A recent decision of the Queensland Supreme Court has considered the test to be applied when considering whether a person applying for TPD benefits is ‘unlikely to ever again be gainfully employed’.

The claimant was a 55 yearold woman who had worked as head gardener until a skin condition, that resulted in her being particularly vulnerable to developing skin cancers, rendered her unfit to work outdoors. The claimant resigned from her job in December 2011 and made an application for TPD benefits in September 2013. Her superannuation fund rejected her claim.

Critical to the determination of whether the applicant was entitled to a TPD benefit under the policy was consideration of the scope of the policy requirement that the claimant be:

“unlikely … [to] ever again be able to be gainfully employed in … any other occupation for which he/she is reasonably suited by education, training or experience…”

The Court determined the dispute in favour of the superannuation fund, finding that:

the definition of the phrase ‘unlikely…ever again’ considered in TAL Life Ltd v Shuetrim applied in this case and meant ‘a real chance that a person would return to relevant work, even if it is less than 50%

the question of whether a person was ‘able to’ return to work requires consideration of the person’s capacity to work, rather than a person’s ability to actually gain employment (ie the availability of work)

to the extent that future ongoing treatment is relevant to a person’s capacity to work, it may be considered in determining whether a person is able to work. However, the extent to which it might be difficult to find a job which fits around a treatment schedule is not a relevant consideration

‘regular work’ included part-time and full-time work, but did not include casual work

the fact that a claimant has been unsuccessful in obtaining alternative employment has little relevance in determining whether a person has the capacity to be gainfully employed.

In reaching its decision the Court made clear that a consideration of a person’s capacity to work is distinct from a consideration of labour market forces. That is, it is not necessary to consider whether a worker is actually likely to be able to find a job that suits their skills and capacity, it is only relevant to consider whether a worker can work in light of their disability.

Reynolds v Sunsuper Pty Ltd & Anor

‘Unlikely to be gainfully employed’ in TPD cover is an issue of capacity for employment, not availability of employment.