Published 28 Sep 2016
What is a date of disablement?
Dates are of critical importance in insurance contracts and particularly total and permanent and disablement (TPD) policies. In such policies the key defined date is referred to a Date of Disablement. This is the date that you became entitled to the policy benefit. While there are various definitions, it is usually the latter of two (2) dates:
Why is the date important?
The date can hugely impact on what kind of entitlement and your prospects of success. It can also change the definitions of what TPD is and may change the amount insured, especially when your policy has increased. This is one of the ways TPD claims differ greatly from personal injury disputes. Determining the date of disablement is critical for a successful claim and it can affect all the evidence that should be gathered.
Why should I determine this date before I make a claim?
As noted the date of disablement impacts on the strength of your case. For example: return to work attempts; and whether there was an earlier or later injury, can change the date of disablement. These disputes are open to interpretation and in our experience it is necessary to identify those prior to making a claim so that the evidence and narrative be formed properly beforehand.
What are the consequences?
We have seen many people commencing TPD claims where there was no TPD Policy at the relevant date of disablement. This usually occurs when the individual has been injured some years earlier and receives indication of TPD policy in the latest benefits statement from their super fund with identified a benefit. However, the fact of be a member with a super fund for many years, does not necessarily mean that the insurance policy was also incepted at the beginning. In fact it could have been set up at any number of years after you became a member. Accordingly, the date of disablement could be outside of the period where there was valid insurance cover.
Another common controversy is where the individual was not working for quite some time or otherwise restricted for quite some time before worsening, either by way of deterioration or further injury. A third scenario, is where the policy was increased in a particular year and it may well be that the date of disablement can falls outside of that period and accordingly the relevant policy would be a different amount to the one shown on the statement. These issues should be identified as soon as possible so that evidence can be gathered to present the most favourable way to interpret these facts.
How can we be sure of the date of disablement?
The date of disablement is not a date of fact, like a date of injury or the date of surgery. Rather it is a date as defined in the contract and therefore subject to interpretation. The facts can fit the policy in various ways, as the contract terms are usually general and open to interpretation. This is to be addressed by evidence and testimony along with a careful interpretation of the case based on those facts and testimonies. This is a matter that usually requires legal expertise.
At Gerard Malouf & partners our solicitors have experience in conducting TPD claims at the Supreme Court of New South Wales and other forums. These disputes include interpretation of the words ‘unlikely ever to return to work’, date of disablement, and ‘active employment’ and ‘at work’ definition disputes. Should you have a TPD claim rejected on the basis of an at work or active employment definition issue or otherwise have an enquiry in relation to making a claim, please do not hesitate to contact Gerard Malouf & Partners Superannuation Lawyers for a free consultation.