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If you have become disabled and are thinking about filing a disability claim, you may be wondering what the likelihood is of having your claim approved. The type of claim you are filing will affect the answer greatly.
If you are filing for a disability support pension (DSP) you will have more difficulty than if you are filing for Total Permanent Disability (TPD) through your superannuation account. Each type of disability benefit has its own requirements, and how claims are evaluated is quite different between the various forms of disability payments.
TPD claims, which are payouts from a type of disability insurance purchased either privately or through your super, have the lowest rejection rate of insurance cover and an approval rate of more than 80%.
However, if you are attempting to claim a DSP, you’re in for a more arduous challenge. In excess of 70% of DSP claims in 2017-2018 were rejected, and many say that the process is so arduous that it discourages thousands more from following through with the process every year.
So, why is DSP so difficult to get, what obstacles are in your way, and how can you prove your claim to the satisfaction of those with the power to decide your fate? Should you stick with filing a TPD claim? Can a lawyer help with either or both processes?
At Gerard Malouf & Partners, types of disability compensation claims are among our specialties. We can help you ensure your claim is properly filed and supported. Best of all, you won’t owe us anything if we fail to secure your compensation for you.
Depending on what type of claim you intend to file, you may need to prove a certain level of impairment (in accordance with a point system for DSP), or you may need to prove that you can never work again due to a total and permanent disability (TPD.) In either case, you’ll need medical evidence to support your disability claim.
For DSP, you’ll need to have a 20-point impairment, and you’ll also have to meet a laundry list of other rules and restrictions, both medical and non-medical. First, you must be an Australian or a permanent resident with 10 years of residency, or meet other more complex residency rules if you have an exception.
You will also have to be within certain parameters for income and assets, proving you need the pension to take care of yourself. Finally, you’ll have to be between the age of 16 and Pension age, when you’d normally be drawing support for your declining years.
“Manifest medical rules” for DSP that can automatically fast track you for qualification include a terminal illness with a life expectancy of two years or less, blindness, a Category 4 HIV/AIDS diagnosis, or an IQ below 70 indicating an intellectual disability.
You might also qualify for DSP without too much pushback if you have a requirement for nursing home level care, or have been totally and permanently incapacitated and are receiving a Department of Veterans Affairs special rate disability pension.
If none of the above manifest medical rules apply, you’ll have to meet the “general medical rules,” which mandate that your condition be fully diagnosed, treated, and stabilised, resulting in an impairment rating of 20 points or more.
There should also be an expectation that your condition will last more than two years, and/or a prediction that your condition will stop you from working at least 15 hours a week in the next two years.
You may also pursue disability claims under one or more insurance policies held through your super(s.) Part of your employment income is likely being put toward cover for various care needs, including superannuation fund policies for total and permanent disability (TPD.)
You’ll need to find out if your policy applies simply if you are disabled and cannot work your original jobs, or (more common these days) if it says that you must not be able to work any job. You may have more than one super, so make sure to check with all of your superannuation funds to see what TPD policies you have as well as what they say about their rules.
TPD payouts are separate from the rest of your superannuation, although they are paid into your fund directly. You can withdraw them without penalty before reaching eligible age and can choose how much (if any) you want to withdraw to cover the cost of living and medical expenses. Some people choose to leave TPD payments from one or more supers intact to earn interest in their funds.
Applying for disability should always begin with hiring a good disability lawyer who can advise you on what type of disability claim(s) you should file for. In many cases, you may qualify to make several different types of claims, and can file each independently without harming your chances of approval.
Proof of disability will be required for all disability claims. You’ll have to undergo specific medical evaluations and gather all of your documentation and medical evidence.
You can typically file your claim online for DSP. Contact your super to find out how to claim for TPD. Your claim will be reviewed, which typically takes anywhere from six months to a year unless you have a very obvious and easy-to-determine disability like blindness, a terminal illness, or loss of limbs.
Your claim will either be approved, put under review with a request for more information to make an accurate disability determination, or rejected. If rejected, we can advise you on whether you should appeal, or (if your condition has worsened) if it is advisable to acquire new medical documentation and file a new claim based on your new level of disability.
Your disability benefit for a TPD claim could be anywhere from $60,000 to $300,000 or more, in a lump sum payment. An approved DSP claim provides a fortnightly support payment. Currently, for a person who is single, over the age of 21, and not supporting a child, the pension amounts to roughly $950.00 per fortnight.
If your disability was caused by something that happened at work, you may be able to pursue a workers’ compensation claim to get a settlement for your disability. If your condition is anticipated to be a long-term disability, this may be a good option. A worker’s compensation payout can help you pay for things while you are unable to work, and compensate you for loss of income and even pain and suffering, in some cases.
If you don’t qualify for a major disability claim, you may still qualify for the Australian JobSeekers program. This is often a good path to take if you have a short-term disability or a disability that is too low a level of impairment to qualify for DSP or TPD. JobSeekers gives you a disability benefit in the form of an allowance but requires that you pursue reskilling or retraining and prove you are looking for a new job.
If your disability claim is denied, your legal team can advise you on how to appeal. Once you receive a denial letter, contact your disability lawyer immediately. For a TPD claim, we can move quickly to appeal and try to provide additional evidence to help your claim go through.
If you are denied because of a DPS disability determination, you may need to appeal the decision and supply more doctor’s testimony and documentation. If your condition has worsened, it may be worth forgoing an appeal and simply filing a whole new claim based on the latest medical evidence detailing your new level of disability.
Be prepared for the appeals process to take several months more. Your lawyer will be staying in close contact with you throughout the process. Don’t give up hope. Many cases originally denied are capable of being won on appeal.
Hiring a disability attorney before filing your disability claim can help set you up for a higher chance of success, especially if you are filing a DSP claim. The help of a TPD lawyer or workers’ compensation lawyer can also benefit you in gaining the compensation you are owed.
We can handle all of your claims and coordinate the gathering of documents and building of your case in line with the requirements of each type of claim. If for some reason you receive a denial letter, we can help you with the appeals process. Gerard Malouf & Partners works on a no-win, no-fee basis, so you don’t owe us any legal fees unless you receive your compensation.
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In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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