Life, TPD and Disability insurance

Introduction

​TPD (Total and Permanent Disablement) policies insure a person’s earning capacity against the risk that they will become totally and permanently incapacitated for remunerative employment.

The specific terms of TPD policies vary from insurer to insurer, and within the portfolio of a given insurer, but the underlying expertise issues generally remain the same.

At the bottom of this profile are brief details of a number of the experts that Expert Experts represents. Call our office to discuss your requirements and to obtain a recommendation that suits your needs and budget.

What Expert Evidence

​In general a Plaintiff has to establish illness or injury which disables them from doing their pre-injury job. Proof of that status prima facie brings them within the terms of a TPD policy.

The evidentiary onus then reverses and the Insurer is obliged to establish that the person is employable and therefore is not TPD within the meaning of the policy. Consequently, in practice, most of the expert evidentiary burden falls to Insurer.

There are 4 main expert issues to address when determining whether or not a person is employable, and therefore not TPD.

1. Physical capacity for employment.

Whilst the existence or absence of a specific impairment might best be determined by a medical specialist in a particular field, eg a surgeon, the question of the impact of an impairment on the capacity to work is the expertise of the occupational physician and they are best placed to provide those opinions.

2. Psychological capacity for employment.

This is usually assessed by a psychologist. A psychologist with with some experience in vocational psychology and rehabilitation is usually preferred.

Clinical psychological testing may be required in some cases.

3. Education, Training and Experience (ETE) or an employability assessment.

This is usually conducted by a rehabilitation consultant with experience in conducting return to work programs.

Whilst this component of the process is commonly referred to as an “Employability Assessment” it forms only 1 of the 4 elements required to establish employability and to show that a plaintiff is not TPD.

4. Labour Market evidence

This is usually conducted either by a rehabilitation consultant or an employment services consultant.

This covers both existence of the identified work options, consistency with residual capacity and ETE, and depending on the terms of the policy availability within a reasonably accessible labour market.

A total report

Getting an expert opinion on each of the 4 major topics which adequately addresses the relevant issues is difficult. Making sure that they align is even harder. It is far easier and cheaper to do if all aspects of the report are dealt with at once.

Sample Reports

For some fields of expertise we have some sample sections of de-identified reports. Please contact our office if you are interested in a sample.

Cost

The overall cost of expert opinion depends on the services required. Some of the key factors that affect the cost of advice include:

• The need for a view or inspection of a location
• The quantity of documentary material to be reviewed
• Whether there are reports of other experts to be reviewed and commented on in detail
• Whether there is a need for conferences with the expert either in person or by telephone/Skype

Relevant Articles Practical Employability Assessment Issues: Hannover Life Re v Jones

A discussion of Hannover Life Re v Jones

TPD: Reasonably Accessible Labour Markets Pt 1

A discussion of labour market issues in TPD Pt 1

TPD: “Labour Markets” v “Reasonably Accessible” – Part 2

A discussion of labour market issues in TPD Pt 2

Relevant Cases TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

Evidentiary onus on Defendant to show there are specific occupations for which the applicant for TPD benefits is likely suited.[43-50] TPD means both total and permanent.

Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62

Evidentiary onus on Defendant to prove all elements of employability [32]

Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233

What does "reasonably fitted" include and how close must the link or connection to proposed work options be?

Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57

What is covered by ETE at date for assessment.

Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214

A classic statement of principles

Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104

What is covered by ETE at date for assessment. (An Expert Experts / ECA report)

Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204

Part time work, pre-injury work.