Gaius Whiffin providing Q & A on 2GB about TPD claims – 24 November 2020

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DK – Deborah Knight/GW – Gaius Whiffin /C1,2,3, etc – Callers

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Read the transcript below:

It is legal matters Tuesday, which means it is time for some free legal advice and this week with superannuation in the news we’re talking about super TPD, it’s the personal insurance that you get with your super that you access if you can’t work, so if you’ve got a question give us a call, 131 873 and always we have our $100 Westfield voucher for the best question. On the line is Gaius Whiffin, partner and personal injury law specialist with Turner Freeman Lawyers, he’s here to answer all of your questions. Gaius thanks for joining us.

GW     Afternoon Deb.

DK      Now this piece in the 9 newspapers recently talking about super and insurances in the super TPD scheme, wondering really whether they’re worth it. What are the benefits of using the insurance built into your super?

GW     Well Deb it’s important to check your super situation when you initially start a job or when you change jobs or on an ongoing basis to see whether …to see the degree to which you need it, I mean if you have insurance cover in your superannuation policy that will protect you for things like life insurance, sometimes income protection insurance, total and permanent disability insurance. Now there’s a lot of talk at the moment especially amongst younger people, look I don’t need those insurances so I’m going to opt out and if you opt out well there’s no deduction from the superannuation contributions to pay for those insurance policies, so you need to look at how much you’re really paying for them. You’ll often find it’s not very much but in the big scheme of things, you know if you’re a 20 year old it may amount to a fair bit when you’re 60 that’s been taken out in insurance if you haven’t used it and in doing that you also need to have a good look at what the insurance allows for, what the definition for example of total and permanent disability is in the insurance policy, umm because some of them are quite restrictive, but you know it’s a personal choice, you just need to be aware and not just sort of simply say, oh it’s super, it’s contributions from me and my employer and it will add up over time, the insurance position is available and you need to consider it when you look into the superannuation situation.

DK      And what about for people who have multiple superannuation accounts, because many people do and if they haven’t been consolidated should they consider the coverage for TPD whether or not one superannuation offers a better amount of coverage than another?

GW     Oh definitely, definitely, I mean umm, and look there’s no issues with having a number of superannuation accounts and there’s no issue with having policies to TPD and life insurance under each account. If you are going to consolidate you need to obviously make sure that what you’re consolidating into has the right insurance cover for yourself when you do that consolidation.

DK      It’s tricky to compare them though isn’t it, I mean it’s not sort of comparing apples with oranges here, sometimes the fine print it’s really hard to wade through.

GW     Oh definitely, definitely, and some of the superannuation deeds can be very tiresome and very long but the important thing is the…the one important thing is the definition of total and permanent disability, that’s something which you can find in the policy is definitely the probably the most important thing to look at in terms of deciding whether you take that insurance or not.

DK      If you’ve got a question for Gaius Whiffin from Turner Freeman Lawyers, give us a bell now, 131 873 and we can answer all of your questions. Legal matters, we do this at every time on a Tuesday. John’s got a question for Gaius, hi John.

Caller No: 1    John

C1       Oh hello, how are you?

DK      Very well thank you.

C1       Wonderful.  Now, I’ve just clarified in my mind what you’re talking about and I’ve just been assessed as 11% impairment for Workcover so they’ve offered me a payout but there’s also, I have insurance on my superannuation and I don’t think 11% impairment will give me anything towards total, ah, TPD and I’m just  wondering if you can clarify that.

GW     Yeah, look John, they are totally separate criteria, the workers compensation scheme is based upon an assessment in accordance with specific guidelines which have been produced under the Workers Compensation Act and based upon the American Medical Association Guidelines, that’s not to say, and whether you’re 11% or 20% or 30%, doesn’t necessarily have any correlation with what the, with whether you’re entitled to TPD payment. The TPD payment depends upon the definition in your superannuation insurance policy. 11% doesn’t necessarily rule you out, I certainly had cases where people were being assessed at a lot less under worker’s compensation and received TPD cases, but I’ve also had people assessed at a lot more that haven’t, so it depends upon the definition and it depends upon your own circumstances, your age, what sort of work you can do now, if any and again, the specific definition as to whether it covers, as a lot them do, the fact that you’re unable to work in your, in employment for which you’re reasonably trained, so an 11% finding could mean that you’re not able to do that sort of work and you may be entitled, it’s something you should seek some advice on anyway.

DK      Alright, John we might get your details if you can stay on the line and we’ll see if Gaius can help you out further with that one. Just with the super TPD insurance cover, are you eligible for it if you suffer an injury just at work or does it cover you if it happens outside of work as well?

GW     No, it covers you if you’re disabled, so it’s not just work, it can be any accident, motor vehicle accident, or any other sort of accident, it can be a condition that you develop just through your constitutional situation, it can be a cancer condition for example, so it’s got no relevance to whether you have the accident at work or on the roads or whatever certainly.

DK      It’s worth having that coverage. Cheryl’s got a question for us, hi Cheryl.

Caller No: 2    Cheryl

C2       Hi, how’re you going?

DK      Very well thanks.

C2       That’s good, umm, I was just wondering, with the policies, my daughters have got superannuation. one particular one is, she’s got a couple because she was in the army and now she’s in a normal job, but she can’t roll anything over into that army one, now when you’ve got several superannuation policies, the insurance on them, do you only have to have insurance on one and can you cancel it on the others or are you, should you have it on all of them?

DK      Good question, Gaius?

GW:    Well again it’s up to you, you look at the insurance cover and make your own decision. In terms of claiming, you can only claim on a policy in which you’ve got insurance, so if you drop the insurance on certain policies, well you can’t claim on them but if you keep the insurance on others, you can. There’s no need to keep insurance on all or any, you can keep it on one, you can keep it on two, you can keep it on three but of course you can only claim on the policies for which you’ve got the insurance associated.

DK      Can you claim on multiple, like if you’ve got multiple accounts with multiple insurances, can you claim on them all?

GW     Yes, certainly, certainly and there’s generally a defined amount that you’re able to claim, there may be, it may be different definitions in each policy so there have been cases where you’re able to claim what you’ve got insurance for them all but you can claim on one but you can’t claim on another because of the particular definition and your particular circumstances. So yeah, look it can get tricky and, but it’s really the definition that you need to look at, the definition of total and permanent disability.

DK      Alright Cheryl, well I hope that helps you out. Rick’s got a query also to do with multiple accounts, hi Rick.

Caller No: 3    Rick

C3       Hi there, I was just wondering if you happen to be injured at work and therefore got a workers compensation payout, are you still eligible to claim the TPD payout if you were disabled, in other words can you double dip I guess?

GW     Ah, look it’s not…the answer is yes, and it’s not really double dipping because you’ve…you’re just claiming a different insurance policy and you’re claiming for different things too, so I don’t consider it really double dipping but the answer is yes, worker’s compensation is one form of entitlement if you’re injured, depending upon the circumstance in which you’re injured, TPD insurance and any other insurance in deed, income protection insurance for example are other forms and if you’ve got the policy you can claim on it.

DK      Alright you may have a question for Gaius Whiffin from Turner Freeman Lawyers, we’re talking super and TPD, total and permanent disability, 131 873 is the number to call, you can text in too if you’ve got a query, 0460 873 873, we’ve got our $100 Westfield voucher for the best call, we’ll take more of your calls right after this. 12 to 2, to 1 in Queensland, we’re talking legal matters with Gaius Whiffin from Turner Freeman Lawyers, specifically super and TPD, if you’ve got a question 131 873 is the number. A question on the text line from Ally, Gaius wondering if rheumatoid arthritis would qualify for TPD.

GW     Umm, possibly, again it depends upon the circumstances and the degree to which that’s going to prevent Ally or whoever she’s enquiring about from working again, the definition that’s in the policy but rheumatoid arthritis is a condition that certainly can prevent people from working and if you’ve got the definition in your policy, yes, it can be claimable.

DK      And on the email, Mark has, it’s more of a statement really, but he’s saying with super TPD he reckons it’s a waste of time, that it’s all skewed against the claimer and for the insurer and the legal system, he says 12 years on, I’m still battling. What’s your recourse if you’re knocked back for a claim?

GW     Well you can take litigation, so you can take action before the Courts is one recourse, the Australian Financial Complaints Authority can look into disputes with insurers but in, I think you said Mark, in Mark’s case I would imagine that if he’s been battling for 12 years, there’s got to be some sort of litigation perhaps included in that too.

DK      Has he got a point, is it skewed towards the companies and against the claimers?

GW     Well, again I’d hate to sort of go on about it but it depends upon the definition, so  a lot. sometimes the insurance policies are getting very, very restrictive definitions, especially in recent times and you really need to have a look at that, certainly in the past there’s been a lot more definitions that have dealt with basic sort of premise that if you’re unfit to be able to do the job for which you’re reasonably trained, so if you’ve been a carpenter all your life, you’re 55 and you suffer a hand injury that prevents you doing that job again, and you’re not able to be retrained, then you’re entitled to your TPD, if you get that policy, that policy definition stating that you’re unfit for work for which you’re reasonably trained for, so again it depends upon the particular policy, there’s certainly a lot of claims that are approved without any problems at all, the number of claims that are litigated are pretty minimal I must say, they’re not commonly litigated in the courts, compared with other forms of personal injury litigation involving for example worker’s compensation which we talked about, there certainly isn’t a lot of TPD litigation that goes on.

DK      Alright, Tony’s got a question for us, hi Tony.

Caller No: 4    Tony

C4       I think that may have answered my question, umm, I had a slip and fall, there was a workers comp claim, I’m back working but there’s a not of things I still can’t do and I’m still on reduced duties as in not driving for long periods due to the back injury, are you able to claim through TPD for that, I’ve got a 27% permanent disability, that was assessed by Workcover?

GW     Yeah. look you’ll find if you’ve been able to get back to work, then you wouldn’t be entitled to the TPD, total and permanent disabled, I mean that doesn’t necessarily mean that you might not be entitled to it sometime in the future, but not while you’re back at work.

DK      Alright, Tony I hope that answers, do you have a follow up, Tony?

C4       No, no., that’s it, thank you, appreciate your time.

DK      Alright, good on you. What happens if the claim is successful Gaius, how do the payouts work? Is it a one off or an ongoing payment or do you have a choice?

GW     Well you often have a choice, you can, because it’s a superannuation payment you can certainly get a lump sum payout, there are some tax consequences on that, so you need to be aware of that if you take the payout, you can roll it into your superannuation fund, do if your employer and your own contributions are $100,000 and if your TPD is $100,000, then you can make it a $200,000 fund and you can certainly roll it over and sp forth, in most cases, so again it depends upon your own persona situation and what you want to do at that time but as I said there are some , often tax consequences and some of them can be quite significant tax consequences in withdrawing the whole superannuation amount if you’re found to be TPD.

DK      In one lump sum, and what about if a policy holder passes away, is a family member or another next of kin able to access the funds or does it just apply to the individual?

GW     Well again it depends, I hate saying this all the time but it does depend very much on the policy but in terms of the TPD payments, no probably not, but in terms of there may be some life insurance associated with it and so forth, and it depends upon how they passed away too, and when they perhaps became TPD, so it look, it’s certainly possible but again it’s not one where you can say for sure yes or no.

DK      Yeah I guess that’s why a degree of confusion and frustration with the super TPD because as you say there’s not a blanket rule for everyone, it’s such an individual basis and the terms and conditions apply to the individual cases.

GW     It would, that’s right, it’s another insurance policy and you see when you take insurance, you know I changed the insurance on my home the other day and get sent a hundred page document going through all the terms and conditions is…

DK      Did you read it all?

GW     Well, I must admit I haven’t.

DK      You’re the lawyer, you’re meant to read the fine print.

GW     Exactly, but this is what you get, and it does make it difficult and you know it applies as much in TPD if  not more in things like TPD because you know there’s so many exclusions here and…

DK      You’ve got to be across the fine print and the details that is for sure. Gaius thank you as always, it’s a confusing topic and it’s great to get you to being some clarity to it, so thank you so much for joining us.

GW     That’s okay.

DK      Gaius Whiffin there and if you want to get in touch with Gaius or any of the other lawyers at Turner Freeman you can go the website turnerfreeman.com.au or give them a call 13 43 63 and we’ll give Cheryl our $100 Westfield voucher.