TPD: When the Date of Assessment can make or break a claim

The Respondent, Mr Aaron Standley, was employed as a call centre manager when he sustained injuries in a motorcycle accident on 2 August 2015. He sustained injuries to his left wrist and right leg (the latter required surgery). Mr Standley returned to work in October 2015, but due to his physical injuries subsequently resigned on 2 February 2016.

Mr Standley was insured under a life and disability policy (Policy) issued by the Appellant, Onepath Life Ltd. Following his resignation, Mr Standley lodged a claim under the Policy on the basis that he was totally and permanently disabled (TPD) as a result of the injuries sustained in his accident.

The Policy

Under Mr Standley’s Policy, a claim for TPD was satisfied with the following criteria:

• The claim arose as a result of an illness or injury;
• The claimant had been absent from and unable to engage in their ‘Own Occupation’; and
• The claimant was disabled for a period of three consecutive months to an extent where it would be unlikely for them to return to their ‘Own Occupation’ again.

The Rejected Claim

The Appellant rejected Mr Standley’s claim. As Mr Standley ceased working in February 2016, the Appellant assessed his condition in May 2016, three months after Mr Standley resigned. Mr Standley then had to establish that as of 2 May 2016, he was disabled to such an extent that he was unlikely to ever again be able to work in his occupation as a call centre manager.

The Appellant determined that the physical injuries sustained by Mr Standley were not to the extent that he would be unlikely to return to his ‘Own Occupation’ again. Mr Standley argued in the first instance that the three month period should not only start on one’s last day of work; it could also start later, if only at a later date a claimant becomes unable to ever engage in their ‘Own Occupation’ again.

In the first instance, the Supreme Court of New South Wales held that the three month period did not need to commence when Mr Standley ceased employment. While Mr Standley did not satisfy the TPD Policy definition for his physical injuries, the Court found that he did still satisfy the Policy definition from September 2017, as he developed a psychological condition arising from his physical injuries. Due to his psychological condition, Mr Standley was unable to work or return to his ‘Own Occupation’ for a three month period and therefore was entitled to a TPD sum.

The Appeal

The appeal was on the following grounds:

• Whether the date for assessment could be other than 2 May 2016; and
• Whether the Court could find that the Respondent met the TPD requirement as at September 2017.

The Court of Appeal dismissed the first ground and held that although Mr Standley was absent from work from February 2016 to May 2016, it was not established that he was unable to work in his occupation. While he ceased working, it was not permanent – he was not totally and permanently disabled by his physical injuries. However, as of September 2017, Mr Standley was unlikely to ever work in his ‘Own Occupation’ again and thus satisfied the Policy definitions.

The Court of Appeal dismissed the second ground and found that the Appellant’s cross-examination dealt Mr Standley’s original claim for his physical injuries, rather than the psychological injuries that developed later. In any event, it was found that the evidence as to Mr Standley’s psychological injuries still satisfied the TPD definition. Medico-legal evidence obtained by the Appellant agreed with that of the Respondent and found that the best outcome for Mr Standley would be to return to part-time employment in a less demanding role than his call centre manager position. As such, Mr Standley was considered unlikely to ever return to engage in his ‘Own Occupation’, thus satisfying the Policy criteria.

The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.