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Taxi driver left blind by flying rock relies on eye doctor advice in legal stoush

Ophthalmologists have played a central role in a dispute between an Australian insurance company and a taxi driver who won a $250,000 payout after becoming legally blind in one eye when a rock was thrown through his car window.

The case between the taxi driver and the insurance firm was recently brought before the Australian Financial Complaints Authority (AFCA). It was asked to determine whether the man’s injury was covered by his employer’s insurer – Lloyd’s Australia – whose policy included a quarter of a million-dollar lump sum payment for total loss of sight in one eye.

Initially, Lloyd’s paid the complainant $15,500 in weekly benefits until he regained employment, but rejected a claim for the lump sum benefit. Because he had lost 89% vision in his right eye, it argued the impairment did not constitute a total loss of sight.

As part of the case, both the taxi driver and the insurer sought advice from at least three ophthalmologists that provided the basis of their arguments over the August 2018 incident.

In November that year, the complainant was examined by an ophthalmology registrar at a hospital who said he had a mild cataract that was likely to deteriorate, a corneal abrasion (healed), hyphaema (resolved) and a fractured nasal bone (stabilised). However, the primary injury was permanent and irreversible central macular damage.

The registrar said the man’s visual acuity due to the accident was 6/60, which is legally blind. It was further noted his sight was not improved with either pinhole or corrective lenses.

Concerned with advice that there were no available treatment options, the complainant then travelled overseas where he obtained the opinion of another ophthalmologist. That practitioner also advised the damage was “permanent, irreversible and likely to deteriorate”.

Insurer seeks own opinion  

Lloyd’s subsequently engaged its own consultant ophthalmologist who was provided a copy of the complainant’s eye scans and the registrar’s assessment.

The insurer’s expert considered that while the complainant had a severe visual defect in his right eye, the injury didn’t constitute a total loss of vision. Basing calculations on the Australian Medical Association (AMA) guidelines, the consultant ophthalmologist concluded the percentage of vision loss to the complainant’s eye was 89%.

Using these findings, the insurer stated the complainant was not entitled to the policy benefit for total loss of sight in one eye.

The complainant later obtained a further medical opinion because he believed his sight had worsened, but Lloyd’s said it could not consider this because the total loss of sight must be within 12 months of the loss.

In its determination, the AFCA panel accepted the policy only provided the benefit for total loss of sight, however it didn’t define total loss. The available medical evidence demonstrated that he no longer had “any effective sight” in his right eye.

“That is, the right eye has no functional use in any practical sense at 89% vision loss or 6/60 acuity. The panel accepts it is fair in the circumstances to determine the complainant has suffered a total loss of sight in his right eye.”

It also said the Certificate of Insurance states that should any ambiguity exist in the clauses they will be interpreted in favour of the insured.

The AFCA ruled Lloyd’s was liable to pay the complainant $234,434.18, being the lump sum benefit of $250,000, less the weekly benefit of $15,565.82.

The man was, however, unsuccessful in his attempt to recoup around $20,000 spent travelling overseas to obtain the second medical opinion for possible treatment options.

A full version of the ruling can be found here.

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