In this decision of the Queensland Supreme Court the self-represented plaintiff Riley ultimately lost against the insurer in challenging its denial of his Total and Permanent Disablement (TPD) claim.

Riley‘s written submissions before the Court included the following:

Every word I speak is a struggle-my spine screams, my hands tremble, and my breath is never truly free. 

When my mother was rear-ended by a three-tonne truck in 2018, I became her full-time carer-despite being broken myself. I had no support. 

I ask this Court to recognise the truth of my suffering-not just in diagnosis or documents-but in the daily agony of my existence. 

I seek full compensation, recognition of my lifetime care needs, and a ruling that says: what happened to me matters. That I matter.

The Court recognised the plaintiff struggled during the hearing and that he was, at all times, respectful and polite to the Court. 

The plaintiff maintained consistently that his TPD was brought about by an injury sustained at his first job at a boating business. His submissions also included:

I am not blaming QSuper or Riviera for this diagnosis, but the harsh conditions undeniably worsened its effects. At the time, my spine was strained beyond repair, and my mental health began to crumble in the shadows. 

In October 2017, I entered the workforce at Riviera Marine. I was just 17 years old. A teenager. Vulnerable. Eager to prove myself. I was thrown into an adult world, placed on 10-hour shifts without training, without a safety briefing, without care. I was a kid expected to carry a man's weight in a brutal environment. 

The Court’s task was to assess if the insurer was open to make its decision to decline Riley’s TPD claim on the information provided to it based on the wording of the insurance policy.

Riley’s TPD claim was denied due to his mental health issues being a pre-existing condition prior to commencement of the TPD policy and due to his spinal issues not being a cause of his TPD at the time that his TPD policy expired because his back pain only arose some years later.

TPD Claim Review and Deny

In 2009, the plaintiff was diagnosed with Raynaud’s syndrome, which can cause colour changes in the skin brought on by stress. 

The plaintiff worked various jobs since dropping out of high school on 29 March 2017 at age 18. He left his last job on 8 May 2018 after working there for 7 months.

The plaintiff’s relevant TPD cover started on 26 October 2017, when he became a member of QSuper, and it expired on 1 October 2019.  

The plaintiff submitted his TPD claim form to QSuper on 10 June 2020 which initially listed his illnesses/injuries as “depression, agoraphobia, autism, ADHD, Aspergers, and nervous hypersensitivity” (collectively, the “mental health issues”) and he identified that he first experienced this from 27 July 2017.

QSuper requested a medical report on 24 November 2020 and his claim was first declined on 23 June 2021. 

On 10 August 2021 the plaintiff sought a review of the decision referring to spinal related pain issues that were not initially stated on his TPD claim form, in his review request he stated “my diagnosis was not until 2018”. 

The plaintiff could not provide a good explanation for this omission from his TPD claim form in cross-examination. 

There was a further series of requests for review that were each declined on 12 August 2021, 23 September 2021, 14 October 2021 and 1 November 2022.

Relevant principles

The Court summarised relevant principles for its investigation into whether the insurer was open to make its decisions to deny the plaintiff’s TPD claim:

(a) the insurer must act reasonably and fairly in forming the opinion; 

(b) the insurer’s opinion is not unreasonable simply because the Court would form a different view; 

(c) the insurer’s opinion will be invalidated if the process was not undertaken reasonably and fairly;

(d) an opinion that is reasonably open on the evidence can still be invalid if the insurer did not engage with the relevant evidence; 

(e) the insurer’s opinion will be invalid if it does not answer the correct question or does not take into account relevant evidence; 

(f) in deciding whether the insurer’s opinion is defective, the Court should not take into account material that was not before the insurer when forming its opinion; 

(g) where an insurer has reconsidered a claim multiple times, the focus is usually on the last of the decisions.

Mental Health Issues TPD Claim Denied - Pre-existing Condition

The Court agreed with the insurer that the plaintiff’s mental health issues were a pre-existing condition (citing among other things a medical report that his anxiety issues started since grade 7) and did not fall within the relevant insurance policy. The policy stated:

Pre Existing Condition means an Illness or Injury the signs or symptoms of which existed prior to the date the cover or additional cover commenced; 

Pre Existing Exclusion Period means a period in which an Insurance Benefit will not be payable if the Illness or Injury, of which the claim is subject, is related to a Pre Existing Condition; 

Unless otherwise expressed in this policy, a Pre Existing Exclusion Period in relation to an Insured Person commences on the date the Insured Person became covered for the relevant type of cover. 

11. Exclusions

11.2 Default Cover 

11.2.1 An Insured Person’s Default Cover will not be payable under this policy in the following circumstances: 

(a) in QInsure’s opinion, the Insured Person’s death, Terminal Illness, Total and Permanent Disablement, Total and Temporary Disablement or Partial and Temporary Disablement is related to a Pre Existing Condition; and 

(b) the Insured Person has not served the relevant Pre Existing Exclusion Period outlined in the respective schedule or clause of this policy.

Spinal Issues TPD Claim Denied - Not a Cause of TPD at Date of Claim

In relation to the spinal pain related issues there was a CT scan of the plaintiff’s spine in February 2019, which showed his relevant spinal C6/C7 bulge to be asymptomatic, and the plaintiff agreed that he still did not have any symptoms from the C6/C7 bulge later in September 2020, which was three months after he had submitted his TPD claim form and eleven months after his TPD cover expired.

The Court agreed with the insurer that the plaintiff was not TPD at the time of his TPD claim by reason of his C6/C7 spine injury, which became worse later.

Could Riley’s TPD have been covered?

It was not clear from reading the Judgment why the plaintiff’s TPD cover expired on 1 October 2019 and there was no confirmation of if or when the plaintiff rolled his superannuation out from QSuper. 

The QSuper website states that a member can “permanently opt in to cover” to “make[] sure that you are covered even if your contributions are inconsistent” (or they cease because you stopped working). 

It might have been the case that the plaintiff did not permanently opt in to his TPD cover with QSuper before it expired. If his TPD claim had been made later when his spinal condition had worsened the outcome may have been different.