Which case won?

The case for the insurer
  • We denied the claim because the complainant does not meet the definition of “totally and permanently disabled” under the fund’s TPD policy.
  • Case law makes it clear that we can conclude that the complainant is not totally and permanently disabled if he is able to engage in part-time work.
  • The majority of the medical evidence provided, including WorkCover medical certificates completed near the date of the complainant’s injury, indicate that he was and continued to be fit for light and/or suitable duties on a part-time basis.
  • The numerous functional and vocational reports that were commissioned indicated that he had a wide-ranging education, training and experience which he could draw upon to do part-time work. Such opportunities include working as an earth mover or a nursery worker.
  • The complainant himself indicated in a Work Focus Australia Vocation Report that he was capable of working in occupations identified as being within his education, training and experience.
  • Given that the complainant did not satisfy the terms of the TPD insurance policy, our decision to decline his claim was fair and reasonable. The tribunal should dismiss the complaint.
The case for the injured worker
  • My employment has always consisted of heavy manual labour. My previous roles as driver, furniture removalist, service station night manager, kitchenhand and groundskeeper all involved varying periods of extended sitting, standing and manual labour, which I can no longer perform.
  • It is impossible to find part-time, light duties in heavy manual labour and I am not qualified to do anything else. Nor can I cope with any prolonged period of sitting or standing, due to my serious pain levels.
  • After participating in rehabilitation programs, I tried to return to work as a kitchenhand. However, even though I was working for a friend who made allowances for my disability, I was not capable of doing the work because my pain was so intense.
  • I have been evaluated by many specialists. Not one of them has ever certified me as fit to return to my duties.
  • I also require assistance with domestic duties. As I cannot even care for myself in my own home, it is ludicrous to suggest that I could do paid work.
  • I will never be able to return to the work that I am qualified for by my education, training, and experience, so I am totally and permanently disabled under the insurance policy and the tribunal should compel the insurer to accept my TPD claim.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a31%
case b69%

Expert commentary on the court's decision

Lenece Pek
Lenece PekSuperannuation Insurance Consultant
“Although my client’s claim was for a relatively small amount of TPD (the average is usually around $100,000), it will have a huge impact on his life. It’s important for people to review their financial position and to consider whether they have sufficient TPD cover to support themselves if they lose their capacity to earn.”
Superannuation Complaints Tribunal orders insurer to pay TPD claim

In a complaint heard by the Superannuation Complaints Tribunal against the insurer, AMP Life Limited, and the trustee of the employer’s superannuation fund, Host-Plus Pty Limited, the tribunal ruled in favour of the injured worker.

AMP was ordered to pay the TPD claim with interest.

Tribunal must determine whether insurer’s decision was fair and reasonable

Under section 37(6) of the Commonwealth Superannuation (Resolution of Complaints) Act 1993, the tribunal had to determine whether the decisions of the trustee and the insurer to deny the man’s TPD claim were fair and reasonable in their operation in the circumstances.

Insurer can reject TPD claim in cases of proven capacity to perform part-time work

Referring to two decisions by the NSW Court of Appeal, the tribunal agreed with AMP’s position that if proven, it was open to the insurer to rely on the injured worker’s capacity to undertake part-time work as a basis for denying his TPD claim.

The tribunal also agreed that the medical evidence before it established that the man had a serious back condition which potentially limited his work capacities to light or suitable duties.

Tribunal finds injured worker cannot realistically be expected to perform light duties

The tribunal noted that Australian caselaw requires the tribunal to consider whether there are “real jobs in the real world”.

Applying this test, the tribunal did not consider it realistic that the injured worker, with his medical history, would be able to establish himself in a job comprised solely of light or suitable duties.

The tribunal also noted caselaw confirming that the concept of work for which an insured person is reasonably fitted by education, training or experience directs attention to the insured’s work history to date:

It refers not to any work for which the insured might have physical and mental capacity without further training, but to work for which the insured has been prepared and shaped by education, training and/or experience.

The tribunal concluded that nothing in the facts before it indicated that the man was reasonably fitted by his education, training and experience for light or suitable duties.

The tribunal therefore determined that it was unfair and unreasonable of AMP to deny the man’s TPD claim, and ruled that AMP must accept the claim.

My experience representing the complainant

This case is of particular significance to me, as I represented the complainant.

I first met him when I was working as a financial counsellor at The Salvation Army.

Back then, my client was not aware that he had TPD insurance. However, he had been receiving workers compensation, and years of workers compensation certificates indicated that he could not return to his former duties.

One certificate added that he could possibly do some hours, for a few days a week, of light duties. The insurer pointed to this as proof that my client was “not totally incapacitated”.

How does the appeal process work when a TPD claim is rejected?

The appeal process requires that you first request that the insurer and superannuation trustee review their decision. So, we forwarded fresh medical evidence to them and requested a review.

In December 2017 we were notified that after the review the claim was still rejected.

With step 1 completed, we proceeded to step 2, and lodged an appeal with the Superannuation Complaint Tribunal in March 2018.

Meanwhile the Royal Commission was taking place, exposing wrongdoings by banks and insurers. AMP, the insurer in this case, was heavily criticised by the Royal Commission.

Considering this, I again approached both Host-Plus and AMP to ask if they wished to further review this case.

They advised me that a new, senior review panel was re-examining some troublesome cases, but again the claim was denied.

We then proceeded to the tribunal, where we were ultimately successful.

Although my client’s claim was for a relatively small amount of TPD (the average is usually around $100,000), it will have a huge impact on his life.

Review your financial position and make sure you have enough TPD cover

It’s important for people to review their financial position and to consider whether they have sufficient TPD cover to support themselves if they lose their capacity to earn.

The good news is that a case such as this one, where the insurer denied the claim, is the exception rather than the rule.

I have seen millions of dollars in TPD approved since I first gained experience with these insurances while working at The Salvation Army, and continuing once I joined Stacks.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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