Super Fund Insurer Agrees to Settle Assumed Risk Case with GMP

Published 07 Jul 2017

We act on behalf of Ms B from Taree in relation to a claim for Total and Permanent Disablement (“TPD”) insurance held inside her super fund.

Our client had become injured during a motor vehicle accident around 2009 causing injury to her lower back.  Our client had initially hired our firm to act in her motor vehicle accident claim. She had participated in return to work programmes for the motor vehicle accident insurer and was placed on modified duties with her previous employer.  She was able to continue in these duties until a further injury to her shoulder caused her to stop work around 2014.

Our client had, in 2011, after her initial injury, applied to her super fund to be insured for TPD cover in the amount of $150,000.00.  As she was already injured at the time, the insurer insisted upon an exclusion of the lower back to be attached to the policy.

Our client attempted to claim upon this policy after she completely stopped work.  The insurer declined, and while they acknowledge that she cannot return to work, they relied upon the exclusion. They argued that the shoulder injury is not what was preventing her from returning to work and she was ineligible to be paid as she was not “at work” in 2014.

After the decline, our firm received instructions to commence this case in the Supreme Court of NSW.  We argued that the insurer should not suggest that our client was not “at work” while she was in modified duties.  While there is vast case law that modified duties is not work, we contended that the insurer knew our client was in modified duties when they issued the policy and therefore, they have assumed the risk.  We otherwise argued that the new injury was well documented and clearly showing significant restrictions. Our client was otherwise able to engage in her modified duties occupation until the shoulder injury.

The matter was referred to Mediation prior to being heard at the Court, and the insurer agreed to settle for half the insured sum.  The super trustee was also willing to make contributions towards the costs.  Our client is very happy with the outcome, and the settlement monies allow her to further advance her treatment while awaiting for a final outcome of her motor vehicle accident damages case.

The date of which the insurance policy started in a super fund is exceedingly critical.  Unless you had applied for the policy yourself, insurance policies in super are often created without your consent and by “default” – the fund and the insurer got together and created the policy without your knowledge.  This could have been created at any time since you became a member.  Without copies of the member statements at the relevant time, you cannot be certain that there is an insurance policy.

At Gerard Malouf & Partners we have experience in conducting TPD insurance cases.  If you have a TPD claim resulting from injury dating back several years or you have a decline claim on the basis of these “at work” or “active employment” definitions, please contact Gerard Malouf & Partners.  At our firm our expert solicitors will be able to assist you in a free consultation.


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