannot return to his former occupations. He also believes that Mr Dumitrov is TPD because he has no education, training or experience in very light or sedentary work.
Dr Burns seems to be under the impression that the decision as to whether Mr Dumitrov can be classified as TPD is based solely on whether he can return to his previous occupations or those in which he has education, training or experience.
I believe that Dr Burns has misinterpreted the TPD definition because very important components of the definition are the words " any " in the context of occupational work and " reasonably " in the context of being capable of performing by reason of education, or experience."
60 Dr Burns was provided with the definition and he expressed the view that Mr Dumitrov fell within it:
"I note that the definition of total and permanent disablement in the Group Life Contract states that the insured person must be unable ever to engage in or work for reward in any occupation or work which he is reasonably capable of performing by reason of education, training or experience. Utilising this narrow definition, I believe that Mr Dumitrov would be unable to return to any of his previous occupations. He certainly has no education, training or experience in very light or sedentary work. I therefore believe that using of this definition he would be seen as totally and permanently disabled."
61 Mr Wagner dismissed Dr Burns' report in his final summary. He said:
"Doctor Burns provides his opinion that Mr Dumitrov is TPD because he cannot work in his former occupations and because has no education, training or experience in very light or sedentary work.
I believe that Dr Burns has erred in coming to his opinion based on his interpretation of the TPD definition because it seems that he has interpreted it on the basis of whether Mr Dumitrov is singularly, not reasonably, capable of work in his former or other occupations.
The fact is that Mr Dumitrov cannot be defined as being TPD unless he is "unable to ever engage in or work for reward in any occupation or work which he or she is reasonably capable of performing by reason of education, training or experience". (my emphasis)"
62 To dismiss Dr Burns' opinion without further investigation on a narrow interpretation of what Dr Burns had said also, in my view, led Hannover into error by acting unreasonably and unfairly towards Mr Dumitrov. Dr Burns had the definition before him. He turned his mind to that definition and he concluded that Mr Dumitrov fell within it because he could not return to his former occupation and there was no light or sedentary work with which he had education, training or experience. I do not understand what Mr Wagner meant when he used the word "singularly". Dr Burns clearly thought that the only other occupational work for which he was reasonably capable by reason of education, training or experience was light or sedentary work. If an insurer is to act reasonably and fairly to an insured, it must have a better reason for rejecting a medical opinion that addresses the relevant definition and expresses the opinion that the insured fell within it, than Mr Wagner's reasoning.
63 Mr Wagner finally dealt with two vocational assessments prepared by Margaret Kudas and two functional capacity evaluations prepared by Joan Marie Lawlor concluding that Mr Dumitrov was fit for a range of occupations in the sedentary and semi-sedentary categories of work. Mr Wagner referred to the comments that Mr Dumitrov's use of pain scale was not appropriate to the clinical signs observed and the degree of pain and disability he reported was not consistent with the natural history of his condition and that it was considered that the pain reported was not proportional to the observed clinical signs.
64 In his summary, Mr Wagner noted in particular that Dr Funnell believed that Mr Dumitrov was substantially exaggerating his symptoms and found no pathology in areas in which Mr Dumitrov complained of significant pain and dysfunction and that, similarly, the functional capacity evaluation also indicated that his degree of pain was not consistent with the natural history of his condition and was disproportionate to the observed clinical signs. Mr Wagner also noted the comment of Dr Burns that there was no evidence that he had significant organic or structural problems in either his elbows, shoulders or neck. Mr Wagner said that all these observations contradicted assertions by Mr Dumitrov when he complained of sustained pain, restriction of movements and incapacity in those areas of his anatomy. Mr Wagner went on to say that in addition to the discrepancies noted between the exaggerated symptoms and clinical findings, the other main issue was whether Mr Dumitorv was unable to ever engage in or work for reward in any occupation or work that he was reasonably capable of performing by reason of eduction, training or experience. He said that in addition to the examination by Dr Funnell, the vocational/functional assessment indicated that Mr Dumitrov was so capable, although it was qualified, in that it seemed Mr Dumitrov was not motivated to do so. Having then dismissed Dr Burns' report in the manner I have described, Mr Wagner concluded:
"I do not believe that it is unreasonable to require Mr Dumitrov to work in other areas in which he requires minimal retraining. I am of the view that he is quite versatile, albeit that currently he seems unmotivated to return to work and may be exaggerating his symptoms to increase the perception of disability by those required to formally assess him.
I believe that, on the balance of the evidence, Mr Dumitrov does not meet the TPD definition and therefore is not entitled to TPD benefit."
65 In my view, the reassessment by Mr Wagner placed undue weight upon exaggeration of symptoms and placed little or no weight upon the medical reports that expressed the view that Mr Dumitrov was unfit for work, or that he fell within the definition. In my view the failure of the reassessment to address these issues meant that Hannover did not act reasonably, in good faith and fairly to Mr Dumitrov. Not only did Hannover misconceive its duty and fail to carry out a re-examination, but also the review of the file was unfairly biased against Mr Dumitrov.
66 In my view Mr Dumitrov has succeeded in establishing that Hannover breached its duty of utmost good faith in dismissing his claim.
Reliance on the definition
67 In the absence of evidence that the definition of total and permanent disablement was unusual or unduly harsh, and in light of the decided cases in which similar clauses appear without challenge to their operation, I do not see a basis for concluding that Hannover's reliance on the definition would constitute a failure to act with the utmost good faith.
68 There is, in my judgment, no basis for the operation of the Insurance Contracts Act 1984 (Cth), s 14.
Total and permanent disablement
69 Since Hannover's opinion cannot stand, it is for the court to determine whether or not Mr Dumitrov was totally and permanently disabled (Edwards at 77,537).
70 I have already mentioned the medical reports that were available to Hannover. Further evidence was given by the authors all those reports other than Dr Manohar.
71 Dr Funnell and Dr Burns consulted and reached agreement that on the evidence they had reviewed, Mr Dumitrov had the condition of De Quervains tenosynovitis that developed in 1996 and eventually affected both wrists, the right worse than the left. The doctors were content that this was a work-related injury. They were satisfied that when Dr Funnell saw Mr Dumitrov in December 2000 and when Dr Burns assessed him in August 2002, the physical examination findings did not suggest that the pathology was still active. However, they agreed that Mr Dumitrov was not fit in future for heavy or repetitive manual work because of that past history and the likelihood that such heavy occupations could in future flare the condition up again. They agreed that there was no objective evidence at the time of their separate assessments that Mr Dumitrov suffered a disabling musculo pathology elsewhere such as the neck, shoulders or elbows. The doctors agreed that psychological factors in the notion of fear avoidance might have been unduly affecting his presentation.
72 Dr Conneely saw Mr Dumitrov in August 1997. He said that his continued dysfunctions were primarily in the extensor tendons bilaterally with the right worse than the left. The doctor said that Mr Dumitrov had made his elbows and shoulders change the way they work so as to accommodate for the reduced movements in his hands and wrists and that in turn led to their dysfunction. He expressed the opinion that the prognosis was very poor and he doubted that Mr Dumitrov would fully recover in time to resume any gainful employment as a non-skilled worker.
73 Dr Conneely saw Mr Dumitrov again in October 2003. Dr Conneely assessed his position then to be worse and that he fitted the description in the definition of total permanent disablement.
74 Dr Conneely's assessment of Mr Dumitrov in 2003 differs from the assessments of Dr Funnell and Dr Burns in 2000 and 2002 respectively. This inconsistency was put to Dr Conneely who conceded that one or other of the doctors, including himself, had got it wrong. I prefer the assessments of Dr Funnell and Dr Burns to that of Dr Conneely.
75 Mr Dumitrov was seen by Dr Anthony Dinnen, a consultant psychiatrist, in January 2006. He diagnosed Mr Dumitrov as suffering from severe chronic depression and that the consequences of his long-standing pain and disability resulting from work injury had been personally devastating. Depression was reactive to his circumstances. Dr Dinnen did not believe that Mr Dumitrov's reaction to his disability under the circumstances was excessive or inappropriate. But it was chronic and sustained. Dr Dinnen expressed the view that Mr Dumitrov would benefit from ongoing treatment involving psychotherapy and medication. Dr Dinnen said that Mr Dumitrov's depressive illness, in its own right, very much limited his disability to work or to return to the workforce and, if he were to work, the doctor believed that his efficiency would be so poor that he could not sustain employment. Dr Dinnen said that treatment would have the effect that the depressive illness would not worsen and over two to four years one might expect something of the order of a 10 - 50 % improvement.
76 Ms Lawlor said it was not her function to suggest particular jobs and Mr Dumitrov needed further treatment before he could work for longer than 15 hours, in her opinion. Ms Kudas also said it was not her function to find an employer. She saw him only once and no rehabilitation programme was put in place. Before Mr Dumitrov could receive any on-job training, he would need to get a job.
77 Dr Funnell maintained the opinion in his report that he could see no reason why Mr Dumitrov could not return to full-time work as a process worker with no heavy lifting and carrying.
78 On the other hand, Dr Mahoney said that Mr Dumitrov did not exaggerate his symptoms. Dr Mahoney saw Mr Dumitrov again in August 2003 when he referred to Mr Wagner's reassessment and pointed out that he had not expressed an opinion with respect to the definition as Mr Dumitrov was referred to him for treatment. Having read the definition, Dr Mahoney expressed the view that Mr Dumitrov was totally and permanently disabled under its terms.
79 Dr Burns agreed that Mr Dumitrov behaved as if the condition in his wrists was active when it was not. He agreed that there was an overstatement, but it was real to the individual. Dr Burns said that five years after the event his symptoms were highly entrenched and treatment was highly unlikely to be successful. He maintained the opinion expressed in his report.
80 Dr Oner said he took over the care of Mr Dumitrov in February 1997. He was then under the management of Dr Mahoney. In November 1997, on the termination of his employment, Mr Dumitrov was still under the care of Dr Mahoney who advised release of the abductor pollices longus and the extensor pollices brevis to the left thumb as well as a manipulation of his neck under a general anaesthetic. Dr Oner said that Dr Mahoney's recommendation was that he was unfit to return to his pre-injury duties and he shared that view.
81 I prefer the evidence of Dr Mahoney, Dr Burns, Dr Oner, Dr Manohar and Dr Dinnen to that of Dr Funnell, Ms Kudas and Ms Lawlor. The symptoms of which Mr Dumitrov complains have now been ingrained for many years. It is highly unlikely that treatment now will improve his condition as consistently described by family members. He exhibits to them the unemployability that the doctors noted.
82 The definition is a hard one to achieve. But in my view the appropriate finding on the evidence adduced at trial is that Mr Dumitrov falls within the definition of total and permanent disablement and is entitled to a declaration to that effect.
Orders
83 In my judgment, Mr Dumitrov has failed to establish that the definition of total and permanent disablement in the policy is unusual for the purposes of the Insurance Contracts Act 1984 (Cth), s 37. In my view, Mr Dumitrov has succeeded in establishing that Hannover breached its duty of utmost good faith in dismissing his claim. There is, in my judgment, no basis for the operation of the Insurance Contracts Act 1984 (Cth), s 14. Since Hannover's opinion cannot stand, it is for the court to determine whether or not Mr Dumitrov was totally and permanently disabled. The definition of that term is a hard one to achieve. But, in my view, the appropriate finding on the evidence adduced at trial is that Mr Dumitrov falls within the definition of total and permanent disablement and is entitled to a declaration to that effect.