Unable to work due to injury or illness? You may be able to access your Superannuation 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 prior to the usual retirement age if you are permanently incapacitated from working.
Turner Freeman Lawyers can help you with your Superannuation, Disability & Insurance compensation claims. We can also help you contest, challenge or dispute a rejected claim.
Our Superannuation, Disability & Insurance claims department is led by Adam Tayler, who has over 20 years experience in all facets of Superannuation matters. Adam and his team have helped many individuals and businesses in disputes with insurance companies and will help you take the worry out of making a claim.
We can assist you in all of the following areas:
Income Protection or Total and Temporary Disablement (TTD)
Life Insurance or Death Benefits
Disability Claims Litigation
Contact us today on 1800 683 928 or via our online enquiry form.
I have suffered an injury and cannot work. Can I claim?
I have suffered an injury and unable to work. Can I claim?
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.
We are happy to assist and on a speculative or No Win – No Fee basis. You initial consultation with us is obligation free. You will also be dealing with a Partner or Senior Lawyer in the firm not a junior lawyer or paralegal.
Types of Claims
What can I claim?
There are 4 broad areas of insurance coverage that may assist when you become injured or ill or when a loved one dies.
- Total & Permanent Disability (TPD)
- Income Protection (TTD)
- Life Insurance
- 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)?
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?
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 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)?
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?
When a loved one passes away, the hardship following their death is often compounded if they were a source of income for their dependants.
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 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.
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 Claims Litigation
What is Disability Claims Litigation?
Disputes arising from disability claims can include:
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.
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.
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?
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 people 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 us is free so we advise all our clients and potential clients to seek advice and at the earliest possible time to remove any doubt or worry about your rights or where you stand.
What is the claim process?
Superannuation claims process
Turner Freeman Lawyers make the process of investigating your rights, forming a plan and eventually enlisting the help of a lawyer that little bit easier. 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 - 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.
- Let Us take care of the rest - 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 professional should give you peace of mind. Only if your claim is successful will Turner Freeman Lawyers require a fee.
Is there a time limit to lodging my claim?
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?
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.
If we advise you that you have reasonable prospects of success and that the claim is economically worthwhile to purse, we will send you a proper written advice and a proposal. Our proposal will set out, in plain English, a realistic estimate of how long we believe your case will take to resolve and the likely cost.
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 (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 results in higher fees; however, we are always doing whatever we can to keep costs as low as possible. All of this is explained in our written advice along with realistic and reliable fee estimates.
Our fee estimates are usually at least 20% lower than our competitors from our past experience.
Also, we agree to charge a fixed fee including all expenses for the initial stage of the claim up to receipt of a decision from the super fund so you have certainty as to what your costs will be.
How much will I get?
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.
What if I have multiple super accounts or insurance policies?
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.
We 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. We will also refer you to a professional financial adviser if you do not have one to make sure your superannuation investment is maximised and protected. Please note we do not provide financial advice and it is prudent to seek advice from a qualified professional on financial or tax matters to do with your superannuation.
Will I have to pay tax on the money I receive?
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.
Will my claim affect other benefits such as Centrelink or Workcover?
Centrelink and WorkCover benefits
These types of claims do not usually 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.
Because any money received from your superannuation can count as income, payments may affect how much you receive from Centrelink. You should contact your legal professional or Centrelink to find out what impact the claim will have on your benefits.
What happens if my claim is refused?
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, expert 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 these criteria? Can I access my Super early?
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.
What is Financial Hardship?
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.
- 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.
Will Turner Freeman act for me on a No Win – No Fee basis and what does No Win – No Fee mean?
Turner Freeman Lawyers No Win No Fee policy
After we have investigated your claim at no obligation to you, we will then make a decision about whether we would be prepared to act for you on a No Win – No Fee basis. At that time, we will provide you with a proper written advice regarding your prospects of success and whether we are prepared to act for you on a No Win – No Fee basis.
Under our usual terms and conditions, No Win – No Fee simply means that we if take your case on, we will only be paid a reasonable fee for the legal work we 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, we will not seek to charge you anything for all of the work we have done for you.
If we act for you on No Win – No Fee basis, this also means we 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. Unlike other firms, we do not charge any interest on these disbursements or expenses which we fund and we are only repaid at the end of your case and only if you win.
In the highly unlikely event that your case goes to court and you lose, while you would not have to pay us anything, it is likely that the court would order that pay the other side’s legal costs which could be a substantial sum.
More information on Superannuation, Disability & Insurance claims
Super Claims Australia – Our dedicated Superannuation website
For more detailed information on Superannuation, TPD, Disability & Insurance claims please visit our website entirely dedicated to Superannuation and TPD advice at www.superclaim.com.au. You will find brochures, blog articles, newsletters and articles on all things superannuation, disability, TPD and insurance.
If you would like to speak to someone directly please call us on 1800 088 677 or contact us via our online form.
Our dedicated Superannuation team is here to help you.