Osti top pattern

Personal accident claims

Osti top banner
You are here:

What are the challenges with regards to personal accident claims?

Challenging the decision of your insurer to reject a claim under a personal accident policy is never an easy task. 

These disputes usually involve addressing the following issues:

A typical policy definition of "Bodily injury" reads as follows:

"Bodily Injury" means injury which is caused by accidental, violent, external and visible means and which within twelve months from the date of the accident shall solely and independently of any other cause result in the insured person's death, dismemberment or permanent disablement.

From the same policy the definition of "Permanent Disablement" reads as follows:

"Permanent Disablement" means any disablement which entirely prevents an insured person from following his/her usual occupation and any other occupation for which he/she is fitted by knowledge or training.”

Whether your case does or does not fall within these complicated definitions nearly always has to be determined by medical reports or opinions. Your own opinion, unfortunately, counts for very little.

The insurer will almost inevitably have conducted a medical examination and obtained a Specialist's report before deciding to reject your claim. The only way you can effectively challenge that report is to produce another one, by an equally qualified Specialist, to contradict it. Once there is such a contradiction, then because the Ombudsman cannot hold a Court and examine or cross-examine expert witness, he is very often unable to make a formal recommendation either way.

It is true that your own Doctor's views, especially if you have been a patient for some time, may carry more weight on the question as to whether the accidental injury was the cause or whether there were previous existing conditions which contributed. However, on the question as to whether there was "permanent disablement" in terms of the policy definition, the opinion of the insurer's Specialist could carry the same weight as that of your own Doctor.

If it turns out that there is a genuine conflict of medical opinion, then the Ombudsman's intervention may not finally resolve the matter for the reasons set out above.

Whatever the situation, please furnish the Ombudsman with a full medical report, preferably one which indicates clearly that the Doctor's view is that you are permanently disabled as defined in the policy and that such disability is the result of "Bodily injury" as defined in the policy.

It must be noted that every policy contains a number of conditions and exclusions. Examples are as follows:-

Exclusions

  1. An Insured Person's suicide, attempted suicide, intentional self-injury or insanity.
  2. The Insured Person engaging in aviation, gliding, parachuting or any form of aerial flight other than as a passenger in a fully licensed passenger aircraft provided that the term "passenger" shall not include any person who is a member of the crew of the aircraft or who is in such aircraft for the purpose of undertaking any trade or technical operation therein.
  3. The Insured Person engaging in skiing, ice hockey, bobsleighing, rock climbing or mountaineering necessitating the use of ropes or guides, big game hunting, racing of any kind other than on foot or in non- mechanically propelled water craft on inland waterways or harbours, or football as a member of a team other than amateur soccer, steeplechasing, polo or motor cycling (as a driver or passenger).
  4. The Insured Person suffering from any physical defect or infirmity which existed prior to the accident.

Conditions

  1. This Policy will be governed by the laws of the Republic of South Africa, whose Courts shall have jurisdiction in any dispute arising hereunder.
  2. After incurring Bodily Injury for which Compensation may be payable under this Policy, the Insured Person shall, when reasonably required by the Insurers so to do, submit to medical examination and undergo any treatment specified. The Insurers shall not be liable to make any payment unless this Condition is complied with to their satisfaction.
  3. Qualified medical advice shall be sought and followed promptly on the occurrence of any Bodily Injury and the Insurers shall not be liable for any part of any claim which in the opinion of this medical adviser arises from the unreasonable or wilful neglect or failure of an Insured Person to seek and remain under the care of a qualified member of the medical profession.
  4. The Insured or Insurers may cancel this Policy by giving written notice to the last known postal address of the other party in which event cover shall cease at 24:00 on the last day of which premium has been paid.
  5. If a premium is not paid when due or if a premium debit is dishonoured all cover under this Policy shall cease at 24:00 on the last day for which premium has been paid.
  6. Cover in respect of an Insured Person shall cease when the Insured Person reaches 75 years of age or when Insurers have paid a claim in respect of Permanent Disablement.
  7. If any claim under this contract shall be in any respect fraudulent or if any fraudulent means or devices shall be used by an Insured Person or anyone acting on the Insured Person's behalf to obtain benefit under this contract the Insurers shall be under no liability in respect of such claim.

The rejection may be on the ground of one or more of those exclusions or conditions and, if so, the Ombudsman needs as much ammunition as possible to refute the insurer's contention that the condition or exclusion applies.

When there is doubt or uncertainty the Ombudsman will always endeavour to bring the parties together on an equitable basis, possibly by a compromise or ex gratia offer by the insurer, but the Ombudsman can never make a formal ruling by which the insurer is bound unless it is clear that in strict law the repudiation is indefensible.

If the repudiation is on the ground that one of these exclusions or conditions apply, please give the Ombudsman your full answer if you contend that the insurer is wrong.

If there is not really any legal answer, then the Ombudsman can of course try to approach the insurer on "equitable" grounds, but the Ombudsman needs every possible reason to try to convince them that yours is indeed a "special" case.