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Superannuation and total and permanent disability (TPD) lawyers and claims

Commonly asked questions about TPD claims:

There is nothing to stop you making a claim for a disability benefit under your superannuation scheme without the assistance of a lawyer. However, if the claim is disputed by the insurer then you will need legal assistance. Insurance companies are very experienced at disputing these claims and their claims officers are backed by lawyers who do nothing else but this type of work. You would be very brave to take them on without legal assistance from someone who specialises in this area.

Stacks compensation lawyers have considerable experience in pursuing claims for disability benefits because it is not unusual for accident victims to also have rights under their compulsory superannuation scheme.

A very typical test under these insurance policies is that you are entitled to a disability benefit for any period during which ‘you are not capable of earning income, by way of personal exertion from any occupation for which you are reasonably suited by reason of education, training or experience’.

Sometimes the test will be expressed this way: ‘You are not capable of earning two thirds or more of your average monthly income, by way of personal exertion.’ This is a much more reasonable test because it would be a bit unfair to say to a specialist doctor, who was disabled in an accident, that he or she couldn’t recover disability benefits because he or she was capable of serving petrol in a service station.

Either way, the test is still quite vague. Opinions can obviously vary about the work for which ‘you are reasonably suited by reason of education, training or experience’.

Any death or disability benefit available under your superannuation scheme will be available under a policy issued by an insurance company. The insurance company ultimately makes the decision about your eligibility for a TPD claim.

Insurance companies typically take a hard line in relation to these claims because once someone is entitled to a disability benefit the insurer is concerned that they may get used to an idle life and show no interest in getting back to work.

Once you make a claim for a disability benefit, the insurer will normally refer you to a medical specialist and these tend to be medical specialists who take a rather hard approach. If the specialist can identify some work which you are capable of doing, this will justify the insurer in refusing the disability benefit and the specialist is likely to find that more cases are referred to him or her by the insurer.

The fact that the insurer refuses your claim on the basis of their doctor’s report is not the end of the matter. We can refer you to a specialist with a reputation for being more even-handed in these matters, and if that specialist concludes that you are not ‘fit for work for which you are reasonably suited by reason of education and training or experience’, then we can commence legal proceedings so that an independent judge can decide if the insurer was reasonable in refusing your claim for a disability benefit.

Once legal proceedings have been commenced, it is not unusual for these claims to be settled on a compromise basis. In fact, if there is a genuine dispute between opposing medical specialists, these claims normally are settled. Sometimes our medical evidence is so strong that we advise you not to compromise at all, in which case the matter may well proceed to a hearing – unless the insurer gives up, as they sometimes do.

The time limits which apply to personal injury claims do not apply to the claims for a death or disability benefit under a superannuation scheme. Unless there is some specific time restriction to make a claim within the superannuation policy itself, you can make a claim within 6 years of your right commencing. As a claim for disability may be a continuing claim, as long as you remain disabled you can claim under the policy and if you cease to be disabled you can claim benefits for the previous 6 years – subject of course to any particular clause in the policy.

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