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AFCA rules 90-day 'elimination' clause applies in trauma claim dispute

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A complainant whose claim for trauma benefit was declined on grounds that his malignant cancer occurred during the initial 90-day exclusion period of the policy’s commencement date has lost his dispute with Zurich.

He insisted the “90-day elimination” trigger did not apply as he was not diagnosed with nodular sclerosing Hodgkin’s disease until May 17 2010, more than three months after the policy commenced on February 2 that same year. The exclusion period expired on May 3.

A report of an ultrasound requested on May 14 and collected and reported three days later on May 17 recorded “right neck lump for four weeks with associated tenderness”. The report also noted multiple enlarged right supraclavicular lymph nodes.

But the Australian Financial Complaints Authority (AFCA) says the “weight” of medical evidence provided shows the condition “occurred” during the exclusion period and that the circumstances leading to the diagnosis also became apparent during the 90-day period, meaning the restriction applied under the terms of the policy.

The complainant had visited his GP on May 10 about a neck lump that he had noticed for two weeks and also gave a similar timeline in visits with other medical specialists who attended to him.

His GP referred him for blood tests, an ultrasound and a cytology report to determine the cause of the lump.

A fine needle aspiration test performed on May 25 came back inconclusive and a cytology report dated June 4 following the examination on May 24 said there were multiple large lymph nodes and a well-defined mass with features “suspicious” for lymphoma or malignant thymoma with secondaries.

Another doctor identified as Dr MB sent a letter to the GP dated June 18 that the complainant had noticed swelling in his neck about two months ago. On examination Dr MB found there were some hard masses in the base of the neck and he performed a biopsy on June 15.

Dr MB suspected the complainant may have a lymphoma but would review him again when the test results were received and on June 24 he sent another letter to the GP that the biopsy revealed the complainant had nodular sclerosing Hodgkin’s disease.

In a report to the insurer dated September 17 2010, Dr MB said he first saw the complainant on June 14 2010 where he gave a history of noticing swelling in the right side of the neck “which was gradually increasing over several weeks”.

Dr MB’s opinion was that the condition would have started as a very small lump in the base of the neck which could easily have been missed for several weeks and would only have become more evident as it became larger.

The GP provided a report to the insurer dated October 22 2010 that the complainant presented on May 10 that year about the lump he had noticed two weeks previously.

“The medical evidence supports the view that during the 90-day elimination period (ie before May 3 May 2010) the complainant’s cancer occurred,” AFCA says in its ruling of the dispute.

“I am also satisfied the circumstances leading to the diagnosis of cancer became apparent during the 90-day elimination period.

“This is because when the complainant saw Dr JC on May 10 2010 he said he noticed a neck lump for two weeks. This means the lump, which led to the cancer diagnosis, became apparent during the 90-day elimination period.”

Click here for the ruling.