Opinion

TPD: Strengthening a claim and handling a mental health crisis

31st Mar 2022

In order for a Total and Permanent Disability (TPD) claim to have prospects, generally the claimant has to demonstrate that they are unlikely to be able to return to work within the scope of their education, training and experience (within ETE) as a result of their condition. There are variations to the definition requirements depending on the applicable policy as at the date last actively worked (DLAW); however, the general underlying principles remain the same.

When litigating, the law as it stands requires the court to follow a two-stage inquiry:

  • Stage 1 investigates whether the trustee/insurer’s decision was issued following a fair and reasonable process of consideration, and if it was fair and reasonable based on the material before it at the time the decision was made.
  • Stage 2 commences once the court has determined that a breach has occurred and the trustee/insurer did not act fairly and reasonably. During Stage 2, the court is not limited to the evidence that was before the insurer/trustee when the decision was issued.

When reviewing a TPD decline for prospects, there are common reasons relied upon by the insurer, which can often be addressed in a time-efficient manner without unnecessarily litigating. Below I briefly explore some examples of common yet arguable declines.

Further treatment

If reasonable further treatment is available and there are no barriers to the client undertaking that treatment, further treatment can be a fair reason for the insurer to claim that the client may not yet meet the TPD definition requirements. However, there are circumstances which stand as exceptions and sometimes insurers can be too quick to claim further treatment is required.

In Hellessey v MetLife Insurance Limited [2017] NSWSC 1284, it was established that the insurer had cherry picked material from medicals. The court also determined that the claimant’s youth was not a sufficient reason to reject her claim, as there has to be evidence to demonstrate there was a real chance of the claimant gaining employment within her ETE.

In circumstances where claimants are young and/or the provided medicals can be interpreted as ambiguous by the insurer regarding prognosis, a decision reliant on the need for further treatment is often issued by the insurer. This can be disputed and the claimant’s position can be strengthened by obtaining:

  • a clear letter regarding prognosis and treatment from the treating GP;
  • provided there are medicals as at or around the client’s DLAW/date of injury, an independent medical examination file review report from a specialist (provided there are recent medicals) commenting on further treatment and likeliness of returning to work within ETE on completion of treatment or an IME report completed by a specialist commenting on further treatment and likeliness of returning to work within ETE upon completion of treatment; or
  • preferably, a combination: one report from the treating GP and one from the IME specialist.

Further, the case of Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180 established that a claimant’s aversion to undergoing further treatment for reasons including religious beliefs or fear of risks may not be considered unreasonable refusal of further treatment.

Determining the DLAW

Sayson v Northern Territory of Australia [2006] NTSC 55 established that a return to work where the claimant only carried out minor duties as part of a rehabilitation program does not constitute a return to work for the purposes of the TPD definition. The correct date to be relied upon is the client’s date last actively worked at their full capacity.

There are often circumstances where the insurer relies on the date the claimant ceased working on light duties or a host employment program, or the date of a failed attempt to return to work. At times, these dates can occur after the policy has ceased and, in these circumstances, the insurer then issues a decline letter claiming no cover.

It is important to have a clear timeline of the client’s work history and a clear understanding of when the client’s condition began affecting their ability to work at their full capacity to ensure the correct date is relied on during the claims process.

Mental health support

Considering the nature of TPD claims, mental health emergencies can be more common in comparison to other areas of law. The Mental Health First Aid Australia guide, Suicidal Thoughts and Behaviours, outlines key actions for helping a suicidal person.

Based on my own experience and mental health first aid training:

  1. Ask directly and communicate non-judgementally

If you notice a red flag in the conversation, don’t ignore it.

  1. Work together to keep them safe for now

After noticing a red flag in a conversation, validate the client’s feelings and acknowledge they have gone through a lot due to their circumstances.

  1. Connect them to professional help

As a lawyer, it can be difficult at times to maintain the level of professionalism required while being there for your client and not stepping out of your role. Hence it is important to connect the client with professional help. This can be done by:

  • convincing the client to stay on the line and separately calling one of the below help lines then merging the calls;
  • providing the client with the helpline number and notifying the treating GP with their consent; or
  • in an emergency, calling a mental health telephone service, for example, the Queensland Mental Health Access Line on 1300 642 255, and asking for advice, or calling an ambulance.

Resources

Queensland

LawCare 1800 177 743

Solicitor Assist – Law Foundation Queensland (free legal advice for QLS members)

National

AskIzzy is a website that provides direct access to over 400,000 support services across Australia involving emergency housing, DV help, food, drugs and alcohol assistance and more.

Lifeline: 13 11 14

The ALA would like to thank Nari Ali for this contribution.

Nari Ali is a TPD and personal injury solicitor at Revolution Law. Admitted in 2020, she has predominantly worked in the TPD space. While continuing this work, she will be further expanding her experience under the guidance of Olamide Kowalik into the areas of medical negligence, motor vehicle accidents, WorkCover and public liability. She is a member of the ALA, Queensland Young Lawyers and QLD African Lawyers Association. In her spare time, she enjoys diving and spending time in nature.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: TPD Mental health Nari Ali