TPD claim lawyers in Queensland for superannuation claims

What a TPD claim is

Total and Permanent Disability (TPD) cover is insurance, most often held through a superannuation fund. If illness or a medical condition means you are unlikely ever to work again in a job suited to your education, training or experience, it generally pays a lump sum. That amount is in addition to your super balance.

A TPD claim is not a negligence claim. Nobody has to be at fault, and it generally does not matter how the condition came about. What matters is what the policy says and what the medical evidence shows.

Once the insurer accepts a TPD claim, the benefit is paid into your super account. The trustee then generally releases it to you, because the same condition usually satisfies the super rules for early release on the ground of permanent incapacity.

TPD is often confused with other cover. It helps to keep them apart:

TPD cover can also be held outside super, in a retail policy you took out directly. The claim process is similar, but there is no trustee involved and the complaint pathways differ slightly.

How to find TPD cover in your super

People change jobs, and each job can leave behind a super account with its own insurance. Cover is often attached by default, so many people hold TPD cover without having chosen it.

Useful places to start:

• old super statements and welcome letters
• your myGov account, which links to the ATO’s record of your super accounts
• old payslips or employment records, which name the fund your employer paid into
• letters about accounts being merged, closed or transferred to the ATO

Cover can lapse. Since 2019, insurance in an account that has received no contributions for 16 months is generally cancelled unless the member chose to keep it. Different default rules also apply to young members and low balances. What generally matters is whether cover was in place on the relevant date, usually the date you stopped work, not whether it is in place today. A fund you have since left can still be worth checking.

What qualifies as total and permanent disability

There is no single legal meaning of “totally and permanently disabled”. Each policy defines it, and that wording is the test the insurer applies.

The most common form has two parts. First, because of illness or a medical condition, you have been absent from work for a continuous qualifying period, often three or six months. Second, you are unlikely ever again to work in any occupation you are reasonably suited to by education, training or experience.

The variations matter:

The policy that matters is the one in force when you stopped work, not the current product disclosure statement. Funds change their terms, and the older wording is often different.

“Reasonably suited to” is not a theoretical question. If you have mostly done physical work and have limited formal education, that is directly relevant. An insurer that points to office work you have never done or trained for is applying the test in a way that can be challenged.

Physical conditions, psychological conditions, chronic illness and progressive diseases can all support a claim. The label on the condition matters less than its effect on your capacity for work.

The medical evidence a TPD insurer needs

Most of the work in a TPD claim sits in the medical evidence.

A report that says a patient “has a severe and permanent condition” can be entirely accurate and still not answer the policy’s question. The insurer needs to know whether you are unlikely ever to return to work suited to your education, training or experience. That is a question about capacity for work, not about diagnosis.

Doctors write useful TPD reports when they are told what the test is and are given your work history. Without that, they tend to write about treatment. The insurer will usually ask whether all reasonable treatment has been tried, so a clear treatment history helps too. Getting the evidence right before the claim is lodged usually saves time.

How to make a TPD claim through your super

A TPD claim is a documentary exercise rather than a courtroom one. It generally moves through these stages.

1. Identify every policy. Find each fund you belonged to when you stopped work, and request the policy wording that applied then.
2. Confirm your date of last work. This date often decides which policy applies and whether the qualifying period is met, so it needs to be accurate and supported by records.
3. Complete the claim forms. Funds usually require a member statement from you, an employer statement, and attending doctor statements from your treating practitioners.
4. Add supporting evidence. Specialist reports, an employment history, your education and training details, and sometimes a statement from a former employer.
5. Lodge with the trustee. The trustee passes the claim to the insurer, which may ask for more information, arrange its own medical examination, or obtain a vocational assessment.
6. Decision. The insurer accepts or declines the claim, and the trustee considers that decision. Trustees are required to act in members’ interests and to keep you informed.

Before a decline, an insurer will often send a letter setting out the material it intends to rely on and inviting your response. That is an important opportunity. A response with targeted evidence at that point can avoid the decline altogether.

How long a TPD claim takes

Timeframes vary widely. A well-prepared claim with clear evidence can be decided in a few months. A claim involving complex medical issues, surveillance, several insurers or a dispute about the date of last work can take much longer.

Most life insurers have signed up to an industry code of practice that sets expected timeframes for assessing claims and keeping you updated. Superannuation trustees also have obligations to deal with members fairly and promptly. If a claim seems to have stalled, a written request for an update and an explanation of what is outstanding is a sensible first step. An unreasonable delay can itself be the subject of a complaint.

Common causes of delay include incomplete claim forms, medical reports that do not address the policy test, and repeated requests for records. Most of these can be avoided by lodging a complete claim at the outset.

Why TPD claims get declined

Common reasons include:

• medical evidence that speaks to diagnosis but not to capacity for work
• a date of last work that does not line up with the qualifying period
• an argument that your education or experience would allow some other suitable job
• a finding that further treatment might improve your condition
• a pre-existing condition exclusion
• a finding that cover had lapsed, or had not yet started

Many of these can be addressed. A decline reflects the insurer’s view of the material it had at the time. The usual response is better or more targeted evidence, not acceptance.

If your TPD claim is declined

A declined claim can generally be taken through these steps, though not every claim needs all of them:

1. Internal review by the fund’s trustee, through its complaints process. Trustees generally have a set period in which to respond to a complaint.
2. A complaint to the Australian Financial Complaints Authority (AFCA). AFCA is free for the member, and can consider both the insurer’s and the trustee’s decisions.
3. Court proceedings, where the value of the benefit or the issues involved justify it.

Which path suits depends on the reason for the decline and the value of the benefit. Each step has its own time limits, and some are strict. AFCA, for example, applies time limits to superannuation TPD complaints that run from the trustee’s decision and from when you stopped work. A decline letter is worth reading carefully and getting advice on promptly.

Tax, Centrelink and work after a TPD payout

Tax can apply to part of a TPD payment taken out of super. How much depends on your age, the components of your super balance and how the benefit is taken. Part of the payment is often tax free, and people over preservation age generally pay less tax on the rest. Get financial or tax advice before you withdraw the benefit.

A benefit that stays inside super is generally not counted by Centrelink until you reach Age Pension age. Once withdrawn, it is generally assessed as an asset and under the income deeming rules, which can affect payments such as the Disability Support Pension. A payout can also be relevant to child support and family law arrangements.

Receiving a TPD benefit does not usually stop you from later doing work you are able to do. The claim is assessed on your capacity at the time.

TPD alongside WorkCover and dust disease claims

A TPD claim can run alongside a workers’ compensation claim, a common law claim or a car accident and CTP claim. These are separate entitlements, and each follows its own rules. A common law settlement may take a TPD benefit into account, and some TPD policies have conditions about other payments, so the order in which claims are run is worth planning.

This matters most in dust disease claims. People are being diagnosed with silicosis and other dust diseases at younger ages than in the past, often while they still expected decades of work ahead of them. For them, TPD cover can be a significant entitlement, and it is easy to overlook while attention is on the diagnosis. The asbestos and mesothelioma page explains the compensation side.

How the firm runs a TPD claim

TPD claims are mostly about paper: the policy, the reports and the work history. The firm’s work is in finding the right version of the policy, briefing doctors on the actual test, and putting together a TPD claim the insurer can assess without having to go back for more.

The solicitor you first speak to runs your claim from start to finish, and you have their direct mobile and email. The firm’s general compensation work, including TPD, is based in Queensland, and the firm acts for Queenslanders across the state.

Every TPD claim is run no win, no fee*, and the firm does not use litigation funders. Legal costs are normally paid out of the benefit at the end, and interest is only charged on unpaid legal costs, which is rare in practice. Disbursements, such as specialist reports, are a separate cost and are set out in writing before anything is agreed.

If you are not sure whether you have cover, or whether your situation meets a definition, you can request a free case review. It costs nothing, commits you to nothing, and enquiries are generally returned the same business day.