TPD and real capacity to obtain alternative employment

Published 19 Aug 2014

Our client, Mrs C had been employed as a process worker and machine operator for many years. In addition, she was also employed as a book keeper and kitchen hand concurrently.

The duties of her process worker role required her to constantly and continually lift moderate to heavy items throughout her shift and she had undertaken these duties on a full time basis for over 10 years. Over time our client suffered from an injury to her left shoulder which unfortunately caused further difficulties to her right shoulder due to over dependence after the injury.

The income protection insurance claim was lodged and the insurer alluded to the clients ability to obtain alternative employment in the food preparation industry or light office work. Given the severity of our client’s injury, she has been unable to return to any work due to constant pain and restriction. She may on ‘paper’ have a capacity to undertake light alternative employment however realistically, our client was unable to obtain any real employment in the open labour market due to her injuries, constant pain and restriction.

Our client had been in receipt of payments from her workers compensation insurer and had tried on many occasions to obtain employment in line with her physical restrictions to not only comply with the requirements of her workers compensation insurer but also because she did want to work. Her efforts proved fruitless however the records she had kept did indicate that she was not competitive with other job seekers in the open labour market. Additionally, our client resided in a rural area and opportunities for employment were minimal.

The insurer considered our clients injury and restrictions however, they insisted upon her attending for a vocational assessment. This was undertaken with the assistance of our firm to ensure the assessor considered the real capacity for Mrs C to return to work and the opportunities that may or may not be available to her. Ultimately, the insurer came to the conclusion that our client was unable to return to work in the open labour market due to injury, pain, restriction and her inability to be competitive against any other candidates as well as considering her limited opportunities to obtain employment in the open labour market.

The insurance company has a responsibility to consider all the facts in your case. If they are not, then you need a specialist to assist you to ensure you receive your entitlements. Please contact one of our superannuation lawyers to discuss how we may assist you.

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