If you have been injured and are now unable to work there are a number of benefits (compensation) that you may be entitled to.

Total & Permanent Disability Claims (TPD Claims) NSW

TPD claims differ from a lot of personal injury claims, in that the claimant’s entitlements are set out in a contract the claimant has with the relevant insurance company. That contract is more commonly known as the insurance policy, or product disclosure document.

In relation to TPD claims, the most important terms in that contract relate to the definition of TPD, the time-frame within which a claim must be made and the entitlement payable if the claimant has suffered TPD (as defined in the contract – see below).

The definition of Total & Permanent Disability (TPD)

The definition of TPD varies between insurance companies, and even between different policies of the same insurance company. However, in general terms there are two types of TPD policies:

  • Own Occupation
  • Any Occupation

An “own occupation” policy is the best type of policy to have. It provides a definition of TPD that is linked to you being unable to perform your “own occupation” (or “usual occupation”). For example, if a bricklayer suffers a prolapsed disc in their lumbar spine, it is likely they will not be able to continue to work as a bricklayer. However, they may be able to work as a spare parts salesperson at a car yard.

An “any occupation” policy will likely have a definition of TPD similar to this:

“TPD means you have been unable to work in your usual occupation for at least six (6) months and you are likely never to be able to work in any occupation for which you are suited given your training, education and experience”.

The process of making a TPD claim

1. Clarify the definition of TPD and any relevant time limits

We recommend you have us review your contract before you make a claim. The reason we recommend this is because you want to make sure that any medical evidence submitted to the insurer is worded in such a way that it addresses all the elements required to prove and establish that you meet the criteria of TPD as set out in the relevant definition of TPD. If we review your contract we can then provide advice about these elements.

Whilst reviewing your contract we can also establish any mandatory time-frame within which your TPD claim must be made.

2. Gathering the evidence and making the claim

Then we would write to a doctor who is an expert in providing reports for TPD claims (commonly called a medico-legal expert) with a view to having that doctor examine you and provide a report addressing all of the elements required to prove and establish that you meet the criteria of TPD.

If this report supports that you meet the criteria of TPD, as defined in the policy, then a claim can be made on the insurance company based on that report. At the same time as providing that report to the insurance company, we would ensure that all other reports required to be provided to the insurance company are so provided. In that regard, your contract with the insurance company (the policy) may require you to provide them with a report from your general practitioner and any treating specialist/s.

3. Considering the insurance company’s response

The first response from the insurance company is likely to be a request for you to be assessed by a medico-legal expert of their choosing. Your contract with the insurer will likely allow the insurance company to do this. Once you have been examined by that expert, and his/her report provided to the insurance company, the insurance company will advise its position on liability (this means they will either accept or deny your claim).

4. What if the insurance company denies my claim?

If the insurance company denies your claim, you then have to make a decision as to whether to dispute that decision by way of further legal proceedings in either the Superannuation Complaints Tribunal or a Court of law.

A complaint to the Tribunal must be made within two (2) years of the insurance company’s decision to deny liability. The commencement of proceedings in a Court of law must be made within six (6) years of the insurance company’s decision to deny liability.

Case law update

MetLife Insurance Limited v Sandstrom [2021] NSWCA 123 (9 June 2021)

In a recent case in the Supreme Court of NSW, the Court determined that when determining a claim for total and permanent disability, the insurer, MetLife, had acted unfairly, unreasonably and with an absence of good faith such that MetLife was in breach of its contractual duties to the claimant.

The Court overturned MetLife’s decision to decline the claimant’s claim that she was totally and permanently disabled and entitled to be paid out the proceeds of the insurance policy…about $750,000 was payable.

If you think your insurer is acting unfairly, unreasonably and with an absence of good faith in breach of its duty to you, do not hesitate to contact our team to discuss.

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