van der Noll v Sovereign Assurance Co Ltd
[2013] NZHC 3051
•27 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-1930 [2013] NZHC 3051
BETWEEN PATRICK VAN DER NOLL Plaintiff
ANDSOVEREIGN ASSURANCE CO LIMITED
Defendant
Hearing: 1-4 July 2013
Counsel: A Hooker for the Plaintiff
A Ross and B J Murphy for the Respondent
Judgment: 27 November 2013
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 27 November 2013 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr A Hooker, Solicitor, North Shore
Mr A Ross, Chapman Tripp, Solicitors, Auckland
VAN DER NOLL v SOVEREIGN ASSURANCE CO LIMITED [2013] NZHC 3051 [27 November 2013]
CONTENTS
Para No.
Introduction [1] The relevant provisions of the income protection policy [4] The issues [5] Conclusion in summary [9]
The facts[10] (1) Mr van der Noll’s personal particulars and work history [14] (2) 2008-2010 : onset of the condition and the first two years on claim [18] (3) February-October 2009 : lead up to the original decision [41] Mrs Keet : Sovereign’s instructions and the report [47]
Dr Kenny : Sovereign’s instructions and Mr van der Noll’s response [55] Dr Kenny’s first report : 27 September 2010 [58] Sovereign’s original decision : October 2010 [62]
(4) October 2010-September 2011 : events following Sovereign’s
original decision through to Sovereign’s second reassessment [66]
Dr Kenny’s second report : advice to Dr Konings [69] Further reports for Mr van der Noll : Sovereign’s first reassessment [71] Dr Kenny’s third report : 17 June 2011 [80] Dr Kenny’s fourth report : 6 August 2011 [86]
Legal principles : decision making by the insurer and the scope of the
Court’s enquiry [92]
Acting reasonably in forming the opinion [95]
Approach to interpretation of the insurance policy [100]
Discussion : total disability [102]
Completely and continuously unable to earn remuneration :
interpretation [104]
Completely and continuously unable to earn remuneration :
was Sovereign’s decision reasonable? [108]
Any occupation to which he is reasonably suited by education,
training or experience : interpretation [113]
Any occupation to which he is reasonably suited by education,
training or experience : was Sovereign’s decision reasonable? [126]
Inability to work “solely by reason of Accident or Sickness” :
interpretation [132]
Inability to work solely by reason of the condition : was Sovereign’s
decision reasonable? [136]
Conclusion on total disability [146] Partial disability [147] Result [158]
Introduction
[1] The plaintiff, Mr Patrick van der Noll, was a member of a group insurance scheme for income protection provided by the defendant insurance company, Sovereign. For just over two years, until October 2010, Sovereign paid Mr van der Noll a benefit under the policy because of his inability to earn remuneration from his own occupation as a consequence of total disability. This followed a diagnosis by a
medical specialist that Mr van der Noll was suffering from chronic pain syndrome.1
[2] The policy provided an “own occupation period” during which Mr van der Noll received a benefit for being unable to work in his former occupation. The own occupation period expired after two years, but a benefit was payable in other events. At that time Sovereign, having obtained opinions from an occupational physician and a vocational assessor, concluded that Mr van der Noll was no longer entitled to any benefit and ceased payments. The decision was challenged by Mr van der Noll. He maintained that he remained totally disabled, in terms of the policy, and he produced medical opinions in support of his contention. The original decision was reassessed twice by a claims committee of Sovereign. On the second occasion, in September 2011, the committee considered whether there was partial disability, as well as total disability. On both reassessments Sovereign confirmed the original decision and on the second it also decided there was no partial disability.
[3] Mr van der Noll has sued Sovereign for breach of contract. He contends, firstly, that he was and remains totally disabled. He contends, in the alternative, that he is partially disabled. He seeks damages for the sum he claims should have been paid from the date of cessation of payments in October 2010 to the date of judgment and an order by way of specific performance that payments continue.
The relevant provisions of the income protection policy
[4] The most relevant provisions of the policy are as follows:
1 The diagnosis is categorised, or described differently, in reports from some experts, but all terms used by the experts are broadly consistent with chronic pain syndrome. For convenience I will generally refer to it as “the condition”.
Operative Clause
In consideration of the payment of the premium … and of the Policy Owner complying with its obligations … the Company will pay the Benefit insured in respect of a Member upon production of evidence satisfactory to the Company of the happening of the event upon which such Benefit is expressed to be payable.
Definition of Total Disability : 1.1.34
“Total Disability” means the complete and continuous inability of the Member solely by reason of Accident or Sickness to earn remuneration from their Specified Occupation for the first 2 years following expiration of the Waiting Period [being 90 days] and thereafter from any occupation for which they are reasonably suited by education, training or experience; …
Total Disability Benefit : 1.1.32
[The amount of the Benefit is calculated as varying percentages of the
Member’s Pre Disability Income.]
Cessation of Total Disability Benefit : 5.3
The Total Disability Benefit ceases to be paid on the earliest of:
• …
•a medical assessment that indicates to the satisfaction of the Company that the Member is no longer Totally Disabled, or the Company otherwise considers on reasonable grounds that the Member no longer satisfies the Policy definition of Total Disability;
• …
When Partial Disability Benefit is Payable on Cessation of Total Disability Benefit :
5.4
If a Member is no longer Totally Disabled but is, in the opinion of the Company, unable, solely because of the Accident or Sickness … causing the earlier Total Disability, to earn 75% of the Pre Disability Income a Partial Disability Benefit is payable on the following terms:
The amount of Partial Disability Benefit is, subject to Condition 6 and 8, a proportion of the Benefit which would be paid if the Member continued to be Totally Disabled. The Benefit is determined from the following formula:
Partial Disability Benefit = x Monthly Benefit where;
D is the Member’s monthly Pre Disability Income, and
Pis the monthly income of the Member from personal exertion, or, in the Company’s opinion, the monthly income which the Member is capable of earning from personal exertion, during Partial Disability
[The Monthly Benefit is separately defined as one twelfth of the Benefit which is calculated by reference to the Pre Disability Income.]
Definition of Partially Disabled : 1.1.21
“Partially Disabled” refers to a Member who:
•is Totally Disabled for an initial period of at least 30 days and has not been able to return to their Specified Occupation on a full time basis during the remainder of the Waiting Period, if the Waiting Period exceeds 30 days; and
•solely as a result of the Sickness … which directly caused the Total Disability, does not earn, or is incapable of earning in any occupation, more than 75% of their annualised Pre Disability Income.
Partial Disability Benefit : 1.1.19
“Partial Disability Benefit” is the Benefit payable in the event of Partial Disability. It is a partial payment of the Total Disability Benefit, as calculated in Condition 5.
The issues
[5] The primary issues, considering them from Mr van der Noll’s perspective in the light of his claim, are whether there was breach of contract by Sovereign in ceasing payments of the disability benefit and, if not, whether there was breach of contract by Sovereign in declining to pay a partial disability benefit.
[6] Under condition 5.3, Sovereign was contractually entitled to cease payment of the total disability benefit if it was satisfied on the matters referred to in the condition. Entitlement to a partial disability benefit, pursuant to condition 5.4, was dependent on the opinion of Sovereign. Where a policy permits the insurer to make a decision when it is satisfied on a matter, or when it forms a particular opinion, the insurer must act reasonably in considering the matter and in reaching its conclusion. For Mr van der Noll to succeed he must establish that the relevant conclusions of Sovereign were not reasonable conclusions; that its decisions were not reasonably open. The relevant legal principles are discussed in more detail later in this
judgment.2 A central issue is, therefore, whether Sovereign’s original decision, and its decisions on the subsequent reassessments, were decisions reasonably reached and reasonably open to Sovereign.
[7] More specifically, was it reasonably open to Sovereign to conclude, in respect of the total disability benefit, that:
(a) Mr van der Noll was not completely and continuously unable to earn remuneration;
(b)from any occupation to which he was reasonably suited by education, training or experience;
(c) solely by reason of his condition?
[8] In respect of partial disability, was it reasonably open to Sovereign to conclude that:
(a) Mr van der Noll was no longer totally disabled; and
(b)any inability to earn income above 75% of his pre-disability income was not solely because of the condition?
Conclusion in summary
[9] In my judgment Mr van der Noll has not established that Sovereign’s decisions were unreasonable decisions. They were decisions based on expert opinions, with those opinions in turn being reasonable opinions founded on relevant information. There was a substantial body of additional information supporting a conclusion that Sovereign’s decisions were reasonably open to it. As a result Mr van
der Noll’s claims must be dismissed.
2 See below at [92]-[99].
The facts
[10] The facts are appropriately reviewed chronologically in four main parts:
(1)A brief note of Mr van der Noll’s personal particulars and work history up to the onset of the chronic pain syndrome. For convenience, I will generally refer to the chronic pain syndrome as Mr van der Noll’s “condition”.
(2) The onset of the condition through to the lead up to the assessment by
Sovereign in 2010 as the own occupation period expired.
(3)Steps taken by Sovereign and dealings between Sovereign and Mr van der Noll for the October 2010 decision.
(4)Events following Sovereign’s original decision in October 2010 through to Sovereign’s final decision, on the second reassessment.
[11] The evidence consisted of a substantial number of contemporaneous documents and evidence from witnesses. There is some important evidence from witnesses, including Mr van der Noll himself, and his wife. However, the greater part of the evidence which is most probative on the central issues, is the evidence from the contemporaneous documents. This is the contemporaneous record of the way in which Mr van der Noll and Sovereign acted and of the information on which Sovereign based its decisions.
[12] The documents mainly come within the following broad categories:
Written communications between Mr van der Noll and Sovereign, including
records of discussions.
Communications from health professionals with different areas of expertise engaged by Mr van der Noll to treat his condition, to assist him in a claim he made to the Accident Compensation Corporation (ACC), and to assist him in his
claim to Sovereign. These communications from specialists range from formal
reports to informal correspondence and brief medical certificates.
Reports and other communications to Sovereign from health professionals engaged by Sovereign firstly to assess Mr van der Noll’s original claim, then to assist in Mr van der Noll’s rehabilitation, and finally to advise Sovereign when
the own occupation period expired and payment of the benefit was reassessed.
Reports from and emails with Mrs Sylvia Keet, to whom Sovereign referred Mr
van der Noll for an occupational assessment report.
[13] Evidence was also provided by eleven witnesses. All but two were cross- examined. The witnesses were:
(a) For Mr van der Noll:
Mr van der Noll himself.
Mrs Marit van der Noll, Mr van der Noll’s wife.
Dr David Black, an occupational and environmental medicine specialist. Mr van der Noll consulted Dr Black, on an initial referral from his general practitioner Dr Konings, in May 2008. He was called as an expert witness in support of Mr van der Noll’s
claim.
Dr Stephan Neff, consultant anaesthetist and pain physician. Dr Neff was consulted directly by Mr van der Noll for assistance in endeavouring to treat his condition. Dr Neff was also called as an
expert witness in support of Mr van der Noll’s claim.
Mr Neville Aitcheson, human resources and employment consultant. Mr Aitcheson was called as an expert witness to provide his opinion on Mr van der Noll’s ability to earn
remuneration from his usual occupation or any other occupation for which he is reasonably qualified. This opinion was based on Mr Aitcheson’s understanding of Mr van der Noll’s level of disablement in the light of a brief of evidence from Mr van der Noll and reports from Dr Black, Dr Neff and Dr Kenny (referred to below).
(b) For Sovereign:
Ms Gemma Crump, a claims manager employed by Sovereign and who was case manager for Mr van der Noll’s claim between
July and December 2010.
Mr Peter Browne, a case manager employed by Sovereign. He was case manager for Mr van der Noll’s claim in the earlier part of 2010 and also gave evidence, from Sovereign’s records, from the lodging of the claim in August 2008 through to September
2011. Mr Browne was not cross-examined.
Ms Tracey Lonergan, who is Sovereign’s General Manager of Claims. Ms Lonergan has been a member of Sovereign’s claims committee since January 2001. She provided evidence on the reassessments of Mr van der Noll’s claim, by the claims
committee, in January and again in September 2011.
Mrs Keet, an occupational assessor and career consultant. Mrs Keet, on instructions from Sovereign, provided a report to Sovereign in September 2010 of her assessment of work alternatives for Mr van der Noll. Mrs Keet’s evidence was directed to her report and a response to the evidence of Mr
Aitcheson.
Dr Charles Kenny, a specialist occupational physician. Dr Kenny, on instructions from Sovereign, provided three reports to
Sovereign, and a further report to Mr van der Noll’s general practitioner, Dr Konings. These reports were directed to a range of questions which Sovereign considered were relevant to its decisions in terms of the policy and, basically, whether Mr van der Noll was totally disabled. Dr Kenny’s evidence was directed to his reports and a response to the evidence from, in particular, Dr
Black and Dr Neff.
Mr Ralf Schnabel, clinical psychologist and neuropsychologist.
Mr Schnabel, on referral from Sovereign, following a recommendation of Dr Kenny, conducted neuropsychological evaluations of Mr van der Noll in July 2011 and reported to Sovereign in that regard. Mr Schnabel gave evidence for Sovereign as an expert on these matters. He was not cross-
examined.
(1) Mr van der Noll’s personal particulars and work history
[14] Mr van der Noll was born in the Netherlands in 1972. He lived there until
2006 when he emigrated to New Zealand with Mrs van der Noll. Mr and Mrs van der Noll have lived in Auckland since 2006.
[15] In 1995 Mr van der Noll obtained a bachelor’s qualification in Business Administration. From 1996 to 2002 he worked for a small insurance agent in the Netherlands. He described his work as being mainly in administration and other back-office duties. From 2003 until 2005 Mr van der Noll worked for AON Risk Consultants BV in the Netherlands. He was a consultant on captive feasibility studies. In broad terms, captive feasibility studies involve investigations for client companies into the feasibility of self-insurance. After leaving AON in 2005 Mr van der Noll worked as an independent contractor to AON for a few months.
[16] Mr van der Noll began work in New Zealand with Marsh Ltd (Marsh) in
2006 as manager of Marsh Captive Solutions. Mr van der Noll was the only person employed in this division of Marsh. His primary tasks were to ensure that existing
captive insurance companies were complying with legal obligations, preparing financial statements for the captive insurance companies, and arranging filing of documents with government bodies. Mr van der Noll undertook some captive feasibility studies, but this was a small part of his job.
[17] In 2004 Sovereign had entered into a group income protection policy with Marsh, and an associated Marsh company, to insure Marsh employees. When Mr van der Noll began working at Marsh in April 2006, he became an eligible member under that policy.
(2) 2008-2010 : onset of the condition and the first two years on claim
[18] Sometime after he began work, Mr van der Noll began experiencing pain.3
Mr van der Noll sought medical advice from his general practitioner, Dr Konings. He also tried some ergonomic adjustments in his work arrangements. His symptoms did not improve and, on 13 March 2008, Dr Konings certified that he was unfit to work. At intervals from March 2008, including after Sovereign ceased payments in October 2010, Dr Konings continued to certify Mr van der Noll as unfit for work.
[19] Dr Konings’ medical notes in March 2008 record severe symptoms, including severe symptoms after Mr van der Noll had spent long periods at his computer. She noted that Mr van der Noll had researched his symptoms and had been reading about occupational overuse syndrome. Dr Konings was of the opinion that the symptoms were consistent with repetitive strain injury and she referred Mr van der Noll to specialists for advice on diagnosis and treatment.
[20] On 29 May 2008 Mr van der Noll, on referral from Dr Konings, saw Dr
Black. Dr Black’s report to Dr Konings dated 6 June 2008 includes the following in respect of an ACC claim by Mr van der Noll :
3 There is some uncertainty from the documentary evidence as to when this first occurred. Mr van der Noll recorded in his written claim to Sovereign that the symptoms first became apparent in “mid-2006”. The claim form is dated 1 August 2008. In a report to Mr van der Noll’s GP, Dr Konings, from Dr Baker, a specialist in musculoskeletal pain management, dated 27 March
2008, Dr Baker recorded that Mr van der Noll said that “for approximately the last five months [he] has noticed that he has increasing pain in his right shoulder and right elbow and forearm”. It is unnecessary to make a finding on the point.
With regard to Patrick’s ACC claim, in my opinion, these symptoms are relatively typical of conditions seen with intensive computer use and I could not accept that these are not work related. I note that, acting for ACC, Dr Causer, makes the same point, agreeing with work causation, but suggesting that a lack of evidence of physical injury removes the possibility of cover. In my opinion, that view, although sometimes held, is not correct. Indeed, in this case, there are a number of demonstrations of physical injury related to the symptoms, however, it will be important for Patrick to ensure that his claim is soundly based on a reasonable hypothesis of underlying pathology.
… I have also suggested that since the issues here, insofar as the ACC claim are concerned, are largely legal that Patrick would be well advised to consult a Barrister familiar with the ACC Act and have agreed to provide an initial briefing letter from such a consultation. From my experience, I suspect that ACC will seriously consider Patrick’s point of view in this matter. …
[21] On 5 June 2008 Mr van der Noll’s ACC claim was declined. There were two reasons. One was that there was no work task or factor in Mr van der Noll’s work environment that could be identified as having caused his condition.
[22] On 1 August 2008, Mr van der Noll submitted his claim to Sovereign. He described his injury as “Gradual Process Injury” and “Occupational Overuse Syndrome”. He said he was unable to do desk or computer work, drive, sit, make repetitive movements, lift, or use hand tools including handwriting.
[23] Mr van der Noll pursued his ACC claim with Dr Black’s assistance. On 15
August 2008 Dr Black provided a report directly to ACC. It is an extensive report which includes the following points or features:
(a) There was a focus on physical injury as the cause of the symptoms.
(b)The presenting diagnosis was carpal tunnel syndrome. This diagnosis was confirmed based on the presence of sufficient diagnostic criteria, although Dr Black accepted that the aetiology was controversial.
(c) On a question whether there was “any current evidence that the claimant has suffered actual damage to the body”:
There is underlying soft tissue damage, which is accruing. The evidence for this is the persistent and rapid escalation of symptoms when Mr van der Noll returns to repetitive work and the repeated demonstration of remission of symptoms
when he is away from this work. This has been agreed by all the practitioners who have seen him and efforts to manage it have been directed at modifying his workplace, work tasks and techniques to reduce precipitating activities.
(d) Whether Mr van der Noll’s condition was due to chronic pain
syndrome:
I do not accept that Mr van der Noll’s problems can be diagnosed as a chronic pain syndrome since there is brisk remission on removal of precipitating work and an absence of evidence of neurogenic pain. The one [contrary factor] is not on its own enough to confirm a pain syndrome.
(e) Whether there was workplace causation:
I do believe that the nature of Mr van der Noll’s work is the predominant contributing factor towards his carpal tunnel syndrome. He is required to undertake frequent repetitive motor tasks in the course of his keyboard intensive work.
(f) Management, including rehabilitation:
In my opinion, attempts at ergonomic optimisation should be maximised. If that does not work, then if Mr van der Noll is to continue in his work he will need to find a strategy for data input other than typing, for at least some of the time. There are a number of possibilities for this.
(g) The prognosis in terms of return to full work capacity:
The prospect of an immediate return to full work capacity is excellent if a method is found to work without intense keyboarding. This could range from a technological solution such as voice recognition to the more conventional approach of employment of a clerical assistant.
[24] In September, as part of the claim assessment’s process, Sovereign made an appointment for Mr van der Noll to see an occupational physician, Professor Gorman. Before he saw Professor Gorman, Mr van der Noll spoke to, then emailed, the Sovereign case manager expressing concern about disclosure of Professor Gorman’s report to ACC, at least so far as it related to causation. He referred to Dr Black’s advice to ACC that work activities were causative of his symptoms and that the diagnosis was carpal tunnel syndrome. In the email he said:
From court cases (available on internet) I note that Professor Gorman has stated in cases that in his opinion computer tasks are not causative for [carpal tunnel syndrome]. It would not be wise for my case with ACC (and therefore not good for Sovereigns position as well), if these two conflicting opinions would reach ACC.
He requested separate disclosure to Sovereign and himself on the issue, with the rest of Professor Gorman’s report being provided to ACC. The case manager said that Sovereign could not be drawn into taking sides or colluding to withhold information provided by an independent medical specialist.
[25] Professor Gorman’s report is dated 7 October 2008. It includes the following:
(a) Diagnosis:
The primary diagnosis is “chronic pain syndrome best described as a regional pain syndrome”. There are further diagnoses of “depression secondary to pain disorder and sleep disturbance”.
Professor Gorman opined “there is no clinical basis for a diagnosis of
carpal tunnel syndrome”.
(b) Prognosis:
The general prognosis was “good” with “a significant opportunity for therapeutic intervention” and “significant therapeutic interventions left to trial”. Professor Gorman said:
The cause for some caution in the context of his prognosis is in regard to the type of work that Patrick does. As you are aware, regional pain disorders such as this are at least three times more common in people who undertake the sort of work that Patrick does, as they are in the rest of the community. This means that this is probably an unsuitable occupation, unless he is able to and does change his work practice … [S]ome attention to his work practice now would certainly be indicated. I know he has been reviewed by an occupational therapist. This is adequate from a mechanical perspective. The issue now is to the extent to which Patrick can change his work practices to minimise the amount of keyboard work he does. For example, one immediate
intervention would be to enrol Patrick in training to use voice activated software. Even if this only reduces his keyboard work by 10%, this may enable him to sustain his work practices.
(c) Under the heading “work fitness”:
The issues around returning to work and so on really are premature until such time as his pain disorder is adequately managed.
(d) Recommendations:
Professor Gorman’s recommendations or advice included: therapeutic medication; anti depressants; referral to a psychologist specialising in pain management; and a pain orientated exercise programme. Professor Gorman said that he could not “identify any other factors, other than Patrick’s health problems, that would constitute significant barriers to his return to work”.
[26] Sovereign accepted Mr van der Noll’s claim on 8 October 2008, the day after
Professor Gorman reported.
[27] In October 2008 two Sovereign officers had a meeting with Mr van der Noll to discuss a case management plan. A copy of the plan was sent to Mr van der Noll on 21 October with a covering letter. In the letter Sovereign said it was committed to working with Mr van der Noll to achieve “our mutual goal of your return to work that is appropriate to your current situation”. The case management plan mentioned the possibility of using voice activated software for computer activities and to a “structured partial return to work plan”. There was provision for appropriate medical or other specialist assistance and monitoring.
[28] The plan, which was signed by Mr van der Noll on or about 21 November
2008, included commitments from Mr van der Noll and Sovereign. Mr van der
Noll’s commitment was in the following terms:
I have been involved with the development of this plan and agree with its contents including goals and timeframes for recovery. I understand that this plan is subject to change in consultation with me, my case manager and appropriate health care providers.
Sovereign’s commitment, through the case manager, was:
I have been involved with the development of this plan and agree on behalf of Sovereign to support the outlined rehabilitation. As discussed with [Mr van der Noll] this plan is subject to change in consultation with him and the appropriate health care providers.
[29] One of the first specialist referrals was to an exercise rehabilitation clinic at the University of Auckland. A report from the clinical supervisor to Sovereign, copied to Dr Konings, stated:
[Mr van der Noll] perceives a low to moderate disability arising from his experiences of pain, and has strong beliefs that physical activity may be deleterious to his health and should therefore be avoided.
[30] On 30 November 2008 Mr van der Noll was made redundant by Marsh.
[31] On 19 January 2009 Dr Black wrote to ACC responding to its queries of 10
October 2008 arising out of Dr Black’s report on 15 August 2008. Dr Black’s letter
includes the following in respect of carpal tunnel syndrome:
The fact that the nerve has recovered rather than suffering permanent damage is good news for the patient and does not reduce the strengths of the clinical observation suggesting reversible carpal tunnel syndrome at the time of the symptoms. Not all carpal tunnel results in permanent damage. …
In terms of causation of carpal tunnel and Mr van der Noll’s employment tasks it is more likely that repetition and posture were the cause rather than force, which is not generally found in computer work.
[32] ACC wrote to Mr van der Noll on 8 April 2009 declining his claim. The letter records acceptance of Professor Gorman’s diagnosis of chronic regional pain syndrome and rejection of Dr Black’s diagnosis of right carpal tunnel syndrome. The claim was declined on the grounds that chronic regional pain syndrome did not satisfy the statutory test for physical injury. ACC also said that even if the carpal tunnel syndrome diagnosis was correct the claim would be declined. The letter records:
This is because your work as an Insurance Executive is computer based, and is not sufficiently forceful to be causal of this injury. This is confirmed by the work site assessments we have on file. Dr Black’s suggestion that repetition and posture alone can cause carpal tunnel syndrome is not supported by the literature.
[33] On 4 June 2009 Sovereign advised Mr van der Noll of another appointment with Professor Gorman. This was for the purpose of assessing vocational rehabilitation. The case manager, Ms Currie, said:
I think it would be timely for you to see him given the issues that have arisen for you and for me to seek clarity around vocational direction here … Thanks so much Patrick for your time today and as discussed hopefully we can get a little more clarity and direction from Des [Gorman] as to where things are at and most importantly what is now most appropriate for your vocational rehabilitation. In terms of your insurance policy, work or work trials are not seen as an issue for entitlement purposes however what I would like to see is a coordinated approach towards paid employment.
Ms Currie also confirmed that Sovereign would pay for a three month gym membership for Mr van der Noll which was provided in conjunction with continuing fortnightly monitoring and supervision at the University exercise clinic.
[34] Ms Currie’s letter to Professor Gorman includes the following:
I have recently taken over responsibility for Patrick’s case management and have some concerns in regards to his overall management and direction particularly in regards to his vocational rehabilitation. In this regard I have arranged for Patrick to see you as I would like to establish some clear goals and direction given that Patrick’s policy only entitles him for disability in his own occupation for another year. At that time his entitlement changes to any occupation and as you are aware it is an extremely serious step to advise that someone may never work again in any occupation. Patrick therefore requires (if the insurer is to continue funding assistance) an appropriately coordinated rehabilitation plan with clear vocational goals. I appreciate that Patrick may be somewhat anxious given that I have advised him of this having just taken over his case. However I am concerned that without clear direction even my input on behalf of the insurer is of little use.
Ms Currie then referred to a number of specific matters, including assistance to Mr van der Noll from specialists in other areas which Sovereign had organised, or was organising, with a number of observations from Ms Currie intended to be constructive. Ms Currie’s formal designation was case management consultant and she has a master’s degree in medical health science with honours. Ms Currie’s letter was copied to Mr van der Noll, Dr Konings, and Mr Malcolm Johnson. Mr Johnson
is a clinical psychologist to whom Mr van der Noll had been referred by Sovereign under the case management plan.
[35] Mr Johnson reported to Sovereign on 9 June 2009. He said Mr van der Noll was coming to understand that “changed nervous system processing can maintain pain in the absence of injury”. His therapy was oriented towards accepting this so that Mr van der Noll could focus on goals, including occupational goals, rather than on finding a diagnosis. He said, and referring in part to a regular update report to Sovereign:
I considered that Patrick should move towards considering vocational options and also that the longer he did not work the more challenging it would be to return.
Based on Professor Gorman’s comments in his initial report (7th October
2008) that Patrick is unlikely to successfully return to a position that requires extensive keyboard use, it seemed alternative occupational options should be considered. After some discussion Patrick indicated that voluntary work might be initially helpful but he mentioned that his insurance policy might preclude the possibility and requested I write to his case manager to check and to indicate the benefit that might accrue. The prospect of voluntary work was not intended to be a barrier to return to work or to interfere with his other rehabilitative activities. Rather, it was a step towards the workforce that might benefit Patrick’s mood and confidence and maintain “work schedule” behaviours.
[36] Professor Gorman’s further report to Sovereign on 15 June 2009 advised that in general Mr van der Noll’s condition had not changed. Mr van der Noll had undertaken some volunteer work, which Professor Gorman strongly endorsed. The exercise programme had gone well and should continue. He then said:
There are two other measures which I would recommend at present. The first is contact with someone such as Sherryll Leeson [who Ms Currie of Sovereign had suggested] to introduce some structured format into Patrick’s day. This is something he has tried to achieve recently on his own volition by way of his voluntary work. The other issue is that of vocational advice. Given that I have great reservations about Patrick’s ability to return to keyboard intensive work, some advice about alternative occupations is certainly indicated.
Professor Gorman said he would like to see Mr van der Noll again in several months time.
[37] On receipt of a copy of Professor Gorman’s report Mr van der Noll sent an email correcting the statement that he had undertaken volunteer work. He said he had not actually started, other than some hours with the Coastguard. He said he would “look into this”.
[38] On 30 June 2009 Mr van der Noll withdrew a general consent he had given to Sovereign to obtain information from third parties. He sought to substitute specific authorities to Sovereign to seek medical information only from Professor Gorman and Mr Johnson and consent to Professor Gorman and Mr Johnson to “disclose to Sovereign medical information relevant to this claim”. Mr van der Noll contacted other parties involved in his treatment, such as the University exercise clinic, and withdrew consent. He wanted the clinic to provide reports to him first, which he would then decide whether to send to Sovereign. In the meantime he was willing to permit a copy of reports to be sent to him and Sovereign, provided he could also indicate factual corrections that would be annexed to the report.
[39] Sovereign, through Ms Currie, advised Mr van der Noll that he was contractually bound to provide the general consent and payments of the benefit to him would be suspended until it was provided. The letter refers to the obligations on both sides not only to comply with contractual obligations, but also for both parties to act with utmost good faith. It is a firm letter, but also careful and considered, with detailed advice to Mr van der Noll in relation to his privacy concerns. Sovereign also advised that if Mr van der Noll wished to challenge anything in a report he should write to Ms Currie, with a copy to the report writer. Ms Currie explained that this was “so that Sovereign has the opportunity to make sure your complaint is looked into and most importantly that appropriate steps are taken to enable a thorough investigation” and “to enable Sovereign (should there be an amended report) to attach the amended report with the original in accordance with the legislative obligations”.
[40] Mr van der Noll took issue with a number of points made in Ms Currie’s letter. He said that Sovereign was using unreasonable and unlawful financial pressure by withholding payments until he signed the consent forms. He considered that he had come to an agreement with his previous case manager, Mr Browne,
regarding his consent. The issue was resolved by continuing with an interim arrangement for consents, and continuation of benefit payments, with Sovereign agreeing to, and working on, updating its consent forms.
(3) February-October 2010 : lead up to the original decision
[41] On 5 February 2010 the Sovereign case manager at the time, Mr Browne, advised Mr van der Noll that Sovereign would be reassessing his entitlement to a benefit prior to September 2010 because after that date the own occupation period expired. He said:
The Specified Occupation requirement when assessing a Total Disability Benefit expires after two years from the end of the waiting period. After that time, if you are assessed as being medically fit to undertake work in any occupation for which you are reasonably suited by education, training or experience, your entitlement is adjusted accordingly.
At the end of the letter the definitions in the policy of total disability and partially disabled were reproduced. Clause 4.12 was also reproduced, being a clause entitling Sovereign to call for and receive appropriate regular medical tests and reports.
[42] The first step for the two year assessment was a further letter from Mr Browne to Mr van der Noll on 9 June 2010. Mr Browne reminded Mr van der Noll of the relevant policy provision. He said that an occupational medicine assessment would be obtained from Dr Kenny and a vocational assessment from Mrs Keet. Mr Browne explained that Mrs Keet’s assessment was for a report to Sovereign with an outline of occupations to which Mr van der Noll may be suited by education, training or experience and that Mrs Keet’s report would then be provided to Dr Kenny. Mr Browne said, in effect, that it was necessary to ensure that Dr Kenny had all relevant medical records and reports. To that end he listed 13 specialists whom Sovereign was aware Mr van der Noll had seen and asked if there were any other specialists so that Sovereign could ensure that their reports were included. Mr Browne also sent Mr van der Noll four specific consents, drafted in the form earlier insisted on by Mr van der Noll, authorising Sovereign to seek from and to provide to Dr Georgina Shakes, a clinical psychologist, Dr Konings, Mrs Keet and Dr Kenny, any medical or vocational information relevant to Mr van der Noll and his claim.
[43] Mr van der Noll responded on 19 June 2010. There were three main points:
(a) An amended consent was provided in relation to Dr Konings on the following terms:
Upon the condition that if and when Sovereign makes an information request to my GP, Dr Angela Konings, that Sovereign will send to me (on the same day as the original request) a copy of their information request to Dr Angela Konings I, Patrick van der Noll, as part of a disability claim with Sovereign, consent and give authority to Sovereign to Seek from Dr Angela Konings medical information that is necessary for Sovereign to make a claim decision. This consent is only valid with original signature and only valid once.
(b)Mr van der Noll requested a full copy of the complete file held by Sovereign. He said that because he did not know what information Sovereign had on file and whether the information was correct, he could not make an informed decision about consent to release information to Mrs Keet.
(c) Mr van der Noll requested that the occupational medicine assessment be carried out by Professor Gorman and explained his reasons.
[44] A copy of Sovereign’s file was sent to Mr van der Noll on 23 June. Mr van der Noll requested that four pages in the file relating to job descriptions be removed as the descriptions did not resemble and were not indicative of the job Mr van der Noll had been doing at Marsh. Mr Browne acknowledged that any misdescriptions would be amended although the four pages could not be removed.
[45] On 5 July 2010 Mr Browne wrote again to Mr van der Noll covering the following:
(a) Four weeks had passed since Mr Browne’s letter of 19 June and Sovereign had not yet received the requested consents and asking that they be provided by 16 July.
(b)The information that Sovereign intended to send to Mrs Keet was outlined.
(c) The request for referral to Professor Gorman was acknowledged but his “current availability dictates that [Sovereign] must use an alternative provider”. Although this is not noted in Mr Browne’s letter of 5 July, Mr van der Noll had been advised by Sovereign in an email of 18 August 2009 that Professor Gorman had accepted a ministerial appointment and that, because of his work and time commitments, he recommended that future referrals to an occupational physician be to Dr Kenny.
(d)Mr Browne advised that Sovereign had contacted Marsh relating to the correct job description.
[46] Mr van der Noll continued to withhold consent until his job description was corrected on the file. He offered other options such as conditional consent, or consent excluding the job description. Ms Crump, who had taken over as the case manager from Mr Browne, indicated that his job description was not required for the vocational assessment. Mr van der Noll sent the necessary consent forms on 15 July.
Mrs Keet : Sovereign’s instructions and the report
[47] Sovereign’s instructions to Mrs Keet for a vocational assessment of Mr van der Noll, in a letter dated 2 August 2010, are summarised as follows:
(a) The purpose of the referral was for assessment of “a full set of work alternatives based on Mr van der Noll’s qualifications, transferable skills, experience and interests”.
(b)Mrs Keet’s report would be provided to an occupational physician for an opinion on how Mr van der Noll’s “illness impacts on his capacity to work in” the identified occupations.
(c) A report similar to an initial occupational assessment understood to be requested by ACC was requested from Mrs Keet, but Sovereign was “not as prescriptive about the format” and noted eight areas of inquiry that would be most useful. There were:
Employment history with most emphasis on either the most recent or otherwise most significant employment role.
Brief comments on why recent positions ceased (can refer to apparent medical reasons as advised by the client).
Qualifications, on-job training, courses et cetera. Interests, hobbies.
Transferable skills.
Personal aspirations and motivation.
List of probable employment alternatives based on the above and the potential demands of each with a focus on use of existing skills and qualification. Any close matches with a small but easily manageable skill gap could be included.
Any comments on what further assistance Mr van der Noll may require to re-engage with work subject to a medical clearance.
(d)Sovereign said that it did not require comment on medical background because the occupational physician would be provided with the medical history together with Mrs Keet’s vocational assessment.
[48] The assessment was carried out in a one-and-a-half hour meeting with Mr van der Noll on 17 August 2010. Mrs van der Noll accompanied her husband. Mrs Keet records that there were “follow-up consultations” by email on 26 and 30 August and 7 September.
[49] The report is dated 7 September 2010. It is a reasonably comprehensive report. It covers seven of the eight suggested areas of enquiry in the Sovereign letter of instructions. The one matter not addressed was Mr van der Noll’s interests and
hobbies, assuming, as seems clear, that “interests” means interests other than occupational interests.
[50] There is a section headed “Work type options”. The introduced as follows:
The following work type options listed in order [of] priority are available in NZ and have been based on the client’s education, training, work experience, pre incapacity earnings and transferable skills. These options have been discussed fully with the client and the client participated in their selection.
[51] Mrs Keet identified six occupations. In respect of each she recorded her opinion why these matched the criteria for assessment recorded in the introduction. This analysis, over two pages in the body of the report, was extended in six schedules directed to each of the six occupations identified. The schedules include details under a heading “work function/activity” describing, and again in some detail, the nature of physical and mental activities required for each of the occupations.
[52] Mrs Keet asked Mr van der Noll what types of work particularly interested him. His response, recorded in the report, was: “Have not thought about this at all”. One of the jobs identified by Mrs Keet was, understandably, a job described as “manager captive insurance companies”. Mr van der Noll’s comment on this was: “I love my job but don’t think I can do it now”. The five other occupations were insurance consultant, programme or project administrator, office manager, general clerk, clerical and office support worker. Mrs Keet recorded that Mr van der Noll’s response to all of these was: “Not very interesting – could not manage all the sitting, computer work and writing”. No vocational barriers were identified as potential barriers to Mr van der Noll’s successfully obtaining work in the occupations identified.
[53] On 21 September 2010 Mr van der Noll, having received a copy of Mrs Keet’s report, emailed her on three matters arising from the report. These, and Mrs Keet’s response on 23 September, were as follows:
(a) Mr van der Noll said, in respect of transferable skills listed in the report, that they were skills that he did not currently have because of his medical problems. Mrs Keet’s response was:
The transferable skills are based on your education, work experience and qualifications and we do not take into account your current medical limitations or disabilities when listing your various skills. This is for the medical assessor
… I gave no consideration to your current medical problems
as I am not qualified to do so.
(b)Mrs Keet’s criteria for work type options included pre-incapacity earnings. Mr van der Noll said that he assumed that this was standard text but pointed out that pre-incapacity earnings were not taken into consideration. Mrs Keet acknowledged that she was not required to take pre-incapacity earnings into account and that the words came from a standard template. She apologised for including the reference.
(c) In relation to the work type options, Mr van der Noll said that he would not be able to perform a lot of the functions and activities because of his medical problems. He said he would be happy to provide detailed comments but was not sure if they were needed. Mrs Keet suggested to Mr van der Noll that he examine job worksheets, make a note of his comments, and present these to the medical assessor. Mrs Keet noted that she was not able to take comments of that sort into account.
[54] Mr van der Noll said that there was no need for Mrs Keet to alter her report. He said that all he required was a letter from Mrs Keet covering the points, which is what she provided. Mr van der Noll’s email to Mrs Keet did not raise any other issue about Mrs Keet’s report.
Dr Kenny : Sovereign’s instructions and Mr van der Noll’s response
[55] Sovereign’s instructions to Dr Kenny were in a letter of 19 August 2010, written by Ms Crump. Ms Crump sent to Dr Kenny all medical and associated clinical notes for Mr van der Noll held by Sovereign. These included the reports
from Professor Gorman, but the covering letter also includes reference to Professor Gorman’s advice in June 2009 that “given that I have great reservations about Patrick’s ability to return to keyboard intensive work, some advice about alternative occupations is certainly indicated”. Sovereign advised Dr Kenny that the reason for the referral to him was the policy provision for review after two years. Ms Crump provided a very brief background summary and noted that medical particulars would not be summarised because they were contained in the various reports. She referred to the recent report from Mrs Keet and a copy was enclosed. Dr Kenny was then asked to address six specific matters. All of these were addressed in his report and I will note them when dealing below with his report.
[56] An appointment was made for Mr van der Noll to see Dr Kenny on 20
September 2010. On 14 September Mr van der Noll emailed Dr Kenny on two matters:
(a) He asked if he could record the consultation. Dr Kenny said he did not permit recording of consultations because “this precludes a satisfactory and open discussion during the assessment”. He said that Mr van der Noll was welcome to bring his spouse or another support person who could take notes.
(b) Mr van der Noll forwarded copies of six medical reports or letters.
He also said that he had noted that Sovereign’s file on Mr van der Noll’s medical notes was “very chaotic, all reports seem to be put in one big folder, without any logic (sorting by date or provider behind it)”. Mr van der Noll asked Dr Kenny to confirm that he had received
10 further medical reports. Dr Kenny did not expressly respond to the detailed enquiry, but thanked Mr van der Noll for the additional information. As noted below, it is clear that Sovereign provided Dr Kenny with all of the relevant medical reports and other medical information it had on file.
[57] The day after Mr van der Noll’s consultation with Dr Kenny, Mr van der
Noll, at Dr Kenny’s request, provided an electronic copy of the written information
he provided regarding his symptoms, activity levels and so on. The written notes given to Dr Kenny at the consultation were produced on a computer and cover some five pages. Mr van der Noll provided further information in his email and this covered around two pages. In the additional comments Mr van der Noll said that he did not intend to give the impression that he did not enjoy his previous job: the hours were not usually long and demanding and could be flexible; and he was also able to work from home on occasion. He said that when his symptoms first began “there was a clear connection between ... working on the computer and pain”, which would ease with rest but eventually required longer periods of recovery time. He also commented that he did not think any of Mrs Keet’s identified transferrable skills were still applicable given his medical condition.
Dr Kenny’s first report : 27 September 2010
[58] The content of Dr Kenny’s report needs to be set out in some detail, although aspects of it can be summarised. Dr Kenny reviewed medical reports, other medical documents, and written information from Mr van der Noll. This was listed by Dr Kenny in 32 categories generally related to the author of the document. Some of these categories include more than one report. There was a substantial number of medical certificates from Mr van der Noll’s general practitioner, Dr Konings. There were four reports from Professor Gorman from 7 October 2008 to 15 June 2009. There were four reports from Dr Neff. Dr Kenny reviewed Dr Black’s occupational medicine report of June 2008. There is then a summary of diagnoses and records of medical problems and injuries.
[59] The next section is headed “opinion and recommendations”. This commenced with a brief summary of Mr van der Noll’s work history and the onset of the pain. Dr Kenny then expressed the following relevant opinions:
(a) There had been an initial misdiagnosis that the symptoms represented specific musculoskeletal conditions. Specific misdiagnoses included the diagnosis of carpal tunnel syndrome.
(b) Dr Kenny agreed with Professor Gorman’s subsequent diagnosis of a
chronic pain syndrome, or regional pain syndrome.
(c) As to whether computer use was causative, Dr Kenny said:
Mr van der Noll’s symptoms, and the specific conditions to which his symptoms were initially ascribed, were considered to represent a “occupational overuse syndrome”, and this had been attributed specifically to computer keyboard and mouse use in his work as a Consultant within the Captive Insurance sector.
However, in my opinion as a Specialist Occupational Physician, and having assessed Mr van der Noll’s long term occupational history, reviewed the details of his work activities, work postures and ergonomic aspects of his computer workstation, and considered the history of the onset and progression of his symptoms, it is my opinion that Mr van der Noll’s symptoms have not been caused or significantly contributed to specifically by computer keyboard or mouse use.
(d)Dr Kenny briefly outlined his opinion as to why, historically, symptoms such as those of Mr van der Noll had been attributed to the concept of occupational overuse syndrome developed in the 1990s. He said that subsequently it had been found that such symptoms related to well understood pathologies, or to chronic musculoskeletal pain disorders.
(e) He then said:
Nevertheless, Mr van der Noll undoubtedly has a diffuse, predominantly upper body quadrant, musculoskeletal pain disorder, with typical characteristics in terms of symptomatology and clinical findings, and associated with a range of constitutional symptoms including headache, sleep disturbance, fatigue and stiffness.
Not surprisingly, and as recognised by Professor Gorman, while Mr van der Noll’s condition has not necessarily been caused by computer keyboard work, the prolonged static postures (including sitting for prolonged periods at a computer workstation), repetitive fine movements, awkward postures, and both physical and cognitive stressors are recognised to lead to exacerbations (‘wind-up’) of symptoms in the presence of such pain disorders.
It is because of Mr van der Noll’s widespread, constant and genuine symptoms that he feels unable to return to his previous work as a General Manager within the Captive Insurance market.
[60] In the last section of his six page report Dr Kenny addressed the specific questions from Sovereign. The first was Dr Kenny’s diagnosis or diagnoses. This had been covered in the preceding section of the report, as summarised above. The remaining questions, shown in italics, and Dr Kenny’s responses were as follows.
In your opinion, does Mr van der Noll’s on-going incapacity preclude him from working in any of the occupations identified in [Mrs Keet’s report] which were identified to be alternative suitable jobs based on Mr van der Noll’s education, training or experience?
Unfortunately, because of Mr van der Noll’s widespread and genuine musculoskeletal pain, his beliefs about the causation/origin of his symptoms (in terms of a direct relationship with keyboard work) and the substantial component of his work involving computer-based data entry, he does not envisage being able to return to any roles involving regular keyboard/mouse data entry.
In my opinion, should Mr van der Noll wish to do so, and where aspects of the job such as work pressure, prolonged static postures and prolonged periods of highly repetitive movements could be minimised/reduced … he could successfully return to a role which involved only short periods of low intensity keyboard/mouse use.
[The six occupations identified by Mrs Keet were noted.]
All of these roles will have a significant component of computer/mouse use, and without modification will all have the capacity to lead to an exacerbation (‘wind-up’) of his symptoms.
If able to work in one or more of the outlined occupations, please advise Mr
van der Noll’s capable hours of work.
Mr van der Noll is not significantly limited in terms of hours of work. Rather, it is the postures and physical activities performed during those hours that may lead to him experiencing an exacerbation of his symptoms.
If applicable, please outline your rehabilitative strategies to assist Mr van der Noll in a viable return to full-time work in the suitable occupations, including advice on a structured return to work plan.
Unless Mr van der Noll is able to understand that computer keyboard work per see has not been the cause of his widespread musculo-skeletal pain, and is not necessarily going to lead to his pain increasing (although this latter is possible), then his ability to return to any work involving even small amounts of infrequent keyboard work will not be successful.
Dr Kenny then noted that he had briefly discussed with Mr van der Noll the possibility of using voice activated software. Dr Kenny referred to the current version of Dragon Naturally Speaking voice activated software which he understood
to be the most widely used software from using it himself and having investigated the alternatives. He concluded on this topic:
If he genuinely wishes to return to his previous role, or to some similar insurance/office-based work environment, then this technology may well make this a possibility.
Please advise any barriers to a viable return to work in a suitable job and how these are best addressed.
The main barriers to Mr van der Noll’s to a insurance/business/office-based occupation are (1) his beliefs about the role of keyboard work in the development of his pain disorder, and (2) the loss of his previous employment (Dec 08), making it impossible to rehabilitate Mr van der Noll back to his existing employment.
These may be best addressed by Mr van der Noll working with Malcolm Johnson [the clinical psychologist who was already assisting Mr van der Noll] to continue developing his understanding of his condition and to assist him with strategies to manage his pain, including while gradually returning to at least moderate levels of computer keyboard use and/or commencing use of voice activated software to (at least in the short-medium term) … avoid exposure to the putative (according to Mr van der Noll’s beliefs) causative activity.
Any other relevant observations or suggestions to assist with a safe or sustainable return to work?
Mr van der Noll should continue to work with a multi disciplinary pain service so as to receive the best combination of co-ordinated and evidence- based treatment for his Pain Disorder, including effective pharmacological agents, appropriate supportive psychological therapies, an exercise programme, and an early and gradually increasing return to modified work activities.
[61] The main part of Dr Kenny’s report concluded at that point. However, there were 11 further pages, as a form of appendix, which set out in detail Mr van der Noll’s occupational history, and then summarised, as background clinical information, the contents of a substantial number of medical and related reports, dating back to March 2007. In broad terms this was information Dr Kenny had obtained from the numerous medical and similar reports provided to him. It included reports supportive of Mr van der Noll’s contentions, such as the report from Dr Black and reports from Dr Konings, as well as summaries of reports from specialists to whom Mr van der Noll was referred by Sovereign, such as Professor Gorman. Clinical psychologists’ reports were noted in reasonable detail. This appendix concludes with a reference to the further information that had been
provided by Mr van der Noll to Dr Kenny describing his symptoms, the difficulties resulting from these symptoms, and Mr van der Noll’s current treatment and coping strategies.
Sovereign’s original decision : October 2010
[62] Sovereign received Dr Kenny’s report from him on 4 October 2010. Two copies of the report were sent to Mr van der Noll on 8 October, one of which was for Mr van der Noll to pass on to Dr Konings if he wished.
[63] Sovereign, through Ms Crump, advised Mr van der Noll of its decision in a letter dated 18 October 2010. After summarising some background matters she wrote:
In relation to the questions posed around your work capacity (for the purposes of claim entitlement) Dr Kenny’s opinion provides advice to Sovereign that you have work capacity in a number of alternative roles. This is however premised on his advised rehabilitation strategies which are outlined in the report.
[64] Mrs Crump recorded condition 5.3 then said:
It is Sovereign’s opinion based on the medical specialist report that you are no longer considered to be totally disabled and in this regard can affect a return to work in the advised alternate options (outlined in the Occupational Assessment report) provided to Dr Kenny as part of his assessment of you.
Sovereign notes that Dr Kenny has given opinion that voice-activated software would be beneficial in assisting you in the workplace. In this regard, should you choose to engage in a vocational return to work in any of the advised alternate options Sovereign would consider funding this software. This would require proof of employment, quotation and other supporting documentation.
Sovereign would also consider the advice of Dr Kenny for you to have support from Malcolm Johnson clinical psychologist to specifically address (in a time framed set of sessions) your “beliefs” around computer use causing you further harm to assist with your return to work. Please contact Sovereign should you wish to discuss this further.
[65] Particulars of the final payment due to Mr van der Noll were then recorded, with the payments calculated up to 8 October 2010. Mr van der Noll was told that if he was not happy with the decision he should put his complaint in writing and it would be forwarded to Sovereign’s claims committee. He was advised of his right to
refer the matter to the Insurance and Savings Ombudsman in the event that
Sovereign’s claims committee confirmed the original decision to cease payments.
(4) October 2010-September 2011 : events following Sovereign’s original
decision through to Sovereign’s second reassessment
[66] Over this period, describing events in broadest terms, Mr van der Noll challenged Sovereign’s decision, first through his own representations, and later with the assistance of his lawyer, Mr Hooker. Further medical reports obtained by Mr van der Noll were provided. Sovereign’s response, again stated in broad terms, was to make clear to Mr van der Noll that it was prepared to reassess the original decision and take account of further information that Mr van der Noll wished to provide. Sovereign also obtained advice from specialists, including further advice from Dr Kenny. Sovereign’s claims committee reassessed the original decision in February
2011 and again in September 2011. On the reassessments Sovereign considered a substantial amount of additional information, including the new information provided by or on behalf of Mr van der Noll. Because of this a reasonable amount of the further evidence from this period needs to be summarised. As with the evidence for the preceding period, the most important evidence comes from the contemporaneous documents.
[67] Mr van der Noll requested a full copy of his file from Dr Kenny and from Sovereign. He was provided with copies of documents. Dr Kenny told Mr van der Noll that he was welcome to have copies of any the medical documentation he did not have already have and listed all of the documents that he did hold. Sovereign reminded Mr van der Noll that it had already provided him with a full copy of the file up to 22 June 2010. By letter dated 29 October Sovereign provided a copy of the file from 22 June to 29 October 2010.
[68] On 4 November 2010 Dr Konings provided a medical certificate that Mr van der Noll was unfit to work. Sovereign responded on 12 November 2010 and said that the medical certificate could not overturn its decision. It directed Mr van der Noll to its reassessment procedures.
Dr Kenny’s second report : advice to Dr Konings
[69] On 9 November Dr Konings wrote to Dr Kenny with follow up questions regarding his report. (1) Did the diagnosis of chronic pain syndrome conflict with a diagnosis of musculoskeletal pain disorder? (2) Would prolonged driving also be an exacerbating factor for Mr van der Noll’s pain? (3) Could Mr van der Noll perform the jobs identified by Mrs Keet given his history of pain aggravation, low tolerance for sitting and driving, decreased mental functioning, fatigue, migraines, depression and so on?
[70] Dr Kenny’s second report was a reply to Dr Konings on 29 November 2010. He confirmed that the diagnoses were not inconsistent, and that driving might be an exacerbating factor, thought it “will not necessarily lead to any damage”. With respect to other symptoms preventing Mr van der Noll displaying the skills needed for an identified occupation, he said:
[T]here will be a range of other activities and factors which have the potential to exacerbate Mr Van der Noll’s symptoms ... but this does not mean he should fully avoid such activities. This would be to suggest that almost all physical and cognitive activities – including those performed as part of many activities of daily living should be avoided. This is clearly neither necessary nor recommended.
My report identified those activities in regard to occupation which are more likely to lead to exacerbation of his symptoms, but I do not by any means suggest that he should avoid all such actions; only that in terms of occupational rehabilitation, and in seeking suitable employment, he should pursue work which minimises such factors/lessens his exposure to them.
... [Mr Van der Noll] has to recognise that he is likely to experience some discomfort, but the goal is of rehabilitation is to understand the origin and implication of these symptoms, and to develop effective strategies for managing symptoms.
...
A graduated return to the least provocative work must be considered an essential part of his rehabilitation, not a distant goal of his rehabilitation.
Further reports for Mr van der Noll : Sovereign’s first reassessment
[71] Dr Black had provided a further report for Mr van der Noll on 15 November
2010, following a clinical consultation on 11 November. Dr Black said he was
writing to record his understanding of Mr van der Noll’s case history and current
situation. He had reviewed previous records from earlier consultations and recent reports from Dr Konings, Dr Neff and clinical psychologist Dr Shakes. He said that although he had initially diagnosed carpal tunnel syndrome, he agreed with Dr Neff that the symptoms indicated a chronic pain disorder. There is no reference to the opinions of Professor Gorman and Dr Kenny in this regard. Dr Black then addressed Mr van der Noll’s ability to return to work. He said:
With regards to your ability to return to work, that is within my specific area of specialist medical expertise. In my opinion, it is very unlikely that you would ever be able to return to the type of work you were undertaking in the insurance industry, in particular, clerical work involving keyboarding and other repetitive movements. I recommend against any such attempt on medical grounds. In this regard, you are permanently unfit for work.
Furthermore, the presence of other symptoms including fatigue, psychological disturbances as well as pain... makes any return to full time work unlikely.
Unfortunately, you must now regard yourself as chronically disabled by this condition and it appears, from Dr Neff’s reports, that all available treatment options have been tried without success.
[72] Dr Neff provided a further progress report on 30 November 2010. This followed a consultation with Mr van der Noll in Rotorua. The report is to Dr Konings. He said that Mr van der Noll raised the issue of whether he was medically able to “perform the repetitive tasks involved in his previous paid profession (such as using a keyboard and mouse)”. He said:
Patrick’s medical history indicates that these are the very tasks that led to Patrick’s current medical presentation and these repetitive tasks continue to significantly exacerbate Patrick’s pain. Furthermore Patrick has not been able to increase his tolerance for these and other repetitive tasks. As such I have difficulties imagining him returning in any meaningful way to an occupation that requires him to extensively use a keyboard and mouse. Upon medical grounds I recommend Patrick against attempts to perform repetitive tasks, such as using a keyboard and mouse.
[73] Dr Neff ’s opinions were, understandably, directed to his specialty as a consultant anaesthetist and pain physician who had sought to treat Mr van der Noll with, amongst other things, a wide range of medication. As Dr Black recorded, Dr Neff ’s most recent report had indicated that available treatment options had been tried without success. Dr Neff’s oral evidence, in response to questions from me,
confirms this. But he also indicated that in his opinion it did not prevent undertaking work trials.4
Q. As I understand part of your evidence, you have said that whilst you were, if I can say, trialling medication, you did not consider it sensible to consider occupational rehabilitation activities. Now, I’m using generalised expressions?
A. That is not 100% correct. What a pain physician tries to do is get rid of, reduce pain, improve sleep so therefore function improves. The only way to control function is typically physiotherapy with activities that simulate your normal life as much as you can so we will always recommend a patient to work or to do as much as physically possible. It is not, here is a drug now don’t do anything. Rubbish. I want them to have a life. My aim is to restore function ultimately, including a full return to work. It’s an important part of life, work, so yes. [By] the same token I’m always careful to not send patients back to work in a condition where they’ve only just started a medication, or them to actually suffer another accident; for example because they’re under the weather with the side effects of the drug. So this is the delicate balance that we do, but the ultimate goal for each and every one of my patients is to live a full life and that includes a return to work.
Q. In terms of the assistance you’ve been giving and again in my words, the experiment with medication, some of which has been dangerous, some of which could have had adverse side effects, that is at an end?
A. Yes very much so, (inaudible 10.36.42) from recall in March 2011. Q. You mentioned this –
A. We had gone through a whole – through everything in the textbook of pain.
Q. So in terms of work trials, there’s nothing from your perspective
which says that should not be tried?
A. No, and I would’ve made that point clear throughout the whole thing, throughout the whole interaction with Mr van der Noll that the aim is clear, get your life back, that is what my job is.]
No questions arose from either counsel in respect of Dr Neff ’s answers.
[74] In a letter of 19 January 2011 Mr van der Noll formally challenged Sovereign’s decision. He did not send Sovereign copies of the recent reports from Dr Black and Dr Neff, although there was brief reference to observations by Dr Neff.
Mr van der Noll relied principally on Dr Kenny’s report. He argued that it
4 Notes of evidence p 200, l 29 – p 201, l 26.
demonstrated that Sovereign was unjustified in asserting that Mr van der Noll had capacity for full-time or part-time work.
[75] On 17 February, Sovereign’s claims committee upheld the original decision. It undertook a detailed reassessment of Mr van der Noll’s medical history, and noted his concerns with the interpretation of Dr Kenny’s report. It also took into account Dr Kenny’s response to Dr Konings. Mr van der Noll was advised of the decision the following day and was told he could request a further reassessment. He was also advised that, as a deadlock had been reached, he could complain to the Ombudsman.
[76] Dr Neff provided two further reports to Dr Konings on 11 March, the first summarising Mr van der Noll’s case history and the second clarifying several points.
[77] On 4 April Mr van der Noll sent Sovereign a further medical certificate declaring him unfit for work. He also said he wished to make a claim under condition 9.1 of the policy for recurrent disability, but without prejudice to his right to pursue Sovereign for breach of contract.5 The basis for the recurrent disability claim was stated as follows:
If, when Sovereign terminated my payments, I was not totally disabled (which I deny) I now fit within the definition of Total Disability (please refer attached medical certificate) and wish to therefore claim for a recurrent disability.
[78] The first letter from lawyers on behalf of Mr van der Noll was a letter of 26
April 2011 from Turner Hopkins, through Mr Hooker. Mr Hooker contended that Sovereign could not rely on Dr Kenny’s report to conclude that Mr van der Noll was not totally disabled. A copy of Dr Black’s report of 15 November 2010 was enclosed. In reliance on Dr Black’s opinion it was said that Mr van der Noll is “chronically and permanently disabled” and “he will never return to the type of occupation for which he is reasonably qualified by way of education, training or
experience”.
5 Condition 9.1 provides: “If, within six months of the conclusion of a period during which a Disability Benefit was payable under the Policy, the total Disability of the Member recommences and is attributable to the same or a directly related cause as that which caused the preceding period of Total Disability then, provided the Policy has not terminated, the further period during which a Disability Benefit is payable will be deemed for all purposes to be a continuation of the former period.”
[79] Sovereign responded substantively to Mr Hooker on 20 May 2011. It advised that Dr Kenny’s comment on Dr Black’s report was being sought. Sovereign also asked for copies of the reports of Dr Neff and Dr Shakes referred to in Dr Black’s report and which had not earlier been provided to Sovereign. Sovereign said that once they had Dr Kenny’s further advice, including advice on the reports from Drs Black, Neff and Shakes, a copy of Dr Kenny’s advice would be sent to Mr Hooker for any further comment and the matter would then be referred, with Dr Black’s report and any other additional information, to Sovereign’s claim committee to reassess the claim.
Dr Kenny’s third report : 17 June 2011
[80] Dr Kenny’s third report is a comprehensive review of additional information, with further opinions and advice, recorded over some six pages. Dr Kenny reviewed, amongst other things, the clinical psychology report from Dr Shakes of 23
August 2010 (which he had previously reviewed, but reviewed again at Sovereign’s
request) and the new reports from his perspective, being the report from Dr Black of
15 November 2010 and one of the reports from Dr Neff dated 11 March 2011.6 Dr Kenny also referred to the response he had given to the questions from Dr Konings. Dr Kenny’s opinion was as follows:
Opinion
Unfortunately, the rigid and mechanistic opinions above provide near certainty that Mr Van der Noll will be unsuccessful in a return to employment, even if he wished to do so.
Dr Black provides no opportunity for Mr Van der Noll to undertake his previous or any alternative work of either a physical/manual or of a cognitive nature, and essential condemns Mr Van der Noll to lifetime disability.
In my opinion, Dr Neff completely fails to recognise the important of employment and the work role as an important part of overall rehabilitation from chronic illness, despite there being a large basis of research data on this issue, and including the recently well-publicised NHS/UK (and recent NZ initiatives) around the health value of work. The importance of meaningful work in the development and maintenance of good health and well-being is now beyond doubt, and return to such work is recognised as an integral part of rehabilitation following illness or injury.
6 As earlier noted there were two reports from Dr Neff dated 11 March 2011. It is unclear which of these was sent to Sovereign and in turn to Dr Kenny.
While Dr Neffs may be correct in believing that “all biological treatment options available in New Zealand” have been tried, if Mr Van der Noll was indeed (and it is my opinion that he is not) highly motivated to return to his previous of some alternative work, then there are clear occupational health and ergonomic options which might allow him to do so, despite his on-going symptoms.
Unfortunately, Mr Van der Noll has a high belief (reinforced unfortunately by both Dr Black and by general community belief) that his symptoms have been caused by keyboard work, when there is no evidence that this is the case. It is the mistaken belief, reinforced by the essentially discredited idea of RSI/OOS as the origin for many cases of neuropathic pain, that is, in my opinion, one of the major barriers to Mr Van der Noll returning to his previous or even to other suitable employment.
Mr Van der Noll undoubtedly has a significant health condition (with definite neurological and psychological features) which has impaired his ability to perform many normal activities of daily living and work, and which is now producing a significant disability. In my opinion, this disability can be significant improved, and Mr Van der Noll’s symptoms may also be improved, although this may not be through a bio-medical model of clinical management.
I agree with Dr Neff and Dr Shakes that his symptoms are entirely compatible with a central neural sensitisation disorder and psychological sequelae (depressive and anxiety feature).
Mr Van der Noll’s impairment (and resulting relative disability for his usual work) is considered (by his GP, Dr Neffs and Dr Shakes) to result both from his pain/fatigue, and from his reported/subjective cognitive difficulties.
If Mr Van der Noll genuinely wishes to return to useful work, whether in the insurance industry or in other business roles, then given the absolute availability of technology to obviate the need for any repetitive or other provocative manual work/tasks, then further clarification of his level of cognitive functioning (with or without using medication) is essential.
[125] In consequence, in my judgment the definition includes remuneration from self-employment, with this covering the range of ways in which a person may be described as self-employed. This extends from an insured’s personal efforts to obtain income without any assistance from any other person, to a sole operator who employs an assistant or staff, to people in partnership and other legal structures.
Any occupation to which he is reasonably suited by education, training or experience : was Sovereign’s decision reasonable?
[126] The answer to the question whether Sovereign’s decision on this aspect was reasonable in broad terms depends on whether it was reasonable for Sovereign to rely on the opinions of Mrs Keet and Dr Kenny and, in this context, that of Mrs Keet in particular.
[127] I am satisfied that it was reasonable for Sovereign to conclude that Mr van der Noll was reasonably suited to the occupations Mrs Keet identified. The reasons may be summarised as follows:
(a) Mrs Keet has expertise and experience. This was unchallenged.
(b)It was her professional opinion that Mr van der Noll was suited to the occupations she identified.
(c) The suitability was determined in accordance with the terms of the policy – by reference to education, training or experience, whether or not all of those precise words were used. The assessment was expressed in Mrs Keet’s report to be founded on Mr van der Noll’s “qualifications, transferable skills, experience and interests”.34 “Qualifications” adequately captures both education and training. “Experience” is one of the words in the definition. Consideration of “transferable skills” and “interests”, if it expands the definition, is not
an expansion of the scope of the enquiry to Mr van der Noll’s
disadvantage.
(d)Sovereign asked Mrs Keet the right questions within her areas of expertise and she answered all of them. The enquiry Mrs Keet undertook was a comprehensive one for the purposes of the decision
that Sovereign had to make.
34 See above at [47].
(e) Mr van der Noll did not challenge Mrs Keet’s opinion in respect of any matters relevant to what Mrs Keet was asked to investigate, either at the consultation, or in his letter to her in response to her report which he got soon after the consultation.35 There were queries from Mr van der Noll about the difficulties he said he had with computer work, sitting and writing, but these matters were for Dr Kenny, not
Mrs Keet, as Mr van der Noll in any event appeared to recognise. Mr van der Noll did not, at the consultation, or in his letter to Mrs Keet, contend that he was not reasonably suited to the identified occupations by education or training or experience. And, as Mrs Keet noted in her report, Mr van der Noll participated in the selection of the different occupations.
(f) The onus was on Mr van der Noll. Mr van der Noll did not provide evidence to Sovereign at any time through to the second reassessment which in any material way challenged Mrs Keet’s professional opinion in respect of the matters on which she was asked to give an opinion.
[128] Mr Aitcheson gave evidence for Mr van der Noll that the occupations identified by Mrs Keet were not appropriate for Mr van der Noll. This was on the basis that his former position with Marsh was “a role with significant prestige and commensurate benefits and remuneration”. Mr Aitcheson said that, on the other hand, none of the occupations identified by Mrs Keet had “anything like the level of employment the plaintiff enjoyed before he stopped work” and even the management positions appeared “to be relatively mundane management, rather than the senior and technical role enjoyed by the plaintiff before he stopped work”.
[129] Mr Aitcheson’s expertise is not in question. However, as an independent expert who had no involvement in the facts of the case, the relevance of the opinions he expressed inevitably depended on the instructions he received. It is apparent that the foundation for his opinion, in relation to the meaning of the relevant policy
provisions and Mr van der Noll’s education, training and experience, were relevantly
35 See above at [50]-[54].
different from the meaning discussed in this judgment and the evidence as to the nature of Mr van der Noll’s past employment. As a consequence I was not assisted by Mr Aitcheson’s evidence, although that does not reflect in any way on his expertise.
[130] There is a further point about Mr Aitcheson’s evidence. This was evidence given for the court case long after Sovereign’s final decision, and therefore long after the period during which Mr van der Noll, if he wished to do so, should have produced evidence to Sovereign. It is necessary to keep coming back to this fundamental point. The first primary question I have to decide is whether the decision by Sovereign was reasonable at the time, with this to be assessed in accordance with the further principles already outlined. Evidence such as that from Mr Aitcheson could have been relevant on the occupation issue if Sovereign’s decision was not a reasonable decision. In that event, as earlier discussed, I would have had to determine the answer taking account of all relevant evidence. But this possible second stage has not arisen in this case.
[131] The second question of fact under the present heading is whether it was reasonable for Sovereign to rely on Dr Kenny’s opinion about the occupations identified by Mrs Keet. I am satisfied that it was reasonable for Sovereign to do this. Dr Kenny’s opinion was clear on the particular issues arising from Mrs Keet’s report and it was reasonable for Sovereign to rely on Dr Kenny for reasons already outlined on the question as to Mr van der Noll’s ability to work.
Inability to work “solely by reason of Accident or Sickness” : interpretation
[132] The meaning of the expression “solely by reason of” was addressed only briefly by counsel. Mr Hooker submitted that, if the accident or sickness in question was the “proximate” cause of the insured’s inability to work, then it was the sole cause. As noted by Cooke J in Butcher v Port, different terms are found in the texts and authorities – “the sole proximate, dominant, effective or overriding cause of
incapacity”.36
36 Butcher v Port, above n 9, at 494.
[133] In my judgment caution is required before expressions used in other cases as definitions of the meaning of the words “sole cause” are applied to the policy in question. In Butcher v Port the insurer, and then the Court, were considering a policy provision requiring proof that a bull had become incapable of achieving successful insemination “caused by visible and external accident only”. The question in that case, stating it in general terms, was therefore whether accident was the “only cause” and the definitions of that expression referred to by the Court of Appeal could be applied to the Sovereign policy which refers to the “sole cause”. However, the caution I have referred to arises from several considerations. The question in this case is not one concerned with the original cause of Mr van der Noll’s inability to work. The original cause is not in issue. The critical question in this case is whether, with the passage of time and as a result of other circumstances, there is a different, or an added cause for the apparent inability to work. A different way of expressing that, and related more directly to the actual words used in the definition of total disability, is to ask whether the condition is still the only reason why the insured cannot go back to work or has not gone back to work.
[134] In my judgment the words in question should not be given refined meanings. Obviously they constrain the insurer, but they are words that need to be applied by insurance companies on a day to day basis and as part of a commercial contract.37
The question for Sovereign in this case was whether, after two years, there was still inability to earn remuneration solely by reason of the condition. It is not an enquiry into causation of the sort that would be undertaken in a courtroom. It is probably fairly well removed from what a lawyer would understand to be meant by the word “causation”. The policy, in fact, does not use the words “caused by”. It uses the words “by reason of”. This is an important difference. In addition, the policy in this case is one to provide benefits to people who have incapacity through accident or sickness. Such policies are concerned with a great variety of circumstances that can arise from those events, with a wide range of possible influences on a person who has suffered an accident or sickness and, importantly, with these things often changing over time. The way in which this provision in the policy is worded could
also readily justify the insurer’s having regard to the reasons why an insured has not
37 Above at [99] and [100]-[101].
gone back to work. That is encapsulated in the expression “solely by reason of”. As a result, matters that may properly, and therefore reasonably, be brought into account by the insurer, in terms of the policy, may go well beyond matters that would be taken into account by a Court in determining questions of causation.38
[135] Some of the submissions for Mr van der Noll in this context were, in my judgment, appropriate submissions for the analysis of causation in a courtroom, as an element of cause of action, but not the sort of analysis that was required of Sovereign. If the Court allows itself to assess the insurer’s decision in the same way that it would itself determine questions of causation, the Court not only applies a standard not required to be met by the insurer, but also risks drawing itself into substituting its own opinion on the question for the opinion of the insurer. The question for the Court in this case is whether it was reasonable for Sovereign to conclude that Mr van der Noll’s condition was not the sole reason for his inability to earn some remuneration. It would not have been reasonable for Sovereign to come to that conclusion if there was no information to support it. The question therefore is whether there was information to support that conclusion, and whether it was reasonable for Sovereign to come to the conclusion it did based on that information. Application by the insurer of the provision “solely by reason of” will in most cases be very fact specific. Legal definitions of the expression intended to be of general application are unlikely to be helpful.
Inability to work solely by reason of the condition : was Sovereign’s decision reasonable?
[136] Central to Sovereign’s decision that Mr van der Noll was not totally disabled, in its original decision and on both reassessments, was its conclusion that the chronic pain syndrome was not the sole reason for Mr van der Noll’s not returning to work. Sovereign accepted Dr Kenny’s opinion that one of the two “main barriers” to Mr van der Noll’s returning to work was his “beliefs about the role of keyboard work in the development of his pain disorder”. Sovereign in the formal record referred to the
concise statement from Dr Kenny, in his first report, as to the nature of Mr van der
38 See generally Hunt v Westpac Nominees New Zealand Ltd HC Christchurch CP159/88, 13
August 1993; and Blanshard v National Mutual Life Association of Australia Ltd (2004) 13 ANZ Insurance Cases 61-621.
Noll’s beliefs. However, Dr Kenny, and in particular in his later reports, described Mr van der Noll’s beliefs more broadly; as what may be described as a mindset Mr van der Noll had that he would never be able to return to work.39
[137] In determining whether Sovereign’s conclusion was reasonably open to it, one possible question needs to be put aside. This is whether Mr van der Noll’s beliefs were a symptom of chronic pain syndrome. Difficult questions might have arisen if there had been evidence requiring Sovereign to consider an issue whether the beliefs were or were not a symptom. But there was no such evidence.
[138] There was in fact evidence available to Sovereign that likely causes of Mr van der Noll’s beliefs were causes independent of the chronic pain syndrome. There was, in particular, the advice Mr van der Noll got from Dr Black and which Dr Kenny interpreted as a labelling of Mr van der Noll as completely and permanently disabled for work.40 There were also the continuing certificates from Dr Konings certifying Mr van der Noll’s complete inability to work. This evidence of what may be described as external influences on Mr van der Noll, separate from his condition, was evidence Sovereign was entitled to take into account in deciding whether to rely
on Dr Kenny’s opinions as to barriers to returning to work. It was in turn evidence supporting a conclusion that Sovereign’s decision was at the least reasonably open to it.
[139] Because these matters were central to Sovereign’s decision some further
observations are appropriate.
[140] At an early stage of the onset of the condition, and some months before Mr van der Noll sought a benefit from Sovereign, he received advice from Dr Black that his work was the cause of the problem and that the diagnosis was carpal tunnel syndrome. At this time Mr van der Noll was seeking accident compensation. Dr Black was a strong advocate in support of Mr van der Noll’s claim to accident
compensation to ACC.41
39 See, for example, the opening paragraphs in Dr Kenny’s third report, recorded above at [80].
40 The conclusion to Dr Kenny’s third report: see above at [80].
41 See above at [20] (Dr Black’s original report to Dr Konings of 6 June 2008) and at [23] (Dr
Black’s report sent to ACC).
[141] There is evidence that these original opinions resulted in a mindset for Mr van der Noll. Dr Black effectively confirmed Mr van der Noll’s own assessment. Mr van der Noll accepted Dr Black’s opinions and became increasingly reliant on them. At the same time Dr Black, although in the end he accepted that the diagnosis was chronic pain syndrome and not carpal tunnel syndrome, moved to an opinion that it was unlikely that Mr van der Noll would ever be able to go back to the sort of work he had been doing.
[142] A mindset is also evidenced by the fact that Mr van der Noll, with single minded determination, set about to try to ensure that the record supported his belief that he could not return to work, or at least to the sort of work he had been doing. This also was demonstrated at an early stage when Mr van der Noll went to the
extent of seeking to persuade Sovereign to withhold information from ACC.42 He
sought to control the flow of information to Sovereign by withdrawing the general consent to Sovereign’s obtaining information from third parties.43 It emerged during the hearing, in cross-examination of Dr Neff, that Mr van der Noll had insisted on reviewing drafts of Dr Neff ’s reports and seeking amendments before they were issued. This was done by Mr van der Noll through emails to Dr Neff. These emails, in addition to indicating Mr van der Noll’s relative ability to use his computer, were
not discovered and should have been. These matters are not recorded to suggest that Dr Neff’s reports in the end did not express his own opinions. The relevance is that this is part of the evidence supporting a conclusion that, regrettably, Mr van der Noll did have a mindset and sought to ensure that the record was consistent with his position. These matters are not put forward for the purpose of criticising Mr van der Noll. Nor am I suggesting that Mr van der Noll was dishonest. It may readily be accepted that he felt desperate because of the medical problem he undoubtedly had and, indeed, still has. The relevance of the matters discussed in this and the preceding paragraphs is that they reinforce the reasonableness of Sovereign’s conclusion that the chronic pain syndrome was not the sole reason for inability to
work.
42 See above at [24].
43 See above at [38]-[40].
[143] There was a range of additional information, or other factors, which in my judgment mean that Sovereign’s decision was a reasonable one – whether the question is directed to the original decision or the decisions on the reassessments. I will set this out in fairly summary form. It is founded on the contemporaneous documentary evidence and is not contradicted by the evidence I accept from witnesses at the hearing.
(a) Fundamentally, there is Dr Kenny’s opinion. His opinion about Mr van der Noll’s beliefs warrants emphasis. It was expressed by Dr Kenny after his extensive review of a large number of medical and other specialist reports, and including his reviews of Dr Black’s opinions.
(b)There was evidence available to Sovereign from Mrs Keet’s report that Mr van der Noll, in essence, had given no real thought to an occupation, other than returning to Marsh, over the whole of the period down to his consultation with Mrs Keet. This fact was not in issue; Mr van der Noll did not challenge what Mrs Keet said in her report.44
(c) Mr Van der Noll’s unwillingness or inability to turn his mind to work alternatives also needs to be assessed against the fact that he received professional advice at an early stage to do just that. This is part of the advice in Professor Gorman’s original report of October 2008.45
There was other evidence to similar effect, together with the fact that
Sovereign took active steps to seek to assist Mr van der Noll in rehabilitation.
(d)Apart from the reports from Dr Kenny, Mrs Keet, and other specialists, Sovereign had evidence, from its own dealings with Mr
van der Noll, which could reasonably be assessed by Sovereign as
44 See above at [52]-[54].
45 See above at [25](b).
indicative of at least some resistance on the part of Mr van der Noll to returning to work for reasons unrelated to his condition.
(e) There was also the body of information available to Sovereign, which has already been discussed, indicating that Mr van der Noll had physical capacity to apply himself in ways which could reasonably be taken to indicate a capacity to work.46
(f) Following Sovereign’s first review, it also had Dr Schnabel’s report in respect of Mr van der Noll’s mental capacity.
[144] All of these matters satisfy me that it was reasonable for Sovereign to conclude that it was Mr van der Noll’s beliefs, and not his medical condition, which were the effective reason for Mr van der Noll’s not earning remuneration. In terms of the policy, I am satisfied that it was reasonable for Sovereign to conclude that Mr van der Noll was no longer unable to earn remuneration solely by reason of his condition.
[145] I am also satisfied that, through to its final decision, following the second reassessment, Sovereign met its obligations to deal with Mr van der Noll fairly and reasonably and that it met its duty of good faith. These matters also are borne out by the documentary evidence as recorded in this judgment and which record is, in spite of its relative length, part only of the extensive documentary record.
Conclusion on total disability
[146] For all of these reasons I am satisfied that Sovereign’s decision that Mr van der Noll was no longer entitled to a total disability benefit was a decision that was reasonably open to it. In consequence, Mr van der Noll’s claim in relation to the
total disability benefit fails.
46 See above at [112].
Partial disability
[147] A partial disability benefit was payable under the policy in two circumstances. One was if Mr van der Noll came within the definition of “partially disabled” in condition 1.1.21. This contemplates the possibility of what may be called short term total disability, followed by the insured earning some income, or being capable of doing so. This did not arise in Mr van der Noll’s case. The second circumstance is that which did arise in this case under condition 5.4 when the total disability benefit ceased to be payable. Although the focus is on condition 5.4, there is need to have regard to the definition in condition 1.1.21.
[148] The questions Sovereign had to address under condition 5.4 were the following:
(a) Was Mr van der Noll no longer totally disabled? For the purpose of Mr van der Noll’s alternative partial disability claim to this Court it was assumed that there was no total disability. Given the conclusion I have reached on total disability this element does not require further consideration.
(b)Was Mr van der Noll unable to earn 75% of his pre-disability income solely because of his condition? This is the question that requires scrutiny.
(c) If the answer to the first two questions was yes, was this an inability (condition 5.4) or incapacity (condition 1.1.21) to earn income from “any occupation” (condition 1.1.21)? In respect of partial disability, an occupation from which remuneration might be obtained was not limited, as in the case of total disability, to an occupation for which Mr van der Noll was suited by education, training or experience.
[149] Mr Hooker submitted, in essence, that Mr van der Noll’s entitlement to a partial disability benefit, if he was not entitled to the total disability benefit, was established by Dr Kenny’s reports. He submitted that this arose from Dr Kenny’s advice to Sovereign that, although Mr van der Noll was not totally disabled, a return
to full-time work would have to be gradual, and monitored and supported by various specialists. It was submitted that Sovereign could not reasonably have concluded from this that Mr van der Noll would have been able to earn 75% of his pre- disability income, or anything close to it. As to whether Mr van der Noll’s condition was the sole cause of the inability to earn that level of income, Mr Hooker relied on his submissions under that heading in respect of the total disability claim. My conclusions in that regard apply equally to this element of the partial disability claim. The relevant expression in condition 5.4 is “solely because of” the condition. In the definition of partially disabled the expression is “solely as a result of” the condition. I am satisfied that this does not alter the conclusions I have already reached under the total disability heading: that is to say, it was reasonable for Sovereign to conclude that Mr van der Noll’s beliefs prevented his return to work.
[150] Mr Hooker’s submission, on the inference that a graduated return to work would not provide income in excess of the partial disability limit, would have some force if that had been the way in which Mr van der Noll presented his case to Sovereign. But it is not the way in which he presented his case to Sovereign at any relevant time and that is what needs to be addressed.
[151] Sovereign would have been required to consider the claim now made by Mr van der Noll if he had been willing, whether reluctantly or not, to embark on the course recommended not only by Dr Kenny but also by other specialists; that is, to engage fully in a graduated return to work. This would have required Mr van der Noll to take active steps. It required more than a mere statement that, if he was not entitled to a total disability benefit, then he considered he was entitled to a partial disability benefit. In any event, such a statement was not made, at the earliest, until Mr van der Noll had consulted Mr Hooker and Mr Hooker presented an alternative
claim along those lines in June 2011.47 At best, this was a bare assertion of a legal
entitlement.
47 See above at [82].
[152] The evidence establishes not only that Mr van der Noll failed to make clear his willingness to engage in a graduated return to work; he positively continued to assert, unambiguously, that he was completely incapable of working. This continued throughout the lengthy period of Sovereign’s two reassessments, through to its final decision in September 2011.
[153] It was not until after Sovereign’s final decision had been communicated to Mr van der Noll that he indicated the possibility of embarking on what Dr Kenny recommended.48 And it was, in essence, simply a possibility. The advice was luke warm because it was accompanied by a statement that Mr van der Noll did not agree with or accept Sovereign’s decision, and the expressed commitment to try to get back to work if he could was somewhat equivocal. The letter also includes reference to starting “some type of rehabilitation process”. In my judgment all of this came far
too late. That is a conclusion based on all of the evidence, including evidence of the range of steps taken by Sovereign to try and assist Mr van der Noll with rehabilitation, including over the two years or so before Dr Kenny provided his first report.
[154] This comes back to the critical question for the Court – was Sovereign’s decision reasonable at the time it was made having regard to all of the information available to it? Part of this, as explained in the discussion of legal principles, is that the onus was on Mr van der Noll to provide the evidence in support of the claim. The claim in question here is a claim to a partial disability benefit. Analysed from this perspective, he never presented the necessary evidence. He presented contrary evidence. Sovereign’s decision was a reasonable one when it was originally made. The reasonableness of the decision, and the reasonableness of the decision making process, is emphasised by the fact that Sovereign was willing to reassess the decision twice. Further, on the second reassessment it expressly considered a claim to a partial disability benefit notwithstanding the fact that no such claim had been made
before.
48 See above at [89].
[155] The matters discussed to this point were summarised in legal terms by Mr Ross. In his written submissions on the point he argued, in the alternative: that Mr van der Noll was estopped from claiming a benefit whose foundation depended on a state of fact and affairs that Mr van der Noll has constantly denied existed up to the date of trial; or that he had elected to pursue a total disability benefit which, by its
nature, is incompatible with the partial disability benefit.49
[156] It is unnecessary to consider whether what occurred in this case comes within legal definitions of estoppel, or whether Mr van der Noll made an election in a legal sense. But I do agree with the thrust of this submission. I also agree with Mr Ross’s further submission, which followed his summary, that Mr van der Noll “cannot have it both ways”. He is either capable of some work or he is not, but his entire case was based on the proposition that, at all material times he was and he still is, totally unable to work.
[157] Mr Ross made a further submission that Mr van der Noll is out of time with his claim for breach of contract in respect of a partial disability benefit. This was on the basis that Mr van der Noll ceased to be a member under the group policy when the benefit ceased to be payable, the total disability benefit ceased to be payable when Sovereign made its first decision in October 2010 and at that date there was no claim by Mr van der Noll that he was entitled to a partial disability benefit. It was submitted that, in consequence, once the first decision was made, Mr van der Noll was discharged from the status of an insured. This submission is probably correct. However, it is unnecessary to make a decision on it. The partial disability claim fails for the other reasons earlier discussed: it was reasonable for Sovereign to conclude that Mr van der Noll’s inability, or incapacity, to earn income was not solely because of, or as a result of, the chronic pain syndrome.
Result
[158] The claim is dismissed.
49 See Spencer Bower Estoppel by Representation (4th ed, LexisNexis, London, 2003) at 355, 359,
401, 411-415.
[159] Sovereign is entitled to costs and reasonable disbursements. If the parties are unable to agree on the amount of costs and disbursements, a memorandum for Sovereign is to be filed within four weeks of the date of this judgment and any
memorandum for Mr van der Noll in reply within a further four weeks.
Woodhouse J
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