Procedural fairness and TPD claims

12 May 2016 | Super Claims Australia

In any TPD claim, before an insurer makes a decision they need to provide a claimant with procedural fairness. This is so the claimant is given every opportunity to respond to any adverse evidence obtained during the assessment or to correct errors in the documents being relied on by an insurer in forming their opinion about a claim.

Procedural fairness broadly requires the insurer to do 2 things:

  • give you a copy of all documents they have obtained during the course of assessing your claim; this includes documents which may help or harm your case and documents which they are not seeking to rely on
  • tell you if they are forming an adverse view about your case and point out where in the documents they consider that there is any information adverse to your case;

Where an insurer obtains a report and then proposes to send that report to another doctor or expert to comment on, you should request the opportunity to see the report first. This is so you can correct any errors or inaccuracies in it and comment on the conclusions drawn and why they may or may not be correct before another expert or the insurer seek to rely on it.

The TPD process is not an adversarial process. The insurer and particularly your superannuation trustee, if there is one involved, must cooperate with you and help you pursue your claim in your interests.  In practice they don’t but they should.  Knowing your rights can help restore the balance in the process.

By way of example if you attend a medical examination at the request of an insurer you should insist on the report being provided to you within a certain period of time as a condition of your attending the appointment. The report will contain your private information and you have rights to access it under the Privacy Act 1988 anyway independently of any procedural fairness obligations imposed on the insurer.

If you receive a letter from an insurer which says they are providing you with procedural fairness it invariably means they are considering declining your claim. If there is not enough information in the letter or documents attached for you to understand what conclusions they are drawing about your claim you should ask to discuss that with them.  If they refuse or cannot tell you, then they are not complying with the obligations of procedural fairness and you should seek independent legal advice about your options.

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