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The Facts
Man suffers serious back injury shovelling earth at work
The complainant was a 61-year-old man who had obtained a higher
school certificate and a TAFE certification in grounds, gardening
and pool maintenance. He also had training in the hospitality, bar
and bistro and security industries.
On 1 September 2000, the man commenced employment as a
groundskeeper with the employer. He became a member of the
employer's superannuation fund.
On 20 March 2001 he suffered a back injury at work while
shovelling earth into the back of a tipper truck.
He attempted to work following the injury, but due to intense
pain was ultimately unable to do so.
The man sought treatment from a chiropractor and underwent a
structured exercise program, but the pain continued.
On 16 October 2001, the employer terminated the man's
employment. He received workers compensation after this because of
the seriousness of his injury.
The man subsequently tried to work in other capacities, but his
pain was too intense to allow him to do this.
Insurer denies TPD claim and injured worker lodges
complaint
In late 2012, the injured worker lodged a claim for total and
permanent disability (TPD) with the insurer under his
employer's superannuation fund.
The fund's policy covered the man for total and permanent
disability if he was incapacitated to such an extent that he was
unable ever to do work for which he was reasonably qualified by his
education, training, or experience.
The insurer denied the man's claim, concluding that he was
not totally and permanently disabled.
The man lodged a complaint with the Superannuation Complaints
Tribunal, arguing that the insurer's decision was unreasonable
and should be overturned.
It was up to the tribunal to decide if the insurer's
decision should stand.
case a - The case for the insurer
case b - The case for the injured worker
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.
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.
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