A court has found that industry super fund Cbus and its group insurer unreasonably refused a total and permanent disability insurance claim from a self-employed builder who sustained a hip injury and was unable to do physical work.
After more than five years of battling the super fund and its insurer, Nicholas Carroll was awarded the $104,000 claim by the Supreme Court of NSW last week.
Justice Michael Slattery said the insurer acted unreasonably and in breach of duty to act in good faith in refusing the claim.
Carroll, who had been a self-employed builder who performed both labour and quoting and costing work, had stopped work in 2012 at the age of 43 when he suffered from bilateral hip dysplasia.
He had been a member of Cbus since 1988 and still remains a member. Cbus’ insurer Hannover had declined Carroll’s TPD claim on multiple occasions, saying he could work as an estimator or project manager, or alternatively he could run a small family business.
The insurer said the fact Carroll played golf “demonstrates that the member’s restriction is not as severe as the member would like us to believe”.
However, Justice Slattery found “no matter how Mr Carroll’s prior vocational experience is approached, Mr Carroll is unlikely ever to be engaged in regular remuneration work as defined under the policy, based on his education, training or experience”.
He also said the insurer failed to take into account that golf was a low-impact exercise approved by Carroll’s physiotherapist.