When considering the vocational options for which a claimant may be reasonably suited/fitted by reason of their education, training or experience (ETE), it is no longer permissible simply to rely on roles in which a claimant may possess some transferable skills which are relevant to that role. A reasonable connection between the proposed role and the claimant’s ETE must be identified.
On 14 September 2017, the NSW Court of Appeal handed down its judgment in the eagerly awaited matter of Hannover Life Re of Australasia v Jones1. Mr Jones had worked as a roof plumber and, apart from his School Certificate, he held a number of industry specific qualifications in roof plumbing. In declining his claim for total and permanent disability (TPD) benefits, the insurer contended that Mr Jones was capable of working as a retail sales assistant (hardware), courier/delivery driver, console operator and/or a customer service advisor/telemarketer.
The Court of Appeal found in favour of Mr Jones’ claim and held that the correct approach to determining what Mr Jones was reasonably fitted to do by reason of his ETE, was to consider his vocational history to date in terms of work for which he had been “prepared and shaped”. That is, there must be an identified link or connection between the suggested job, or jobs, and a claimant’s past ETE. It is erroneous to identify occupations which a claimant might be physically and psychologically capable of performing without further ETE, without taking into account the claimant’s vocational history and to identify from that history any occupations for which that ETE has prepared him or her.
The roles asserted to be reasonably fitted to Mr Jones’ ETE were rejected on the basis that he had no customer service or telemarketing experience, had never worked in an office and his communication experience was limited to supervising roofing on building sites, not in general hardware and not with members of the general public.
On closer examination of the suggested role of courier/delivery driver, the court held that Mr Jones lacked the physical capability for that role. Realistically, a courier driver would be required frequently to get in and out of a vehicle, lift and carry items and sit for prolonged periods of time, which would have aggravated Mr Jones’ back condition. There was also no reasonable connection to Mr Jones’ ETE. The mere fact that someone is capable of driving does not automatically equate to that person being “reasonably fitted” to working as a courier driver.
Insurers (and vocational assessors) must now satisfy themselves that, prior to relying on a role as being “reasonably fitted” or “reasonably suited” to a claimant’s ETE, that:
- A detailed history of the claimant’s ETE has been obtained. This includes identifying the specific duties of their past roles. For example, a company director could be heavily involved in business development and getting new clients, while another company director may principally perform tasks that employees could do;
- Based on the particular claimant’s ETE, what occupations would they be reasonably suited/fitted for? What is the reasonable connection between the claimant’s ETE and the proposed job?;
- Taking into account all of the claimant’s reported psychological and physical conditions, could the claimant realistically perform the job as a whole? It is not sufficient that they might possess individual skills which are relevant to the role, but in fact may not be capable of performing all the required functions.
This article was written by Matthew Harding, Partner and Sylvia Quang, Senior Associate.
1 [2017] NSWCA 233
2 The words “reasonably fitted”, “reasonably suited” and “reasonably qualified” are used in various policies. Gzell J in Dargan v United Super Ltd [2011] NSWSC 1316 at [42] held that there is no difference between these different terms and they should be given a business-like interpretation.