Shuetrim v FSS Trustee Corporation [2015] NSWSC 464

Published 29 Dec 2015

Mr Shuetrim was a member of the NSW Police Force for over 5 years. Over time he developed anxiety as a result of the stress of his job. He also sustained a significant left elbow injury during a training exercise, and later underwent surgery on his elbow that was not successful.

As a result of his mental health issues and elbow injury Mr Shuetrim became Totally and Permanently Disabled and sought to claim on the TPD insurance policies taken out by First State Super on his behalf – a basic policy available to all members of the super fund and a “Police – Blue Ribbon Policy” available only to members of the Police Force.

Mr Shuetrim lodged his claim in February 2013. He commenced proceedings against the insurer MetLife in September 2013 and TAL in December 2013 after they failed to make a decision in a reasonable time period.

Ultimately TAL formally declined Mr Shuetrim’s claim in December 2014 and MetLife declined the claim in January 2015.

Supreme Court Proceedings

Justice Stevenson heard this case in the Supreme Court of NSW.

He had to consider first whether the insurers had breached their duty of utmost good faith, and if that was found to be case make a determination on whether Mr Shuetrim was Totally and Permanently Disabled.

The Court found that TAL had not properly considered all the medical reports in making a decision. In particular TAL relied on one doctor’s report that Mr Shuetrim’s elbow surgery was successful but did not reference the other medical reports that were provided in its decision.

TAL also determined that Mr Shuetrim was capable of working as a mechanic, but failed to properly consider medical reports that stating he would not be able to work in that occupation.

The Court held that “TAL’s consideration of whether or not Mr Shuetrim was TPD was so unreasonable as to constitute a breach of its obligations of good faith and fair dealing.”

MetLife had commissioned a Vocational Assessment Report in which the assessor was unable to determine a suitable vocational option. MetLife relied on medical reports to form the opinion that Mr Shuetrim could return to work in an alternate vocation, but failed to reconcile that with the Vocational Assessment Report. The Court found that MetLife had breached its obligations of good faith as well.

Having found the insurer in breach of their obligations the Court then make a determination as to whether Mr Shuetrim was Totally and Permanently Disabled.

The Court found that he was TPD and awarded him the benefits under the insurance policies totalling $804,503.00

Your TPD Claim

Our expert Superannuation Insurance lawyers at Gerard Malouf and Partners have experience dealing with complex litigation in TPD matters.

If you have lodged a claim and the insurer has failed to make a determination in a reasonable time period – we can help! If the insurer has breached their duty of good faith we will fight for you in the Supreme Court of NSW for your rightful benefits.

Call us today to speak with one of our experts in Superannuation and Insurance law.

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