Most superannuation policies include benefits which can cover the policy holder in the they become sick or injured. In almost every case, you will need to be totally and permanently disabled (TPD), which usually means that you are unlikely to ever be able to return to any work for which you are qualified by way of education, training or experience, although some policies only require you to be unlikely to ever return to your own occupation (as opposed to any occupation). These policies may also include benefits for the family if the policy holder dies.
Surprisingly, most people in Queensland (including Brisbane and the Gold Coast) do not even realise that their superannuation policy might offer this kind of coverage for them. This is important to know in the event that a critical injury renders them unable to work at all. Rather than face financial difficulty, these entitlements may include a lump sum payment or ongoing benefits that can be very helpful in those troubled times.
Can I Have Early Access to My Superannuation?
Usually, superannuation is preserved until the date you retire. But there are legal circumstances where you can make a claim to access your superannuation early:
- You have been on Centrelink payments for at least 6 months and are unable to pay your living expenses.
- You are over the minimum retirement age (55-60), have been on Centrelink payments for 9 months and will no longer be going back to regular work.
- Even if you are over the minimum retirement age, you still need to work to pay for palliative care, funeral costs, disability modifications to your home or car, or medical/transport expenses for you or your dependent.
- You may be forced to sell your home because you cannot make loan repayments due to financial distress.
- You are permanently incapacitated for work or have a terminal illness.
- The preserved amount is $200 or less.
- You are a temporary resident and are permanently leaving Australia.
To access your Superannuation early, you need to make an application to your super fund or the Department of Human Services depending on which category that you are electing to make.
If you are a temporary resident, your application needs to be made through the Australian Taxation Office (ATO).
Contact a personal injury lawyer if you need to make an early access claim to your superannuation because there are strict time limits that apply.
What is a Total and Permanent Disability (TPD) Claim?
A total and permanent disability claim is a lump sum payment that is made against your superannuation insurance that provides for a lump sum payment if you can prove that you are unable to do your normal job or any other kind of employment related to your training and experience.
People make the mistake of assuming that this definition includes “any” employment. Do not make this mistake! An accredited specialist in personal injury can apply the proper law to your circumstances and maximize your chances of compensation for a TPD claim.
The issue is not whether you are unfit for ALL work, but rather, that you are unfit for the work that fits your skills and experience. An example would be a mining worker in MacKay, Toowoomba, Mt Isa, or even a ‘fly in, fly out’ or ‘drive in, drive out’ worker based in Townsville may suffer a back injury that prevents them from continuing their regular mining labour. They may still be able to make a TPD claim even if their treating doctor assesses that they are fit for less strenuous work such as a desk job in an office.
When Can I Lodge My Claim?
Normally, you have to be off work for a period of time (usually 6 months) before you can lodge a Total and Permanent Disability Claim. An income protection claim may be able to be lodged sooner, depending on the waiting period set out in your policy.
Speak with one of our specialist personal injury lawyers to find out more.
Who Can Claim Superannuation and Disability Insurance Benefits?
You may be able to make a claim if:
- You were working and your employer was paying compulsory superannuation;
- You suffer any illness or injury preventing you from working for 6 consecutive months;
- You have entered into a private contract with an insurance provider for income protection or disability insurance;
- You are under 60 or 65 years of age (depending on the terms of your insurance policy)
You may also be able to make a claim if a person you are dependent on (e.g. your partner or parent) dies and you intend on claiming death benefits from the deceased’s superannuation fund or insurance provider.
What Documents Do I Need to Lodge the Claim?
For disability benefits, you need to lodge the claim form given by your superannuation policy insurer, as well as the relevant documents you need to prove your claim. This can include medical information concerning your accident and injuries, relevant tax records and written submissions. Please note that this may not be the ONLY information that it is required. It is very important that you seek the advice of an accredited specialist in personal injury to assist with your claim to prevent delays and minimise the chances of a rejected application.
For death benefits, you will require a claim form and proof of your relationship with the deceased, as well as any financial dependants.
Will I Have to do an Independent Medical Examination (IME)?
Yes. You most likely will be required to undergo an IME with a doctor selected by the insurance company.
However, this is not the same relationship as a treating doctor. They will strictly only assess on whether you are entitled to benefits based on your injuries and these appointments will usually only be done once or twice.
Does it Matter What Kind of Injury or Illness I Am Afflicted With?
No. It does not matter how your injury or illness occurred. You can still claim superannuation benefits if you suffered from an unexpected illness or if the accident was from a motor vehicle accident, workplace accident, etc.
You may still be able to claim superannuation benefits even if you are already receiving Comcare, or the Centrelink Disability Support Pension.
It is only important that your injury prevents you from working. Some common disabilities include a heart attack, cancer, mental illness, multiple sclerosis, chronic fatigue syndrome or injuries at home or from car accidents. These may all be reasons for your claim and this is only a partial list of what can possibly occur.
It is important to speak with a personal injury lawyer and be advised of your legal rights to compensation.
What if I have a pre-existing injury or sickness?
It usually does not matter if you had a pre-existing injury or sickness before you joined the super fund. However, depending on the circumstance there may be exceptions.
The critical issue in this regard depends on the terms of your insurance policy. Some insurance providers may have clauses that limit the policy if there is a pre-existing injury or sickness. This is especially relevant if you have not disclosed that medical issue to the insurance company prior to signing for that insurance policy.
Will Pursuing a Superannuation Claim Affect My Other Claims?
In most cases, the answer is no. A superannuation claim can be lodged in addition to other compensation claims you already have such as suing the at-fault party for negligence.
One general consideration is that you cannot “double dip” for compensation from multiple claims. In other words, you cannot be compensated twice for the same thing. An example would be a Brisbane or Gold Coast worker requiring surgery that costs $2000. They cannot claim $2000 from each individual claim for compensation.
But DO NOT BE FOOLED. It is not uncommon to have multiple total and permanent disability claims.
Some people make the mistake of underestimating the legal system. There are many complexities and laws that may apply to the individual circumstances of your claim. Do not make an assumption that general information is sufficient to make an informed decision about your legal rights. It is highly recommended that you speak to a personal injury lawyer who is also an accredited specialist in personal injury law that can assist you with your claim. Take advantage of most injury law firm policies that include a free initial assessment of your claim.
What happens if I go back to Work?
Your TPD claim will most likely cease. However, you still might be eligible for partial disability payments depending on the terms of your insurance policy.
For partial disability, you would make a total and temporary disability claim (TTD) if you cannot work in your normal job. This applies whether your disability stops you from working for an extended period such as 2 months or 2 years.
The payments for this type of compensation are usually 75% of your normal income and payable for up to 2 years or until the age of 65.
However, there is also a waiting period of 30-90 days so it is important to take this into consideration when planning to lodge your claim because 3 months without income coming in may put you in financial difficulty if you are not prepared.
It is also important to note that TTD payments may also be offset against workers compensation, motor vehicle or Centrelink payments.
TTD payments may also be stopped if your employment is terminated or if you received a TPD lump sum. However, this is not always the case. Speak to an accredited specialist in personal injury for more information on how the unique circumstances of your accident and your injuries can be applied to the law.
Can I Appeal to a Court or Tribunal If My Claim is Denied?
Yes. You can appeal to the Superannuation Complaints Tribunal. However, it is important to know the limitation period to make a claim. You usually have only 28 days from the date of denial to file your appeal.
It is highly recommended that you refrain from attempting to tackle the appeal process on your own. There are a number of laws and approaches that are required to ensure a successful appeal and it is important that you seek the advice of an accredited specialist in personal injury to help strengthen your claim. Failing to do may only make further legal action even more difficult, and can even result in the loss of your legal rights to compensation.
What Are Death Benefits?
Death benefits are monetary compensation that can be claimed by any dependents of the deceased policy holder.
DO NOT DELAY in making this claim. It is important to lodge your claim as soon as possible so the trustee is aware of your interest before dispersing the money from the benefit.
Who is a Dependant?
A dependent is a legally married spouse, defacto partner, children, financial dependents and inter-dependents.
It is important to note that in these definitions, same-sex partners qualify as de facto partners.
Under most policies, the ‘children’ definition may also include adult children, step-children and adopted children of same-sex partners.
A financial dependent is someone who is wholly or partially reliant on the deceased for financial support.
What is a Binding Nomination?
Some super funds have binding nominations, which means that the superannuation benefit must be paid to nominees who are dependents at the date of death or on the terms stipulated in the deceased’s will.
However, these nominations are not usually binding and the trustee will decide who the dependents are. They will also divide the benefit or give it to the deceased’s estate through a will or letter of administration.
What about if My Employer Hasn’t Been Paying Superannuation?
As long as you earn at least $450 per month in Australia, the law requires your employer to contribute to your super fund at least every 3 months.
What this means is that if you believe your employer has not been adhering to the law (which is currently 9.25% of your wages), then you should inform the Australian Tax Office (ATO) immediately. The ATO will investigate your complaint and if they agree, they will recover your unpaid superannuation along with interest and penalties.
This option is ONLY for unpaid superannuation and for insurance benefits attached to the policy. Yet it is important to note because if you are covered by an award, enterprise agreement or any contract that includes terms for superannuation then you may be able to lodge a claim against your employer to collect those unpaid contributions, insurance benefits you lost, as well as costs for the legal action.
It is important that you speak to a personal injury lawyer in this regard to be fully informed of your legal rights and your chances of success for your claim. Do not try to make assumptions on your own because the legal process can be very expensive and you do not want to risk investing in a claim that may not have a reasonable chance of success.
How Do Increase my Chances of Successfully Making a Superannuation Claim?
If your claim is denied, or if you choose to enlist the help of a lawyer to give you the strongest argument to support your superannuation claim, the task of choosing a suitable Queensland personal injury lawyer can be difficult.
A good starting point is to find a lawyer who is an accredited specialist in personal injury. This means that they have the training and skills certified by the law society in that specific area of practice.
What Can East Coast Injury Lawyers Offer to Protect My Legal Rights?
East Coast Injury Lawyers has accredited specialists in personal injury who both have experience representing in plaintiff claims, as well as insurance defence. This is a substantial benefit that differs from other lawyers because their specialization allows them to approach your claim from the perspective of both sides. This can potentially allow for stronger arguments in the negotiation period of your claim, as well as if you have to take your claim to appeal or court.