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Published: 21 December 2018
Author: Alyssa Lewis

Total and Permanent Disability claims. You must meet the definition

People who are unable to work due to physical or mental incapacity or illness may be able to access insurance entitlements attached to their superannuation fund. Often people do not realise they have these entitlements as they can be hidden in the fine print of their policy.

In this blog, I explain how you can obtain your Total and Permanent Disability entitlements by meeting strict definitions contained with your superannuation policy.

The real dispute in meeting the definition is whether, given the injury or illness and its restrictions, you are unlikely to ever work in an occupation for which you are reasonably fitted by education, training or experience.

Total and Permanent Disablement (TPD) entitlements

One of the most common entitlements that we assist our clients in obtaining is their TPD insurance.

TPD entitlements are not based on the circumstance of the injury. For example, you do not have to have sustained an injury at work or in a motor vehicle accident to make a TPD claim. TPD entitlements are available to those who are either injured or have a serious illness, no matter the circumstance of how the injury or illness occurred.

To obtain your TPD entitlements, you need to show that you are:

  1. Totally and Permanently Disabled; and
  2. You cannot return to work.

This is done through meeting the definition of TPD, which is contained in your superannuation policy.

To obtain your TPD entitlements, you need to ensure you have appropriate coverage and meet the definition of TPD. In this way, it is unlike making a personal injury claim, where is it sufficient to convince a court on the balance of probabilities, that you are seriously injured and that you cannot work.

The definition of TPD

The matter of Hannover Life Re Australasia Ltd v Jones [2017]1 provides a definition of TPD, as follows:

“Total and Permanent Disablement in respect of an Insured Person who was gainfully employed within the six months prior to the Date of Disablement is where: the Insured Person is unable to follow their usual occupation by reason of accident or illness for six consecutive months and in our opinion, after consideration of medical evidence satisfactory to us, is unlikely to ever to be able to engage in any Regular Remunerative Work for which the Insurer Person is reasonably fitted by education, training or experience.”

Meeting the definition

Coverage

In order to satisfy the definition, you must ensure that you have adequate TPD coverage in your policy. This is often dependent upon whether you were in active employment at the date you became a member of your superannuation fund or at the date your superannuation policy commenced. There must be appropriate coverage at the time the injury or illness occurred in order to make a claim.

Period of time

Once adequate coverage has been shown, we then need to ensure the claimant has been unable to follow their usual occupation by reason of accident or illness for a certain period of time, usually six months from the date of injury or illness, but this depends on each policy.

Evidence

Once the above two requirements are met, the focus then turns to having medical evidence that supports the claimant’s inability to work. Superannuation funds normally require your treating doctor or specialist to complete forms which state whether you have a capacity to work. We often seek medical reports from relevant treaters to support our client’s claim.

Along with medical evidence, we also need to obtain evidence as to why you ceased employment. This establishes a link between ceasing work and the injury or illness.

Employment

In order to satisfy the definition of TPD, we need to show that you are “unlikely ever to engage in employment”. This requires a realistic and common-sense approach to be taken, as to the likelihood of you actually obtaining work in the real world with the limitations caused by your injury or illness2. Occasionally this means that we will obtain a vocational report that will determine if there are any suitable roles for you within your education, training and experience. We may also provide to the Fund statements from yourself and your family members in regard to your everyday activity and living.

Finally, the last limb of the definition, which states “reasonably fitted by education, training or experience”, needs to be satisfied.

We tend to satisfy this element by showing that a job which might be recommended as suitable and which you may be able to perform without further education, training or experience is not necessarily one for which you are reasonably fitted by previous education, training or experience.

For example, if a claimant has been a labourer by trade for most of their career and a recommended job was in administration. This role would not be suitable as the claimant has no prior education, training or experience in administration.

This limb of the definition can also be satisfied through reviewing your educational and occupation history and experience and applying the limitations and restrictions which you now face as a result of your injury or illness.

The definition

Although the definition seems straightforward, it becomes clear once you break it down, that it is not sufficient to submit medical evidence only in regard to the injury or illness. The real dispute in meeting the definition is whether, given the injury or illness and its restrictions, you are unlikely to ever work in an occupation for which you are reasonably fitted by education, training or experience.

If you are suffering from a physical or mental incapacity or illness and believe you have TPD entitlements under your superannuation fund, we encourage you to contact us on (03) 9238 7878 to learn more about your insurance options and entitlements.

1. Hannover Life Re Australasia Ltd v Jones [2017] NSWCA 233, [21].

2. Wheeler v FSS Trustee Corporation [2016] MSWSC 534, [79].

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