If you've found this article, chances are you already know that many superannuation funds contain an insurance policy for total and permanent disability (TPD). These policies, often worth $100,000's, can be claimed on if you experience a personal injury or disability which prevents you from being able to return to work. Understanding the TPD claim process and requirements is fundamental to winning your TPD Claim.
When it comes to TPD insurance, each superannuation fund's insurer has their own policy requirements - so, prior to spending any time or money on a TPD claim, we recommend that you read the fine print first to understand the criteria you must meet to be eligible for the pay out. However, most of the time, the insurer requires the applicant to have not worked for a period of time and to be able to provide specific evidence to prove that they are permanently unable to return to the work that they usually do. A successful TPD claim does not usually require you to be totally incapacitated from ever working again.
If you have more than one superannuation fund, it is possible that you therefore hold more than one TPD policy with different insurers. If this is the case, be sure to read each policy to ascertain whether you can or cannot claim on the multiple policies at one time.
Starting Your TPD Application
To begin your TPD application process, you must first obtain the relevant TPD application forms from your superannuation fund. Superannuation funds do not make this easy - you generally cannot download the forms from their website - you must specifically ask for the forms.
Once the correct TPD forms have been obtained, you should notice that statements are required to be completed by:
- yourself (as the applicant);
- your previous or most recent employer; and
- your treating medical provider(s) (typically your GP, but sometimes your psychologist).
Sometimes the insurer may require and additional medical specialist opinion to confirm that you are unlikely ever to be able to work again in a job for which you are qualified by education, training or experience.
If you have an ongoing civil personal injury claim regarding your injuries, we do not recommend making a TPD claim at the same time unless your lawyer has advised you to do so or runs it for you. If you make your own TPD claim without telling your lawyer, not only do you run the risk of breaching your agreement with your lawyer running your concurrent claim, you could potentially derail both of your claims inadvertently.
The more information you can provide the insurer at the commencement of your TPD claim, the quicker the claim process will be. Guidelines set out a 6 month timeframe for an insurer to make a decision whether to accept or reject a TPD claim.
TPD Eligibility & Requirements
Not all superannuation funds come with TPD insurance cover. So it's important to first ascertain whether your superannuation fund holds, or more importantly, held TPD insurance at the time of your injury. We often find that our client's think that they don't have any TPD cover because their latest superannuation member statement says that their insurance cover has ceased. However, when we dig deeper and request their super statement from the period they were injured, we discover that TPD insurance actually did exist at the relevant time.
You may even have an old superannuation fund that you've forgotten about that has a TPD policy. You can perform a "Find My Super" search through the ATO website, or ask Roche Legal to assist you.
Once you have determined whether your superannuation fund has TPD insurance, the terms and conditions of claiming on the insurance policy must be read in detail to understand your eligibility to claim and the particular policy's requirements. Each TPD policy can have a different definition of what 'total permanent disability' means so it is possible to meet the definition of TPD for one policy, but not another.
The most common definition of 'total and permanent disablement' allowing an injured person to make a claim for TPD insurance is that the applicant is unable to return to work for which you are suitably qualified by education, training or experience. This means that it is entirely possible for an injured person to claim TPD insurance, receive their pay out, and then find employment in a new field.
Less often, a more strict definition for is that the injured person may be 'unable to return to any form of employment'. Only a review of your specific super fund's TPD policy will determine the definition that applies to you.
Many TPD insurance policies also have time limits to make a claim. It is important to review the policy to identify the limitation period to make sure your claim is made "in time".
Your Medical and Occupational History
Your full medical and occupational history is required to be presented to the TPD insurer to help explain why you cannot meet the physical or mental demands of your usual occupation. Typically, a history of any injuries or illnesses you have suffered in the past is required to be provided. Your list of past injuries and illnesses should be comprehensive and including anything as minor as temporary childhood asthma to more serious psychiatric or physical injuries sustained in traumatic events such as a car accident.
Your full occupational and educational history will usually need to be presented to your doctor so that they can form an opinion as to whether you can no longer work in any capacity which you are qualified by education, training or experience.
Evidence of your occupational and educational history is also required by the TPD insurer. Usually, TPD insurers will accept a short statement or form from you which attaches your must current resume/CV.
Your previous employer will also have to submit an 'Employer Statement' to confirm that you were employed by them at the time you were injured and the date which you ceased working. If you have a concurrent workers compensation claim where you are effectively suing your previous employer, obtaining the Employer Statement can be very difficult. In such circumstances, you can request that the insurer seeks the statement directly from your employer.
Proving The Significance Of Your Injury
If you are now suffering from a new permanent physical injury or psychiatric condition, you would almost certainly have been attending upon medical specialists for treatment. It's important that you consult with your regular treating practitioners to let them know you are considering making a TPD claim to gauge whether they would be supportive of your claim and would agree that your condition meets the relevant definition for TPD.
If you have a concurrent claim relating to your injuries (for example, if you were injured in a motor vehicle accident, workplace accident, or public liability claim scenario), your personal injury lawyer would already be taking steps to help you obtain the best and most relevant evidence to support your injuries. If you do not have a concurrent civil personal injury claim, your TPD lawyer will be able to guide you as to which medical specialist is best to review your injuries to confirm the extent of your disability.
Medical evidence is best presented to the TPD insurer in a form that is short and sweet. Most of the time, TPD insurers provide you with their own short-form TPD medical certificates to be completed by your usual medical practitioners.
Make sure that your doctor lists each of your injuries - sometimes doctors may simply list the most prominent injury (for example, a meniscus tear to your knee) but fail to mention other injuries that you may have sustained at the same time - such as a patella fracture, pain disorder, and/or associated psychiatric injury such as an adjustment disorder.
Once the TPD medical certificates are completed, never submit them to the insurer without first reading and understanding the certificates provided to you. You may not always be issued with a certificate that satisfies the relevant definition of TPD and if you submit an unsupportive certificate, your claim may get rejected. Not all doctors think the same so knowing which practitioner will likely be supportive of your claim and which doctors may not be can be critical.
WARNING: When an applicant represents themselves in their claim, we have noticed that they often do not fully brief the doctor who is signing the TPD Certificate - so the certificate ends up being completed incorrectly or to a poor standard and causes the claim to get rejected. When this happens, solicitors often need to get involved to fix the problem. The legal fees to overturn a rejected TPD claim are typically higher than if the applicant used a solicitor in the first place.
Specialist Reports
If your injuries or illnesses are complex, perhaps in a scenario where you have more than one condition or your work history is sporadic, inconsistent, or largely varied, it could be beneficial to obtain independent reports from specialists rather than your usual doctor. Whilst specialist reports are often expensive, they can be the best way to convince your ordinary medical providers that your injuries totally and permanently disable you in an employment sense that meets your super fund's definition of 'TPD'.
Specialist reports can also be useful to clarify your injuries in circumstances where two doctors have opposing views as to whether your injuries cause you to be unable to return to work for which you are suited.
Injured in an Accident?
If you were injured in a motor vehicle accident, workplace accident, or from a slip or fall in a public/private place, you may have an additional claim to make on top of your TPD claim.
In these circumstances, we strongly recommend consulting a personal injury lawyer to minimise the risk that the evidence obtained in the course of either of your claims does not negatively impact the other prospects of success in your other claim claim.
Submissions to Accompany Your TPD Application
A successful TPD application should never simply rely on submitting a completed TPD claim form along with medical and occupational evidence. Insurers decisions on whether to pay out on your TPD claim are made much easier when they fully understand your story and new set of circumstances.
You can accompany your TPD application with any additional document or statement you wish. A good personal injury lawyer will accompany your application with a written submission outlining in detail your pain, suffering, history, injuries, illnesses, employment and everything in between.
Your lawyer will elaborate on your work history and the severity of your medical condition(s) preventing you from returning to work. Whether your disablement is due to a physical or psychiatric condition, your lawyer will explain the circumstances of the injury, the medical intervention or rehabilitation assistance you have undergone, and the unfortunate debilitating consequences you continue to suffer because of your condition.
A good TPD lawyer will also review your entire medical history to locate and extract important records that include comments made by your previous doctor's about your incapacity for employment. Appropriately quoting your doctors or highlighting relevant records to the insurer can provide your insurer with additional medical opinions to help convince them to pay out on your TPD claim.
A decision on your TPD claim is usually made in around 3 to 6 months from when your lawyer submits your claim. If you submit your own claim, it can take much longer than this as the insurer's can rely on special provisions to delay your claim.
Know Your Rights and Timeframes
The Australian Financial Complaints Authority (AFCA) considers the timeframes set out by the Financial Services Council Life Insurance Code of Practice ('the Code') to be the minimum standard of accepted industry practice and expects insurers to meet them. Key timeframes in the Code include:
- Making a decision on TPD claims within 6 months unless exceptional circumstances apply.
- Making a decision within 10 business days of receiving all information necessary to assess the claim.
- Providing updates on the claim process every 20 business days.
- Replying to update requests within 10 business days.
If insurers don't comply with these timeframes AFCA requires insurers to provide compelling reasons. AFCA also expects super funds to hold insurers to these timeframes - so your super fund is actually charged with assisting you with your claim against the TPD insurer.
If the insurer is not meeting the timeframes set out by the Code, you are entitled to raise a complaint to the insurer, your super fund, or AFCA.
Summary
In summary, a winning TPD claim requires that you:
- Identify whether you had TPD insurance on the date of your injury and obtain the correct claim forms
- Review the TPD policy to understand the eligibility requirements and the specific definition for 'total and permanent disablement' that applies to you
- Complete the required claim forms with your medical and occupational history and carefully obtain the medical evidence required to support your claim
- Consider composing detailed submissions that include additional supporting evidence as to why you satisfy the relevant definition of 'total and permanent disablement'
- Don't let the insurer delay your claim or ignore your requests for updates
Your chances of winning a TPD claim are enhanced significantly by engaging a lawyer to complete the application on your behalf.
Making a TPD Claim
Roche Legal offers No Win No Fee representation to everyone with a qualifying TPD claim. Contact us for a free initial consultation. We have offices in Brisbane, Springwood, and the Sunshine Coast.
Our firm has never been unsuccessful in claiming TPD insurance for our clients. Our success rate remains at 100% - even now in 2022. You pay nothing up front, and if we are not successful in claiming compensation through your policy, you will not be charged a cent.
