To protect yourself from legal action it is critical to seek proper legal advice for a client’s Total and Permanent Disablement (TPD) claim, writes Senior Personal Injuries Paralegal Amy Lewis.
Professionals such as accountants and insurance brokers may from time to time receive an inquiry from a client seeking advice on TPD with the lodgement of a Total and Permanent Disablement (TPD) claim. The client may well be suffering a physical or psychological injury, be highly stressed and call upon you to try to fill out claim forms on their behalf. To ensure the best possible outcome for the client and to protect yourself from legal action, you should seek out proper legal help immediately. Here’s why:
Your client’s TPD insurance policy clauses are complex
The definition of TPD varies greatly between funds and insurers. Each policy is different and, just like any other contract, a TPD policy can be lengthy and difficult to understand. The differences in policies are understood by assessing policy contract clauses. One example of a clause which can affect the TPD claims’ process is the number of hours that an individual worked in the lead up to their injury. Clauses about hours worked can affect whether the injured person is eligible to make a claim or the amount of TPD a claimant is eligible for. This clause is especially pertinent to casual employees and is but one of many clauses considered in an overall TPD claim.
Incorrect interpretation of a clause may lead to the unfair rejection of a claim or other procedural hold-up, therefore legal advice on a TPD policy is essential. Attwood Marshall Lawyers Personal Injuries Department has a superior understanding of the different types of TPD policies. Our team has years of experience to ensure that the TPD claims we lodge have been made with the detailed consideration of all the applicable clauses of a TPD policy.
The TPD insurance claim process is a lengthy legal one
A common misconception is that the TPD process claim is simple however the process of making a TPD claim can be stressful and overwhelming at the best of times for you and your client. There are claim forms to be completed, medical reports to be gathered and financial material to be provided alongside evidence from the claimant’s employer. At each step of the claims’ process, legal insight and law firm resources can ensure TPD claim documents are completed properly. At Attwood Marshall Lawyers, we have access to government portals such as the Australian Taxation Office which allows us to request client records in a timely manner. Given we deal with a large range of medical professionals, we also have access to the best network of clinicians to ensure your client has a strong claim. By engaging Attwood Marshall Lawyers to lodge your client’s TPD claim, this removes a significant legal and administrative burden off your firm while helping your client.
Often, a TPD claim is rejected by the insurer
It is not uncommon for an insurer to knock back a TPD claim at the outset. The Banking Royal Commission found CommInsure regularly rejected TPD claims based on outdated medical definitions as set out in their own policies, with a report following the Commission recommending for laws to stop this unfair practice. There are many other reasons why a claim will be denied, and having a lawyer anticipate the legal reasons for rejection will assist your client.
In the event an insurer has denied a claim, having a lawyer who understands your client’s TPD policy is highly advised. Your client’s claim may come down to a technicality which you may not have picked up on. To save on both time and stress to the client, it is always best to have a lawyer lodge the TPD claim at the start of the claims’ process to ensure no legal gaps exist to lead to rejection rather than approaching a lawyer after the claim has been rejected.
Professional negligence claims can be made against you for giving advice on TPD
In the process of assisting a client with a TPD claim, you may be giving legal advice on TPD outside the scope of your professional practice. This may take in the form of giving advice on policy clauses, the legal process, medico-legal evidence or by drafting legal-type letters to the TPD insurer on behalf of your client. To ensure that you and your practice are protected for a Professional Indemnity Claim, it is essential you do not provide quasi-legal advice to clients in relation to their TPD claim. While your professional expertise may be genuinely required, for example – accounting advice is required for taxation purposes – legal advice is outside of your accounting and insurance brokers’ professional scope.
Giving this advice can lead to:
- A professional negligence claim being made against you by the client for incorrect advice on TPD
- A finding by your Professional Indemnity insurer that you breached your duty of care by undertaking specialised services you are not qualified or expected to provide
- A breach of the professional code of conduct relevant to your industry. For example, the codes of professional conduct for both CPA’s and Chartered Accountants stipulate that accountants are precluded from carrying out work which is required by law to be performed by a legal practitioner.
Steps to Avoid or Mitigate a Professional Negligence Claim – Commercial Litigation
How Attwood Marshall Lawyers can help with advice on TPD
Professionals are entitled to accept instructions from solicitors who work in separate legal firms and to provide assistance to lawyers in relation to litigation or to provide advice on matters within their competence. We assist professionals with initial advice on TPD on whether they are giving legal advice within their scope. We also help most TPD clients with a No Win, No Fee client agreement in that the client does not pay our fees unless they are successful in making a TPD claim. If you think you may have a client in need of assistance, please contact our experienced Personal Injuries Legal Department to discuss the matter. Our Department Manager Kelli Costin is able to give a complimentary first phone consultation in regards to any TPD case, on her direct line 07 5506 8220 or mobile 0432 497 383.
