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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 19, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1076
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MARSHA VANBUSKIRK,
Plaintiff-Respondent,
v.
WEA INSURANCE GROUP,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
THOMAS H. BARLAND, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. WEA Insurance Corporation (WEAIC)[1]
appeals a judgment awarding Marsha Vanbuskirk compensation for total disability
under the terms of an insurance policy.
It argues that Vanbuskirk failed to timely satisfy the proof of loss
requirement under the policy, that she failed to exhaust the administrative
remedies required under the contract, and that she failed to prove that she was
totally disabled. We reject these
arguments and affirm the judgment.
Vanbuskirk, an art
teacher, filed a claim for total disability under the terms of the insurance
policy claiming that her disability began March 26, 1990. The claim was based on physical and
psychological disorders. WEAIC approved
the claim for a period of April through July 1990, but informed Vanbuskirk that
benefits beyond July 31, 1990 would be conditioned upon her submission of
additional proof of loss in the form of medical information establishing her
total disability beyond July 31, 1990.
On October 10, 1990, Vanbuskirk made a claim for disability benefits for
the period beyond July 31. That claim
was denied for insufficient medical basis.
Vanbuskirk was notified by letter dated November 15, 1990 that her claim
was denied and she was invited to submit additional medical support for her
claim if she wished further consideration.
Under a cover letter dated December 26, 1990, she submitted a letter
from Dr. Duus to support her disability claim.
WEAIC then submitted her claim to an independent consultant for
review. His report found that the
records did not provide a basis for a total disability claim. The final determination denying the claim
was made March 25, 1991. At that time,
Vanbuskirk was advised of her appeal rights under the terms of the policy.
On May 17, 1991,
Vanbuskirk wrote to the person designated for receiving appeals submitting
additional information and requesting that the matter be further examined. On June 10, WEAIC responded that the proof
submitted was insufficient. Sixteen
months later, Vanbuskirk called WEAIC and questioned whether the file could be
reopened. She was told it could
not. Eleven months later, Vanbuskirk
mailed a package of documents to WEAIC establishing a further basis for her
claim. The documents were sent back
because Vanbuskirk was no longer insured. Shortly thereafter, Vanbuskirk filed this action for recovery
under the terms of the contract. The
trial court ruled that Vanbuskirk was entitled to an award of long-term disability
benefits from July 31, 1990.
Vanbuskirk timely
submitted proof of loss under the policy.
The policy provides:
Written proof of loss must be furnished
to the company at its said offices in case of claim for loss for which the
policy provides any periodic payment contingent upon continuing loss within
ninety (90) days after the termination of the period for which the company is
liable, and in case of claim for any other loss, within ninety (90) days after
the date of such loss. Failure to
furnish such proof within the time required shall not invalidate or reduce any
claim if it was not reasonably possible to get proof within such time, provided
such proof is furnished as soon as reasonably possible.
The
additional proof submitted by Vanbuskirk was not available at the time WEAIC
initially reviewed her claim. By 1993,
Vanbuskirk had a new diagnosis for symptoms she had previously reported. It was not possible for her to submit these
medical reports before they were created.
Citing Gerrard
Realty Corp. v. American States Ins. Co., 89 Wis.2d 330, 277 N.W.2d 863
(1979), WEAIC argues that Vanbuskirk was required to prove that WEAIC was not
prejudiced by her failure to present proof of her loss within ninety days. Gerrard involves a
construction of § 631.81, Stats.,
which states:
Provided notice or proof of loss is
furnished as soon as reasonably possible and within one year after the time it
was required by the policy, failure to furnish such notice or proof within the
time required by the policy does not invalidate or reduce a claim unless the
insurer is prejudiced thereby and it was reasonably possible to meet the time
limits.
This
statute and the Gerrard holding are not applicable to this case
because the time provided for proof of loss under the policy did not
expire. By its terms, the policy allows
proof of loss after the ninety days if it was "not reasonably possible to
get the proof within such time."
The policy requires no proof regarding prejudice to the insurer. It was not necessary for Vanbuskirk to rely
on the extra time provided by § 631.81, and the terms under which that
extension applies are inapposite.
WEAIC next argues that
Vanbuskirk failed to exhaust her administrative remedies as required by the
terms of the policy. The policy
provides that, within sixty days of receipt of notice of the denial of
benefits, the employe has the right to appeal to an appeals committee. The policy further provides that "no
action at law or equity shall be brought to recover on this policy prior to the
exhaustion of the appeal procedures set forth above." The exhaustion of remedies argument fails
for two reasons. First, Vanbuskirk
concurred at the time benefits were denied that the medical record was
insufficient to support her demand for continuing benefits. It was only after development of sufficient
medical history that she was able to demonstrate her entitlement. Because she was not contesting the findings
as they existed, the policy provisions regarding appeals are inapplicable.
Second, the policy does
not require that the appeal be in any specific form. Within the sixty-day time, Vanbuskirk wrote to the president of
the company as she was instructed to do, requesting that her case be examined
further. The company treated
Vanbuskirk's letter as an appeal. The
policy provided no additional guidance on how a matter could be reopened based
on a new diagnosis that shed light on the previous condition. We conclude that Vanbuskirk did not violate
any specific provisions of the policy regarding exhaustion of her appeal
remedies.
Vanbuskirk presented sufficient
evidence of disability to support the trial court's finding. While sufficiency of the evidence is a
question of law, this court must defer to the trial court's findings of fact. See Cogswell v. Robertshaw
Controls Co., 87 Wis.2d 243, 249-50, 274 N.W.2d 647, 650 (1979). Vanbuskirk presented evidence that the
symptoms she had in 1990 continued up until the day of trial. She presented medical expert testimony that
if her condition was the same in July 1990 as it was in February 1992 and March
1993 when the doctors examined her, then she was totally disabled in July
1990. The combination of this testimony
provides sufficient basis for the trial court's finding that she was disabled
in July 1990. WEAIC argues that Vanbuskirk
should not be allowed to testify in a manner that contradicts and enhances the
contents of the medical records she submitted in 1990. Vanbuskirk attempted to submit this
information to WEAIC as it became available, but WEAIC returned her packet of
documents and would not reconsider its original decision. The inconsistencies between Vanbuskirk's
testimony and the medical records are matters relating to her credibility, not
the admissibility of her testimony. The
credibility of witnesses is the sole province of the trier of fact. Id. The trial court reasonably found that Vanbuskirk was unable to
work since July 1990 on the basis of her testimony and the medical evidence she
presented at trial.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.