On 24 June 2016, Dorney DCJ handed down his decision in Wilkin v TAL Life Limited & Ors,[1] referring the matter back to TAL to determine whether Mr Wilkin was Totally and Permanently Disabled (TPD) within the meaning of the relevant policy of insurance.

Background

Mr Wilkin worked as general labourer performing mostly driving tasks before ceasing work and lodging a TPD claim in March 2014.

There was no dispute between the parties that:

  • Mr Wilkin suffered from Asthma;
  • Mr Wilkin ceased work on or about 5 April 2013 due to his Asthma;
  • Mr Wilkin was continually absent from his employment for a period of 3 consecutive months; and, as such
  • the relevant date of assessment was 5 July 2013.

TAL declined Mr Wilkin’s claim on the basis inter alia he did not meet the definition of TPD in the policy, and specifically, Mr Wilkin could return to work in a driving role which was within his education, training or experience (ETE).

Decision

Dorney DCJ found that TAL’s decision was unreasonable on the basis TAL did not have proper regard to the evidence of Mr Wilkin’s General Practitioner.

In respect of whether Mr Wilkin satisfied the definition of TPD, Dorney DCJ found as follows:

  • Mr Wilkin had a “fuzzy” recollection of facts (although no adverse findings were made against him);
  • TAL’s medical expert was preferred over Mr Wilkin’s medical expert;
  • Mr Wilkin’s Occupational Therapist’s expert report was unhelpful as she assessed him whilst his condition was “unstable”; and
  • Mr Wilkin had the capacity to work in many (identified) full-time, part-time and/or permanent casual roles including as a medical courier, parcel courier, taxi driver, urban bus driver or a pizza delivery driver which were within his ETE.

Despite the above findings, Dorney DCJ found that there was too much uncertainty regarding Mr Wilkin’s unstable medical condition and the effect that had on his capacity to return to work. As such, His Honour held that the matter should be referred back to TAL to consider whether Mr Wilkin met the definition of TPD in the policy.

Referring to the decision of Robb J in Wheeler v FSS Trustee Corporation (as Trustee for the First State Superannuation Scheme) [2016][2] Dorney DCJ commented (emphasis added):

“…in some cases the assessment should be deferred to give at least a reasonable time in the circumstances for the level of incapacity suffered by the fund member to become as clear as possible before the assessment is made… the question will be whether the insurer’s duty of good faith and fairness to the fund member will require, in an appropriate case, that the insurer defer the assessment of the fund member’s complaint until there has been at least a reasonable opportunity for the condition of the fund member caused by the illness or injury to stabilise, at least to the greatest extent reasonably possible, to give a sound basis for the application of the TPD definition.” [3]

Dorney DCJ went onto say that “it may well be that such a justified deferral takes the consideration beyond what this Court can now decide and back to a future decision by TAL itself, as the appropriate decision maker” under the policy of insurance.

Comments and Lessons

Although Mr Wilkin was ultimately unsuccessful in establishing that he satisfied the definition of TPD in the policy (on the basis Dorney DCJ found he retained the capacity to return to an occupation within his ETE) this decision did not constitute a victory for TAL. Rather, His Honour held that because the condition was unstable, TAL’s decision to decline the claim was inappropriate and the assessment should have been deferred in order to give a reasonable time for Mr Wilkin’s condition to stabilise before an assessment was made.

This represents a somewhat frustrating outcome for insurers as Mr Wilkin was given a second bite at the cherry in that despite proceeding to trial on the basis he considered he was TPD and entitled to a benefit under the policy, he did not succeed and was given a further opportunity to demonstrate he satisfies the definition of TPD.

Dorney DCJ’s decision reminds insurers and trustees that:

  • it is reasonable and appropriate to defer assessment until the member’s condition is stable and stationary and/or until maximum medical improvement (MMI) had been achieved; and
  • if an expert assesses the member whilst their condition is unstable, or before MMI has been achieved, their opinion may be regarded as being of limited probative value.