In a claim for total and permanent disability (TPD), insurers
often grapple with the distinction between what is real and what is
theoretical when determining whether someone is capable of
performing work by reason of education, training and experience. In
the recent case Birdsall v Motor Trades Association of
Australia Superannuation Fund Pty Limited, Justice Hallen
gives life insurers some guidance in making this determination.
Background
In this matter, Mr Birdsall (the plaintiff) suffered an injury
to his right wrist when he was lifting a heavy gearbox in the
course of his employment in February 2009. The plaintiff was paid
workers' compensation benefits. The plaintiff attempted to
undertake various periods of restricted duties and ultimately
ceased work with the employer on 4 October 2010. The plaintiff was
a member of the MTAA Super Fund. The trustee (the first defendant)
took out a policy with the insurer who was the second defendant in
the proceedings. The
