Man wins $104,000 total and permanent disability claim

Published 19 Apr 2018

Author: Gerard Malouf

A man has successfully challenged the outcome of a total and permanent disability (TPD) claim after he was rejected three separate times by the insurer of his superannuation fund.

The plaintiff was a self-employed builder who developed bilateral hip dysplasia, which causes significant pain in both hips and had prevented him from working since 2012.

He made a $104,000 TPD claim on the basis that he would be unable to ever return to work, but the fund insurer argued the plaintiff was not totally and permanently disabled in accordance with his policy.

Why did the insurer reject the claim?

The wording of many TPD policies is similar. They typically state the claimant must be unlikely to ever be able to perform regular remunerative work for which they have the education, training or experience (ETE).

In this case, the insurer said the plaintiff could work as a surveyor, project manager, architect or office worker, despite his injuries. However, the plaintiff submitted medical evidence and testimony that suggested these roles would be too difficult due to his physical limitations or would require significant retraining.

The man requested reviews of the TPD decision on two occasions and was turned down for similar reasons. He was also placed under surveillance to monitor whether his injuries were as significant as he’d claimed.

TPD claim reaches the Supreme Court

According to the plaintiff, the insurer failed to provide adequate reasoning or evidence to support its claim that he was not totally and permanently disabled under the criteria of his policy.

Specifically, he told a NSW Supreme Court hearing that the insurer had a tendency to cherry-pick from medical evidence, ignoring relevant information about the severity of his injuries in favour of subjective inferences.

In subsequent claim rejections, the insurer allegedly failed to reference additional medical evidence in its decision letters and often neglected to provide adequate reasons for turning down the plaintiff.

Judge rules in favour of the plaintiff

The judge agreed the insurer did not act in good faith when ruling on the claim and failed to offer detailed reasons for why the plaintiff did not meet the TPD criteria for a payout.

Justice Michael Slattery ruled the man was unlikely to ever return to work as a self-employed builder or other forms of employment he could reasonably be expected to secure based on his skills and work history. He therefore awarded the man $104,000 from the TPD policy.

This case shows that individuals may be entitled to TPD benefits even when an insurer rejects their claim, which is why it’s important to contact a superannuation disputes lawyer for advice on how to proceed.

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