Ellis v TAL Life Ltd

Claim

1. On 29 August 2011 the Plaintiff lodged a Medical Catastrophe - Critical Injury Claim form. [3]
2. On 27 March 2012 the Defendant declined the claim. In doing so, case manager Kim Ross wrote to the Plaintiff stating: … As stated above, to meet the definition of Benign Brain Tumour as defined in your Policy Document, the tumour must be life threatening, causing sensory impairment of at least 25% permanent impairment of whole person function and be supported by imaging studies. To confirm that you meet the above definition we requested an Independent Medical Examination with a trained Whole Person Impairment Assessor, Dr Frances Sullivan. In addition we requested a Medical Report from your treatment provider Dr John Harrison. In his reports dated 22/12/11 and 30/01/12, Dr Sullivan commented that you have had a mid-brain tumour since 2005 which has caused fourth nerve palsy as a result. This is causing double vision or diplopia. Dr Sullivan notes that this is supported by an MRI. Dr Sullivan assessed your Whole Person Impairment under the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition. Dr Sullivan refers to Chapter 8, page 217 which states that diplopia within the central 20 degrees is estimated to be 100% impairment of ocular mobility or the equivalent of total loss of vision in one eye. This equates to 25% impairment of the visual system and 24% Whole Person Impairment. In addition, when asked Dr Sullivan noted that it was unlikely that the condition was life threatening. In the opinion of your treatment provider, Dr Harrison, he commented in his report dated 08/01/12 that you have been diagnosed with a Benign Brain Tumour supported by an MFI. In addition he made the following comment, "I do not consider Mr Ellis' brain tumour to be life threatening at the present time, but depending on the speed and growth, it could become so at some time in the future". Dr Harrison further opined that your impairment due to diplopia has the equivalent to 80% loss of one eye, equating to 20% impairment of the visual system and 19% Whole Person Impairment. Although you have been diagnosed by multiple doctors with the condition of Benign Brain Tumour and it has been supported by an MRI (as required in the policy definition), your condition at the present time cannot be considered life threatening, nor does the sensory impairment you suffer equate to 25% Whole Person Impairment.
3. The Plaintiff's claim was essentially brought consequent to the refusal of the claim dated 29 August 2011. In short, the Plaintiff asserts that he is entitled to the benefits under the policy as the tumour meets the definition as provided within in the policy.
4. Despite having earlier pleaded otherwise Defendant accepted that the proceedings as advanced were not statute barred but maintained that the benign brain tumour which the Plaintiff suffers is not life threatening and has not resulted in a whole person impairment in excess of 25%.

Medical Evidence

1. The Plaintiff was seen by Dr Niall Aboud on 16 February 2011 complaining of vertical double vision. He was referred to Dr John Harrison who specialised in diseases of the eye. [4]
2. Dr Harrison noted in a report dated 8 January 2012 that the Plaintiff had previous imaging studies which suggested the likely diagnosis of a meningioma of the posterior fossa, which he believed confirmed the presence of a "benign brain tumour". He opined that as a result of the position of the brain tumour, the fourth nerve has become compressed by the tumour, causing a fourth nerve palsy manifesting as symptomatic diplopia. He treated the Plaintiff with prismatic glasses, although he noted the positions of gaze where diplopia is experienced. He stated: Under AMA5, diplopia is assessed on an individual basis, whereas AMA4 tends to give a more consistent set of guidelines for assessment of diplopia. Without the prism in place, I would assess Mr Ellis' impairment due to diplopia as equivalent to 80% loss in one eye, equating to a 20% impairment of the visual system and a 19% impairment of the whole person. With a prism in place, Mr Ellis' symptomatic diplopia would need reassessment as I would expect this to be somewhat less. As stated above, treatment with manipulation of the prisms or indeed strabismus might decrease Mr Elli's whole person impairment rating, but surgery in the presence of a brain tumour is done only under unusual conditions if the diplopia has been stable for an extended period of time. Needless to say, the concern is the continued tumour growth may result in exacerbation of ocular alignment even if successful surgery has been performed. I do not consider Mr Ellis' brain tumour to be life threatening at the present time, but depending on the speed and growth and direction of growth, it could become so at some time in the future. Progressive symptoms would expect to occur and surgery may be indicated at a later date if that should eventuate. Surgery on the brain tumour could be considered if symptoms increase.
3. The Plaintiff was also seen on 15 December 2011 by Dr Francis Sullivan, consultant ophthalmologist, at the request of the Defendant. In his executive summary, Dr Sullivan opines as follows: Mr Ellis has an inoperable mid brain tumour since 2005 and he has had a fourth nerve palsy as a direct result of the tumour. Mr Ellis has consulted widely with neurosurgeons and a neruoophthalmologist but he has been advised that removal of the tumour is contraindicated and that a local operation on the eye for the diplopia is not advised. Dr Harrison, neruoophthalmologist, has stated that if Mr Ellis became completely stable over a longer period of time, further discussion of surgery could be considered.
4. Dr Sullivan confirmed that the Plaintiff developed a mid-brain tumour diagnosed by a magnetic resonance imaging (MRI) scan in 2005 and that he developed a fourth nerve palsy in the right eye which was as a result of diplopia which has been present for approximately four years. He noted that treatment of prismatic glasses was not working and he would not expect Mr Ellis' visual restrictions to improve under the current treatment.
5. As to the question of whole person impairment, Dr Sullivan opined: In Chapter 8 of the Medical American Association's Guides to the Evaluation of Permanent Impairment, 4th edition and more particularly on the subject of abnormal ocular motility and binocular diplopia on page 217, it states that diplopia within the central 20 degrees is estimated to be a 100% impairment of ocular motility. This is equivalent to the total loss of vision in one eye which is estimated to be 25% impairment of the visual system, and 24% whole person impairment. [5]
6. In a supplementary report dated 30 January 2012, Dr Sullivan was asked about whether the Plaintiff's condition was life threatening. He responded as follows: Brainstem tumours and tumours in the region of the 4th nerve are poorly understood. It is unlikely that Mr Ellis has a life threatening condition. This question should be referred to an expert in the field, as it is not my area of expertise. His symptom is largely one of diplopia. This symptom though distressing, is not life threatening.
7. On 20 May 2015 the Plaintiff saw Dr Clare Fraser, neuroophthalmologist. Dr Fraser confirmed that the Plaintiff has a right fourth nerve palsy resulting in double vision across the whole field of vision and within the central 20 degrees. She agreed with Dr Sullivan that in accordance with the AMA 4 table, 100% impairment of ocular motility is the equivalent to total loss of vision in one eye which is estimated to be a 25% impairment of the visual system and 24% whole person impairment. Dr Fraser added that the Plaintiff reported that as a result of the diagnosis of the brain tumour combined with fourth nerve palsy, he had withdrawn from social activities including playing golf and tennis and missed his passion of working as a sign writer, which he was no longer able to perform. Dr Fraser thereafter stated: Disturbances in this section of AMA 4 may be the result of neurologic impairments (cranial nerve palsy) but may have psychiatric features as well including withdrawal. This is estimated to be 5% whole person impairment, equivalent to mild limitation of daily social and interpersonal functioning. However, I would recommend that a psychiatrist formally assess his psychiatric impairment, as he may qualify for a larger WPI based on Chapter 14 of AMA. Reference AMA 4 Chapter 4, pages 141-142.
8. In a follow up letter dated 22 July 2015, Dr Fraser stated: Mr Ellis' tumour would meet the criteria for a benign brain tumour. A meningioma is classically a slow growing lesion that remains in the location where it is first detected, and does not metastasise to other locations of the body such as the liver. Given the location of the meningioma, should it grow substantially it would qualify as life threatening as it could cause elevated intracranial pressure or put direct pressure on the brain stem. The medical definition of benign is a tumour that does not metastasise to other locations. Therefore, though a meningioma is benign it can still be life threatening by means of its local growth potential. [6]
9. On 30 March 2016 Dr Fraser further reported: The benign meningioma does have the potential for ongoing growth. These lesions are typically very slow growing, however, given enough time it may become large enough to be considered life threatening. It is this growth potential that gives the meningioma the possibility of being "life threatening". The exact speed of progression and the likelihood that it will grow I cannot comment on directly and it would need to be observed over time to get an idea of its progression. I would suggest seeking a further opinion from a neurosurgeon with expertise in posterior fossa meningioma for a more accurate assessment if required.
10. On 18 August 2016 Dr Fraser further reported: It is my belief that his tumour would meet the definition of life threatening given that the overall rates of surgical mortality in these cases are between 2.5 and 10% in the literature. The fact that his tumour has been deemed inoperable implies that the risk of mortality is even higher. It is known that patients with surgically treated meningioma do not suffer impaired survival or progression free intervals compared to the age match population, however, given that his cannot be surgically treated his survival rate is therefore altered compared to the general population of someone his age. It is my belief that while his tumour is not malignant or terminal, it does meet the definition of life threatening given that it has been documented in the area of the brain stem. [7]
11. In a letter dated 17 December 2017, Dr Clare Fraser opined that the tumour which was detected in 2005 would have been considered life threatening on August 2011 when the first claim was made against the Defendant. [8]
12. On 14 August 2015 the Plaintiff obtained a report from consultant psychiatrist, Dr Steven Huntsman. Dr Huntsman obtained a history that the Plaintiff's diplopia rendered him unable to work as a graphic designer and that he had ceased work 5 years previously. He noted that the Plaintiff had become depressed as a result of not being able to work and described feeling "foggy". He described chronic fatigue, anergia, loss of motivation, loss of enjoyment and difficulty sleeping. He reported a loss of appetite and fleeting suicidal ideations. He noted that the Plaintiff was placed on sertraline and anti-depressant medication by his general practitioner and this was subsequently changed to escitalopram. Dr Huntsman diagnosed a major depressive disorder of a single episode in partial remission. Dr Huntsman found a whole person impairment of 5% for effects of treatment and 15% under AMA 5, making the final whole person impairment 20%.

Life Threatening Non-Cancerous Tumour

1. The Plaintiff contended that based on what it submitted was the unchallenged evidence of Dr Fraser Mr Ellis' tumour met the requirement of being life threatening. The Defendant contended that that definition was clearly not met and what the correspondence demonstrates is a process of requests by the Plaintiff's solicitors which culminated in Dr Fraser coming to the opinion that the relevant tumour was life threatening. Neither party was able to take me to any authority as to the interpretation of a similar clause although the Plaintiff did draw my attention to the general principles of policy construction referred to in Ashmere Cove Pty Ltd v Beekink. [9]
2. The only case that I have been able to locate that has some peripheral relevance is Tower Australia Ltd v Farkas [10] That case considered a life threatening disease in a different context but its approach was to focus on the particular disease not its stage of progression.
3. Benign Brain Tumour is referenced to a definition that requires that it is life threatening, producing characteristic symptoms of intracranial pressure resulting in at least 25% permanent impairment of whole person function.
4. In this case the relevant benign tumour meningioma was non-operable and was described by Dr Fraser as having potential for ongoing growth. The question of whether it is a life-threatening non-cancerous tumour in the brain within the definition rests on the character of the tumour, not the stage of its progression. In this sense, the tumour has to be of a character to threaten the longevity of life or life expectancy for it to fall within the descriptor "life threatening".
5. Dr Fraser's assessment that the Plaintiff's survival rate is altered compared to that of the general population of someone of his age accords with what is required under the policy. Had the policy required the tumour to be at a stage of being immediately life imperilling or endangering life different considerations may have arisen.
6. I am fortified in this view by the fact that a number of other clauses of the policy qualify relief based on the stage of progression. For example Chronic Liver Failure, Chronic Lung Failure and Chronic Renal Failure (Kidney Failure) are required to being at end stage. Cancer is defined to include malignant melanomas according to the depth of invasion and thickness. Carcinoma in Situ is referenced a classified staging method.
7. Dr Fraser's opinion expressed in the report of 30 March 2016 relates to stage of the tumour. Similarly the approach taken by Dr Harrison referring to tumour not being life threatening "at the present time" refers to the stage. Dr Sullivan's opinion was qualified stating that he was not an expert in the field and it is not his area of expertise.
8. Dr Fraser's was not required for cross examination and nor was her opinion of 18 August 2016 contradicted. That opinion was not inconsistent her earlier view but was based on the character of the tumour.
9. In the circumstances based on Dr Fraser's evidence, I am satisfied that the Plaintiff does in fact suffer from a 'life-threatening non-cancerous tumour in the brain' within the meaning of the subject policy.

Assessment of Whole Person Impairment

1. The Plaintiff asserts that based on Dr Fraser's opinion, the Defendant did not in its assessment have regard to all the consequences of the tumour. It argues that the assessment of whole person impairment includes both physical and psychiatric impairments.
2. The Defendant asserts that its definition only refers to the non-psychological components. This it is said, arises because of the reference in the definition to "which give rise to characteristic symptoms of intracranial pressure such as papilledema, mental symptoms, seizures and sensory impairment".
3. The policy did not define the methodology for the assessment of the whole person impairment but it was accepted by the parties that the AMA Guidelines were the appropriate vehicle for determination. The evidence relevant to this issue follows that approach. It was also not in issue that those Guidelines allow for the psychological component of whole person impairment to be assessed. I accept that evaluation of whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and on the activities of daily living. [11]
4. In my view the use of the words "resulting in" should be given their ordinary meaning, being "to arise as a consequence". [12] The definition addresses the connection between the tumour and the whole person impairment. There is a clear connection between the tumour and a certification of 28% whole person impairment as outlined in Dr Fraser's report such that it can be said that the former has resulted in to the latter. There is no suggestion that the additional psychological symptoms sustained by the Plaintiff do not result from the tumour and I see no other basis in the definition to exclude it. If there was any doubt, the use of the words "which gives rise to characteristic symptoms of…mental illness" would include the additional impairment which Dr Fraser refers. Dr Huntsman's further confirms that the tumour resulted in the symptoms leading to the whole person impairment he refers to.
5. Accordingly I am satisfied that the threshold of 25% whole person impairment has been met.

CONCLUSION

1. It follows that I am satisfied that that the Plaintiff is entitled to the relief he seeks.
2. Accordingly I order: 1. Verdict and judgment for the Plaintiff in the sum of $280,254; 2. I will hear form the parties as to interest calculated pursuant to s 57 of the Insurance Contracts Act 1984 (Cth); 3. I will hear from the parties as to costs.

Endnotes

1. Exhibit 3
2. Exhibit A, p 31.
3. Admitted at Defence at [9]. See also Exhibit A, p 18.
4. Exhibit A p 1.
5. Exhibit 1, p 12.
6. Exhibit A, p 6.
7. Exhibit A, p 15.
8. Exhibit A, p 17.
9. [2009] FCA 564 at [100]-[106].
10. [2005] NSWCA 363 at [32]-[36].
11. Comcare v Amorbieta [1996] FCA 312.
12. Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at p 461-2.

Amendments 14 June 2019 - Minor typographical amendments made DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2019