What is a “Permanent Disability” for a TPD Claim?

Personal injury lawyer Victoria Bell defines “permanent disability” for the purpose of claiming Total Permanent Disablement (TPD) benefits.

It is not unusual for a client to seek advice on a claim for Total and Permanent Disablement (TPD) that has been rejected on the basis the injury or disease causing incapacity is not permanent.

But what does permanent actually mean? More often than not, the relevant policy under which the TPD benefit is being claimed will not strictly define the word “permanent”. The lack of definition can make it difficult for a client to decide whether they should challenge the rejection of their claim for TPD. This is particularly the case if the injury is psychological and medical treatment providers are reluctant to say the condition will forever remain unchanged.

In such circumstances where there is no strict definition, it is reasonable to suggest that the actual test for the relevant fund or insurer to consider is whether the incapacity is likely to last for the “foreseeable future.”

The concept of “foreseeable future” has been considered and accepted by the Superannuation Complaints Tribunal in previous claims for TPD as a result of psychological disability.

Determination D09-10/054 was a decision of the Tribunal allowing a TPD claim to a 36-year-old man who suffered from an incapacitating Major Depressive Order after a needlestick injury. His claim had been rejected by the relevant fund/insurer on the basis of medical opinion that it was unlikely a young man such as the complainant would remain completely disabled for the rest of their life. The Tribunal took the view that the medical evidence suggested the complainant’s ability to work was dependent on his recovery from the psychological disability and there was no evidence available as to when that would occur. They accepted his claim on the basis it was unlikely he would be able to work in the foreseeable future.

The courts of multiple other jurisdictions have also commonly accepted the word “permanent” to be defined variously as “likely to persist in the foreseeable future”, “an enduring or persistent condition, as opposed to a temporary condition” and “for a long and indeterminate time but not necessarily forever”.

Ultimately the decision on whether to lodge a claim in the first instance, or to dispute the rejection of a claim based on the injury not being permanent, should be made in consultation with a lawyer and having considered all medical evidence available.

For a free initial interview about your TPD claim in South Australia, Western Australia or Northern Territory, contact your nearest TGB office.