Does going on social media mean I am not TPD?

Published 10 Jan 2018

An insurer accessing a Total and Permanent Disablement (TPD) claim will often, in trying to find a way to decline the claim, subject the claimant to surveillance and investigation. Increasingly the insurer relies on Facebook and other social media activity to suggest a person is not as ill as they claim – particularly common in Mental Illness situation. As a way to satisfy TPD is to show that one is unable to return to work because of illness, insurers have relied on social media activity to argue claimants are actually fit for work, exaggerating the illness, and even that the person is straight up lying about being sick.

Facebook evidence was referenced in the Court of Appeal decision of Shuetrim[1] in 2016. This was an appeal brought by an insurance company to overturn a previous decision against them. The three judges in this case accepted that the Facebook posts and activity was evidence that the claimant exaggerated his psychological illness, (at paragraph 207). But on the opposite end of the spectrum, the 2017 decision at the Supreme Court of Hellessey[2] decided that the Facebook activity was not sufficient to show the psychological illness were exaggerated, ( at paragraph 976). So does Facebook activity make (or break) a TPD case? Do I satisfy the TPD definition if I go on Facebook?

At a cursory glance, it may seem that the Courts haven’t worked out whether being on Facebook affects a TPD claim, but in closer inspection the answer is much simpler. Facebook, and any other evidence, can make (or break) a TPD case. In Shuetrim the judges did not believe the claimant’s version events, describing it as self-serving (at 109), and the Facebook activity confirmed their disbelief of Shuetrim. On the other hand the judge believed Hellessey’s version of events, and found the Facebook activity to be consistent with the testimony. Facebook itself neither makes (nor breaks) the case, what makes the case is whether the case is believable and consistent.

Ultimately there is no touchstone or threshold for an insurance claim, like TPD. Unlike Workers Compensation or Motor Vehicle Accident claims where there are thresholds which can make (or break) a case, in TPD one either wins or loses – all or nothing. To prove that one cannot again work is usually not achieved on specific pieces of evidence, but that the overall picture of all the evidence being consistent and persuasive. At Gerard Malouf & Partners our lawyers have experience in insurance claims of TPD and income Protection, including running them at Hearing and preparing evidence. Should you have a claim or a dispute over these insurance please do not hesitate to contact our firm for a free consultation.

[1] TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

[2] Hellessey v MetLife Insurance Limited [2017] NSWSC 1284

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