December 2015


Police officer wins TPD claim

By John Reynolds, KT Journalism

A judge has labelled an insurer “unreasonable” after it ignored a former NSW police officer’s doctors of five years by rejecting her total and permanent disability (TPD) claim.

Instead, MetLife Insurance Ltd relied on the advice of its own two medical officers who saw Anastasia Ziogos for just an hour each before declaring her stress condition was curable to the point she could work in the future.

NSW Supreme Court Justice Michael Ball said MetLife had breached its own policies and authorities when it concluded the former police sergeant had not contracted permanent post-traumatic stress disorder (PTSD), as she and her doctors claimed, and that she could continue to work in another profession.

He rejected all MetLife’s argument that, even if she could not currently work due to illness, her relative youth meant she had a possible employment future and should not be classified as TPD while still in her late 30s.

“MetLife could not reasonably have reached the conclusions it did on the evidence available to it,” Justice Ball said. “To say Ms Ziogos [could] return to work because she had so many working years left of her life was confusing what was possible with what was likely and unlikely.”

The court was told Ms Ziogos joined the police force in 1995 aged 20. She worked in area commands and highway patrol branches before reaching the rank of sergeant.

During that time, she was involved in several “traumatic episodes”, including violent deaths of children and being chased by a sword-wielding attacker.

She told Justice Ball she started to feel anxious at work in 2006. That continued until 2010 when she started crying unexpectedly and uncontrollably.

A colleague advised her to see psychiatrist Dr Selwyn Smith who diagnosed PTSD on May 18, 2010, and gave her a certificate for restricted duties. She returned to work the next day but again burst into tears and left. She had not worked since.

The court was told Dr Smith signed a TPD claim and it was lodged on March 30, 2011.

Dr Smith said Ms Ziogos was always anxious and had difficulty leaving her home and sometimes getting out of bed. After treating her for five years, he did not believe she would ever be fit to work in any capacity or profession.

Ms Ziogos sued First State Super’s (FSS) scheme trustee and MetLife in October 2013 after MetLife rejected her claim and refused to review its decision. She dropped the case against FSS during the trial.

The court heard MetLife rejected Dr Smith’s opinion Ziogos would never work again and instead relied on its own psychiatrist’s and psychologist’s views. They believed she could eventually work again, but not as a police officer. They had interviewed her for an hour each.

Justice Ball said it was also unreasonable for MetLife to rely on investigators’ video footage and to interpret it as damaging to Ms Ziogos’s case. The insurer had presented video evidence of Ms Ziogos at a shopping centre and walking her dog, and implied the footage proved their case she was not totally incapacitated for work purposes.

He said no one had suggested she could not shop or leave the house, only that she had difficulty doing so, and walking the dog was an important part of her treatment.

“Those activities bore no relationship to the activities she would be required to undertake in employment,” Justice Ball said.

He said MetLife had inferred Ms Ziogos was seeking TPD because she did not want to work. But that conflicted with the former police officer’s work history and ethic.

“From the age of five, she wanted to be a police officer and she achieved that goal,” Justice Ball said. “She appears to have worked diligently, gained a promotion, and struggled to continue to work for several years, notwithstanding the increasing severity of her symptoms.

“At the time she ceased work, there can be no question she suffered from severe stress. There is some dispute concerning her precise diagnosis, but it seems clear it included elements of PTSD, anxiety and depression.”

He found MetLife had acted unreasonably and without utmost good faith and ordered the insurer to pay Ms Ziogos $935,865.

He reserved his decision on costs but indicated he was likely to award them against MetLife.

(Ziogos v FSS Trustee Corporation as trustee of First State Superannuation Scheme [2015], NSWSC 1385, 23/09/15)

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