We find that there is a lot of misunderstanding about the meaning and interpretation of the term Total and Permanent Disability (“TPD”). We are often asked; can I return to work after my TPD claim is accepted? The answer varies from person to person and depends on the relevant definition of TPD that your claim refers to.
The meaning (definition) of TPD varies from policy to policy.
To be 100% sure about what work you can do during or after you claim, we would need to check your policy. However, because we do this work all the time, we can tell you that TPD usually means one or more of the following (summaries only):
- must not ever work again within your education, training and experience;
- must not ever work again within your usual or own occupation;
- must be unable to do your activities of daily living; and
- must lose the use of two limbs or your vision.
Usually, more than one of the above definitions applies.
Importantly, TPD doesn’t always require that you cease work. We have helped plenty of people access TPD benefits under the activities of daily living or loss of use of limbs definitions whilst still working. Also, it’s possible, although more difficult, to claim benefits under the education, training or experience or usual or own occupation definitions whilst still working.
What does it mean when a TPD policy talks about “education, training and experience”?
Under most TPD insurance policies, TPD requires that you stop working due to illness or injury and be permanently unable to work within your education, training or experience. There have been a few legal cases which have looked at what working within your education, training and experience means.
Basically, it means work you can do without having to be retrained or without further education. Therefore, if you cease work in your own occupation because of illness or injury and there are no other jobs that you can do without retraining or further education, you may be entitled to the TPD benefit. Usually, you need to do no work at all for a few months first.
It’s unclear exactly how extensive the education or retraining must be. However, we know from the leading case on this issue, that a truck driver who retrained to become a taxi driver (via a 4-5 day course) was not TPD. That is, the court found that this level of re-education/retraining was not significant enough for his work as a taxi driver to be outside of his education, training or experience.
Usually, we say that the education or retraining would need to be certificate level or better and the course would need to take a few months (at least), but this is open for debate.
- Tim is a carpenter, working on commercial and domestic building sites as an employee of a large construction company.
- He injures his back at work and is no longer able to sit for long periods, stand for long periods, lift or carry more than 5kg, squat or kneel.
- He has TPD insurance which requires that he be unable to work within his education, training and experience.
- Tim left school at 16 years of age, completed an apprenticeship and has only ever worked as a carpenter.
Tim’s doctors say that he cannot work as a carpenter because of the restrictions on his work capacity. They also say that there are no other jobs that he can do that are within his education, training or experience. Tim retrains and becomes a high school woodwork teacher. This is a job that accommodates his restrictions and, with the retraining, he is able to complete.
Tim should still be able to claim and be paid a TPD under the education, training and experience definition of TPD.
Therefore, under the education, training or experience definition, you may be able to return to work after a successful TPD claim without any adverse impact on your claim.
What does it mean when a TPD policy talks about “own occupation”?
To be TPD under an own occupation TPD definition, you must cease work and not be able to return to your own occupation. This would require the support of your doctors (ideally a specialist and GP) and close examination of the duties of your own occupation and medical evidence addressing why it is you cannot do these duties.
Therefore, under the own occupation definition, you may be able to return to work after a successful TPD claim without any adverse impact on your claim.
What are “activities of daily living (ADL)”?
The exact wording and requirements of this TPD definition vary amongst insurance policies.
However, it usually requires that you be unable to do any 2 of the following 5 things without the assistance of another person:
- Moving (ie walking); and/or
Usually, if you can do the above things with assistance from an aid (ie a modified toilet or walking frame) you do not satisfy the definition.
Therefore, provided you are unable to do the ADL, you may be able to return to work after a successful TPD claim without any adverse impact on your claim.
What is the definition of “loss of use of limbs”?
The exact wording and requirements of this TPD definition vary amongst insurance policies. However, it usually requires that you lose, or lose the use of:
- both legs; or
- both arms; or
- one leg and one arm.
Provided you have suffered the loss of limbs or the loss of use of limbs, you may be able to return to work after a successful TPD claim without any adverse impact on your claim.
As you can see, the available definitions of TPD vary considerably from policy to policy and there are a number of different ways of satisfying the requirements. If you are considering lodging a TPD claim, we recommend that you seek professional advice to make sure you are paid your full entitlement.
Remember also that you may have insurance through more than one super fund or insurance policy and there may be options to make more than one TPD claim.
If you’d like more information or assistance with your TPD claim, get in touch with today’s blog writer, superannuation and insurance lawyer Tom Cobban.