Receiving a letter rejecting your Total and Permanent Disability (TPD) claim from your superannuation fund or insurer is confronting.
You’ve probably lodged a claim because you have stopped working due to a downturn in your health. You may be on Workcover or receiving payments from another workers compensation scheme because of a workplace injury or receiving benefits as a result of injuries from a motor vehicle accident. You may have stopped working because of Multiple Sclerosis, Parkinson’s, chronic pain or some other serious affliction that comes on without rhyme nor reason. The art of being human!
Simply lodging a TPD claim can be exhausting; particularly if you’re ill or injured
To get to the point of having received a decision on your claim, you will have jumped through a number of hoops from your superannuation fund and its insurer. A process of “dotting i’s and crossing t’s”. That process that can be difficult, frustrating and tiresome; even for those in good health.
Have you had to jump through hoops to lodge your Super TPD claim?
You’ve likely obtained at least one medical report confirming that your injury or illness prevents you from working. You will have obtained a statement from your employer confirming the circumstances of you stopping work. You’ve probably been asked to provide your tax returns, Medicare and pharmaceutical benefit records and, without knowing it, could also have been put under surveillance.
In addition, the fund or insurer may have had you seen by a doctor of their choosing; a doctor they would have referred to as an “independent medical doctor”. You may have spoken with a rehabilitation specialist employed by the fund or insurer and quizzed about your capacity to return to work.
And yet, despite going through this often tedious and lengthy process, you receive a letter advising that you have no right to your insurance entitlements. No right to the insurance benefit you have been paying insurance premiums for from the date you started working.
Well, don’t stop the process and DO NOT give up! A Super lawyer is here to help.
The insurance company’s initial decision is not always the correct decision
As I tell my clients time and time again, just because an insurance company makes a decision, it doesn’t mean their decision is correct. In fact, my experience tells me insurers often get it wrong and if you ask them to change their decision, which you are entitled to do, their decision may change second time around.
What’s the difference between a letter of complaint and a request to review a decision?
It can be hard work and require careful planning to prove an insurer’s decision is wrong by lodging a complaint against their decision. However, the stakes are high. And the difference between lodging a review that makes an insurer sit up and take notice and a letter of complaint that leads to the same result – another rejection - can be poles apart.
There are many aspects to lodging a successful complaint against a rejected TPD claim. Submissions setting out your inability to work that compare closely to appropriate legal decisions handed down by the courts in someone else’s case can help. Focusing on the commentary of the insurer in their letter of rejection to ensure you have approached the complaint in the most appropriate manner is key.
- What is the insurer saying about your disability?
- Why is the insurer saying you have the capacity to work?
- What does the insurance policy say?
- Has the insurer correctly interpreted the insurance policy? (yes, some insurance company’s mis-interpret their own policies)
- Is the insurer trying to rely on a technicality to deny the claim?
- Is the insurer’s decision correct?
- Is their decision deficient for more than one reason?
And this is only the decision of the insurance company. What about the Trustees? The Trustees are the owner of the insurance policy held by your superannuation fund. The Trustees hold your money in your superannuation fund on trust and are responsible for decisions about your money. This will be the subject of another blog entry in the coming weeks.
- Have the Trustees complied with their legal obligations?
- Have the Trustees made their own decision and is their decision-making process adequate or are there deficiencies in their decision-making protocols?
- Do the Trustees agree with the insurer or do they have a different view to the insurer?
It may be clear by now that lodging your own insurance claim or your own request for a review of a decision can be complicated. It can involve the decision-making protocols of two different entities – the insurer and the trustees. And claims can be decided (aka rejected) for numerous reasons; not only on the grounds of your capacity for employment but for technical reasons requiring a consideration of the trust deed and insurance policy.
I hope this article has provided a road map for you to understand your rights when applying for your own total and permanent disability claim or income protection claim. Of course, any article can only ever be written in general terms because each claim comes with its own specific circumstances and complications.
If you’re battling an insurance company or if your superannuation disability claim has been rejected or is likely to be, get in touch with today’s blog writer, Michael Bates.
At Berrill & Watson, we win claims. We are the Super Lawyers!