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Insurer shifting goal posts to stop injured man receiving disability support

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Australian insurance companies are making it more difficult for people in labour-intensive professions when claiming superannuation total and permanent disability payments, according to Slater and Gordon lawyers.

Former Brisbane civil construction worker David Schmolke had the muscle ripped from the bone in his right arm, tore tissue, had nerves crushed and suffered a broken shoulder bone during a workplace accident in July 2011.

The horrific incident has left the now 31-year-old in constant pain and dependent on medication, which has led to an extensive list of physical complications, pain and depression. He also has 43 per cent total loss of his upper extremities.

His injuries now prevent him for sitting or standing for very long, resulting in him being unable to do basic things such as driving, reaching, turning, bathing, bending over and struggles to sleep most nights.

“I’m in constant pain, I take medication every single day, I’ve become very antisocial, I really don’t like to be around people,” Mr Schmolke said. “I’ve lost who I used to be, there’s very little I can do.”

Mr Schmolke has had total and permanent disability (Super TPD) insurance through his superannuation fund with AIA Australia since November 2002.

Traditionally, a Super TPD benefit is paid if someone is unlikely to return to work. However, when Mr Schmolke applied for support in December 2015, AIA rejected the claim stating he was required to meet more extensive criteria – which requires that he no longer be able to look after himself – as his job was classified hazardous.

Under the tougher test – known as the Activities of Daily Living test – Mr Schmolke was required to prove that he is continuously and totally unable to perform at least two of the following activities of daily living as a certified by a qualified medical practitioner; bathing, dressing, eating, toileting and transferring.

“I don’t think it’s fair what they’re doing, I can no longer do my job and I’ve got medical records to back my claim,” Mr Schmolke said.

Slater and Gordon lawyer Andrew Weinmann said there was nothing in the policy stating Mr Schmolke needed to meet the tougher test.

“I am sure AIA wishes the policy said David had to meet the tougher test but the policy simply does not say that, Mr Weinmann said. “In any case, it is unfair to say Mr Schmolke’s job was hazardous. He was a labourer, not a deep sea diver, or soldier or bomb disposal technician.”

Mr Weinmann said there was now an increasing trend for insurers to apply tougher tests to a range of occupations – many of which were not hazardous – essentially “moving the goal posts” for people with seriously debilitating injuries.

“Cleaners, actors, car park attendants, factory workers, any casual worker – none of these jobs are especially hazardous – but some insurers are making it harder for these people to get an insurance benefit,’’ Mr Weinmann said.

“These are some of the most vulnerable workers in the country, and they are being treated terribly.

“It’s disgraceful that people like David have to be put through the wringer when they clearly deserve support. It is a clear example of insurance companies just not wanting to pay the money.”