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Why should I use a lawyer for my TPD claim?


Why should I use a lawyer for my TPD claim?

Many people are told by superannuation funds, insurance companies, financial advisors and friends that they do not need a lawyer to pursue a TPD claim.

Let me firstly point out that all super funds and insurers use lawyers themselves to provide them with advice about the strategy to deal with your claim.

So, if there are any issues or potential loop holes with your claim, it is important that you understand that the insurer and super fund will use lawyers, and if you don’t have a lawyer, you could be at a disadvantage.

Let’s look at some of the common issues with TPD claims where engaging a lawyer would be a good idea.

The definition of TPD varies from fund to fund

Pretty much every superannuation fund or insurer has a different definition of Total and Permanent Disability (TPD). Therefore, the evidence you need for any particular claim may differ due to the different definition. You may have two funds yourself; each with a possible TPD claim. It could be that the definition of TPD is different for your two funds, making the claiming process even harder to do on your own.

Some policies say you have to be “unable” to work. Others say you have to prove that it is “unlikely” that you will ever work again. These are quite different words with different legal meanings.

There are also instances where your employment status (which might be casual, part-time or unemployed) or the amount of hours you worked, might mean that you need to prove that you can’t perform activities of daily living (for example, eating, bathing, toileting, mobility, dressing).

Superannuation fund and private insurance policies are very complex documents and so it’s important for you to have someone who understands how to read and interpret the insurance policy, helping you through the TPD claims process.

Claiming TPD can be an overwhelming experience

Most people claiming a TPD benefit do so because they can’t work due to a medical condition. If you’re seriously ill or injured, you will likely struggle to deal with all of the administrative demands of the TPD claims process. The claim forms themselves can be truly overwhelming for many people. This is particularly the case for people who suffer from a mental illness.

We have seen some instances where an insurer has said that the fact that the person was able to do their own claim was evidence that they were not TPD!

That is grossly unfair, but it does happen.  You need to know that you can and should challenge any insurer who says that.

Medical examinations

As a part of the claim process, an insurer is entitled to have you assessed by one of the insurance company’s doctors. That is pretty common.

However, it is also common that an insurer will ask someone to be seen by many doctors and even multiple doctors of the same speciality, for example, multiple psychiatrists etc.

Insurers and super funds are not allowed to just go doctor shopping to get the opinion that they want. The insurer has to act reasonably, and in good faith. It is important to know when to agree and when to refuse to attend medical examinations organised by the insurance company.

What does “non-disclosure” and “pre-existing illnesses” mean?

There are often instances where someone who is applying for insurance cover needs to answer a medical questionnaire. Let’s assume you’ve applied for insurance and you’ve been paying for your insurance cover for many years. You are diagnosed with a serious injury but when it comes to making your claim, the insurer says that they weren’t told about a particular illness or injury when you took out the policy, and so the insurer “avoids” the policy.

This means that they treat the policy as if it never existed, because of your “non-disclosure” of a previous medical condition.

That apparent non-disclosure would result in you having your claim denied.

There are also some insurance policies which have a pre-existing illness exclusion clause. So, if you are claiming for a medical condition which first occurred before your insurance cover, the insurance company says you can’t claim. But these issues are complex. Consumers have some protections in this area and it is important to understand what can be done.

The decisions of insurance companies about non-disclosure and pre-existing illnesses are often incorrect but unfortunately, many people are too scared to challenge the decision. If you have a lawyer though, they would often be able to challenge that decision to reject your claim.

Non-disclosure is one of the most technical areas of insurance disputes. In reality, an average person would have no knowledge of how the laws in relation to non-disclosure work.   

Do you need a TPD lawyer for your claim?

Unfortunately, there are many people who deal with their own TPD claim but have had their claim rejected and have just given up.

If you have a lawyer running your claim it is more likely that the evidence in support of your claim will be properly prepared. You are also less likely to be mucked around by the super fund or insurer.

If TPD claims were simple, then there would be no need for a lawyer. But the reality is that the claims are not simple. They are often very complex and sometimes end up in court.

If you want to discuss your claim or want to find out more about what a lawyer can offer, feel free to get in touch directly with today’s blog writer, superannuation and insurance lawyer Paul Watson for a free chat about your options.

Contacting Berrill & Watson

📞 Melbourne: 03 9448 8048

📞 Brisbane: 07 3013 4300

📞 Anywhere else in Australia:  03 9448 8048

📧 [email protected]

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We are Australia's best-value superannuation/insurance law firm. Other law firms charge nearly double (& sometimes more than double) what we charge. So, if you get a quote from them, or have a cost agreement, ask us what we will charge you.

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