Total and Permanent Disability (TPD) Claims

Once you have been off work for six (6) months, you will be able to lodge your TPD claim. You can, however, start preparing the relevant application forms and obtain all supporting evidence required before then, so that they are ready to go, if it seems obvious that you are not going to be able to go back to work.

The short answer is “as soon as possible”. This is so we can:

• determine what TPD benefits you might have;
• advise you as to your rights and entitlements;
• ensure that you are telling your doctors everything you need to tell them about your injury;
• assist you with lodging your claim;
• make sure that what you put in your application form is accurate and comprehensive;
• make sure that the doctors who are completing the Medical Attendant’s Statements have all relevant information; and
• determine whether you need independent medical evidence to support your claim (from, perhaps, an Orthopaedic Surgeon, a Psychiatrist and/or an Occupational Therapist).

No. If the injury or illness has caused you to be incapacitated for work, then you will have a right to bring a TPD claim. It does not matter what caused your injury or illness. Your injury does not have to have happened at work.

This will not necessarily be fatal to your claim. It depends on the terms of your policy.

If you were asked to disclose any pre-existing injury or illness and you failed to do so, then the insurer will try and “avoid” your policy and cancel your insurance (as if you had never taken out the insurance at all).

You should seek legal advice any time an insurer rejects your claim or voids your policy, as there may be steps that can be taken to appeal their decision.

To maximise your chances of getting the TPD payout approved, you should:

• Seek legal advice as early as possible;
• Really think about and document what duties are involved with the work you have done in the past and why it is that your injuries are now preventing you from returning to any work for which you are reasonably qualified;
• Make sure the doctors understand the duties that are required in those jobs and why it is that you cannot do some or all of those duties anymore; and
• Obtain supporting expert medical evidence where required.

If you return to work and remain employed, then you will not be entitled to make a claim under your TPD insurance.

If, however, you had to retrain in order to be able to return to work in a different capacity, then you may still be entitled to claim the TPD insurance benefits, but they will have to be paid into your superannuation fund, rather than you receiving a lump sum in your hand.

If you have attempted a return to work but failed to maintain that employment due to your injury or illness, then you would still be entitled to bring a claim.

Most times the TPD insurance is held within a superannuation policy.  The claim, therefore, will be made against your superannuation fund and their insurer.

Some people, however, have private TPD insurance policies, so the claim in that case would be directly against the TPD insurer.

The amount payable if you are found to be totally and permanent disabled depends on the amount of TPD Insurance that you had as at the date of disablement (the date you last worked).

With TPD insurance held under a superannuation policy, the TPD benefit plus any superannuation benefits would be paid, less any tax payable on the superannuation benefits.

No tax is payable on private TPD insurance, so the amount insured would be paid out.

The amount that was payable as at the date of disablement (the date you last worked) is the amount that the insurer has to pay, even if that amount has since reduced.

The date of disablement is defined by the policy and can change from one policy to the next. It is, however, usually considered to be the date you last worked in your normal role, prior to becoming sick or injured.

If we consider your TPD claim to have reasonable prospects of success, then we will act on your behalf on a no win no fee basis.

This depends on how much work is done. Our fees are typically 20% to 40% less than the bigger firms and are extremely competitive compared to any of the smaller personal injury firms around.

Our unparalleled expertise and experience sets us apart from other firms and we pride ourselves on ensuring that our clients achieve the best results possible and that they always receive the lion’s share of any settlement.

For more information on how we charge, click here.

No. If you proceed to court and make a claim for breach of contract or breach of fiduciary duty, however, then you may be liable to pay some or all of the legal costs that the trustee of the superannuation fund and/or the insurer incurred.

The insurer has six (6) months to make a decision but they can extend that period of time if there are unexpected circumstances.

There are no time limits, however, on a trustee of a superannuation fund to make a decision unfortunately. You can, however, treat their failure to make a decision within a reasonable period of time as a rejection of your claim and can then pursue any other legal avenues available to you.

There are three (3) different ways to appeal a rejected TPD claim, namely:

• make an internal despite resolution (IDR) complaint to the superannuation fund’s complaints section;
• make a complaint to the Australian Financial Complaints Authority (after you have lodged an IDR complaint); and/or
• lodge proceedings in court.

An IDR complaint can be worthwhile, particularly in circumstances where you are able to obtain further medical evidence or other evidence to support your claim. If the complaint is about a decision of the superannuation fund, then they have 45 days to respond. If your complaint is about a decision of an insurer, they have 30 days to respond.

If you have no success with the IDR process, then you can lodge an appeal with the Australian Financial Complaints Authority (AFCA).  The process with respect to these appeals is as follows:

• you lodge your appeal;
• a case manager is appointed;
• the parties exchange supporting documents and make submissions;
• a conciliation conference is held between the parties by phone;
• if there is no resolution at that conference, the case manager will provide their recommended outcome;
• the recommendation is binding if both parties agree; and
• if no agreement, then the complaint proceeds to the ombudsman for a final determination.

A determination by the ombudsman binds the superannuation fund and/or insurer if you accept it. It is not, however, binding on you and you can choose to pursue court action if you are unhappy with the determination. Only decisions involving superannuation funds can be appealed on questions of law to the Federal Court.

The third option with respect to appealing the decision of a superannuation fund and/or insurer is to commence court proceedings for breach of contract and/or breach of fiduciary duties (eg a failure to act in good faith).  The matter then proceeds as a normal litigation matter. Unfortunately, this means that it can take many months, if not years, to resolve. There is, of course, a chance to negotiate a resolution of the matter at any time, including at a mediation which is normally held prior to the matter proceeding to trial.

The advantage of proceeding to court is that, if you are successful, you will recover the TPD insurance benefit plus at least some, if not all, of your legal costs as well as interest on the insured amount.

Yes. Once you become incapacitated and are confident that you are not going to be able to return to work (or at least any work for which you are reasonably qualified), you should ask your superannuation fund or insurer to cancel your insurance. That will then stop them from deducting any further insurance premiums.

If you did pay some premiums after you became incapacitated, you can ask for them to be reimbursed to you.

Yes. These claims can run concurrently and will not impact on each other at all. You can claim your TPD insurance, as well as any compensation or damages from your other claim.

No. TPD insurance is completely separate from any other claim and is not refundable.

Yes. You can make a claim for all three (3) where eligible. Payment of your TPD benefits will not impact on your NIIS or NDIS benefits.

Yes. You can be in receipt of Centrelink benefits and also receive TPD benefits.  The only relevance that the lump sum you receive from your TPD insurance will have to Centrelink is in terms of your assets. If you remain below the asset threshold, then your entitlement to receive Centrelink benefits will not be affected.

You can lodge a TPD claim after you have been off work for six (6) months.

You have up to six (6) years after you became aware, or should have become aware, that you were totally and permanently disabled to make a complaint to the Australian Financial Complaints Authority (AFCA).

If you have already complained directly to the superannuation fund or insurer through its internal dispute resolution (IDR) process, then you need to make a complaint to AFCA within two (2) years of getting the IDR response from the fund or insurer.

With respect to court proceedings, you need to commence proceedings within six (6) years from the date of disablement.

These time limits may be extended in special circumstances, so if there is any doubt as to whether you are in time or not, you should seek urgent legal advice to discuss.

In Australia, the TPD insurance component of the lump sum that is paid to you is not taxable. Some of your existing superannuation benefits, however, will be taxed before being paid out to you. You should seek financial and/or accounting advice about this where applicable.