Mr Jones sustained a repetitive strain injury of his lumbar spine during his employment as a Roof Plumber in 2002. This was operated on in 2003 and allowed him to return to work but did not completely resolve his injury. In 2011 he developed pain in his legs, which was more severe than his back pain and ceased working around September 2011. Upon making a TPD claim through his insurer CBUS, the Trustee, HLRA, declined his claim and after reviewing HLRA’s decision, CBUS also concluded that Mr Jones did not satisfy the TPD definition as he had capacity to engage in a suitable job to which he was reasonably fitted. Mr Jones sought reconsideration of HLRA’s decision after obtaining a further medical report. However, HLRA affirmed their earlier decision to decline the claim. 

Judgment – Brereton J

Justice Brereton considered in this case whether the insurer’s decision was to be avoided by the court on the basis that (1) the insurer misdirected itself in law, (2) the insurer took into account an irrelevant consideration or failed to take into account a relevant consideration or (3) the insurer otherwise did not act fairly, in good faith and reasonably in forming an opinion as to the plaintiff’s disability.

The CBUS policy definition for TPD required a claimant was unable to follow their usual employment for six consecutive months and was unlikely ever to be able to engage in any regular remunerative work for which the claimant is reasonably fitted by education, training or experience.

Justice Brereton considered that capacity for work was not limited solely to the physical ability of a person to engage in remunerative work but also included psychological factors [68]. His honour found that the insurer erred at law in taking a narrow approach to the concept of Mr Jones being ‘unlikely to engage in regular remunerative work’ by ‘failing to have regard the psychological obstacles and competitive disadvantage that would adversely affect his ability to gain employment’ [80(1)].

Furthermore, it was concluded that the proper test for determining whether a claimant was ‘reasonably fitted by education, training or experience’ confines the scope of what a claimant is reasonably fitted to as reliant upon what the claimant has been ‘prepared and shaped’ for by their vocational history [71]. This requires a preliminary consideration of what occupation the claimant is fitted by their education, training and employment.

Justice Brereton found that Mr Jones was fitted to work as a manual labourer, as evidenced by his vocational history, and referred to authorities in establishing that work as a manual labourer did not prepare a claimant for clerical duties (See e.g. Hannover Life Re of Austrasia Ltd v Dargan [2013] NSWCA 57). Further, that the insurer’s vocational assessment focused on discrete transferable skills which were ‘not the same as being fitted for an occupation by education, training and experience’ [77]. As a result, Justice Brereton concluded that the insurer erred at law on a second basis, by treating jobs in customer service, retail and delivery, which would require no further training of Mr Jones but were unrelated to his education, training and employment, as jobs for which he was fitted by education, training or employment [80(2)]. Justice Brereton concluded that even if Mr Jones had capacity to work in customer service, retail or as a courier, they were not occupation that he was fitted by his education, training or experience [100].

Therefore, this case is important in demonstrating that although a worker may have some capacity to do some work, the wording of a TPD policy which connects the capacity for work to what a claimant is fitted to by education, training and experience must be read to confine their capacity to their education, training and experience demonstrated by their vocational history.

If you can’t work due to an injury or illness in the workplace you could be entitled to access your Superannuation fund. Claims can be brought forward when a worker sustains an injury rendering them totally or permanently disabled. Talk to one of our personal injury lawyers today from our Campbelltown office on (02) 4629 1800 to find out more information about Superannuation, TPD and Life Insurance claims.