Insurer cops hit in denying Total and Permanent Disablement claim

Background

Ms Hellessey was a member of the New South Wales Police Force (NSW Police) who developed post traumatic stress disorder and major depressive disorder as a result of events that occurred during the course of her duties as a police officer. By 30 August 2010, Ms Hellessey had ceased work and has been unable to work since.

As an employee of the NSW Police, Ms Hellessey was a member of the First State Superannuation Scheme (FSSS). Pursuant to the rules governing the FSSS, Ms Hellessey was entitled to a benefit if, by reason of illness or injury, she satisfied the definition of Total and Permanent Disablement (TPD).

During her employment, Ms Hellessey witnessed numerous traumatic incidents including but not limited to fatal motor vehicle accidents, cases of death and abuse of children, murders, suicides, violent crime scenes and assaults, drug and alcohol abuse, aggressive behaviour from criminals and other traumatic incidents.

Ms Hellessey claimed that her psychological symptoms first occurred around 16 November 2004 when, while at work, a colleague came up behind her, removed her service pistol and then proceeded to wave the gun around in the air and point it at her. The colleague then threw bullets at Ms Hellessey.

Ms Hellessey continued her employment after this incident, however, on 6 December 2004, she was certified as unfit to work from 30 November 2004 to 13 December 2004 following a diagnosis of anxiety and conversion reaction.

Due to further instances which exposed Ms Hellessey to trauma, she was placed on restricted duties permanently and was given a clerical role at the Goulburn Academy from October 2008 until 30 August 2010.

On 5 January 2012, FSSS made a claim for TPD benefits on behalf of Ms Hellessey to MetLife. Following MetLife denying the claim on a number of occasions, Ms Hellessey commenced proceedings in the Supreme Court of New South Wales.

Rejection of Ms Hellessey’s application

Failure to discharge onus

In the first instance, MetLife as insurer of the FSSS rejected Ms Hellessey’s claim as it did not consider Ms Hellessey had discharged her onus of establishing that she had become incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she was reasonably qualified by reason of education, training or experience.

The evidence relevant to this decision included a number of reports from medical experts however it was notable that there was no reference to reports of Dr Durrell, Ms Hellessey’s treating psychiatrist prior to the assessment date, who had the benefit of a longitudinal treating psychiatric perspective. The assessment date was 1 March 2012, being six consecutive months during which Ms Hellessey was absent from her employment through injury or illness. Further, it was said by Justice Robb that MetLife selectively relied upon certain information provided by various other medical experts and failed to clarify relevant aspects of their reports.

Facebook profile investigations

MetLife also relied on its investigations into Ms Hellessey’s Facebook profile to determine the legitimacy of her alleged social phobia, yet failed to consider the opinion of many experts (both doctors who were treating Ms Hellessey as well as independent consultants retained by Metlife) who explained why Ms Hellessey’s Facebook activity did not contradict her social phobia behaviour. Justice Robb concluded that MetLife was acting upon its own interpretation rather than the opinion of experts in determining the psychological significance of the Facebook posts when determining if the TPD requirements had been met.

Significance of Dr Durrell’s reports

It was argued by Ms Hellessey’s lawyers that MetLife devalued the significance of Dr Durrell’s reasoned reports simply because he held a minority opinion. MetLife failed to present any expert medical evidence which considered the views of Dr Durrell. It was asserted that in fact, the contrary reports upon which MetLife relied were not reasoned and involved bare statements of optimism concerning Ms Hellessey’s prognosis.

Ms Hellessey’s horse related and business activities

A third rejection letter by MetLife which was relatively similar to the second rejection letter made further conclusions that Ms Hellessey’s level of activity (for example, her involvement in horse shows and attendance at horse related events at the Royal Sydney Easter Show) was inconsistent with someone who was experiencing a high level of social phobia, avoidance and isolation. MetLife alleged that Ms Hellessey was involved in a horse related business venture and this involvement contradicted her TPD claim.

Metlife ignored expert medical evidence from Ms Hellessey’s treating practitioners as well as the independent consultants retained by Metlife who provided adequate explanation as to how Ms Hellessey’s social activities did not conflict with her experiencing a high level of social phobia, avoidance and isolation.

Finding

In a judgment handed down on 25 September 2017, Justice Robb accepted that:

• Ms Hellessey’s Facebook activity should not be taken at face value for the purpose of drawing conclusions about the true psychological state of the author of the posts.
• The evidence relating to Ms Hellessey’s involvement with horse shows and other horse related activities was not inconsistent with her suffering from social phobia.
• Ms Hellessey’s limited involvement with the Palomino Association and the Goulburn Pony Club did not prove that Ms Hellessey had not suffered from the social phobia that her psychiatrist and psychologist identified.
• Ms Hellessey’s involvement with a horse related business venture did not have the significance that MetLife attributed to it.
• Ms Hellessey’s involvement in activities such as occasional shopping was not inconsistent with her suffering from the symptoms that she and her treating medical professionals had reported.
• All of the medical experts called to give evidence were of the opinion that the nature of Ms Hellessey’s incapacity was chronic and she was unlikely to be able to engage in employment for which she was qualified.

Ms Hellessey was found to satisfy the TPD definition in the policy and judgment was awarded in favour of Ms Hellessey.

Implications

This case serves as a reminder to life insurers that, consistent with the duty of utmost good faith, an assessment of a TPD claim must include a review and consideration of all expert and lay evidence as they relate to the policy’s definition of TPD before arriving at a decision on the claim.

Hellessey v Metlife Insurance Limited (2017) NSWSC 1284