Published 18 Sep 2017
A man who won a total and permanent disability (TPD) claim against his superannuation trust and their insurer has successfully fought off an appeal.
The former roofing plumber was awarded $100,000 for a serious back injury he sustained while lifting asbestos sheets into a bin in 2011. He had already developed lower back problems during a previous workplace accident nearly 10 years earlier.
However, the insurer and the trustee rejected his TPD claim, suggesting the man did not meet the definition of totally and permanently disabled within the terms of the policy.
They argued that TPD cover requires the claimant to be unable to perform their usual occupation for six consecutive months and is unlikely to ever again engage in regular work that fits their education, training and experience.
While the organisations acknowledged the man would never return to his previous employment, they asserted he could perform other roles without the need for retraining. These jobs included positions in retail sales, customer service and console operating.
The man took his claim to the NSW Supreme Court, where Justice Paul Brereton ruled in the plaintiff's favour. According to Justice Brereton, the insurer had breached its contractual obligation to act reasonably when dealing with a TPD claim on various issues.
First, the insurer failed to take into account the man's psychological condition, which was a key factor in why he was unable to return to work. Second, the firm was mistaken in its application of the phrase "reasonably fitted by education, training or experience" (ETE) within the TPD policy.
The judge ruled that the plaintiff must have some vocational history with the new occupations suggested to him as potential future jobs. He said the man had no aptitude or previous experience for the recommended roles, and some positions contravened the plaintiff's medical restrictions.
The insurer appealed the decision, suggesting Justice Brereton erred in both his approach to reviewing the definition of totally and permanently disabled and his construing of the ETE clause.
The NSW Court of Appeal disagreed, with three appellate judges rejecting the insurer's case and reinforcing the order to pay the claimant $100,000, plus interest and costs.
This case highlights the importance of seeking expert legal advice following a rejected TPD claim.
Insurers often turn down legitimate pleas for disability benefits, which can cause significant financial difficulties for injured people at an already challenging time.
Please contact Gerard Malouf & Partners Superannuation Lawyers for more information on TPD and other superannuation claims.