If the job fits…Assessing suitability for work under TPD definitions

13 April 2017

Once an insured person has demonstrated a prima facie disability, and an ongoing inability to perform pre-injury duties, the assessment of a TPD claim often involves consideration of other occupations that person might be able to undertake.

Recent authority has examined what it means to be reasonably fitted for an occupation by education, training and experience (ETE) in the context of a claim for a TPD benefit, and has arguably invested greater meaning in those words than had previously been the case.

It may have been thought that an insured was ‘disqualified’ from claiming a TPD benefit if he or she could, without retraining, return to any occupation – being a real job, which was genuinely available in the market.

This view has been rejected by Brereton J in the Supreme Court of New South Wales, in Jones v United Super Pty Limited [2016] NSWSC 1551.

The view emerging from that case is that the phrase ‘Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience’ postulates a connection between the suggested future work, and the insured’s past education, training and experience.

As a result, a job which a person may be able to perform without further education, training or experience is not necessarily one for which he or she is reasonably fitted by education, training or experience.

By virtue of this reasoning, the Court was not satisfied that Mr Jones – a lifelong roofing plumber with minimal other training or experience – was reasonably fitted for work in retail sales, courier driving or telemarketing. The Court held that, even if Mr Jones could undertake such work without further training, he had not been prepared and shaped for those roles by his past ETE.

Implications

This development has two primary practical implications.

First, this approach requires claims assessors to identify a real connection between an insured’s past ETE and the occupations being proposed. This narrows the ambit of jobs which can be relied upon to ‘disqualify’ an insured from meeting the TPD definition.

Secondly, this approach mandates that careful instructions be provided to experts, when seeking employability assessments, so as to ensure that any report explains how an insured has been prepared and shaped by ETE for any suggested occupation.

It must be acknowledged, however, that the decision in Jones is presently under appeal. Time will tell whether the New South Wales Court of Appeal concurs with the approach of the learned trial judge.

This article was written by Diren Fernando, Senior Associate and Nicholas Matkovich, Partner.

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