Overview TPD Assessments : Colella v Hannover & Anor Folan v United Super & Anor Lazarevic v United Super & Anor Banovic v United Super & Anor Advisor Cases Commonwealth Financial Planning v Couper Swansson v Harrison Policy Interpreation MetLife v FSS Trustee & FSS Trustee v Maund
Hannover Life Re v Colella [2014] VSCA 205 Plaintiff was a despatch manager at a paper/cardboard company. DLW= April 2007; due to a “ significant and continuing knee condition ”. Claimed a TPD benefit – declined 5 times. Judge O’Neill (trial judge) found the plaintiff was TPD and ordered benefit paid. Hannover appealed to Court of Appeal – 13 grounds of appeal. TPD definition: “A person suffers TPD if they are unable to do any work as a result of injury or illness for 6 consecutive months… and continue to be so disabled that he or she is in our opinion unable to resume their previous occupation at any time in the future and will be unable at any time in the future to preform any Other Occupation.” • “Other Occupation”: qualified to do by ETE, including part-time & lower status/pay.
Hannover Life Re v Colella [2014] VSCA 205 13 grounds of appeal – Hannover contended (inter alia): The word “work” means the performance of tasks within an occupation. The phrase “unable to do any work as a result of injury” means incapacity to perform any work, even light duties. The availability of work in the labour market and availability of work in an area is not relevant. Court of Appeal found: Trial judge was correct in finding ‘any work’ to mean ‘any job’ (not tasks of a job). “[the trial judge] was clearly correct when he described as unrealistic the isolation of ‘some aspects of work’ in the face of significant injury that deprived the person of capacity to perform the work in other respects”.
Hannover Life Re v Colella [2014] VSCA 205 Re Availability of Work, Court of Appeal stated: “to the extent.. that the trial judge’s construction of the expression ‘unable to work’ is dependent on the existence of work, ‘which is reasonably available in the marketplace and in an area in which it could be expected an insured in the position of the claimant could reasonably apply’, the trial judge went too far”. “The policy does not insure the actual availability of work for the insured… in the town or region in which the insured resides”. • This is a shift from recent case law (see Baker, Sayseng & Erzurumlu) which all discuss availability of work in the context of an “unable” definition.
Folan v United Super [2014] NSWSC 343 Labourer. DLW = 20 Feb 2009, MVA on 6 March 2009. Suffered injury to left elbow. ETE: Year 10 schooling , licences: crane driver’s, dogman, hoist, skid steer & heavy vehicle. Not in issue that Folan could not return to pre-injury work. Insurer/ Trustee argued the plaintiff was able to perform other work within ETE. Dr Burrow advised CRS that the plaintiff was functionally able to work as a traffic controller or school-crossing supervisor... “ manipulating a traffic stop/go sign with the right arm and left arm was acceptable .” 5kg lifting restriction. Dr Burrow “ an opinion from an occupational physician may be more helpful in clarifying his ongoing workability …” Dr Phoon (GP): Folan was unfit and didn’t need to undergo physio if he didn’t want to. Plaintiff indicated that he would not pursue a role as a traffic controller as it was below his intelligence.
Folan v United Super [2014] NSWSC 343 TPD definition at paragraph [7] of the judgment. Re the evidence, Justice Nicholas stated: “There was no information which supported the opinion that there were suitable options or forms of employment available to the plaintiff either at 6 September 2009, or at all… No assessment of his suitability for future employment had been made... No information was provided as to the likely availability of suitable employment in the area where the plaintiff lived.” No issue as to whether traffic controller was “retraining” (Re Dargan ).
Folan v United Super [2014] NSWSC 343 “Real World” Employment Justice Nicholas: “In my opinion, there was no evidence which supported the proposition that there existed forms of employment for the plaintiff of value in the open market in which he could reasonably engage… the decision reflects a failure to adequately consider whether, in the real world, work which required only the use of one arm and restricted use of the other was reasonably available for a manual labourer, such as the plaintiff.”
Folan (continued) Contrast Justice Ball’s comments in Erzurumlu (August 2013) re availability of work: “Normally… it could be expected that the Insurer would make further enquiries about the jobs that were available and whether Mr Erzurumlu was likely to obtain any of them.” “There are likely to be a broad range of manufacturing jobs which vary in nature and the physical activity they require. It was not unreasonable for the Insurer to conclude that less strenuous manufacturing jobs than those offered by Kellogg were available”. No evidence of an actual job with an actual employer was before Ball J.
Lazarevic v United Super [2013] NSWSC 96 Plaintiff employed as a scaffolder. Injured on 11 April 2008 – suffered an injury to his back when lifting a metal plank. Claimed a TPD benefit. ETE = Born in Bosnia – completed school & trade qualifications in forestry - 1 year of compulsory military service – worked on a fruit farm (1990-1993) driving a tractor – worked as a tree feller (1994-1998) in Bosnia – returned to work driving a tractor – arrived in Australia in 2000. As a scaffolder, the plaintiff used a forklift about 20 times over a 3 month period. TPD claim declined – could work as process worker, crane operator & forklift driver. TPD definition – same as per Folan . Plaintiff alleged that he was entitled to the TPD benefit and attacked the declines.
Lazarevic v United Super [2013] NSWSC 96 Hearing focussed on plaintiff’s ability to work as forklift driver. Evidence before the Court re the course requirements of obtaining a forklift licence. Dr Home: Plaintiff would be able to operate a forklift in a factory, but not in a yard due to vibrations. Hallen J: “There was no evidence at all that the plaintiff would be able to complete any of the courses referred to”. Hallen J had regard to availability of work as the definition referred to “unlikely”. “[TPD] requires consideration of whether or not, on the evidence, it is probable that the plaintiff would actually obtain paid employment for which he was qualified by [ETE].”
Lazarevic v United Super [2013] NSWSC 96 Re Forklift driving (Retraining): “At the date of each decision, he was unable to drive a forklift because he did not have the relevant licence. Thus, he had no training or education in relation to that work. As I have earlier found, the previous occasions when he drove a forklift, did not constitute relevant “experience”. Contrast Dargan Re medical evidence regarding forklift driving: “As a matter of reality and common sense, the difficulty of envisaging the probability of the existence of paid employment as a forklift driver, bearing in mind the medical restrictions that the plaintiff has, was clear”… “There was no evidence of such a job being available” Ordered insurer and Trustee to pay the TPD benefit. •
Banovic v United Super [2014] NSWSC 1470 Decision of Justice Hall – Supreme Court of NSW dated 27 October 2014. His Honour applied the same “real world” principles as per Folan and Lazarevic. Same TPD definition as Folan and Lazarevic. Found TPD benefit payable to Mr Banovic.
Summary – TPD Determinations ‘unable’ vs ‘unlikely’. Back to historical position? Generic jobs such as “ light factory work ” or “ light process work ” may not be accepted as jobs in the ‘real world’. Does the work require “retraining”? Take a job as a ‘whole’. When identifying a role a claimant can perform, it is important to analyse each aspect/duties of that role. If a claimant cannot perform one part of the role (i.e. due to a medical restriction), evidence may be needed that jobs exist which caters for that restriction. It is easier to obtain evidence regarding availability of work during claims assessment than it is during litigation.
Commonwealth Financial Planning v Couper [2013] NSWCA 444 Appeal from Stevens v CFP – Ms Couper the executor of Mr Stevens’ Estate. Facts • Mr Stevens had a life insurance policy with Westpac. • Mr Stevens met with an authorised rep of CFP (Mr Galloway). Mr Stevens took out a CommInsure Policy and cancelled his Westpac policy. • Mr Stevens was later diagnosed with pancreatic cancer. CommInsure avoided under s.29(3) of the ICA for innocent misrepresentation/ non-disclosure (<3 years). • The 3 year period had expired under the Westpac policy at cancellation. • Trial judge (Levy DCJ) found that CFP was negligent and engaged in misleading or deceptive conduct. • No appeal that CommInsure validly avoided the policy.
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