Claiming For Workers Compensation & TPD | Can You Claim Both?

What is workers compensation?

Every Australian state and territory has legislation that requires employers to hold insurance to cover workers if they’re injured or become unwell due to their job.

Some businesses meet the criteria to be self-insured, which means they provide the insurance themselves rather than a state or territory entity like WorkCover.

In either case, workers compensation pays a worker’s lost income and medical expenses if they suffer a work-related injury (including diseases and psychological disorders). If the worker dies, a family member can claim compensation – a lump sum or quarterly payments for dependants and funeral expenses.

What is total and permanent disability insurance?

Most workplace injuries aren’t serious, and most workers recover fully and return to work within a short time. But sometimes the injury or illness is serious enough to cause permanent damage or impairment.

If you have suffered a very serious (or ‘critical’) injury like this, you may be able to claim a total and permanent disability (TPD) payment.

TPD insurance pays you a lump sum if you’re unlikely to be able to work again due to illness or injury. A medical professional needs to assess you and confirm that your injuries won’t improve and no further treatment will help.

The test for TPD is different and more difficult to satisfy than for workers compensation. Each insurer defines TPD differently, and each state and territory has a different level (or percentage) of impairment you need for eligibility.

If you have total and permanent disability insurance, your product disclosure statement should contain this information. But you should also get advice from a legal professional with experience in TPD claims to understand what you’re eligible for.

Difference between workers compensation and TPD

It’s important to understand the difference between workers compensation and TPD so you know what to claim for.

Workers compensation provides:

• benefits for workers who can’t work due to a work-related injury or illness
• compensation through a state or territory program, like WorkCover.

Total and permanent disability provides:

• benefits for workers who can no longer work – whether the injury is work related or not
• a lump-sum payout through an insurance policy – usually as part of your superannuation fund.

Can you claim both workers compensation and TPD?

Yes, if you meet the criteria for making a claim for workers compensation benefits and a TPD insurance payment at the same time.

If you are injured or become ill due to your work and it’s unlikely that you’ll be able to return to work, you should consider both claims. The TPD claim usually takes much longer to resolve, but workers compensation can provide the initial funds you need to pay for medical care, bills and other expenses.

Of course, there are several conditions on claiming for workers compensation & TPD and a number of pitfalls to watch out for. The amount of workers compensation you receive could be affected by other benefits you’re getting at the same time. One example is income protection payments – if you’re already receiving money to cover your lost income, it would be ‘double dipping’ to also receive this money from workers compensation.

We recommend getting a legal professional with expertise in workers compensation to advise you about this. At Main Lawyers, we can examine your whole situation and make sure you get everything you’re entitled to.

Do you have to be totally disabled?

Not necessarily. Despite how it sounds, you don’t need to be permanently or totally disabled to receive a TPD benefit. The key is to demonstrate that your injury or illness prevents you from being able to work again.

Depending on your insurance policy (usually in your super fund), the definition of TPD might mean either:

• you can’t return to work in your previous occupation (but you can do a different job)
• you can’t return to work in any

This can be complex, so you should get professional advice and never assume you’re not eligible to claim TPD.

Understanding your Superannuation Insurance Policy is the first step to knowing if you’re covered or not.

Multiple superannuation funds

If you have more than one superannuation fund, you might have more than one TPD insurance policy. In this case, you could make a claim on all these policies.

Get advice before doing this, as there are conditions to be aware of.

Potential issues with claims

It’s important to claim both workers compensation and TPD if you’re unable to ever work again due to a serious injury – but it’s not always easy. Here are some common issues that workers experience with their claims:

• The insurer might believe you stopped working for a reason other than injury (e.g. redundancy) and conclude that the injury occurred after you stopped working. That’s why it’s important to see a doctor and get a diagnosis on record.
• The insurer’s medical experts might disagree that you’ll never be able to work again. So always get your own medical professional to support your claim.
• The insurer might make you wait for some time (perhaps 6 months) before they will assess your condition as meeting the criteria for total and permanent disability.

If your TPD claim is rejected

In 2016, ASIC found that 37% of disability insurance claims were rejected. And if your claim is for a psychological injury, rather than physical, it’s more likely to be declined.

However, it’s not hopeless. If your claim is rejected, you still have options. But first you should engage a legal professional to get advice on your rights. At Main Lawyers, our team has extensive experience in disability insurance claims. If your claim is rejected, we’ll consider options such as:

• gathering more evidence to send to the insurer
• making a complaint with the insurer’s dispute resolution service
• challenging the decision in court.

How long does a settlement take?

There is no set time frame for workers compensation claims as every claim is different. In Queensland, WorkCover should make a decision within 20 business days of receiving your claim form.

But this time frame can be longer if:

• the case is complex
• they need more information
• the case needs to go to court.

Total and permanent disability insurance claims usually take 6 months, but can take up to 18 months for more complicated cases or injuries.

The claim and settlement process

There are many positives to getting a legal professional on side when you want to claim workers compensation and TPD benefits. The right lawyer knows how the system works and can often achieve a faster turnaround than you can achieve on your own.

Each claim is different but this is the typical process:

1. We find out exactly what happened and determine whether you have a good case. If you choose to proceed, we notify the other party that you intend to claim.
2. The insurer then investigates your claim and decides whether to accept liability (or part liability) for your injuries. In the meantime, we keep in touch with you about the status of your injury, employment, etc.
3. We gather the evidence we need to prove your claim, and obtain medical reports and other expert reports where needed. You might need to attend a medical assessment.
4. We discuss an opening offer with you and then submit it to the insurer to start negotiations. Most settlements are resolved this way without going to court.
5. If we can’t achieve a settlement after negotiations, we start court proceedings for you and work with you throughout this process.
6. After the claim is settled or a court has made a decision, we organise for you to receive the funds and pay your legal fees.