You do NOT need to show that you will never work again; you only need to show that you are unlikely to ever return to any work for which you were reasonably qualified at the date of disablement. This means that, if you are able to, you can retrain and return to some other work in the future.
In some cases, you only need to show that you are unlikely to return to your own occupation (ie the job that you were doing at the time you took out the insurance), as opposed to any occupation you have ever had in order to qualify to receive the benefits.
Of course, you need to have total and permanent disability insurance within your superannuation policy or under a private insurance policy for your entitlement to claim TPD benefits to arise. Some people will have a number of superannuation policies which contain TPD insurance, so they may be able to pursue more than one TPD claim.
TPD claims usually result in a large lump sum being paid, depending on the value of the TPD insurance taken out. The amount paid out includes any superannuation contributions paid into the fund plus the TPD insurance amount, less any tax payable. Some people choose to leave the funds, including the additional insurance benefit in their superannuation to access later.
How to lodge a TPD claim?
The steps involved in making a TPD claim usually involve the following:
- Request the relevant Application form, supporting documents and policy documentation from the superannuation fund or insurer;
- Complete the Application form;
- Ask two (2) of your doctors to complete the Medical Attendant Statements (or the equivalent document) provided by the superannuation fund or insurer, confirming that they are of the opinion that you are unlikely to return to any work for which you are reasonably qualified by way of education, training or experience;
- Ask your former employer to complete the Employer’s Statement (or the equivalent document), confirming what your role was and that you were working right up to the point where you had to cease work due to your injury, illness or disability;
- Lodge all of those documents with the superannuation fund or insurer;
- The superannuation fund or insurer will then request any further documents they require. They may even require you to attend an independent medical examination;
- Once the superannuation fund or insurer has all necessary information required, they will make a decision in relation to your claim;
- The claim will need to be approved both by the Trustee (ie the board) of the superannuation fund and the insurer;
- If the claim is approved, you will then be required to set out whether you want the funds paid out as a lump sum, in instalments (an annuity) or to reinvest those funds or roll them over into another superannuation policy.
So, what can East Coast Injury Lawyers do to help?
Your Application for Total and Permanent Disability Benefits needs to be framed in the right way, so that the trustee of the superannuation fund and the insurer know what education, training and experience you have had and why it is that can never return to any work for which you are reasonably qualified. We assist you with framing the claim in the right way and by making sure that the restrictions you have and the reasons why you cannot return to your previous roles are very clear.
We also assist your doctors to complete the Medical Attendant’s Statements by explaining the process to them and pointing out that you do not have to prove that you will never work again in any occupation (ie that you are totally disabled) but that you only have to show that you are unlikely to ever return to any work for which you were reasonably qualified as at the date of disablement.
We also, where necessary, obtain expert medical evidence in support of your claim to counter any medical evidence obtained by the insurer or superannuation fund. The expert opinions will often include a report from an Occupational Therapist and/or reports from a Neurosurgeon, Orthopaedic Surgeon, Psychiatrist and/or any other suitable medical specialist. We are able to ask those medical experts all the right questions to ascertain whether your capacity to return to work suggested by the insurer’s doctors is realistic or not.
We then make submissions to the insurer or superannuation fund as to why your claim should be accepted or why their original decision was wrong and should be reversed.
In cases where the trustee and/or insurer unreasonably reject the claim and are not willing to change their decision, then we would discuss your options with respect to court proceedings.
Strict time limits apply to total and permanent disability claims, so speak with one our expert personal injury lawyers today.
How long do I have to be off work to start a total and permanent disability claim?
Most policies require you to have been off work for at least six (6) months before you are eligible to apply for TPD benefits.
If it seems obvious, however, that you are not going to be able to return to any work that you previously did, then you could request the relevant forms and start preparing them before the six (6) month period expires, so that you can submit your claim as soon as the six (6) month period has expired and minimise any delay in having your TPD benefits paid out.
When should I get a TPD lawyer involved?
You should engage a TPD lawyer as soon as possible. This is so we can:
- ascertain if you have any total and permanent disability insurance
- provide you with advice about your rights and obligations
- make sure you do not miss any important time limits
- make sure that that you are telling your doctors, the superannuation fund and the insurer about the impact your injury, illness or disability is having upon your work capacity
- make sure that your medical certificates, records and reports list all injuries you have sustained, including any psychiatric injury – sometimes the doctors need some guidance in that regard
- assist with obtaining all necessary application forms and policy documentation
- help put the TPD application form together for you
- make sure that we ask the doctors who are completing the Medical Attendant’s Statements all the right questions
- organise any expert medical reports needed
- start putting together submissions as to why your claim should be accepted
Do I have to be injured at work to bring a TPD claim?
No. Provided you were employed at the time, it does not matter what injury or illness caused you to cease work, nor does it matter how it happened (provided you do not intentionally injure yourself).
What happens if I had a pre-existing injury or illness?
Whether your right to claim TPD insurance benefits is affected by a pre-existing injury will depend on the terms of the policy and what happened when you entered into the policy with the insurer or superannuation fund.
If they asked you about pre-existing injuries or illnesses and you failed to disclose them, then the insurer may seek to avoid the policy because of your non-disclosure.
Many policies, however, provide automatic cover without asking you about pre-existing injuries, so in that case they would be irrelevant.
If it looks like your claim might be rejected for any reason, including a pre-existing injury or illness, speak with a lawyer as soon as possible, as there could be a number of options available to you (including, at the very least, having your premiums refunded).
What is the best way to get a TPD payout approved?
We would recommend that you proceed as follows:
- Speak with a TPD lawyer as soon as possible;
- Write down the aspects of your job that you can no longer do, as a result of your injury, illness or disability, and set out why that is the case;
- Outline why that means you are no longer employable in your current role;
- Do the same for any previous jobs you have undertaken, or any other jobs that you are qualified for by way of education, training or experience; and
- Explain these things to your doctors, so that they understand why you are unlikely to return to any work for which you are reasonably qualified.
Can I return to work and still make a TPD claim?
If you have undertaken further studies or retraining and then return to work in a different career, you will still be entitled to make a claim for your TPD benefits. Those benefits, however, will be paid back into your superannuation fund, to be accessed upon retirement.
If you otherwise return to work without retraining, however, then the insurer will argue that you are not totally and permanently disabled under the terms of your TPD insurance as you have managed to find work with the qualifications or experience that you already had.
What if I attempted a return to work program but was unsuccessful?
You would still be able to bring a total and permanent disability claim even if you attempted to return to work for a short period of time but then had to cease work as a result of your injury, illness or disability.
Is it the insurer or the superannuation fund that approves my total and permanent disability claim?
For any TPD insurance policies that are held in a superannuation fund, your claim must be approved both by the board of trustees of the superannuation fund and the insurer. It is the insurer who ultimately pays out your TPD insurance benefit.
For any TPD policies taken out directly with an insurer, it is only the insurer themselves that need to approve payment of the TPD benefit.
How much is paid out in TPD claims?
This entirely depends on the amount of total and permanent disability insurance you had as at the date of disablement (which is usually the date you last worked).
The amount paid out once your TPD claim has been approved would include your superannuation benefits (paid into the fund by your employers and you) plus the amount of your TPD insurance benefit, less any tax payable. You should speak with a financial advisor about the amount of tax payable.
Why is the date of disablement important?
The date of disablement (which is usually the date you last worked in your usual role) determines what amount you are insured for at that time. Most TPD insurance benefits reduce each year as you get older, so the amount that is payable as at the date of disablement is the amount that the insurer is liable to pay.
How do you determine the date of disablement?
The date of disablement is normally the date you last worked in gainful employment, or in your usual role, prior to becoming incapacitated for work. The date of disablement is defined by the policy and not all policies are the same, so it will be important to read the policy documentation to determine the relevant date.
Do injury lawyers run TPD claims on a no win no fee basis?
Once we determine that a TPD claim has reasonable prospects of success, we will agree to run the claim on a no win no fee basis.
How much do lawyers charge to pursue a TPD claim?
It depends on how much legal work it takes to achieve a successful outcome in your claim. Every matter is different. Our hourly rates are extremely competitive. For more information on how we charge, click here.
Do I have to pay the insurer’s costs or the superannuation fund’s costs if my claim is rejected or I if I lose my case?
This is extremely unlikely. You only have to pay some of the superannuation fund’s costs or insurer’s costs if you sue them for breach of contract or breach of fiduciary duty (or something similar), proceed to trial and lose completely or if you receive a judgment for less than what the insurer or superannuation fund has previously offered to pay you.
Very few total and permanent disability claims actually proceed to trial, so the chances of you having to pay the superannuation fund’s costs or the insurer’s costs are very slim. During the course of your claim, we will provide you with ongoing advice regarding your prospects of success, so that you know whether it is worth continuing with the claim.
How long does it take for a superannuation fund or TPD insurer to approve a claim?
Insurance companies have six (6) months to make a decision but can extend that period of time if unexpected circumstances arise.
Trustees of superannuation funds, however, are not bound by any time limits. If they fail to make a decision within a reasonable amount of time, then you can treat their failure to make a timely decision as a rejection and can pursue any available appeal options.
In relation to Internal Dispute Resolution (IDR) complaints, superannuation funds have 45 days to respond to a complaint about their original decision and insurers have 30 days to respond.
How do I appeal a decision to reject my TPD claim?
If your claim is rejected by the trustee of the superannuation fund and/or insurer then you have the following options available by way of appeal:
- Lodge a complaint with the internal dispute resolution (IDR) section;
- If the IDR process is unsuccessful, lodge a complaint with the Australian Financial Complaints Authority; and/or
- File court proceedings for breach of contract and/or breach of fiduciary duty.
If you are able to obtain further supportive medical evidence after the original decision has been made, then the IDR process can often prove useful.
Superannuation funds have 45 days to respond to an IDR complaint. Insurers have 30 days to respond to an IDR complaint about their decision.
The process with respect to an appeal to the Australian Financial Complaints Authority (AFCA) is as follows:
- The appeal is lodged;
- AFCA appoints a case manager;
- The parties are required to exchange supporting documents and to provide submissions;
- The case manager arranges for the parties to attend a conciliation conference by phone;
- If the conciliation conference is unsuccessful, the case manager will provide their recommended outcome;
- If the parties accept the case manager’s recommendation, then it becomes binding; and
- If the parties do not accept the case manager’s recommendation, the complaint then proceeds to the ombudsman for final determination.
If you accept the decision of the ombudsman then the decision is binding on the superannuation fund and/or insurer and they must abide by the decision. You can choose, however, not to accept the decision of the ombudsman and proceed to court.
Proceeding to court means that you are suing the superannuation fund and/or the insurer for breach of contract and/or breach of fiduciary duty (eg failing to act in good faith). The claim proceeds as would any other litigated matter, which can be costly and time-consuming, with many matters not getting to hearing for many months, if not years. Of course, settlement negotiations can take place during that time. If you are successful in your claim following a trial, you will be able to recover some, if not all, of your legal costs.
What happens to my TPD insurance premiums after I cease work?
If TPD insurance premiums are deducted after the date you become totally and permanently disabled, then you can ask for them to be refunded to you.
If it is clear that you are never going to return to any work for which you are reasonably qualified by way of education, training or experience, then you could cancel your insurance. The insurance that was in place at the time you ceased work will still stand. Before cancelling your insurance, however, you would want to be sure that your TPD claim is going to succeed.
What if I have a workers’ compensation claim, a CTP claim or other claim as well?
You can lodge a workcover claim, a CTP claim or any other personal injury claim and also have a claim for TPD benefits. They are mutually exclusive, so the TPD benefit you receive does not reduce the amount that you are to be paid by WorkCover, the CTP Insurer, public liability insurer or professional indemnity insurer.
What if I have made a claim under NIIS or the NDIS?
You can make a claim through NIIS and/or the NDIS and also lodge a claim for TPD benefits. They are mutually exclusive, so the TPD benefit you receive does not reduce the amount that you are to be paid by NIIS or the NDIS (as your eligibility under the NDIS is not means tested).
Am I able to claim TPD benefits and also claim Centrelink benefits (eg Disability Support Pension or Newstart (Sickness) Allowance)?
Yes. You can make a claim for TPD benefits whilst also claiming Centrelink benefits. Once the TPD benefit is paid out, you would need to inform Centrelink, so that they can determine whether it might have an impact on your assets test. If you remain below the asset threshold, then your entitlement to receive Centrelink benefits will not be affected.
Are total and permanent disability claims subject to any time limits?
You must be off work for at least six (6) months because of injury, illness or disability, before you can submit a TPD claim with the superannuation fund or TPD insurer.
Subject to the exception below, a complaint must be made to the Australian Financial Complaints Authority (AFCA) within six (6) years from the date you became aware, or should have become aware, that you were totally and permanently disabled.
In circumstances where an internal dispute resolution (IDR) complaint has been made, a complaint must be made to AFCA by the applicant within two (2) years of the applicant receiving the IDR response from the superannuation fund or insurer.
If all else fails, court proceedings should be commenced within six (6) years from the date of disablement (ie the date you last worked in your usual role).
In some cases, these time limits may be extended. Speak with your TPD lawyer about this as soon as possible.
Do I have to pay tax on the lump sum that I receive from my TPD claim?
Yes. If you choose to have the benefits paid out, then there will be some tax payable on that lump sum. You should speak with your financial advisor or accountant about how much tax is likely to be payable.
During your free initial consultation, we will:
- Ascertain when you last worked in your usual role;
- Determine whether you had total and permanent disability insurance at that time;
- Obtain details of your injuries, illnesses and/or disabilities;
- Speak with you about why those injuries, illnesses or disabilities are preventing you from returning to work;
- Find out what previous work you have done;
- Discuss what education, training and experience you have;
- Provide you with initial advice regarding your prospects of success;
- Discuss the process involved with TPD claims;
- Explain how we charge and the likely costs involved; and
- Answer any other questions you have.
*East Coast Injury Lawyers is led by Accredited Specialists in Personal Injury Law: Sean Delpopolo, Helen Ashton, Nickelle Morris.
- No Win, No Fee
- No upfront payments
- Free initial consultation
- Home visits
- Hospital visits
- Videoconference meetings (via Zoom or Microsoft Teams) where preferred
- After hours visits
- 30% cap on legal fees
- No uplift fees charged
- No litigation lenders or interest charges on outlays / disbursements
- Complete confidentiality
- Immediate assessment of your claim
*Strict time limits apply when making a claim. Do not delay.