Mr JH had the benefit of an income protection insurance policy. Insurers refused to pay, relying on a Chronic Pain Abilities Determination (CPAD) administered by Mr David Newman (a UK Osteopath and Director and Senior Assessor for Formhealth). Mr J H took his case to the Irish High Court claiming that he was totally disabled by reason of sickness or accident from following his occupation of insurance broker. The income protection policy was intended to cover Mr J H financially though a period of disability provided he was totally unable to carry out his normal occupation due to a recognised illness or accident. There was a further proviso that he was not involved in carrying out any other occupation for profit, reward or remuneration.
Mr JH was diagnosed with FM in April 2009 by a consultant. He was certified unfit for work by his GP from April 2009 and claimed on his policy in September 2009. The insurance company wrote to him in December 2010 stating that in the light of all the medical evidence he was not totally disabled by reason of sickness or accident from following his occupation and the benefit that he had been receiving was terminated after a phased payment over four weeks. The insurance company relied heavily upon the CPAD test.
JH maintained that he satisfied the policy definition, further submissions were made to the insurance company but they decided again in June 2011 that he was not suffering disability.
Proceedings were issued by Irish solicitors on 21 June 2012. The solicitors had obtained evidence from a GP, consultant surgeon and a professor of rheumatology. The insurers relied heavily on Mr Newman and his CPAD test. This is similar to the functional capacity evaluation that has been used widely in England and Wales (and elsewhere) by insurers over many years. Such evaluations can be valuable in establishing levels of function in certain conditions, but they are regarded as highly misleading in fibromyalgia where the sufferer may be able to do tasks at one time but not at others. In particular, it is sustained activity which they find most difficult and that is not really addressed by functional capacity evaluations, particularly where an insurer has instructed the company to carry them out.
In this case, the Court preferred the medical evidence of Mr JH to that of Mr Newman. Mr JH was awarded €91,000, an order for future payments and he was also awarded his legal costs at the end of a five day high Court hearing.
Brian Barr comments “this case offers great encouragement to those brave enough to take on the insurance companies and for those sceptical about functional capacity evaluations/CPADs. If insurers rely too heavily on these they do so at their peril”.
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