AOV: post-whiplash syndrome 'medically objectifiable'!

East Brabant District Court September 1, 2016

In 2010, a woman - an independent contractor - befell a road accident. The woman's car collided head-on with another car. The woman reports this accident subsequently to her disability insurance (AOV) and claims benefits. As complaints, she reports: a limp, paralysing feeling and pain in the right hand, tingling in the left hand, headache, neck pain, pain in the left leg and left hip, forgetfulness, anxiety and nervousness. A neurologist diagnosed the pattern of symptoms as post-whiplash syndrome.

The policy conditions of the AOV (TAF Zelfstandigenplan) state the following:
"An illness or injury claimed by the insured must be medically objectifiable. When assessing an illness, condition or injury, the insurer shall seek advice from independent medical advisers. (...) Whether a claim is medically objectifiable is determined according to the consensus customary in the Netherlands among medical professional associations."

The insurer rejected the claim because, according to its medical adviser, no objectifiable condition was found during examination. However, according to the woman, the policy conditions lack a clear definition of what is meant by 'medically objectifiable'. She points to the updated policy conditions which state, "An illness or injury claimed by the insured must be medically objectifiable. This means that there must be a medically ascertainable, recognisable and appointable clinical picture. (...)". According to the woman, the diagnosis of post-whiplash syndrome made by the neurologist was medically objective.

The court held that the use of the term "medically objectifiable" as a condition for coverage does not make it sufficiently clear to a lay person in the medical field that when there is a medically recognised, identifiable and appointable clinical picture, such as post-whiplash syndrome, coverage would still not be granted because no medically objectifiable abnormalities or injuries can be established.

Despite the fact that post-whiplash syndrome is not medically objectifiable - as the symptoms cannot be traced to neurological abnormalities or injury - a medical diagnosis can be made: post-whiplash syndrome. The woman's complaints fit a syndrome recognised in neurology, which is recognisable and nameable. The court concluded that the complaints from which the woman suffers and which lead to work loss could therefore indeed qualify as "medically objectifiable" complaints within the meaning of that term that the woman was reasonably entitled to assign to the policy terms. The insurer rejected the woman's claim on incorrect grounds at the time and must therefore reinstate the claim.

Tip: As a self-employed person, don't be fobbed off - too quickly - via the AOV insurer's medical advisor!