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TPD lawyer providing Q & A on disability claims

Q & A on 2GB discussing Super, TPD and Insurance claims 30 August 2016

Tuesday, 30 August 2016


CS – Chris Smith /KB –Kerry Byrnes /C1,2,3, etc – Callers 


CS       Yeah this is your chance to get some free legal advice which does not happen all that often, if at all. So jump on that open line – 131 873. We are going to hear all about compensation claims today. Now maybe you thought about something that you have been involved in where compensation could have been an option and you would like clarification, this is your chance to talk about compensation claims. The ones that you make using your superannuation policy. This includes permanent disability is what they call TPD and Income Protection claims which you make through super policies; and thanks to Turner Freeman Lawyers and their Legal Matters Segment, we also have as usual a $100 Westfield Voucher to give away. We’ll give that away in the next 15 minutes. Turner Freeman Lawyers provide a range of specialised legal services as you may know, including compensation and negligence law, asbestos litigation, superannuation and disability claim; family and employment law; wills and estates; and property law and we tend to rotate that over various Tuesdays right here on the program. Their NSW offices are Sydney, Parramatta, Campbelltown, Penrith, Newcastle and the Gong (Wollongong). They’ve got offices in Queensland, South Australia and WA as well. If you’ve got a question jump in. Compensation through your superannuation and TPD. Give us a call. 131 873. Now Kerry Byrnes specialises in total and permanent disability and income protection claims made through your super policies.  She’s based at Turner Freeman Sydney office and she joins me in the studio right now. Kerry, thank you very much for coming in.

KB      Thanks Chris. Thanks for having me.

CS       Good to have you here. What kinds of illnesses or injuries are ….. would I have to have before I can make a claim and there are categories right? That you used to determine whether people can qualify to make a claim. 

KB      Basically you just need to have any sort of injury or illness. It could be a physical injury. So you’ve hurt your back or a knee or a shoulder or something like that. It could be psychological injury, you might have developed some sort of psychological condition – it could also be some sort of illness that you have been unlucky enough to have come down with – so something like cancer or a blood disorder – multiple sclerosis – all of those sorts of illnesses and injuries are covered.

CS       So what about things like – my boss has driven me nuts and I’m now to the stage where I don’t think I can function in a workplace, you’ve got onus of proof here, don’t you?

KB      Basically for a total and permanent disability or income protection claim you need to be able to show that you have a recognisable illness or injury. So in that sort of situation where your boss is driving you crazy, you are probably likely to have a psychological illness, so it might be major depression, it might be anxiety, or something along those lines.

CS       And you would have to produce more than just a psychological reference for that?

KB      Yes. Usually you would need a couple of medical reports to support that to say that not only do you have this condition but that it is also preventing you from working.

CS       Okay. Peter – go right ahead – Kerry is listening. Come on Peter – we know you are there somewhere.

Caller 1 – Peter 

Peter   Yes – Hello.

CS       Go ahead

Peter   Yes my question is – if you’ve been – if you’re medically retired from your occupation and you’ve also got the income protection policy, so you’ve been paid out on the permanent disability, are they obliged to pay you until – if my policy is until 65, are they obliged to pay me until 65 without questions on that income protection?

KB      That’s a good question Peter. It would really depend on exactly what the terms of each of the policies are, so with the – did you say that there was a medical retirement issue as well as an income protection and TPD issue?

Peter   That’s right.

KB      Yes – there’s a sort of a complex relationship between those three so it would certainly depend on what the inter-relationship was between each of those particular policies. Sometimes the medical retirement might prevent you from bringing other sorts of claims but it would be certainly worthwhile getting some legal advice about whether there is anything  any further claims that you might be entitled to in that situation.

Peter   Right. Okay. Because the income protection is for my usual occupation and my permanent disability, which has already been paid out was also for my occupation from knowledge, training and education. I’m just wondering whether they can turn around and say well we’ve paid you the permanent disability but you get the one off – but – we are not going to turn around in a few years and find the reason not to give you the income protection.

KB      Yes. As I say – it will definitely depend on the terms of each of those policies that you’ve got there. With the income protection, sometimes it’s only for a limited period. I think you mentioned yours might be until age 65.

Peter   Yes, mine’s until 65.

KB      Yes – So – it might depend – sometimes if you get the TPD then that knocks you out from having an entitlement to income protection, so yeah – on that basis I would say it would be worth getting some advice about that.

Peter   Right. Okay.

CS       Alright Peter. Thank you very much for your call. Do you have to prove that your illness or injury happened at work or that it was caused by someone else’s negligence? Is negligence a point that needs to be proven here?

KB      Not in these types of cases. So there are other avenues that you can pursue if you’ve received an injury or an illness as a result of either some sort of thing that has happened at work or as a result of someone else’s negligence, but with TPD and income protection claims, that’s not something that you have to prove.

CS       You just have to prove your condition.

KB      Basically yes.

CS       Not who gave you that condition?

KB      It doesn’t matter who caused it, it just – it’s just important that you have an injury, basically the two things that you have to show are that it is preventing you from work and that you are unlikely to be able to go back to a job for which you have education training experience.

CS       Okay. This is the Turner Freeman Legal Matters Segment. We are talking about claiming compensation through superannuation TPD. If you’ve got a question 131 873 is the telephone number. Kerry Byrnes is quite happy to take your call. Do you need to be in a certain type of occupation to make a TPD or income protection claim?

KB      No – anyone who is work and has this sort of insurance is able to make a claim. Some people have asked me if certain industries are more likely to be able to make a claim. The answer is no. Certainly if you are in a more physically active type of job then you are probably going to be more likely to make a physically active claim as a result of the physical injury…..

CS       So you would see more cases in Court on compensation through super policies that involve blue collar workers?

KB      No – not necessarily – I was just thinking along the lines that if it’s a physical injury then you know – you are more likely to be a from a blue collar background but it’s certainly across any occupation range can make these sorts of claims.

CS       And you can claim these TPD and income protection compo claims if you have those in addition to other claims – in other court jurisdictions?

KB      Absolutely yes. There are certain circumstances and again this relates to back to what I was telling Peter, that sometimes you need to look at the particular terms of the policy but there are certain circumstances where you can have different types of compensation in addition to the total and permanent disability or the income protection type claims.

CS       Okay. If I have a separate income protection insurance policy – someone has said – you know said to me 20 years ago, throw your $5 here every day and then if something happens and you are out for an extended period we could look after you in terms of your income, there’s no way to seek compensation through such a policy is there?

KB      If you’ve been paying for your own income protection and you’ve also got income protection for example through your superannuation, you can sometimes claim both. There is often an exclusion so that you only get up to a certain percent, usually 70% to 85% of your pre-injury income so that can be a particular problem if you’ve been paying out for multiple insurance policies, but certainly you are able to get TPD or workers compensation and income protection. Sometimes you need to be careful if it’s a workers compensation claim, because it might knock out the income protection but otherwise it’s usually not too bad.

CS       And to the income protection insurance officer that keeps badgering me on the phone, will you just give up…..Over you – 11 minutes to 2 o’clock.


CS       Ah there’s a rescue operation under way – ACT Fire and Rescue trying to rescue Chief – the Bulldog in Condor – crews were alerted to the trapped animal at 11:24 am – they’ve sent two off road vehicles to assist. It is understood that the dog has crawled inside a disused concrete power pole and fire fighters are using fibre optic cameras to locate and extricate the animal. A big operation going on. We might have to cross to the scene of the drama. We’ve got Kerry Byrnes from Turner Freeman in the studio taking your calls on legal matters this afternoon. Bryant…. Go right ahead.

Caller 2 – Bryant

Bryant      Hi Kerry. I’m just wanting to ……..  I’ve got…. Basically a threefold question. Three years ago I had to take medical retirement and basically I have a disability from birth and through Centrelink I am not eligible for any sort of pension due to my wife earning too above the incomes and so on, so I’ve then made a claim through TPD of my superannuation. Now that process was about 13 or 14 months ago. Firstly, Centrelink have said you are definitely eligible for a pension, your injury – sorry – you’re disability entitles you to no further working – you are entitled to everything but obviously your income takes you out of that. I go to my superannuation thinking no problem – it will just be a matter of process. Four doctors you know – processed reports and so on later. I’m still waiting and they’re still going through process and I did it all under my own. I’m now kind of questioning whether I should have taken legal advice.

CS       Yes – I’ve only got 50 seconds remaining for the segment but go ahead with Bryant’s question.

KB      Basically Bryant, it might be a good time now to get some advice about that issue. I think – 13 or 14 months is far too long. If it is a relatively straight forward matter then I can’t see why the insurer is taking so long to make a decision but I think now is probably a good time for you to start thinking about getting some legal advice.

CS       Yeah. Hey Bryant. I can give you $100 towards that legal advice if you want. Well it’s not really $100 towards legal advice. It’s a Westfield Voucher Bryant.

Bryant             Oh fantastic.

CS       Okay. You’ve got a difficult problem to confront in the months and years ahead. All the very best. Stay on the line and we’ll get you that $100 Westfield voucher coming straight to you. Thank you mate. Appreciate that. Kerry Byrnes. Thank you so much for your time this afternoon.  We’ll see you in here again.

KB      My pleasure. Thank you very much.

CS       Okay. Specialising in total and permanent disability and income protection claims through super policies with Turner Freeman.


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