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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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Background. In February 2016 following a 21 year Flying

Customer Question

Good evening,
In February 2016 following a 21 year Flying Career with Emirates Airlines based in Dubai My contract was terminated on medical grounds following open heart surgery.
I successfully claimed on the Emirates Company Loss of License policy and received (###) ###-####AED ($572223 USD ) in a lump sum.
I also claimed on my private Loss of License policy and yesterday after a five month wait my claim was denied. (payout from this policy would have amounted to approximately $(###) ###-####USD to be paid monthly over the next ten years to age 65).
The reason for denial of benefit is given as pre existing condition recurring within 36 months of policy initiation.
I today consulted with my operating open heart surgeon Professor Uwe Klima and after full review of my medical file Professor Klima advised me that
my open heart surgery had been performed because of me suffering from endocarditis and MRSA sepsis.
The declined claim letter from the trustees of the private loss of license insurers cites a pre existing leaking mitral valve as recurring within the 36 month period following me joining the policy as the cause of me having open heart surgery. Professor Klima informed me that this is absolutely medically incorrect.
I have advised Sovereign Trust (Channel Islands) Limited PO Box 252 Suite B St Peter Port House Sausmarez Street St Peter Port Guernsey GY1 4LQ of my intention to commence legal proceedings to obtain the disability funds I have been denied. I have provided no detail to them apart from this advice of intention to sue.
Professor Kilma my operating surgeon following our meeting earlier today has completed his report which states that the conclusion of the Insurers is medically totally incorrect, There is no pre existing condition as applied to my case as MRSA Sepsis and endocarditis event which led to my open heart surgery has no connection medically with a previously diagnosed leaky heart valve.
I seek legal counsel to assess my case with a view to commencing legal proceedings . My initial action will be to send the Jersey based trustee a brief outlining the basis of my lawsuit against them. If this causes them to review and reverse their decision to deny my claim I will have achieved my goal. If not and after advice at a Barrister I will sue.
Kindly let me know if you can help me or know of any party you can recommend handle my case, moving forward.
yours faithfully
Captain John Brennan
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

Was the leaking valve treated or diagnosed or on your medical records prior to the time when you applied for the policy which has now been declined?

If it wasn’t, and this might be the point you’re making, how could you have been aware of it and how could you have disclosed it?

If it was, why did you not disclose it

Customer: replied 2 months ago.
the asymptomatic and aviation certifiable leaking valve was discovered three years before I joined the private income protection scheme. Most pilots and other member of the public have leaking valves, Mine was observed and noted during a routine aviation medical not because it was causing an issue and was not and has never been a medical problem. Pilots worldwide can fly with leaking valves.Professor Klima my Harvard open heart surgeon in his report is clear, the leaking valve is totally non related to the encodardisis MRSA Sepsis that caused valve failure. The insurance company are using it a get out all reason for denying my claim.The private income support policy I held is sold as an Emirates pilot only scheme. They require only two qualifications to join1 that the applicant is currently employed by emirates airlines2 that the applicant hold a Class 1 medical (with or without limitations)
there is no examination of medical records or physical examination required,
there is no requirement for an additional medical assessment to discover any pre condition and there is no requirement for applicant to disclose. I had nothing to disclose anyway as I held a class one medical as an operation pilot.the rules of the scheme state that any pre existing condition that presents to ground a pilot permanently losing his license within the first 36 months of joining the scheme will no qualify for disability payments.My calling has been denied on the basis that the leaking valve caused the valve failure. This is totally a medical nonsense.Can you put me in touch with an expert to help me with this specialised case please.thank youJohn
Expert:  F E Smith replied 2 months ago.

I am an insurance expert. You need an insurance expert at this stage, not a medical expert.

The medical expert opinion will come later if this gets to court.

You say it was discovered 3 years before you join the scheme, but did you disclose it on the application when it asks about previous conditions?

Customer: replied 2 months ago.
The application form does include a questionnaire about previous condition
Expert:  F E Smith replied 2 months ago.

Did you disclose this condition or not? It is absolutely fundamental as to whether your claim will succeed if it gets to court.

It is not to do with whether this leak caused the illness which prevented you flying. That is relatively easy to disprove using expert medical evidence which you already have. Presumably any other medical expert would come up with the same conclusion.

What is extremely relevant is whether they would have taken the risk on in the first place if you had disclosed the leaky valve.

If they can prove that their normal underwriting criteria are that they do not take on people with this condition, then your claim will fail.

This is where it becomes problematical for you because, of course, now they are going to say that had they known about this (if you did not disclose it) they would not have taken the risk on in the first place. You would need to speak to some other insurers or a medical insurance underwriting expert, to find out whether this is a normal risk which is of concern for them or not and use that evidence to support any claim.

If you did disclose the condition on the application form, they took the risk, and even if the condition caused the illness which stopped you flying, they still have to pay.

Because of the amount of money involved, they are not likely to give up without a fight and this could be potentially quite risky if it gets to court because if you lost for any reason, you could end up paying substantial legal costs.

Can I clarify anything further for you?

Please rate the service positive. It doesn’t cost you anything but helps me greatly.

We can still exchange emails.

Best wishes.


Customer: replied 2 months ago.
The insurance company do not want to know any medical detsils and market the product to Emirates pilots on the basis that holding a UAE GCAA Class 1 medical is all that is required. The scheme is not underwritten
Expert:  F E Smith replied 2 months ago.

I don’t understand. You said “the application form does include a questionnaire about previous condition” but then you said “the insurance company do not want to know any medical details”.

What is the exact wording of the polity terms and conditions with regard to pre-existing conditions?

Customer: replied 2 months ago.
Typed in error
The application form has no section or questions on pre existing conditions
Customer: replied 2 months ago.
This is the claim rejection letter from the trustees
Expert:  F E Smith replied 2 months ago.

Thank you. That’s clear now.

The terms of the policy are clear enough, they won’t pay out if a pre-existing condition causes the disability or death. That is the argument.

It is not uncommon for income protection policies to be underwritten at claim stage not application stage and everyone thinks that they have automatic acceptance whereas they do not because of clauses such as the one here.

If the leakage caused your condition, then you have no claim. Your expert says that it did not.

If you are going to take them to court, you are going to need medical evidence which confirms that the leakage did not cause the illness. The more opinions that you have on that the better because the insurance company are going to come up with expert evidence which says that the leakage can cause the condition.

If they will not roll over pay up, then you have no option but to take them to court.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 2 months ago.
Thank you FES
In terms of more opinions that the leak did no cause the illness: my Surgeon is a world renowned teaching cardiac surgeon and Professor from Harvard Medical School. He is both an American and Austrian citizen and can testify on both sides of the Atlantic. Here is a link to his webpage Klima as my operating surgeon saw first hand my condition when he opened me up. I believe needs no Pier opinions. I am also confident that should this case go to court Professor Klima has a rich source of medical expertise to draw upon.What would you suggest I do now please? I have all paperwork available to submit to a solicitor / advocate to write a legal notice of intention to take the insurers to court. Should this legal notice include the report from my surgeon or merely reference to it? Do you know of any law firm with expertise in this field. I need to start this action with the right opening letter.regardsJohn
Customer: replied 2 months ago.
Hi FES did you receive a copy of professor klima report from me ?
Expert:  F E Smith replied 2 months ago.

When did you send it? How did you send it? Was it attached?

No doubt, they will come up with medical evidence which proves the opposite and hence, what you need is either a heavier expert’s opinion or a weight of opinions in your favour.

If you are researching this, it would also be worthwhile pulling out the opinions which are not in your favour because then you know what you’re up against.

This is decided on the balance of probabilities gets to court so the judge only has to think that evidence in favour is slightly more credible than evidence not in favour and your claim would be upheld.

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