Superannuation & Disability Claims Securing your future

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1 Superannuation & Disability Claims Securing your future Great people Great results Great value Established 1952

2 Superannuation & Disability Claims When you are unable to work because of injury or illness, you may have insurance through your superannuation that you can access early. Most superannuation funds provide insurance cover for total and permanent disablement (TPD), death and income protection. At Turner Freeman Lawyers we can assist you in all of the following areas: You may also be able to access your superannuation account balance prior to the usual retirement age if you are permanently incapacitated from working. In addition to this you may have insurance cover in other policies including retail TPD and trauma policies, through your home, car or personal loans and via travel insurance. Superannuation, insurance and disability claims can be confusing and complicated. Insurance companies and superannuation trustees can sometimes be difficult to deal with if you are not familiar with the process. Our Disability Claims team has experience in all facets of disability claims including TPD, income protection and life inurance claims, both within superannuation and involving retail or first party insurance policies. Our expert team have helped many individuals involved in disputes with insurance companies. They will help you take the worry out of making a claim and ensure you can access your insurance benefits and superannuation when you need it most. Total and Permanent Disability (TPD) Claims including Accident and Trauma Income Protection, Salary Continuance or Total and Temporary Disablement (TTD) Life Insurance or Death Benefits Disability Claims Litigation For more information please contact Turner Freeman Lawyers Superannuation Claims team.

3 Total and Permanent Disability (TPD), Accident and Trauma When you are injured or ill and unable to work or enjoy your usual daily activities, you may have insurance coverage that you are not aware of through your superannuation. If you are the dependent of a deceased loved one, you or the deceased s estate may also be entitled to claim on TPD insurance via a post mortem or after death claim. Total and Permanent Disability (TPD) coverage now comes as standard in all super funds. Before 1 January 2014, it was not compulsory, but most funds did have cover. What Does TPD Mean? TPD coverage commonly provides financial benefits to those who are no longer able to work in their usual occupation or any other occupation they are reasonably suited to due to mental or physical disability or ill health. For those who are very seriously injured, or who were not working at the time of disability, other definitions can also be relevant. In these cases a definition is usually based around not being able to perform personal care or the activities of daily living such as feeding, walking, dressing and showering. Importantly TPD does not mean never work again If you are able to retrain into some other area and continue working in the future then you may still have a claim. TPD insurance can be attached to your superannuation, mortgage or other loan insurance. You may also have other occupational specific cover. For example in the building, construction or contract cleaning industries, portable long service leave can be claimed in the event of TPD. To qualify for TPD benefits, you will need to show that your injury or illness has stopped you working, and that you are unable to continue working in your usual job and any other occupation that fits your skills, training or education. Unlike other injury related claims, when you are claiming for total and permanent disablement you do not need to prove that the injury or illness was caused by someone else or that it is work related. For example, if you are suffering from cancer or an organic mental health condition such as bipolar and are unable to work, you will still receive benefits. You just need to show that the injury or illness is significant and has affected your ability to earn an income, or has seriously impeded your ability to engage in your daily activities. Continued over page...

4 These benefits are commonly available in addition to Centrelink payments, workers (or other similar) compensation you may have received for the injury or illness. What Benefits Will be Paid? Providing you meet the relevant criteria, you will be eligible to receive your insurance benefits in addition to gaining early access to your super. These benefits may come as either a lump-sum or regular payments. In terms of the amount that may be recovered, this will depend on the type of insurance cover you have and how much you are insured for. This information is usually included in the fine print of your policy or statements. These benefits are commonly available in addition to Centrelink payments, workers (or other similar) compensation you may have received for the injury or illness. How Does a Claim Work? A claim must be supported by medical evidence confirming you meet the criteria for TPD. Doctors will need to be thoroughly briefed about the definition involved and how the definition ought to be interpreted. Medical matters are, however, just one part of proving TPD. All aspects of your education, training and experience need to be explored and evidence provided as to why you are not suitable for any past jobs you have performed or any other jobs that might be considered suitable. While you may be medically capable of working in an office based job, do you have the aptitude, skills and experience necessary to get a job that is suitable to you? Is there employment available where you live? What other barriers are there to you gaining employment? The ability to get a job is one thing but maintaining that employment on an ongoing basis may be more challenging because of the injury or illness. If you could potentially get other employment but not maintain it then you may still be TPD. If you have gone back to work in a special job designed to accommodate your injuries, but which would not be available to anyone else applying off the street, then you may still be TPD. Accident and Trauma Some insurance and superannuation policies may entitle you to a lump sum payment if you suffer a particular injury or develop a particular illness. These injuries and illnesses will be defined in the relevant policy, however they are often difficult to understand. Insurance companies generally do not manage TPD claims well and the process can be confusing and complicated. If an insurer fails to act in good faith or fails to act fairly and reasonably in processing your claim, you have rights that are enforceable under the insurance policy. If your correct entitlements are not paid or not paid soon enough you can issue court proceedings to enforce your entitlements. A court can also rule on disputes that arise while a claim is being processed. For more information about Total and Permanent Disability (TPD), Accident and Trauma, please contact Turner Freeman Lawyers Superannuation Claims team.

5 Income Protection, Salary Continuance or Total & Temporary Disablement (TTD) cover If you are temporarily unable to work due to disability or illness, you may have a claim. Salary continuance or income protection benefits provide financial support to those unable to work, in the form of either lump-sum or ongoing payments. To qualify for income protection you will need to provide evidence of your illness or disability. Your disability does not need to be caused by work. Income protection benefits will only be paid for a set period - commonly 2 or 5 years. There are some policies which will pay to age 65 or older. The policy will generally pay a percentage, commonly 75%, of your usual wage or salary. This, of course, varies from case to case, so it is important that you enlist the help of a legal professional to determine your correct entitlements. In some policies total disability does not mean unable to work at all - it can simply mean that you are precluded from performing some of the major duties of your job. If you can still work but are on restricted duties and that is costing you money, then you may be able to claim. If you are only able to return to work on reduced hours you may also be able to claim the difference between what you are now earning and what you would have earned had you not been injured or ill. Often there are waiting periods which apply before you will be eligible for payments. This can be 14, 30 or 90 days, or longer. The actual benefits paid are usually calculated by reference to a formula contained in the insurance policy. They will sometimes exclude parts of your remuneration, like overtime or penalties, along with other allowances. It is important to check that you are getting paid the right amount. Some insurers will attempt to cease benefits early if a doctor provides a report saying you are now capable of working. Depending on the relevant definitions in the policy it may not be enough for a doctor to simply state you are now capable of returning to work if that is not possible for other reasons. For more information about Income Protection, Salary Continuance or Total and Temporary Disablement (TTD) cover, please contact Turner Freeman Lawyers today.

6 Life Insurance or Death Benefits When a loved one passes away, the hardship following their death is often compounded if they were a source of income for their dependants. All super funds in Australia offer benefits in the event of a loved one s death. If you were a spouse, child, legal personal representative or financially dependent on someone who has passed away, you may be entitled to their super contributions and connected insurance benefits. These benefits are designed to ease the burden of financial strife at this difficult time. It is recommended that you act to retrieve these benefits as quickly as possible, with the help of a qualified solicitor, to ensure the super fund pays all relevant entitlements. It is possible for super fund members to nominate the beneficiary to whom a payment should be made. This can be done in a binding or non binding way. A binding nomination must be followed by the super fund provided the nomination remains current and valid at the time of death. Some binding nominations can be disputed. For example in some funds require the nomination to be made to a dependant, and the definition of dependant will potentially change from fund to fund. An ex wife who met the definition at the time of the nomination when married to the member may not meet the definition after a divorce or separation. Similarly a beneficiary who was not family but simply financially dependent on a member at the time of nomination and who was no longer financially dependent at the time of death may no longer meet the required definition. There are strict time limits that apply to disputing decisions made about the distribution of death benefits so you should seek urgent advice especially if you have received notification of a claim decision from the super fund. For more information about Life Insurance or Death Benefits, please contact Turner Freeman Lawyers today.

7 Disability Claims Litigation Disputes arising from disability claims can include: Claims rejected by an insurer and/or the super fund trustees. Decisions not made by an insurer and/or the super fund trustees. A super fund trustees failure to take out insurance coverage by a super fund trustee. Loss of insurance coverage due failure by an employer to make superannuation contributions. Negligent insurance advice received from a financial advisor or other professional. Your rights can be enforced against an insurer, super fund trustee or other party in court. In court proceedings you can also claim interest on the benefits that you should have been paid, as well as a contribution towards your legal costs if you are successful. This is not the case in other forums such as the Superannuation Complaints Tribunal or when utilising the services of the relevant Ombudsman. Rejected Claims An insurer has an obligation to assess your claim fairly and reasonably and to make decisions in good faith. There are many ways in which an insurer s decision can be overturned - for example if the insurer has ignored relevant evidence, or fails to provide you with an opportunity to comment on any adverse evidence they have received during the course of a claim prior to making their decision. Quite often some clauses or definitions in policies are open to interpretation, and if the insurer has failed to take account of your interests in making their decision, or has adopted an interpretation which is either wrong or more in their interests, you can dispute that. Failure to Make a Decision If you have lodged a TPD claim and it has taken more than 3 months for the insurer to assess it, you may be able to speed things up and enforce your entitlements. Sometimes an insurers failure to make a decision can be a deemed a refusal of your claim, giving rise to your right to sue on the insurance policy. This depends on how long might be considered reasonable for the insurer to make a decision in the circumstances. Depending on the facts, it may also be possible to make a quick application to the court for preliminary orders to compel the in surer take a particular step or make a decision by a certain date. Failure to Take Out Coverage Sometimes super funds, for one reason or another, fail to take out proper insurance cover. This means that if you become injured or ill you cannot claim on the insurer. This could occur, for example, if, at the time you joined the fund you did not qualify for coverage as your hours of work were too low but subsequently your hours increased. This could also occur if the super fund has failed to deduct premiums from your account or failed to properly follow your instructions to opt into or increase your existing coverage. In these circumstances you may have a claim against the super fund for the loss of value of the insurance benefits that you would have been entitled to. Continued over page...

8 If you are injured or ill but do not have insurance coverage because of your employer s failure to make contributions you may be able to claim against them for your loss in this regard. Non-Payment of Super Contributions An employer is required to make compulsory superannuation contributions to a nominated fund on your behalf. In some cases an employer will fail to make contributions, which can, in turn, mean that you do not have insurance coverage that will respond if you become injured or ill. An employer can fail to make contributions for various reasons, including, for example if they think you are a contractor rather than an employee. Of course it depends on the circumstances, however the tax office has ruled that, if a contractor is performing substantially labour only and is being paid for the hours worked, then super contributions should be paid. Another example may be where an employer directs the contributions into one account - an incorrect account - despite your clear instructions to pay these to another account. An employer may otherwise simply fail to make contributions for financial reasons that is it does not have the money to pay. If you are injured or ill but do not have insurance coverage because of your employer s failure to make contributions you may be able to claim against them for your loss in this regard. Your rights can arise in different ways. If you are an existing member of a super fund, you may have rights under the trust deed that forms the fund. You may also have contractual or statutory rights depending on your circumstances. Negligent Advice A financial advisor or other professional has a duty to take all necessary steps to ensure their advice is competent, fits your particular circumstances, and is in your interests. If you suffer a loss because of a failure to insure or you are underinsured due to an advisor s negligence, you may have a claim against the advisor for that loss. For example, if an advisor has recommend transferring your cover to a second super fund or insurer with lower benefits, and they have not advised you about this, then you may have a claim against them for the difference in the value of the benefits. A different fund or insurer may also impose different conditions or exclude certain claims that may affect your ability to recover benefits. If an advisor does not clearly inform you about the differences before cancelling your existing cover, and you suffer a loss as a result, you may have a claim. Furthermore, if an advisor fails to properly follow your instructions, then any loss you suffer as a result of this failure may give rise to a claim. Similarly, if the adviser fails to provide advice in respect of all of your options and instead just sells a policy to you which will also benefit them with commissions or other rewards, then there is a conflict of interest. This may also give rise to a claim, if you suffer a loss as a result. For more information about Disability Claims Litigation, please contact Turner Freeman Lawyers today.

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