//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
austlii:cth/SCTA/2004/156
appellant. The Tribunal affirmed the decision of the Trustee to decline the Complainant's application for Salary Continuance benefits beyond 10 June 2002.
A superannuation complaints tribunal upheld a decision to stop disability payments to a teacher who was injured in a car accident. The teacher had received payments from February to June 2002, but the insurer stopped payments after medical reports showed his injuries were temporary soft tissue damage that should heal in about six months. Although the teacher had some ongoing symptoms, the tribunal found that medical evidence showed he had recovered enough to return to work, and he had in fact resumed teaching contracts in 2002. The tribunal ruled that the decision to stop payments was fair and reasonable.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Conducted under the provisions of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) and held on 30 August 2004 before:
No linked legislation citations have been extracted yet.
On 2 July 2002, the Insurer advised the Trustee that it had decided that the Complainant's disability had ceased and that no claim for Salary Continuance benefits was assessable beyond 10 June 2002. On 17 October 2002, the Trustee resolved to agree with the Insurer's decision.
On review, the Trustee affirmed its original decision.
*Copied with names deleted for public distribution.
The Tribunal decided to determine the matter on the papers. The Complainant requested approval by the Tribunal to be represented, which was granted.
As required by the Complaints Act, the Parties were requested to make submissions. The submissions, when received, were exchanged between the Parties and responses invited.
All of the documents on the file were exchanged between the Parties prior to the hearing.
The Tribunal is satisfied as to the following facts:
The relevant provisions of the Deed applicable at the date the Complainant ceased service were:
"Temporary Disablement" means incapacitation, certified by a registered medical practitioner approved by the Trustee, to an extent that the Member has been unable to work in a job for which the Member is reasonably qualified by education, training or experience for 90 consecutive days PROVIDED THAT where at any time the definition of temporary disablement applicable to a Policy [of Insurance] is different from the above definition, the definition applicable to the Policy shall apply in lieu of the above definition, and "temporarily disabled" shall have a corresponding meaning.
any benefit payable to or in respect of the Member pursuant to the Deed shall be reduced or terminated or that claim is not admitted in respect of the Member, as the case may be, or, where life insurance is withheld, shall be adjusted accordingly.
(i) the end of the period of cover specified in the salary continuance policy; or
Disability means the Member/person being unable by reason solely of Illness or Injury to attend to his or her Occupation and provided the Member/person is not otherwise gainfully employed or engaged in gainful business activity.
Waiting Period means the period stated in the First Schedule which commences immediately following the commencement of the Disability.
If a Member suffers from Disability, while this Policy is in force, subject to the provisions of this Policy, we will pay the Policyowner a Disability Benefit at the rate of the Monthly Benefit applicable to that Member, for so long as the Disability of the Member continues. There is no entitlement to a Disability Benefit during the Waiting Period.
The Tribunal was provided with the reports of the treating general practitioner (GP), four orthopaedic surgeons, two neurologists, three psychiatrists and a professional counsellor.
Dr KA, Treating GP (Three reports, one to the Insurer dated 9 May 2002 and two to other insurers, dated 21 January 2002 and 9 May 2002)
On 21 January 2002, Dr KA completed an Attending Doctor's Statement for another insurance company diagnosing the Complainant's injury as whiplash, thoraco-lumbar muscle strain, cervical neuropraxis and depression.
A more detailed report was provided to the Insurer, dated 9 May 2002, stating that the Complainant had pre-existing but mild osteoarthrosis of the neck. Following the motor vehicle accident (MVA) the Complainant developed severe bilateral carpal tunnel syndromes. The latter had been confirmed on nerve conduction studies following which bilateral carpal tunnel releases were performed endoscopically. The Complainant continued to suffer from neck pain, limited cervical spinal movement and occipital headaches. Dr KA regarded the Complainant's prognosis as uncertain.
A further report of 9 May 2002 to another insurer does not provide any new information.
Dr AB, Orthopaedic Surgeon (Reports to the Insurer dated 17 June 2002 and 13 September 2002)
Dr AB saw the Complainant at the Insurer's request. The Complainant provided the history of the MVA in which he had been hit from behind while either stationary or nearly so. The following day he noted neck and back stiffness and pain. He consulted his GP, who arranged a plain X-ray of the cervical spine and prescribed Celebrex and physiotherapy. The Complainant remained at work with some days off due to his symptoms but noted difficulty concentrating. He ceased work on 30 November 2001. He subsequently underwent bilateral carpal tunnel surgery with alleviation of the numbness in both hands. The Complainant denied this symptom had been present prior to the MVA. When seen by Dr AB, the Complainant stated he continued to suffer from neck pain radiating to his right shoulder, recurrent headaches and lack of concentration.
Physical examination was normal except for tenderness over the medial aspect of the right scapula and in the right occipital area. Neck movements were normal except for mild to moderate reduction in lateral rotation.
Dr AB viewed the Complainant's X-rays and reported degenerative disc disease at C2-3, C3-4, C5-6 and C6-7, most advanced at the lower two levels.
Dr AB diagnosed temporary aggravation of pre-existing degenerative cervical spinal disease and opined that this might last for six or more months. He felt it highly unlikely that the Complainant's carpal tunnel symptoms were related to the MVA. He found the Complainant fit to return to work as of the date of consultation (17 June 2002) without any restrictions.
On 13 September 2002, at the Insurer's request, Dr AB provided comment on the reports of Dr MW (see later) and Dr KA. Dr AB stated Dr MW had assumed there was no evidence of pre-existing cervical spinal disease as he had not viewed the X-rays. Dr KA's report of neck pain and decreased movement was to be expected given that she had seen him five days after the MVA.
Dr MW, Orthopaedic Surgeon (Three reports dated 24 June 2002, 17 October 2002 and 4 June 2003 to the Complainant's solicitors)
Dr MW obtained the history of the MVA and the development of neck, shoulder and occipital pain with associated lack of concentration. Dr MW was told the cervical spine X-rays were normal and did not see the films himself. At the time of consultation the Complainant reported restricted cervical movement, pain in the right shoulder and arm and nocturnal pain that interfered with his sleep. Examination revealed right paraspinal muscle tenderness at a scapular level and tenderness over the right trapezius muscle. Shoulder movement was normal and that of the cervical spine reduced by 50%. No neurological defect was detected.
Dr MW diagnosed a soft tissue injury that was now stable. Permanent impairment was assessed at 5%.
In the report of 17 October 2002, Dr MW confirmed his earlier report and that the Complainant's symptoms rendered him unable to perform his duties as a teacher.
Dr MW had reviewed the MRI scan performed on 26 November 2001 and reported on 4 June 2003 that this did not reveal any bony injury or neural compression. His opinion remained unaltered.
Dr SC, Orthopaedic Surgeon (Report to an insurer dated 5 September 2002)
Dr SC had performed bilateral carpal tunnel releases upon the Complainant for symptoms that predated the MVA but increased in severity after that event. Dr SC opined that most of the Complainant's problems had related to his carpal tunnel syndrome. The release surgery was performed on 23 April 2002 and at review on 1 May 2002 he assessed the Complainant as having normal sensation and movement in both hands. He noted that the Complainant had already returned to work.
Dr SC regarded the Complainant's bilateral carpal tunnel syndromes as unrelated to his MVA. Dr SC did not see the Complainant again after 5 May 2002.
Dr JC, Neurologist (Report of 6 September 2002 to an insurer)
Dr JC had diagnosed the Complainant's bilateral carpal tunnel syndrome and noted that at no time was there any radiation of pain or numbness from the Complainant's neck or shoulders to the hands.
Nerve conduction studies confirmed severe median nerve compression bilaterally. MRI of the cervical spine demonstrated foraminal outlet stenosis from C3 to C7 with some disc narrowing at C5-6 and C6-7.
Dr SC was adamant that at no time had the Complainant declared any physical injury or involvement in an MVA.
Dr JL, Psychiatrist (Report of 17 September 2002 to an insurer)
Dr JL obtained a thorough history and concluded that the Complainant suffered from an Adjustment Disorder with anxiety and mild depression secondary to the MVA. He also noted major family problems and that the Complainant's 4 year old son (from his third marriage) suffers from cerebral palsy.
Dr MP, Neurologist (Report of 13 December 2002 to the Complainant's solicitors)
Dr MP obtained the known history. Examination was normal except for tenderness over the right occipital area. She opined that the Complainant had suffered a musculo-skeletal injury. She regarded the Complainant's prognosis as good and that he was fit to resume work immediately.
Dr GP, Psychiatrist (Report of 17 December 2002 to the Complainant's solicitors)
Dr GP diagnosed that the Complainant suffered a resolving Adjustment Disorder that would further improve. The Complainant was found fit to resume his normal duties.
Dr LT, Orthopaedic Surgeon (Report of 18 February 2003 to an insurer)
Dr LT obtained the known history. The Complainant stated he was much improved but still suffered right neck pain radiating to the shoulder if he slept on his right side. The pain did not bother him during the day. Dr LT noted the report of Mr GB, physiotherapist, who had treated the Complainant prior to the MVA for neck pain and a reduced range of movement (75% of normal) due to degenerative changes.
Dr LT detected a slight decrease in lateral flexion and rotation to the right.
Dr LT diagnosed musculo-ligamentous strain with pre-existing degenerative changes that should resolve in two to three months' time. There was no permanent injury and impairment was assessed at 0 to 1%. He found the Complainant fit to work as a teacher.
Dr JC, Psychiatrist (Report of 23 July 2003 to an insurer)
Dr JC found the Complainant's symptoms had improved with the passage of time and that there was no diagnosable psychiatric disease.
Ms KJ, Career Counsellor (Report of 6 May 2002 to an insurer)
Ms KJ recommended that the Complainant be supported in researching his long-term career options that may involve part-time study. She also recommended he seek medical advice regarding his feelings of inadequacy.
The Complainant has a B.Sc. and Diploma of Education from a Canadian University. He has worked for over 30 years as a teacher in higher mathematics and additionally as a sports master. He resumed contract teaching in 2002 and his last contract was to expire in April 2004.
... the report of Dr AB, obtained by the Defendants in this matter says at the top of page 2 'I would anticipate this temporary aggravation lasting no longer than twelve months, at an absolute maximum'. The balance of the medical evidence also supports our client's claim that he was impaired and unable to work as a teacher for at least six and more likely twelve months. He should be paid under his disability provisions of his superannuation claim for at least this period.
The Tribunal's role is to determine whether the decisions of the Trustee and the Insurer to decline the Complainant's application for a Salary Continuance benefit were in their operation in relation to the Complainant, fair and reasonable in the circumstances, in accordance with s.37(6) of the Complaints Act. If so, the Tribunal must affirm the decisions under review.
In performing its review function, the Tribunal has had regard to all of the evidence and the relevant legislation, as set out above.
The Complainant was involved in a MVA on 3 November 2001 and suffered a whiplash injury. He ceased work on 30 November 2001 because of continuing neck, shoulder and arm pain associated with lack of concentration and depression. He resigned from his employment on 21 January 2002. Salary Continuance payments were made from 4 February until 10 June 2002, at which time the Insurer denied further liability. Since his resignation, the Complainant has performed short-term teaching contracts.
The Trustee requested the Insurer to reconsider its decision and possibly make payments for an additional period of at least two to three months. Upon the receipt of additional medical evidence the Insurer confirmed denial of the claim on 13 September 2002. The Trustee resolved to endorse the decision of the Insurer.
There appears little doubt that the Complainant's major disability related to his pre-existing bilateral carpal tunnel pathology. The injuries sustained in the MVA are universally described as soft tissue or musculo-skeletal damage that would normally resolve in approximately six months. The Complainant's recovery was slower than predicted but he had returned to contract teaching work in the first half of 2002. Permanent impairment has been assessed at 0 to 5% with respect to the neck pain and limitation of movement and appears to now be better than it was pre the MVA (report of Dr LT commenting on the physiotherapy report of Mr GB). The psychiatric condition of Adjustment Disorder, which may have been multi-factorial in origin, had essentially resolved by 17 December 2002 (report of Dr MP).
In light of all the reports, the Insurer's cessation of liability to pay Salary Continuance beyond 10 June 2002 is fair and reasonable in its application to the Complainant.
Pursuant to sub-s.37(1)(a) of the Complaints Act, the Tribunal has all the powers, obligations and discretions of the Trustee. Section 37(2) requires the Tribunal to review any decision of an Insurer or other decision-maker if joined as a party to the complaint under s.14. In such circumstances, the Tribunal has all the powers, obligations and discretions of the Insurer or other decision-maker. Sub-section 37(6) of the Complaints Act provides that the Tribunal must affirm the Trustee's decision if it is satisfied that its operation, in relation to the Complainant, was fair and reasonable in the circumstances.
The Tribunal is so satisfied and, in accordance with the requirements of sub-s.37(3)(a) of the Complaints Act, the Tribunal affirms the decision of the Trustee.
The Tribunal affirmed the decision of the Trustee to decline the Complainant's application for Salary Continuance benefits beyond 10 June 2002.