Gaius Whiffin providing Q & A on the 2GB Deborah Knight Afternoon Show discussing TPD 8 September 2020

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

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Listen to the podcast here:

Read the transcription below:

DK      As we do this time every week, on Tuesdays we talk legal matters, and this week it is Super TPD. Personal insurance that you get with your superannuation that you access if you can’t work. So it’s important to know about it, important to get information about it. If you’ve got a question, give me a call, 131 873. We have with us on the line Gaius Whiffin, Partner and personal injury law specialist with Turner Freeman Lawyers and as always, we’ve got our $100 Westfield voucher to give away for the caller with the best question for our legal matters segment.  So the open line number, 131 873. Gaius, welcome, great to talk to you.

GW     Afternoon Deb.

DK      So, Super TPD, give us a broad definition of what it is and how it can help you out.

GW     Well since compulsory superannuation sort of commenced in the 1990’s, most, in fact virtually all, policies have insurance attached to it that you can either opt in or opt out, and most of the time if you don’t opt out, you actually opt in, which means that you are covered by an insurance component in your superannuation that if you get totally and permanently disabled, which is TPD, you can access. Now each superannuation deed and each fund has different meanings of total and permanent disability and some of those deeds are actually quite lengthy and difficult to interpret, but, if you come within the definition in that deed, then there actually can be, especially if you’ve had superannuation for many years, as a lot of Australians of course have had, there is actually a significant lump sum available if you are fortunate enough to meet the definition and become totally and permanently disabled.

DK      And do you need to have been totally and permanently disabled within the workplace for you to be eligible to claim.

GW     No you don’t, however, you find that most injuries that meet that definition do occur in the workplace, and are often associated with workers compensation rights, although they are two totally different aspects. We often get clients who consult us in relation to workers compensation matters and they are unaware of these superannuation entitlements that they might have, and indeed those entitlements may be, firstly more beneficial than the workers compensation entitlements, but secondly easier to obtain. It’s not a choice of one or the other either, so it’s something that people are still unaware of to a large degree.

DK      We’re speaking with Gaius Whiffin from Turner Freeman Lawyers. If you’ve got a question, call in now, 131 873. A lot of people too, Gaius, we know are sort of folding together various super accounts that they’ve got over the course of a working life you might have numerous superannuation accounts. Is it best to sort of try to investigate which offers the best cover to make that the overarching one that you wrap all the others into or are they generally fairly standard?

GW     No, they can have substantial differences, especially in the actual term to be disabled. I mean there are, especially these days, interpretations that suggest that to be disabled and to be entitled to the lump sum that you have to be virtually totally unfit to even walk out the door. The general definition in the past, and this is still in a lot of policies, is that if you are unfit for your normal occupation, then you are entitled. So it is wise to look at the definitions. I mean, at the end of the day when you’re choosing which superannuation fund, if you’ve got that choice to go with, then there are other aspects that you look at too. But if insurance is important to you, it should be something that you definitely look at before you opt in or opt out, then yea, it is wise to have a look at the policy wording. Again, that can be difficult because it is often quite legalistic, but you’re generally sent out a copy of the deed and you just have to look at the definition of total and permanent disability and hopefully it’s in clear enough English, not always the case, but you can do your best from there, or seek some advice. There’s a lot of people who can advise you in relation to the wording in these policies.

DK      And I tell you what, you’ve got some fans as well Gaius, Monica has just texted in, she says Gaius Whiffin is a wonderful and caring solicitor. He helped me win with my case, it was a win or lose case and he really showed he cared. Katrina his personal secretary was caring too”. That’s a text that’s just come through from Monica, so a tick of approval for you in the work that you do. Let’s see if we can help Sandra out, she’s got a question for you, hi Sandra.

C1       Yes, I just wanted to know if you have income protection and TPD insurance separately, if you’ve had a workers compensation settlement, does the insurance company have firstly the right to refuse to pay you because you’ve already been paid by workers comp?

DK      That’s a good question. Gaius?

GW     It is a good question. Almost universally with the TPD coverage, the answer is no. Income protection is a bit different. Again it depends on the policy wordings, but you do find that in a number of workers compensation settlements you can’t get both, because in fact what you’re often claiming for at workers compensation is you’re claiming for income support, so if you’ve received income support from your income protection and you’re then receiving income support from your workers compensation you’re actually in some cases double dipping. It’s the same policy they have with, for example, Centrelink. So if you receive Centrelink and workers compensation, you have to pay back Centrelink from your workers compensation. There are policies that don’t go that far, but you will find that a lot of income protection policies will be required to be paid back from workers compensation. Depending again obviously on the result of the workers compensation settlement too and the manner in which that’s achieved.

DK      Good response there to Sandra. Dianne’s got a question as well, hi Dianne.

C2       Hi, how are you?

DK      Yea good.

C3       My son had income protection with his superannuation. He was a farmer. It said $2,500 per month for up to 2 years. Because he didn’t draw a wage every week out of his company, they’ve knocked him back and said he’s not eligible for payment.

DK      Hmm. What are the options there Gaius.

GW     Again, Dianne, a lot of that depends upon the wording of the policy. That is a possibility, but you’d really need to again look at the precise wording. They’re insurance policies, so they’re contracts basically, and you’ve taken out the policy, and the wording in the policy is what governs that. There’s no specific law that says you have to be this, or you have to be that. You have to actually look at the wording, but generally to be covered by income protection insurance you would be entitled to that insurance if you met the injury definitions. Depending whether or not your employed. I mean again, it depends upon the policy, but that is something that your son should definitely get some advice in relation to, because as I said previously, the wording can be complicated.

C2       Yea he has had a solicitor working on it, but they’ve come back yesterday and said that he doesn’t qualify, because all of his expenses were paid by the business, as in phone, car, house because it’s a farm, so they’ve taken his money every year, but when it comes to paying up….

DK      Is it worth having a chat to Dianne of air, Gaius, and see if you can help her out there.

GW     It certainly is, but I’m glad he’s got that advice because you do find that insurance companies will try to get out of these claims if they can.

DK      We might get you to hold on the line Dianne, because we might be able to get some further help for you along the way, so if you can hold the line, I’ll get your details and put you in contact with Gaius. We’ll take a quick break, 131 873 if you’ve got a question. We’re talking legal matters and we’re speaking with Gaius Whiffin from Turner Freeman Lawyers.

DK      Ten minutes to two, great to have your company on this Tuesday, we’re talking legal matters with Gaius Whiffin from Turner Freeman Lawyers, if you’ve got a question, call in now, 131 873, like Dougal has done in Pennant Hills, Hi Dougal.

C3       G’day Deb, I enjoy your show very much.

DK      Oh thank you.

C3       Just listening in, talking about TPD, I’m enjoying what your guest there is talking about, but broadly speaking I guess, it would be fair to say that total and permanent disability means exactly what it says.  And if there’s an income protection benefit available then it makes a claim a lot easier to come home with, but it certainly means people need to have advice because of the different wording, but I’ve always understood that TPD means total and permanent disability and they have to really prove that to make a claim.

DK      Is that the case Gaius?

GW     Yea, I think Dougal is quite correct. I mean, broadly speaking, that’s right. Total and permanent disability can be interpreted by everyone in terms of total permanent disability. There are the intricacies in the actual wording in the superannuation deeds, which are not the same, and do require some thought and indeed there have been cases before the courts that have interpreted different deeds and so forth, but broadly speaking, if you don’t have a permanent injury, then you’re not going to be entitled to the lump sum, obviously, and TOTAL is the thing that can be interpreted slightly differently depending on the deed, because as I said, some deeds require different periods of incapacity, sometimes its three months, sometimes its six months, sometimes its longer.

DK      Susie’s actually got a question that you might fold into this, hi Suzie.

C4       Oh hi, how are you?

DK      Yea good.

C4       I’m just curious, does having a leg amputation qualify for TPD?

DK      That’s pretty permanent.

GW     It’s certainly permanent. The question Suzie is, again, not automatically. In most cases it probably would, but again, it depends upon the person’s profession. So if for example, they’re quite able to do their old job, because it’s a sedentary job or clerical job or something like that, then there is a chance that they might not be covered. But in 95% of cases I would think that that would probably be covered.

DK      OK good question Suzie. Tony, what did you want to know from Gaius today?

C5       Yea hi guys.

GW     G’day Tony

C5       Two years ago I put a claim in for TPD and there were several other claims and this was in the millions of dollars. I just finished a divorce and gone through the law courts and whatever, and I had a brain injury, and ticked all the boxes, they agreed that it was TPD but there were 2 small boxes that I had ticked initially which had no relevance whatsoever to do with the injury at the time, and one of the boxes was when I was 9 years old and it had nothing to do with the case at all, and the other …..

DK      So what was your question Tony? Are you asking if you can re-open the case if it’s already been closed?

C5       Yea, whether I can reopen the case because it has ….. yea…..

DK      Gaius, time is against us. Are you able to just give us a quick response? We might put you in contact with Tony to get some more info.

GW     Yea, I think so. I think you should be able to re-open the case. It depends when the decision was made. Re-opening the case may involve court proceedings or at least a complaint to the Australian Financial Complaints Authority.

DK      Alright, we might put Tony in contact with you to get more info, because we are out of time unfortunately. Gaius we thank you for your time today. You can get in contact with Turner Freeman Lawyers, visit turnerfreeman.com.au, or you can call 13 43 63. We’ll give our $100 Westfield voucher to Suzie from Kellyville. We’ll do our legal matters chat again this time next week.