Do I need a lawyer to make a super claim?

When you're unable to work due to serious injury or illness, you don't want to spend your time filling out complicated paperwork and providing evidence to support a superannuation insurance claim. Here’s how a lawyer can streamline the superannuation claims process.

We've seen many clients struggle with the convoluted superannuation claims process. While the system is supposedly designed for people to manage their own claims, there's little regulation to ensure unrepresented claimants aren't mistreated.

Knowing your rights and entitlements

Many of our clients are completely unaware they’re covered by superannuation insurance, let alone what they're entitled to claim. We once helped a teacher who’d been told by her superannuation provider she didn’t need a lawyer to help with her claim. As a result, they delayed assessing her claim for over a year because they determined her medical condition unstable.

But once we got involved, we were able to intervene and get a decision for her.

Managing complicated paperwork

Superannuation claims are often rejected due to errors in the paperwork. A total permanent disability (TPD) insurance claim, for example, can be between 20 to 30 pages long. The initial claims form is complex and a single error can alter the outcome of your entire claim.

For this reason, we help complete the forms for our clients based on their instructions to ensure all the necessary information and evidence is accurate. A lawyer can help you navigate your way through the complex claims process and deal with the hidden fine print that catches many people out.

Take one of my clients, for example, whose claim was rejected because the fine print excluded him from receiving any cover. He was a jockey who was injured after a terrible fall from his horse. Although he'd joined his employer's nominated super fund, he was shocked to find out that his policy excluded 'farm hands or strappers', which his job description fell under. He was therefore unable make a successful TPD claim.

This isn’t uncommon. We’re seeing increasingly strict conditions for TPD insurance claims, with some funds including tougher definitions to qualify for a successful claim. This is why it’s important to have legal help to navigate the technical terminology and prepare sufficient evidence to meet all of the stringent conditions.

Dealing with unreasonable claim requirements

Super funds and their insurers usually make reasonable requirements to validate a claim. But they can sometimes ask claimants to undergo independent medical examinations from doctors with specialisations that don’t match their illness or injury.

For example, an insurer might send someone with mental health issues to see a neurologist rather than a psychiatrist. This would influence the accuracy of the report and could therefore give the insurer grounds to reject the claimant's claim.

We’ve also seen cases where insurers go ‘doctor shopping’ and have sent our clients to two doctors with the same specialty. This is so they can choose the opinion that gives them the evidence they need to deny liability for a claim. When we come across situations such as this, we argue the requirements are not reasonable – which is something those completing the claims process on their own often aren’t aware of.

In another situation, a client returned to work as a truck driver after suffering a stroke. Although he returned to the same job and the same number of hours, he stopped 'driving on freeways and long distances'. As a result, when he subsequently could not continue because of the long term impacts of his stroke and tried to make a TPD claim, the super fund denied his claim, asserting he was undertaking alternate duties, and was therefore not covered by his TPD policy. He was caught out on the face of it by the fine print in the policy that required he was performing ‘Active Employment’ to claim.

We worked with his employer to prove our client's role had remained the same 'in essence', as he still worked the same amount of hours and did the same amount of driving. With this evidence we were successful in persuading the insurer and the fund that their initial interpretation of the policy was not correct.

Insurer interests are not the same as yours

It’s not in the interest of insurers to make claiming insurance easy. As a result, our clients typically experience significant resistance in the process of making their claim. Delaying claims, unreasonable requests, searching for loop holes or other reasons to deny the claim is not uncommon.

To get the right outcome our expert team of lawyers will sometimes advise the best course of action is to issue court proceedings in order to achieve a fair and reasonable outcome.

For example, if more than two years has passed and the fund/insurer fails to make a decision, despite having sufficient information in their possession to make a finding of TPD, we’ll recommend taking the case to court.

Taking claims to court

The majority of our superannuation claims are accepted without the need to go to court. But sometimes it’s necessary to get the right results for our clients.

Our lawyers understand that taking court action can be daunting but our litigation team is very experienced and will guide you through each step of the process; assuming there is sufficient merit and prospects of success then we will proceed on a no win no charge basis.

We once represented a client who lodged a claim back in 2012 due to metal health reasons, but the insurer kept delaying her assessment. We encouraged her to pursue court proceedings but she was unwilling to take things that far. During that time, the insurance company subjected our client to surveillance on two occasions to gather evidence that could prove she was lying about her condition.

This was the push the client needed to take things to court. After issuing the proceedings in 2016, we got immediate results on her claim, plus interest. Having seen situations where our timely intervention prevented a client from losing their home, or allowed them to continue providing for their family, I can say with confidence that our lawyers know how to push for a desired outcome.

Learn more about superannuation insurance entitlements and how a lawyer can assist you through your claim. 

TOPIC: Superannuation
RELATED LEGAL SERVICES: Superannuation claims

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Kim Shaw

Maurice Blackburn Melbourne
Kim Shaw is an accredited personal injury specialist practising in superannuation and insurance claims in Maurice Blackburn’s Melbourne office. Kim has been with Maurice Blackburn since 1991 when she finished her articles, and she is very proud of her long association with the firm and their commitment to fighting for fair. Kim established Maurice Blackburn’s Ringwood office, and became a Principal in 1999. With over 20 years of experience representing people with WorkCover claims, Kim now focuses solely on superannuation and insurance claims. Because many people with super claims also have WorkCover claims, Kim’s wealth of knowledge means she can provide comprehensive and practical legal advice for her clients. Kim has represented clients in a wide range of superannuation and insurance matters, including: non-disclosure claims litigating TPD benefits ranging from $25,000 to over $1million advising in matters where there is no insurance due to a failure by employers to pay compulsory superannuation, and recovery of income protection benefits and death benefits. Kim has also provided advice to clients in general insurance matters including in flood and mould matters. She is determined to fight hard for her clients against unfair and unreasonable decisions made by insurers and super funds, and understands the significant financial pressure and strain brought about by an injury, unexpected illness or disability.  “I am passionate about helping people know their rights and ensure they are receiving their lawful entitlements at a time of significant disruption and anxiety in their lives," says Kim. Workplace injuries don’t only create problems with work and job security; they affect families and relationships and create financial pressure. Kim understands that, and finds being able to help with financial compensation incredibly satisfying. “Naturally, a fantastic outcome on a difficult case or a settlement however small or large for a struggling client is terrific. I recall one client saying ‘now we won’t lose our family home’ and I was blessed to be able to play a part in that for her.” Kim is a Victorian co-convenor of Maurice Blackburn’s Women’s Network, where she actively supports women’s rights. As a busy lawyer and mother of three boys, Kim hopes she can be an inspiration to other women. Alongside her work as a lawyer, Kim is the former author of the WorkCover chapter in the Legal Practice Manual published by Monash University Law Faculty. She is a current member of the Juris Doctor Advisory Board/RMIT, is current Chair of the Personal Injury Advisory Committee at the Law Institute of Victoria, and she is committed to continually educating herself and other lawyers, especially the next generation of practitioners. She believes that the best possible advice and advocacy should be provided, and to be able to do that, skills and knowledge must be current, practical and relevant. “I very much enjoy mentoring younger lawyers and love to see their skills develop. Playing a small part in that is a privilege I am grateful to share.” Memberships & accreditations Law Institute of Victoria’s Personal Injury Law Advisory Committee Member Australian Litigation Lawyers Alliance member RMIT Graduate School of Business and Law Juris Doctor Advisory Board member Maurice Blackburn's Women's Network co-convenor ...

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