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Future work capacity must have a connection to past education, training and experience to exclude TPD

The process for obtaining TPD benefits if you do suffer an illness or injury that stops you working requires you to prove a number of issues in order to succeed in obtaining your entitlements. One such requirement looks at your education, training and experience and the likelihood of you returning to suitable employment in the future. You must prove that because of your injury or illness you are unable to return to not only your own occupation but any other type of work that you would otherwise be reasonably suited to by reason of your education, training or experience.

Such a broad definition has been interpreted by insurers to include all unskilled work that does not require any particular qualifications or training. As an example take a career labourer who left school early to enter the workforce who then becomes medically unfit to continue in that role. In line with the insurer’s deemed capacity for employment, that labourer would automatically be employable as a receptionist or in another other junior clerical position due to that role being an entry level job that requires no particular qualifications or experience. Insurers will commonly suggest these theoretical work opportunities and deem them suitable even if the claimant has never previously held such a position or in some cases never even worked in the industry in question at all.

A recent NSW Court decision of Jones v United Super Pty Limited has found this line of thinking by insurers to be an error. The error which the insurer’s fell into by adopting such a theoretical assessment meant that they did not consider the individual’s own circumstances and their actual education, training and experience.

Fortunately for Mr Jones the New South Wales Supreme Court held that such a theoretical assessment which disregards the reality of the claimant’s circumstances was not fair or reasonable and when handing down their decision in held that insurers must direct their attention to the persons specific vocational history and to those occupations for which the claimant actually has experience in and not some theoretical entry level or unqualified position.

The case brought by Mr Jones is important as it demonstrates that although a claimant may have some residual capacity for some form of work, there is a requirement that such a capacity must be connected to the claimant’s past education, training and experience and be demonstrated through their vocational history. If the work proposed by the insurer lacks such a connection then a TPD benefit should be paid.

If you need assistance with your TPD claim, or if your TPD claim has been rejected and you want to challenge or contest the decision, contact our Superannuation, Insurance and Disability team on 13 43 63. Our Queensland offices are in Brisbane, North Lakes, Logan, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

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