Total and Permanent Disablement (TPD) doesn’t mean that a person is prohibited from performing any activities at all. Only that they are unlikely to ever again obtain employment for which they are suited by their education, training or experience.
Education would seem like an obvious and easy question to answer. A simple reference to the grade at which schooling ceased may be all that is required. However the process of learning to operate a vehicle safely could also add to a person’s level of education especially for those with a career in transport.
Training is often considered to be less formal however still requires directed learning and teaching to acquire new skills. The key feature of these skills is that they deteriorate with time and often the testing levels required to maintain those skills and re-certify increase.
What this invariably means is that an insurer takes into account all of the experiences a person has in their life, their schooling, any specialist trades or licenses and the types of work they have undertaken when making a decision.
What are Transferable Skills?
Transferable skills are quintessentially skills which have been developed in one area or industry and can be applied to another. When references are made to Transferable Skills they are generally broad in reference, examples are; communication skills, time management skills, computer skills and organisational skills. As these examples illustrate there is often no requirement for formal training or test to determine ability or proficiency. They are effectively an assumed ability each person has. The core issue then is whether those skills have been considered as a purely theoretical exercise or in a realistic and common-sense manner.
How Retraining or Up-Skilling affect a claim
The width and breadth of a person’s work and educational achievements bears heavily on the decision making process. There are circumstances where as part of rehabilitation additional training courses or education is provided to enable a return to work. Does this then mean as a result of rehabilitation a claim for TPD benefit through their super is excluded? Upon first consideration it might be obvious that the answer is yes, if a person is working then they are not TPD, but is that really what the definition says? Often the definition limits consideration only to the person’s education, training or experience they had at the time the disablement occurred and not their education and training they received after the injury or illness.
In the matter of Halloran v Harwood Nominees & Anor (2010) NSWSC the court held the assessment of the definition takes into account any job or occupation for which he or she is reasonably fitted having regard to his or her then current education, training or experience and excluded any education or training obtained post injury or illness. This approach was later limited by the NSWCA in Hannover Life RE Australasia Limited v Dargan (2013) in which the court found that reasonable retraining which enhanced a person’s pre-existing skills would be a relevant factor for consideration by an insurer and may preclude a claim under the policy.
Obviously the question is more complex than it seems and each claim would be dependent on the specific definition which applied and the individual who might want to claim.
Do you think your insurer has been fair in applying your education, training and experience to a claim?