Published 16 Jun 2017
Gerard Malouf & Malouf & Partners acted for Mr M of Parramatta who was a Janitor at Parramatta Council Library. In 2011 our client slipped and fell at work suffering an injury to his upper back. This injury caused our client significant restrictions to his shoulders and he was unable to return to work as a Janitor. Our client made a workers compensation claim and participated in their return to work programs. These were unsuccessful and our client stopped attending all work.
Our client had conducted the workers compensation and her TPD claim through other lawyers. Our firm was retained for the TPD case when it had been declined. The insurer relied on the return to work attempts to allege that our client had significant residual work capacity.
We commenced litigation in the Supreme Court when we took over the case. In advancing this case drew we relied on the Supreme Court decision of Jones v United Super Pty Ltd  NSW 1551 which decided that the relevant tests in TPD is “realistic” rather than being theoretically able to work. We argued that our client’s significant injuries to the shoulders prevents him from returning to work as a Janitor and should by extension prevent him from realistically returning to work in other occupations.
The matter was referred to Mediation prior being heard at the Supreme Court and the insurer offered $150,000.00 for resolution of this matter, which represented approximately 75% of the policy’s worth. Our client was very happy with this outcome. He was able to utilise this money towards his rehabilitation and alleviate the financial stress.
TPD insurance cases, especially those held in super funds, often revolves around the question of whether the injured person could ever return to any occupation. While this definition does not mean one’s own occupation, the Courts have informed that the question is whether it is “realistic” that the person can return to any work. Even if theoretically the person can work, if it is not realistic, then the person is entitled to be paid TPD.
Many. including lawyers, often make the mistake of arguing these cases from a medical or expert perspective, and neglecting on the question of what is realistic and unrealistic. At Gerard Malouf & Partners our lawyers of expertise in terms of running TPD cases at the Supreme Court of NSW. Please contact us if you want to make a claim or you have submitted a claim, and we can arrange for you to have free consultation with one of solicitors.