Machinist wins TPD claim for $379k Despite Pre-Existing Condition Exclusion
Published 28 Nov 2019
Author: Jesicca Yousif
Our client, Mr D was a 50-year-old man who was last employed as a machinist.
In 2001, Mr D first injured his back while working as a self-employed Painter. He was loading paint tins into his work car when he felt a sharp pain in his lower back. This was further exacerbated, and Mr D was required to undergo a discectomy in 2002. After healing from this operation, Mr D was able to seek alternative employment. However, due to his restrictions on heavy lifting, he could not return to his pre-injury duties.
As a result, from 2003-2010, Mr D worked for various companies in positions not requiring heavy lifting.
Around 2009, Mr D experienced a deterioration of his back injuries with an increase in back pain causing him to have a right sided L4/5 Microdiscectomy. In 2010, Mr D unsuccessfully attempted to return to some form of employment but was unable to do so due to the pain and disabilities caused by his microdiscectomy. He subsequently resigned from his role.
Mr D approached Gerard Malouf and Partners initially in respect of a worker’s compensation claim. However, our Solicitors explored an additional claim for Total and Permanent Disability (TPD) as Mr D had been off work as a result of injury for a substantial period.
The claim for TPD was prepared to be lodged however prior to lodgement, the Superannuation Fund produced a document dated 1999, which was signed by Mr D, that essentially excluded insurance cover for any injury relating to the spine/back. This jeopardised Mr D’s claim as the entirety of his claim rested upon a spine/back injury.
Our Solicitors did not stop here. We further investigated by:
– Querying the exclusion with Mr D;
– Reviewing medicals evidence from on or around 1999;
– Requesting various communications from the Superannuation fund including details of the Financial Adviser who was responsible for setting up the policy;
– Obtaining documents relevant to the set up of the policy.
Ultimately, this was to understand why the exclusion was inserted in the first place and determine whether this was justified. After extensive investigation, no evidence surfaced as to why exclusion was inserted. Medical evidence indicated that an injury to the back did not arise until 2001.
Accordingly, we proceeded to prepare and lodge Mr D’s claim leaving the exclusion a matter for the fund to raise and to be subsequently addressed.
Mr D was very thankful and extremely relieved when the claim was approved 3 months after being lodged. While complications arose in the matter, the appropriate investigations were undertaken in the preparation of Mr D’s claim. This set a firm foundation for the submission of his claim and solid grounding should the claim needed to have been litigated.
In the event that the pre-existing condition exclusion was raised, recourse against the financial adviser may have been investigated if no alternate evidence could be produced justifying the insertion of this exclusion.
TPD claims can get quite complicated. Undertaking the appropriate inquiries can be the difference between an approval or a decline of claim. Ensuring this is undertaken by an expert can also help ensure that the matter has the best possible chance of being resolved in the initial stages and avoids incurring additional legal cost should the matter be declined, and proceedings commenced.
If you believe you are eligible to make a claim contact a no-win, no-fee lawyer at Gerard Malouf & Partners Superannuation Lawyers to find out if you are entitled to life insurance benefits. We can assist you throughout the process and help you understand your rights.