How can I prove I can’t work?

Published 26 Apr 2018

When you claim on Total and Permanent Disabled (TPD) insurance as you would need to show you cannot work again.[1] How does one go about proving they cannot work again? Is it by reference to CT Scans and MRIs, to the number of surgeries one has, the Whole Person Impairment (WPI) level, or the medical certificates as signed by the doctor? The simple fact of the matter is that there is no one way of proving one cannot work.

Different people are affected differently by illness and injury. For example Prof. Stephen Hawking continued working up to the very last years and in spite of having his significant problems since early in his career. On the other hand: in the case of Carroll v United Super Pty Ltd [2018] NSWSC 403 the court found Mr Carroll TPD on account of his hip dysplasia; in Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 Mr Jones was TPD on the basis of a L5/S1 disc protrusion; and in Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534 Ms Wheeler was successful in TPD for depression and PTSD.

TPD is not really decided on the injury or illness, but on how those prevent the person from working. Illness and impairments affect people differently. Scans, surgery, WPI and other such things do not directly prove that you cannot work. TPD cases are about how persuasive the argument that you cannot work. It is not on the documents or even doctor opinions: doctors can be disbelieved;[2] and even you can be disbelieved. [3] But many TPD cases often succeed, and in those case it is that argument one cannot work is conducted persuasively.[4] Such arguments are multi-faceted, taking into account various real life considerations, and not straight forward.

Ultimately, a TPD claim is not about the completion of forms, or a particular thing to be said or put to an insurer – there is no specific threshold. It is proving in argument (and to provide supportive evidence) persuasively that you cannot work. Many non-experts approaching TPD from the basis of injury, economic loss, and forms – and often fail as a result. They myopically focus on the small particulars and not on the big picture of proving the case of unable to work. TPD cases is a very different expert area requiring specific expertise.

At Gerard Malouf & Partners our lawyers have experience in conducting and advising in TPD insurance. Should you have an insurance claim of TPD please feel free to contact our firm on 1800 004 878 and speak with one of our lawyers for a free consultation.


[1] c.f. TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 & Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57

[2] e.g. Dotlic v Hannover Life Re of Australasia Limited [2017] NSWSC 986; Zahr v TAL Life Limited [2014] NSWSC 358

[3] e.g. TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at 206

[4] e.g. Carroll v United Super Pty Ltd [2018] NSWSC 403


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