NSW formwork labourer wins $100,000 in superannuation dispute

Published 12 Nov 2014

NSW Supreme Court has awarded a 53-year-old man $100,000 following a superannuation dispute stemming from a total and permanent disability (TPD) claim.

The plaintiff, who was previously employed as a formwork labourer, also received $27,254 in interest and the costs of his legal expenses when the judge ruled against the trustee of his super fund and the insurer.

In 2006, the man suffered an accident that led to serious injuries in his left arm. He also claimed left shoulder damage and problems with his spine and median nerve. The labourer had been a member of a superannuation fund for three years, so he attempted to make a TPD claim under an insurance policy attached to his super.

His original request was denied, as was a subsequent claim he made after supplying additional information on two further occasions.

Medical practitioners asserted that the man was unable to return to the same work he had previously performed, but the insurer and superannuation trustee argued he was still able to engage in less-active tasks based on his education, experience and training.

However, it was revealed in court documents that the insurer made several errors in its rejection letter. This included referring to training qualifications the plaintiff had only achieved after his accident and citing experience he didn't possess.

Challenging the TPD decision

According to the Supreme Court, a key factor in the case was that the insurer used the wrong benchmarks when deciding on whether or not to approve the TPD claim.

The company judged the man fit for certain duties, but should have assessed whether he was likely to succeed in getting a job based on his experience and skills, despite the injury.

During the case, the judge took into account a number of factors, such as the man's age and poor English-language skills, the residual effects of his injury and the likelihood of obtaining employment in the current market.

For example, it was noted that doctors advised the labourer to avoid tasks where he must hold his head in one position for long periods, perform rapid body posture changes or remain seated or standing.

The fact that, at the time of the injury, the man was 48 also meant he had limited opportunities of finding suitable employment. As such, the courts ruled in his favour and ordered the insurer and superannuation trustee to pay the plaintiff $100,000, plus interest and costs.

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