How to access superannuation and TPD insurance for injury compensation

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We have recently received a number of questions re super and TPD, and as promised, this article covers in detail how an injured worker can access (unlock early) superannuation and/or make a Total Temporary (TTD) or Permanent Disability (TPD) insurance claim. We have also included frequently asked questions and some additional tips.

How to access superannuation and TPD insurance for injury compensation

You’re an injured/ill worker—think about accessing your superannuation and/or TPD insurance

Many injured workers don’t know that their (and most) Super funds contain insurance policy, which is often ‘hidden’ in the fine print, and which will cover an injured worker in the event that they become incapacitated.

These insurance policy (or policies) are called Superannuation Disability Benefits. These same insurance policy also almost always also holds death insurance (death benefits in case you die).

Many injured workers don’t know of these Super benefits because they are basically packaged and “buries” in with their Super, even though you may have been paying premiums for yonks.

So, here you go, chances are that you too have a Superannuation Disability Benefit, which means that you may be able to lodge a claim against you Super scheme if you become incapacitated/disabled.

General overview

You can lodge a claim  in the event of you become ill,  suffer an accident at work or on the road or as a result of any incapacity that you may have which stops you from working.

Two types of claims can be made

Claims against your Super scheme may be made for

  1. permanent disability, in which case a lump sum may be paid. Also called a Total Permanent Disability payment
  2. for a temporary disability, which gives monthly payments. The former. This can be called either Income Protection, Salary Continuance or a Total and Temporary Disability payment, depending on the policy wording. These monthly payments may be continued for up to two years (and longer in some cases).

Timing of your injury or illness when making a claim – are their time limits?

If you have stopped working and you are no longer insured, you may still be able to make a claim againts your super scheme/insurance. The only thing that matters is  whether you were insured when you suffered your injury or when you last worked. If in doubt, you should have your lawyer check because sometimes Super funds falsely advise people they are not insured when they actually were at the relevant time.

Will a claim on my Super fund affect my WorkCover or (TAC) payments?

Generally, YES.

If you are paid a lump sum by your Super fund, your weekly WorkCover payments may stop for a period of time. How long they are ceased/suspended will depend on the size of the lump sum you received, the amount of your WorkCover payments and when you were injured.

tipTo avoid the risk of having your weekly pay stopped/cut off, don’t withdraw your superannuation benefits until your workcover claim or entitlements has finalised. Some lawyers will be able to set up a “trust fund” for you where the Super money can be held until such a time.

(Note that Super benefits do NOT affect TAC benefits – these continue)

How can an injured worker check on my Super cover?

superfundThe first and critical step is to make sure that your Super scheme does indeed come with an insurance policy. If you have the details of your scheme, you can check this yourself. This information is also often, but not always, stated on one of your Super statements.

Also if you have had Super funds in the past or may have belonged to a fund you may have forgotten, you may still be entitled to lodge a disability benefit claim against that scheme.

The important point is that you may have had insurance cover in your Super scheme at the time you became incapacitated. Some Super funds stop insurance cover once you stop contributing to the fund but some Super funds continue your insurance cover so it is always worthwhile checking on your old funds too.

The Australian Taxation Office website has a very useful online tool for checking on whether or not you have an old Super fund. Go to the ATO’s SuperSeeker tool.

What if my claim is rejected?

Just like with workcover insurance – The first step is to ask your Super fund to review the decision. But we do recommend to get sound legal advice. Many decent personal injury lawyers also deal with the super claims, and as far as costs involve, the best deal we know of is a flat fee of $8000 (so, don’t get ripped off!).

If, after the review, your claim is still rejected, and you feel you have been unfairly treated, you may lodge an appeal to the Superannuation Complaints Tribunal (SCT) or challenge the decision in court. You can get helpful information from the SCT website.

Don’t get (too) disheartened, many injured workers struggle to access their TPD claims, as it is more (very) difficult to prove you can no longer work. You basically et the same run0-around as workcover, and are sent to (biased) IMEs etc. Simply get a decent lawyer involved.

See below for more detailed explanations and frequently asked questions.

Unlocking the Superannuation early is another option

unlock-super-earlyShould you become incapacitated, in addition to the insurance benefits, the balance of your Super fund can be accessed early, meaning, before retirement age. This balance will be taxed at a concessional tax rate.

Again many injured workers don’t know that superannuation can be unlocked early if you are injured or ill and that, as a result, are unable to work.

If you meet the relevant criteria, all Superannuation schemes will release any funds accumulated early.

How does it work?

There are several claims you may be able to pursue:

  • Permanent incapacity (to return to work)

If, as a result of illness or injury, you are no longer able to work and this is likely to be permanent, you can have the fund unlock your account balance. This amount includes your own contributions plus those of your employer.

If your claim is approved, you can start to use the funds immediately. In terms of taxation you can withdraw your benefit and have it taxed at a concessional rate, while part of your disability benefit is usually tax free.

  • Total and permanent disability (including death)

In addition to any funds currently locked away in your fund, you may also be entitled to an insurance payout on the grounds of disability. Again, as stated above, many injured workers are simply unaware of the ‘built-in” benefits of some Super funds, and a common one is disability insurance. This means that you have a small premium taken out of your Super contributions to pay an insurance premium that provides you with disability insurance cover.

A successful Total and Permanent Disability claim will mean you receive your Super account balance plus the extra amount for you which you are insured.

(The insurance extras also often include payment of lump sum death benefits to a family member. So if a member of your family passes away, you should find out from their Super fund whether you can claim a Death Benefit.)

Many injured workers (and people in general) of course never look into the fine print of their Superannuation, so it should come as no surprise that they also have little idea of the insurance provisions.

Regardless of eligibility for insurance benefits, you can still apply to withdraw your Superannuation balance if you are unable to work.

Accessing superannuation, TTD, TPD insurance and more—detailed overview

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The following section covers the above in much more detail.

Overview

When you are unable to work because of injury, ill health or if you suffered a disability 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 or Income Protection. You may also be able to access your superannuation account balance early ( prior to the usual retirement age) if you are permanently incapacitated from working.

In addition to this you also 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, Disability & Insurance compensation claims can be very confusing, complicated and insurance companies and superannuation trustees can often be difficult  and frustrating to deal with, especially if you are not familiar with the process.

Frequently asked questions about Super, TPD etc

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I have suffered an injury and unable to work. Can I claim?

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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. If you are the dependent of a deceased loved one you or the deceased’s estate may also be entitled to claim on insurance.

This can be in the form of total and permanent disability (TPD) insurance attached to your superannuation, mortgage or other loan insurance, income protection or life insurance or other occupational specific cover.

These benefits are commonly available in addition to any workers or similar compensation you may have received for the injury or illness.

Unlike other claims, when claiming for total and permanent disablement or life coverage you do not need to prove that the injury or illness was caused by someone else or that it is work related. 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.

What can I claim?

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There are 4 broad areas of insurance coverage that may assist when you become injured or ill or when a loved one dies.

They are:

  1. Total & Permanent Disability (TPD)
  2. Income Protection (TTD)
  3. Life Insurance
  4. Accident and Trauma

For some specific occupations including Commonwealth or State public servants and members of the military there is also a range of additional benefits available.

If you are injured while travelling you may have coverage through travel insurance. If you have a mortgage or other loan you may also have loan insurance.

What is total and permanent disability (TPD) and do I qualify?

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Total and Permanent Disability (TPD) cover

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.
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. It provides financial benefits to those who are no longer able to work in their usual occupation due to mental or physical disability or ill health.

Do I qualify for TPD? How does a claim work?

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.
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 claims: what are they?

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What are Accident and Trauma claims?

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.

What is income protection (TTD), and do I qualify?

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What is 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.

Do I qualify?

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.
What is the waiting period?

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.

What is a life insurance or death benefit? Time limits, Disputes.

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When a loved one passes away, the hardship following their death is often compounded if they were a source of income for their dependents.

What is Life Insurance or Death Benefit cover?

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.

Are there any time limits?

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.

Can binding nomination be disputed?

Some binding nominations can be disputed. For example in some funds require the nomination to be made to a dependent, and the definition of dependent 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.
Time limits for disputing death benefits

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.

Disability claim litigation, Rejected claims, Disputes

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What is 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 using 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.
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.

Do I need a lawyer?

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If you are concerned about your working future due to your injury and if you wish to find out if your claim is worthwhile to pursue, the short answer is yes. In reality and from our experience from seeing first hand the bad outcomes that so many injured workers achieve without lawyers, the answer is absolutely yes.

How can a lawyer help me with my claim?

A good lawyer will focus on whether he or she can justify their involvement in the case so that you can be confident that the benefits of using a lawyer will outweigh or far outweigh the legal costs.

If you have a very serious injury which clearly precludes you from working and will do so forever you may not or probably don’t need to see a lawyer. However, your first consultation with a lawyer is free so they will advise you to seek advice and at the earliest possible time to remove any doubt or worry about your rights or where you stand.

Many decent personal injury lawyers also deal with the TPD claims, so talk to you lawyer about it (if not already raised). With regards to legal costs, be careful. We do know that some decent personal injury lawyers offer this service at a flat fee of $8000… so please ensure you do not get ripped off and that there is merit in having to pay huge fees.

What is the superannuation claim process?

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Superannuation claims process

Here is a brief outline of how the process works:

Do some quick research — It’s always wise to do a little reading before embarking on anything that involves Super Funds or insurance companies.

Have a free consultation with  decent lawyer (or your own personal injury lawyer) —Calling or sitting down with a legal expert is an extremely important step to take when considering making an application for early super payment or an insurance claim. They will be able to gauge where you stand, what the best course of action is, and what the likely outcome will be.

Once you have worked everything out with your lawyer, they will handle everything, including helping you fill out the forms and letting you know what else you may need to supply to build your claim. If there are any outstanding tasks you need to complete (e.g. attending a medical examination), these will be completed before submitting the paperwork.

Once everything is submitted, all you need to do is wait. Applications can take between weeks up to several months to process depending on the complexity of the case. Knowing that everything has been handled by a highly qualified, experienced and decent lawyer should give you peace of mind.

Is there a time limit?

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Time limits to lodging claims

This varies from fund to fund, and from insurer to insurer. While it is sometimes possible to lodge your application as soon as you stop working, you might alternatively have to show at least six months off work due to your circumstances. It is recommended that you seek legal help to ensure you are meeting all the correct requirements.

If I go ahead with a claim, how long will it take and how much will it cost?

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Time limit for receiving payments

In most cases, claims are finalised and paid out within two (2) to three (3) months (sooner for income protection claims), but this depends on the complexity of the claim and whether you have met all the criteria.

Generally speaking, most claims are able to be resolved within 2 to 3 months from when the claim starts. If the case goes to trial/court (which is highly unlikely) this can add a further 6 to 12 months to the time estimate.

If your case has to go to court, it will cost more than if it is accepted first up by the super fund or settles at an early stage. The more work which is done generally results in higher fees.

Fees

As we’ve stated several times, some decent personal injury lawyers also deal with Super claims and add it to your overall part of your workcover matter. The lowest fee we know of is a flat fee of $8000.

However we also know that some lawyers (firms) offer a no win no fee in super claim matters, and you won’t pay if your claim is unsuccessful.

Ensure you shop around, and consult with several lawyers (first consultations are free), to get an idea of what they plan on charging you (read the fine print!).

How much will I get?

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Obviously the amount you will receive  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.

What if I have multiple super accounts or insurance policies?

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Multiple accounts and multiple insurance policies

As long as each of your current funds or accounts are independent from the other, you should be able to claim on any/all of them at the same time.

Your decent lawyer will also investigate all accounts and you may be entitled to rollover some accounts into one to make the process of accessing your money simpler. Your decent lawyer may also refer you to a professional financial adviser if you do not have one to make sure your superannuation investment is maximised and protected.

Will I have to pay tax on the money I receive

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Tax on the amount you receive

If you are withdrawing your funds before your Preservation Age (the ‘lockout’ age on your super policy – usually 55), you are likely to be taxed on it. There are, however, some exceptions to this rule, such as in cases of terminal illness. It is a good idea to contact a finance or tax professional and go through your policy and your circumstances so you know where you stand. Your lawyer may also be able to advise you (i.e. concession taxation)

Will my claim affect other benefits such as centrelink and workcover

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Centrelink and WorkCover benefits

These types of claims do not usually, but can  impact on Workcover benefits, however if you have already received Workcover benefits then your entitlement to super insurance may be reduced as a result. In some cases you can receive both; it just depends on your policy.

If you are paid a lump sum by your Super fund, your weekly WorkCover payments may stop for a period of time. How long they are ceased/suspended will depend on the size of the lump sum you received, the amount of your WorkCover payments and when you were injured.

tipTo avoid the risk of having your weekly pay stopped/cut off, don’t withdraw your superannuation benefits until your workcover claim or entitlements has finalised. Some lawyers will be able to set up a “trust fund” for you where the Super money can be held until such a time.

Because any money received from your superannuation can count as income, payments may affect how much you receive from Centrelink. You should contact your lawyer or Centrelink to find out what impact the claim will have on your benefits.

What happens if my claim is refused/rejected?

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If your claim is rejected

It is possible to appeal a decision that goes against you, either in court or by lodging a request for reconsideration. It is extremely important that you call upon an experienced, decent lawyer to help you through whatever action you decide to take. It is also possible to lodge a complaint with an industry tribunal or the financial ombudsman service, if you believe you have been unfairly treated.

What if I don’t meet the criteria? Can I access my super early?

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You may be able to access your Superannuation early from a Financial Hardship

The law states that you may also be able to receive your superannuation early if you are suffering from extreme financial hardship, or from some specific compassionate grounds, such as: significant and unexpected medical costs, being at risk of losing your home, paying for palliative care, or for funeral expenses for a dependent. You should contact your super fund and the Department of Human Services.(http://www.humanservices.gov.au/)

What is financial hardship?

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If you are suffering through financial hardship, you may be able to access your superannuation early. The Department of Human Services (Centrelink) have systems in place to help those in dire financial need.

If you:

  • Urgently need money to pay for medical expenses, disability-related expenses, palliative care or funeral expenses;
  • Have been receiving Centrelink payments for at least six months and cannot meet your day-to-day expenses;
  • Risk your home being sold by your mortgage lender

then you may be able to gain early access to your stored super.

You should contact the Department of Human Services direct on 1300 131 060 to see if you qualify and also speak to your super fund.

No win no fee?

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Some lawyers will take on Super claims on a No Win – No Fee basis. They will provide you with a proper written advice regarding your prospects of success and whether they are prepared to act for you on a No Win – No Fee basis.

No Win – No Fee simply generally means that we they take your case on, they will only be paid a “reasonable fee” for the legal work they have done for you at the end of the claim and only if you win.

In the highly unlikely event that your claim goes to trial and in the even more unlikely event that your case goes all the way to trial and you lose, they will not seek to charge you anything for all of the work they have done for you.

This also means the lawyer/firm will pay for all of the disbursements or expenses out of our own funds such as expert fees, doctors’ reports, court filing fees and so on, which you basically repay at the end of your case and only if you win.

In the  unlikely event that your case goes to court and you lose, while you would not have to pay your lawyer anything, it is likely that the court would order that pay the other side’s legal costs which could be a substantial sum… to you! Be very careful.


Note: There is a good website entirely dedicated to Superannuation and TPD advice at www.superclaim.com.au.(http://www.superclaim.com.au/), where you canl find brochures, blog articles, newsletters and articles on all things superannuation, disability, TPD and insurance.

[Sources: Freeman Turner, RCT, Lawbook]

Other types of insurance benefits

Home loans

You may be entitled to insurance benefits that you are not aware of. Many banks now require you to take mortgage protection insurance in order to qualify for a home loan.

This means that, should you be unable to work for a time because of health or injury problems, you will likely have a claim.

Credit cards

Many credit cards come packaged with benefits that include insurance. Check!

 

[Article by WCV and WCV3]



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5 Responses to “How to access superannuation and TPD insurance for injury compensation”

  1. Howdy,

    Been down this track. My partenr suffered a mental injury along with a physcial one.

    She was actually unawares of the policy for TPD, total permanent disability and was of the view the small loan protection she had for the car would NOT be paid either. Nothing like a good dose of depression !!

    Well both were paid.
    The bank one on the car loan in the fine print the protection only made payments for 12 months of the loan so was on one hand a waste vs the cost but thankful she had it !! They bascially paid for 12 months even if totally disabled and then stopped. It helped a lot and was NOT too much of a hassle.

    Acting in good faith for this and TPD is NOT something the insurance company CAN hide behind like Workers Compensation where there is NO obligation to pay it out or act in GOOD faith. There is a requirement with these types of insurance.

    Despite the recommendation to get a lawyer to do this for you, I suggest YOU DON’T if your able to. If you have become permanently disabled, likely if your on this site you are well equipped to handle it yourself and make the claim YOURSELF saving you the lawyers fee’s. Use them if needed.

    With a permanent disability where your NOT likely to ever go back to work I am sure you have oodles of medical reports. It will depend on your TYPE of policy if you have it with your super fund. If its TPD, you need to be permanatly disabled likely forever for it to be paid out, some have partial disability others have income protection insurance policies attatched to the super fund.

    Its important FIRST to establish what you have, what type of policy. If its TPD and your at some stage possibly going back to work the policy is for TOTAL PERMAMANET DISABILITY and that means not going back to work. For income protection and the partial ot temporoary disability you pay far higher fees and as such the rules on getting the payour much easier.

    I found it took a lot of time to get the TPD paid, not because the insurer was being like a workcover one, more that they wanted more medical evidence than I had at hand when I found the claim. Having your workcover liability denied and expecting it to be reversed because of some mostake or oversight, like most I found for my partner, we put her medical needs on hold in limbo for 6 months till we worked out that Workers compensation insurance has little to do with workers care. So when I found the TPD insurance policy 11 months after my partner was injured and lodged the claim on her behalf I needed MORE medical evidence than I had a t the time. A psychologists report, a medical specialists report, a MRI scan for her neck, two doctors medical opinions, a physio who is also a doctor and so on.

    Once these were provided, or obtained and we continued on with my partners treatment despite Workcover claim still being contested, we eventually had enough for the TPD insurance claim and when they had enough they paid it out. It however took time, time because I did not have enough medcial evidence at the time to support the TPD, the permanent nature of her injury to be blunt.

    So if you have the information, lodge the claim without a lawyer, a hassle of paper and even then it will take time about 3 months but eventually they do pay if you have a valid claim.

    On releasing your super, again they do it as the insurance policy the TPD is attached to your super funds so if your totally and Permanently disabled it at the same time will be released. in this your super is protected and you cant touch it till age 65, well earlier than that, so what happenes is its released, TAX has to be paid on certain portions of it and the NET number will not be the 100% you have in there now but something around 90%. Its complex the tax on it and an accountant is the best place. But your SUPER is only released under TPD not the other forms.

    You can apply of course to have some super released due to fiancnial hardship and not havin done that not sure how hard it is, or how much you get. I think its more for immediate bills and so on.

    If things are that dire, its actually better to go bankrupt totally. Your super is protected as such as long as you don’t have some access to it and are over say age 55.

    So swamp the insurance company with as many medical reports as you have !! They are insurance companies so don’t expect a cake walk, but NOT in the same league as the agents for Workcover the insurance companies that manage the claims there.

    Good luck

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    • I am 5 years into my workcover claim in nsw and received my super under financial hardship. I am at 24% wpi and not finished so I had 2 doctors sign that Iam incapacitated for life and will not return the same employment I have done or was doing and the important part just like the tpd component in your super for lump sum payments ensure that the doctors include the statements that are made in the underwriting such as “cannot return to usual occupation etc”.
      I am in the process of applying for my tpd lump sum which costs around $12k if straight forward for lawyer.
      I was also 19% wpi psychological but as I was discussing this with my doctors it is far easier for insurers to accept physical injury as pysch claims can improve and are far more easier to fake (please don’t take this the wrong way) but you know what I mean.
      Physically I have had 3 spinal ops including multi level fusions which are permanent as where anxiety can be treated and improved hence why it easy for insurers to hire a physchiatrist to write bogey reports.
      My lawyer has advised upon receipt of tpd lump sum you need to put it into your super to pay minimal tax on it or you can put it in a trust.

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  2. This is the next step for me. I am just waiting for one more specialist report which I will get this week. I have been advised it will take 12-18 months for the funds to be released though. Can anyone give me an idea of how long it took for them please?

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  3. I am 3 years down the track from making a TPD claim. I have gone through the Workcover NSW process & in the negligence (near the end) process with that side of this whole mess.

    Super is a totally different game & this is all a game to them, it’s about them winning, not paying & us – well who cares about us or our families, bills or anything else that has been affected.

    I was recently told by VicSuper who hand balled my claim to AMP who are their underwriter to do the research, write the reports & make recommendations. They finished all their assessment processing in March this year, I was then given a copy of all their evidence, everything I had sent (which they carefully selected). Don’t assume because you sent it, they have to use it, they don’t.

    I responded to what they call ‘Procedural fairness’ regarding their transparency & procedural fairness, I addressed every single report. Including the two they paid for; a Vocational Assessment (I’ve never met this person, never consented to it, never spoken to or had any discussion with this registered psychologist – which of course under her registration as a psychologist she is bound by ethics etc), they also used an IME psych report which I attended for 30 mins & despite his agreement with the 5 other IME reports already accepted by Workcover, he then went on to conclude return to work asap – despite writing I had a disability & uncertainty regarding long term outcomes – he wrote “no obstacles to return to work”.

    They do not need evidence, they just need a medical professional to write an opinion & they need a vocational assessor.

    The vocational assessor Recovre in Melbourne, wrote I could go back to data entry which I performed when I was 18/19, I am now heading near 50 yrs of age!

    That was all they needed to hear – that there was an option. They don’t need to justify it, they don’t need evidence to say I can even do it, they just need an opinion.

    So of all the information & documents sent to them, they also do not need to use all of them. They carefully selected which ones they would use. They excluded 3 years of clinical psychology reports (every 6-10 sessions a report). They excluded them because they would impact on what they wanted to write.

    What I found about Superannuation is that they know what they want to say at the beginning & they work backwards, they look for professionals (who they already have up their sleeve & paid well) to write what they need to hear. They already know they won’t pay.

    I’d like to hear from the previous comment who the insurer was as I’ve been informed there is a long pattern & history of Superannuation companies NEVER paying on psychological injury.

    When I informed the caseworker who had my entire file, including police reports/AVO, statements, doctors reports etc & everything pertaining to a life threatening ongoing stalking situation which involved breaking into my house, terrorisng my family, my children; when I asked her how could they possibly ignore the recommendations of all these other professionals her comment was;

    “that’s no our problem, you are making this personal”.

    Well excuse me, this is personal, it’s my life.

    I wrote to them last week & asked when were they going to make a decision. There was a serious issue with the Vocational Assessor breaching confidentiality & also obstructive delays to the processing of the claim & so I was recommended going to the Tribunal.

    I was told if I go to the Privacy Commissioner & I go to the Superannuation Tribunal they will ensure there will be further lengthy delays to my claim.

    We live in Australia right? How is this even legal?

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  4. Hi, just wondering if anyone can offer some advice to me. I suffered a work related accident in 2006 which lead to Major Depression. I went through 2 re-occurrences of this illness, lost 2 jobs but each time managed to get through it until in 2010 I suffered a 3rd and treatment resistant occurrence. I had to resign from my job, lost my apartment and then discovered at first I was unable to get Centrelink or Emergency Housing because I arrived in Australia in July 2001 from New Zealand and was unaware of the changes to the Social Security law, even though I had worked here and paid taxes for 10 years in my moment off need I was unable to even get a bed for the night. Things are better now but its been a fight. One fight I had was initially I applied for Income Protection through my superfund which was accepted and paid. I then a year later applied for TPD, it dragged on for nearly 2 years, I hired Brydens Lawyers (no help and ripped me off)…however in December 2013 my TPD claim was accepted. To my surprise my payment was less allot less than on my policy. My lawyers didn’t know why but in December said I would receive the rest in the New Year. They never called or contacted me again until April 2014 they sent a letter explaining the Fund had informed them my Employer had reported my salary incorrectly and it was a lower amount and no further payment was due. Brydens informed me they accepted that explanation. I information Brydens that was not correct and I had an employment contract for the higher figure. The lower amount came amount because in an effort to return to work I reduced my hours to only M,T,T,F effectively 7.5hrs less a week, even though I only worked this plan for 2 weeks then stopped work my employer had calculated that as my yearly salary. Brydens who by now had their $35,000 fee told me I had to follow up with the Fund as my contract with them did not cover ensure wage information was correct.
    I spoke to my former employer and they emailed the Fund admitting the mistake and confirming the higher figure. I wrote to the Fund asking the review the payment and the income protection payment from 2 years ago as it turns out it was calculated on the lower salary as well. The Fund replied that they are investigating the matter, they gave no time frame, or what is involved. Sometimes my depression is so bad I struggle to get complete basic daily living tasks like having a shower, getting out off bed. Doing things like following up on these matters, filling in forms takes me weeks or months as I simply cannot function.
    Where can I get help, are there time frames for these matters to be resolved? Given the payment for TPD was made in December 2013 and IP in 2011.

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