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[2011] NSWSC 1482
Supreme Court of NSW
2011-12-05
Nicholas J
Original judgment source is linked above.
Judgment 1Mr John Savelberg, the plaintiff, claimed entitlement to superannuation benefits for total and permanent disablement (TPD) on 9 May 2007 resulting from injuries to his head and legs suffered when he was struck by falling steel components at his place of work. United Super Pty Ltd, the first defendant (the trustee) was the trustee of the superannuation fund, Construction and Building Union's Superannuation Fund (Cbus). Hannover Life Re of Australasia Ltd, the second defendant (the insurer) insured the fund with respect to obligations to pay total and permanent disablement benefits. 2The benefit payable to the plaintiff under the policy was a lump sum benefit of $100,000 in the event he suffered TPD as defined in the policy. 3The plaintiff has not worked since the accident. He first applied for the benefit on 28 February 2008. On 23 September 2009 the insurer informed the trustee that the claim was declined. On 26 October 2009 the trustee informed the plaintiff's solicitors of this decision. On 8 December 2009 the plaintiff's solicitors sent further medical evidence to the insurer and requested it review its determination to deny the claim. On 14 December 2009 the insurer informed the trustee that, having considered the additional material, the claim was declined. 4On 24 June 2011, following a review of further medical evidence, the insurer accepted the claim. On 7 September 2011 payment of the TPD benefit was made to the plaintiff's solicitors. 5The primary question for determination in these proceedings is whether each of the decisions of the insurer of 23 September 2009 and 14 December 2009 was invalid in that it was unreasonable. The plaintiff claims interest on the amount of $100,000 for the period 29 September 2009, alternatively 14 December 2009, to 20 June 2011 when liability was admitted. He also seeks an order for the costs of the proceedings, which were commenced by statement of claim filed on 28 September 2010. 6The claims for interests and costs were opposed. The defendants sought an order for costs in their favour if it is found that the insurer acted reasonably in declining the claim prior to acceptance of liability. 7By cl 5.12, the trust deed provided for the payment of the amount of any insured benefit to a member who had suffered TPD and who had ceased to be gainfully employed prior to attaining the age of 65. It is common ground that the plaintiff had ceased to be gainfully employed prior to age 65. 8Clause 7.2 of the trust deed provided that the term "total and permanent disablement" should be given the meaning ascribed to it in the relevant policy. 9Relevantly, cl 1.3.1 of the Group Life Policy (the policy) contained the definition of "Total and Permanent Disablement" as follows: "Total and Permanent Disablement in respect of an Insured Person who was gainfully employed within the six months prior to the Date of Disablement is where: 1.3.1 The Insured Person is unable to follow their usual occupation by reason of accident or illness for six consecutive months and in our opinion, after consideration of medical evidence satisfactory to us, is unlikely ever to be able to engage in any Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience;" 10The term "Regular Remuneration Work" was defined in the policy as follows: "An Insured Person is engaged in regular remunerative work if they [sic] are doing work in any employment, business, or occupation. They [sic] must be doing it for reward - or the hope of reward - of any type." 11It was common ground that the plaintiff was an "Insured Person" who was gainfully employed within the six months prior to the date of disablement and was unable to follow his usual occupation for six consecutive months.
The principles 12It was common ground that the principles to which I referred in Paul Weber v Tiss Pty Ltd [2005] NSWSC 67 should apply. I said: "7 It was accepted on both sides that the court should approach the matter in accordance with the principles stated in Edwards v The Hunter Valley Co-op Dairy Co Limited (1992) 7 ANZIC 61-113 at p 77,536. There it was held that in forming an opinion relevant to its liability under a contract of insurance the insurer is obliged to act reasonably in considering and determining the matter. It also held that unless the view taken by the insurer can be shown to have been unreasonable on the material then before it, the decision of the insurer cannot be successfully attacked on this ground. (See also e.g. Heitman v Guardian Assurance Co. (1992) 7 ANZIC 77-483). 8 It was also accepted that the insurer is not required to undertake the detailed consideration required of a court hearing ( Chammas v Harwood Nominees (1993) 7 ANZIC 61-175 at p 78,001); and that the insurer's statement of reasons for declining a claim should be understood as a practical document intended to inform the claimant of the basis of the decision rather than detailed reasons with reference to the evidence relied upon comparable to a judgment of a court or tribunal. The reality must be recognised "... that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272)." 13The question of whether there is a reasonable basis for the opinion that the insured is within the definition of TPD turns on what the evidence, taken as a whole, conveys to the decision-maker at the time. The hypothetical reasonable decision maker owes a duty of good faith and fair dealing towards both the trustee and the claimant employee taking account of their respective positions ( Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214, pars 64, 70). The obligation to act reasonably in forming an opinion requires the decision-maker to give an objective, even handed, and realistic consideration to the whole of the evidence, uninfluenced by personal beliefs, prejudice, suspicion, or speculation. 14The definition of "total and permanent disablement", and the phrase "reasonably fitted by education, training or experience" has been considered in many cases. The construction of the phrase in a similar policy was considered by Gzell J in Dargan v United Super Pty Ltd & Anor [2011] NSWSC 1316. I respectfully agree with his Honour's conclusion that the consideration is whether, by reason of education, training or experience an insured person is reasonably fitted to engage in the work in question (par 43). His Honour said: "44 The words describe a capacity to undertake a new job based on education, training or experience. They constitute a link between the job and past education, training or experience." 15The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain paid employment for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory ( Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583, par 64). 16In Szuster v Hest Aust Ltd & Anor [2000] SADC 2 Judge Herriman considered the effect of a definition of TPD which was in substantially similar terms to the definition in this case. He held (par 73) that in considering its opinion the insurer should have undertaken the following steps, assuming the plaintiff's absence for six consecutive months: "(1) it should have ensured the plaintiff understood the nature of the material she should obtain in support of her claim, that she was provided with copies of all relevant materials held by it and that she was aware of and afforded the opportunity to put submissions to it; (2) it should have then considered: (a) the medical evidence that was satisfactory to it; (b) any evidence before it as to the likely availability of work to a person with the plaintiff's physical restrictions, and having regard to her education, training or experience; (c) if such work was available, whether it was likely the plaintiff could access it; (3) it should then, on the basis of the matters set out in paragraph 2, have formed an opinion, fairly, reasonably and in good faith, as to whether the plaintiff was likely to ever "engage in or work for reward in any occupation or work for which (she) is reasonably qualified by education, training or experience".
Background 17The plaintiff was born on 10 July 1966. He left school in third form aged about 14. Thereafter he worked for various employers, usually as a labourer. He is dyslexic with reading difficulties. He holds a C class driver's licence and a forklift driver's licence. He is married and has two children. 18At the time of the accident he was employed by Pacific Steel Constructions Pty Ltd and was working in the yard as a dogman or labourer loading and unloading structural steel. He was severely injured when a load of steel shifted and rolled onto his legs. He has not returned to any work since.
The decision of 23 September 2009 19Documents in support of the claim were sent to the trustees by the plaintiff's solicitors on 28 February and 13 May 2008 and 5 May 2009. By letter of 26 August 2009 to the plaintiff's solicitors the trustee listed the material obtained by the insurer for the purpose of deciding whether the plaintiff satisfied the definition of TPD under the policy. It invited submission of any additional material by 20 September 2009, after which it would proceed to make a decision. The claim was rejected on 23 September 2009. 20On 4 September 2007 Konekt Australia Pty Ltd (Konekt) reported to the insurer on a case conference with the plaintiff and Dr Alan Hayden, the nominated treating doctor. Dr Hayden advised that he believed that, with appropriate treatment and management, the plaintiff would be able to return to this pre-injury duties, and that the same job with the same employer would be the vocational goal. However he was unable to confirm appropriate timeframes for return to pre-injury duties. An outcome of the conference was described as follows: "* Dr Hayden advised Konekt he would be happy to upgrade Mr Savelberg to suitable duties should suitable duties be identified. Konekt recommend a workplace assessment be conducted in order to determine availability of suitable duties and development of appropriate return to work plan." 21On 19 October 2007, Konekt reported to the trustee and the insurer on the plaintiff's prospects for return to work, and submitted a return to work plan. The plaintiff said that he had been unable to return to work because he was unable to put on a shoe or mobilise unaided. He advised that he was attending physiotherapy and hydrotherapy on a regular basis. The report recorded that Dr Hayden was uncertain as to whether the plaintiff would ever return to his pre-injury duties and whether the injuries would progress with further treatment. Konekt noted that until the plaintiff was able to put on shoes he would be unable to meet the safety requirements of any work place. The long term return to work goal was to return the plaintiff to different duties with a different employer completing "pre-injury hours". The plaintiff was said to be continuing to experience pins, needles and numbness in his right foot and numbness and sharp pains in his left foot, and was unable to tolerate anything touching his legs. 22Konekt reported that a vocational goal could not be established until the injuries had been adequately treated. It was unknown when a return to work programme could be commenced. It was recommended that the file be closed, and reopened when the plaintiff became fit for suitable duties. 23On 28 November 2007, Dr D T Fraser, orthopaedic surgeon, reported to the insurer that the plaintiff's condition had stabilised. He said: "Fractures have united, he has been left with a permanent disability and will never be able to return to his previous manual type work, including climbing and scaffolding. Please note he is also dyslexic which will make it difficult for him to do any office type work. He needs no further follow up from me. He will continue to walk with an antalgic limp and need the use of a walking stick." 24In his report of 22 January 2008 to the insurer, Dr Hayden answered "No" to the question: "10. If you do NOT expect the claimant to EVER return to his/her normal work do you think he/she will EVER be able to do a job for which he/she is reasonably fitted by education, training or experience?" His reason was that the plaintiff was functionally dyslexic so could only do physical work. 25In his report of 7 February 2008 to the insurer, Dr Hayden noted that the plaintiff had constant disabling pain in both lower limbs, and walked in considerable discomfort with the aid of a stick. He expressed the opinion that he was unfit to return to pre-injury duty, and was unfit for any duties. He said: "In my opinion he has suffered permanent damage and will be unfit for work indefinitely. His previous injury has been aggravated entirely as a result of the accident. In my opinion he has suffered permanent disablement as a result of the accident on 9 May 2007." 26On 8 February 2008 Dr Peter Giblin, orthopaedic surgeon, reported to the plaintiff's solicitors on the hypersensitivity of areas around the scars on his ankles. There appeared to be marked dysesthesae around the right ankle, and light finger touch over the right ankle area produced a marked withdrawal response. He found his condition was stable, with a guarded prognosis. He said: "His legs will never come back to normal and there will always be a degree of nerve damage in the right ankle and arthritis in the left ankle ... I would assess him as permanently unfit for his pre-injury job and permanently unfit for heavy labouring duties. Specifically he will have to avoid long periods of standing, stair or ladder climbing, working at heights, or using either leg in a repetitive impact labouring fashion. These restrictions will also apply indefinitely to his domestic and recreational activities ... Whilst he remains permanently unfit for his pre-injury heavy labouring duties, he would be fit for a sedentary work environment, preceded by the appropriate vocational rehabilitation ... It is my view that this gentleman's condition has stabilised and reached maximum medical improvement pursuant to current WorkCover guides." 27On 7 April 2008 Dr Grant Walker, consultant neurologist, reported to Dr Hayden that the plaintiff continued to suffer from pain in both ankles with tenderness to touch in the region of the scars and fractures. He could not find any convincing evidence of significant nerve injury, and thought the problem was largely of orthopaedic origin and that the plaintiff had probably become deconditioned because of the chronic pain. 28On 21 May 2008 Konekt sent a functional assessment report to the insurer. It repeated, in terms, the statement in the earlier report that the plaintiff was unable to put on a shoe or mobilise unaided. The plaintiff's symptoms included a constant ache in each malleolus with associated stinging in the dorsum of the right foot. The report listed physical constraints upon the plaintiff's ability to work which included an inability to push or pull, and to squat, due to bilateral ankle symptoms. It was anticipated that if the plaintiff was able to obtain suitable employment, taking into account his physical abilities, he would be capable of completing a graded return to work programme. 29On 18 June 2008 Konekt made a vocational assessment report for the purpose of identifying transferable skills and suitable vocational options for the plaintiff. Again, it included the plaintiff's information noted in the reports of 19 October 2007 and 21 May 2008 of the inability to wear shoes or mobilise unaided, and that the plaintiff attended regularly physiotherapy and hydrotherapy sessions. It stated he was unfit for work. 30Included were the results of an aptitude test which involved the plaintiff completing a questionnaire to assist in identifying suitable work options in line with his interests and skills. The following jobs were deemed most suitable:
Determination 51The plaintiff submitted that in light of all of the information before it the insurer's decision was unreasonable on a number of grounds. It was put that the failure to consider the reality of whether the plaintiff, given his limitations, including dyslexia, was likely to become employable evidenced lack of good faith in the decision making process, particularly where it was accepted that he was incapable of returning to his pre-injury work. It was put that the opinion that the plaintiff may be able to return to work as a forklift driver, storeman, process worker, mobile plant operator or retail sales assistant lacked any evidentiary support. It was submitted that, absent evidence, as to the likely availability of any such work and, if such work was available, whether it was likely the plaintiff could access it, the claim was unreasonably declined. Under this issue, it was put that the insurer failed to consider the requirement of each type of work said to be suitable, and whether there was a likelihood of the plaintiff ever actually becoming capable of undertaking it, which amounted to a failure to take the steps described in Szuster, par 73. 52For the defendants it was submitted, in short, that the decision to decline the claim was one reasonably open on the evidence, accepting that they would not have been entitled to do so if the plaintiff required further training to obtain work. 53It was put that as the medical evidence indicated different explanations of the cause of the plaintiff's hypersensitivity, the defendants could not be satisfied as to whether the condition was temporary or permanent. In these circumstances, it was put, that it was reasonable to decide that the plaintiff had not established he was unlikely ever to be able to engage in the relevant work and, accordingly, to decline the claim. Thus it was argued that on the evidence at the time of the decision it was reasonably open for the insurer to conclude that it was likely in the future that the plaintiff would be able to engage in the relevant work being the occupations referred to in Dr Harvey-Sutton's reports of 12 February and 9 July 2009. 54Evidence of the different views as to the cause of the hypersensitivity relied upon by the defendants in support of the submission, summarised, includes the following: Dr Walker found no neurogenic change, thought it was of orthopaedic origin, and that the plaintiff had become deconditioned from chronic pain; Miss Thompson suggested he may be suffering from RSDS, and invited confirmation of her diagnosis; Dr Deveridge referred to the development of a very profound neuropathy or neuralgia, noting that nerve conduction studies did not show major nerve damage. He referred to disabling neuropathic pain, without identifying a cause, and to a need for ongoing medication without specification; Dr Sun said that there were no scan features of reflex sympathetic dystrophy, but provided no diagnosis of the condition; Dr Harvey-Sutton found no objective signs that the condition was permanent or significant, and could not identify medical reasons in relation to the injury which indicated TPD. On clinical examination, her view was that the hypersensitivity was temporary, and would settle in time, and may settle earlier with a formal desensitisation programme. 55The basis for the insurer's opinion of 23 September 2009 was as follows: "Medical opinion states that if not now, at some time in the future Mr Savelberg may be able to return to these duties and also work in roles such as process worker, mobile plant operator or retail sales assistant." 56The crucial question is whether its decision was unreasonable on the material then before it. In reaching the decision the insurer was required to evaluate the evidence of the prognosis for the hypersensitive condition, and the plaintiff's prospects of obtaining regular paid employment for which he is qualified by education, training, or experience. 57On 28 November 2007 Dr Fraser said the plaintiff's condition had stabilised, and nothing further was required from him. In reports of 22 January and 7 February 2008 Dr Hayden expressed the view that the plaintiff was unfit for any duties indefinitely, and had suffered permanent disablement. On 8 February 2008 Dr Giblin reported that the condition had stabilised, and had reached maximum medical improvement. He thought there would always be a degree of nerve damage in the right ankle and arthritis in the left ankle. He said that whilst he remained unfit for this pre-injury labouring duties, he would be fit for a sedentary work environment preceded by appropriate vocational rehabilitation. Dr Walker's report of 7 April 2008 referred to continuing symptoms, and gave no indication of improvement. On 8 July 2008 Dr Deveridge reported on the plaintiff's permanent unfitness for pre-injury employment, and that the requirement for regular strong medication would act against him finding more sedentary employment such as operating machinery from a seated position, and his dyslexia would act against him obtaining office type employment. He did not expect the plaintiff to return to gainful employment for which he would be suited by way of education and experience, and noted that he would require ongoing medication indefinitely. He said that the condition was chronic and stabilised, and the plaintiff had reached a point of maximal medical improvement. On 15 December 2008 Dr Sun identified as a further barrier to redeployment or participating in any training programme the psychological status from post traumatic stress disorder, and that his vocational retraining capacity was limited having regard to his dyslexia and history of labouring manual work. 58Konekt's reports concern functional and vocational assessment. On 19 October 2007 it reported that a vocational goal could not be established until the injuries had been adequately treated, and it was unknown when a return to work programme could be commenced. On 18 June 2008 it identified suitable work options as a forklift operator, process worker, mobile plant operator, and retail sales assistant. Suitability for each was contingent upon the plaintiff's ability to wear shoes, and training to accommodate dyslexia would be required to fit him for work as a mobile plant operator or retail sales assistant. Restrictions on the return to work programme included his dyslexia, and the inability to wear closed footwear which was a barrier for all types of employment and all working environments. On 11 September 2008 Konekt advised the insurer that it had closed its rehabilitation file. 59It is noteworthy that the doctors and Konekt representatives expressed no doubt as to the genuineness of the plaintiff's symptoms, complaints, and restrictions upon his activities. Furthermore, no one gave any indication that there was, or was likely to be, any available treatment which would improve the hypersensitivity or that the condition would change over time. 60Dr Harvey-Sutton's views were stated in her reports of 12 February and 9 July 2009. In summary, she found no medical reasons which indicated TPD. She said the hypersensitivity was "temporary and will settle in the fullness of time". She said there were no reasons to indicate that the plaintiff would be unable to return to occupations for which he is suited, e.g. security on a building site or repair work at a bench. She thought that the jobs considered by Konekt were within the plaintiff's restrictions as described by Dr Sun. 61In my opinion, a fair evaluation of the whole of the evidence demonstrates that the decision of the insurer of 23 September 2009 was unreasonable and, accordingly, invalid. Its reasons indicate heavy reliance on Dr Harvey-Sutton's reports in concluding that the plaintiff might be able to engage in the types of work referred to. Her conclusions are unsupported by, and in some respects contradicted by, the other evidence. No reasons were given to support the statement that the hypersensitivity was temporary, or to explain its persistence for over two years after the accident. It may be supposed that the suggested work options were to be understood as predicated on the plaintiff eventually becoming able to use appropriate footwear, and that the work was reasonably available and accessible to him. Her conclusion that Dr Sun's assessment was that it was "now possible" for the plaintiff to return to some sedentary work is inconsistent with his statement that it "may be possible" for him to do so (pars 37, 46). 62In my opinion the overwhelming weight of the evidence was that the plaintiff was unlikely ever to work in any regular job which he was reasonably fit to perform if he continued to suffer from hypersensitivity which rendered him unable to wear shoes. There was no evidence which showed the likelihood of amelioration of this condition. The fact that there was some difference in view between the doctors as to the explanation of the condition, including the fact that Dr Harvey-Sutton could not identify medical reasons for it, provides no rational basis for an opinion 28 months after the accident that the condition would so improve as to restore the plaintiff's capacity to engage in the work for which he was fitted. I am satisfied that there was no support for an opinion that there was a likelihood that the condition would improve in time so as to justify a "wait and see" approach. 63As to the issue of work for which the plaintiff was reasonably fitted by education, training or experience the evidence, so far as it went, in my opinion entirely supported the plaintiff's claim. Konekt's report of 18 June 2008 concluded its investigation of the plaintiff's suitability for the identified types of work by stating it was contingent on his ability to wear shoes, without which all types of employment and all working environments were barred to him. It closed its rehabilitation file on 11 September 2008. The result was that there was no evidence before the insurer at the time of the decision 12 months later to enable consideration of questions concerning the plaintiff's ability to return to the several types of work referred to, including the likely availability and requirements of the work, and the realities affecting the capacity of the plaintiff to perform it. In my opinion, the conclusion that he may be able to return to these duties was without evidentiary support, and was the product of speculation. The absence of reference to these matters in its reasons supports the inference, which I make, that the decision-maker failed to consider them. 64These considerations are sufficient to hold that the decision was unreasonable. In my opinion had a reasonable and realistic assessment been made of the whole of the evidence it would have concluded that the plaintiff had established TPD within the meaning of the policy.
The decision of 14 December 2009 65In case my conclusion on the decision of 23 September 2009 be wrong, it is appropriate to determine the challenge to the decision of 14 December 2009. 66By their letter of 8 December 2009 to the trustee, the plaintiff's solicitors enclosed further medical evidence being the reports of Dr Paul Teychenne, consultant neurologist, of 29 October and 18 November 2009, and requested a review of the determination to deny the claim. 67In his report of 29 October 2009 Dr Teychenne reported his finding that the plaintiff had suffered traumatic brain injury, was depressed, and required psychiatric assessment. He continued: "The patient also sustained peripheral nerve injuries to both lower legs and feet. If he touched the scars over the right leg or touched the dorsal aspect of the right foot he would experience a stinging pain and paraesthesiae into the right foot consistent with dysesthesiae. The whole of the right foot would go numb. If he touched around the medial aspect of the left lower leg he would develop a persistent sharp pain around the medial aspect of the left ankle. His feet would go white then blue and blotchy. Standing would induce a colour change in both feet. Pressure of the sheets on his feet was extremely painful consistent with bilateral dysesthesiae. He needed a frame over his feet when lying in bed. The pressure of the sheets on his feet was extremely painful consistent with dysesthesiae. He noted jolts of electricity from the upper thighs down into the legs and this started three days after the injury. Because of the pain within both legs he needed to walk very slowly. He was unable to stand on his toes or stand of [sic] his heels because of pain in both feet. He was no longer able to dance or run. He couldn't walk for longer than ten to fifteen minutes because of pain within the feet. He couldn't walk on an uneven surface. Wearing socks and shoes was painful inducing painful tingling followed by persistent pain within both feet. He was unable to climb ladders or scaffolding because of severe pain in both feet. When I examined the patient he had dysesthesiae to pain and touch sensation over the dorsal aspect of both feet and dysesthesiae to pain sensation over the soles of the feet as well as over the dorsal aspect of the feet. He had a smooth shiny skin over the dorsal aspect of both feet. The history and clinical findings were consistent with complex regional pain syndrome I and complex regional pain syndrome II. The pain which he experienced in both feet particularly with stimulation by pain and touch was consistent with causalgia that is with complex regional pain syndrome II. ... The patient's history indicated that he had had sensory nerve damage at the level of the ankles and this had produced marked dysesthesiae with pain consistent with causalgia or complex regional pain syndrome II. I would agree with Dr Deveridge that this patient is no longer employable. In view of his dyslexia he is only suitable for construction type work and in view of his severe dysesthesiae and pain within both feet, he was not suitable for construction or labouring. He now had significant deficits in his ability to walk. He cannot wear socks or shoes to any great degree in view of severe dysesthesiae in both feet. Thus he is no longer employable in any form of employment suitable for his current cognitive state and education. His cognitive ability has been significantly restricted by the traumatic brain injury. His wife estimated a 30% loss in IQ and I would consider that was a reasonable estimate of his IQ loss. He has specific deficits in memory functions and a history consistent with the executive frontal lobe deficits as well as deficits in concentration and speed of thinking, that is he has slowness in thinking or psychomotor slowing. This would restrict him for any form of employment associated with intact cognitive function. He would be unable to multitask or handle a number of different tasks at the same time. His pre-existing dyslexia plus the cognitive deficits resulting from the traumatic brain injury made him totally unemployable in regard to any form of cognitive or clerical work." 68In his report of 18 November 2009 Dr Teychenne advised that the plaintiff's Total Whole Person impairment would be 57%. 69In its letter of 14 December 2009 to the trustee, the insurer stated that consideration of these reports did not cause it to alter its decision of 23 September 2009. Relevantly, the view was that the reports were inconsistent with all other reports. With reference to the job options identified by Konekt in its reports of 21 May and 18 June 2008 the insurer's reasons were as follows: "... Based on the member's functional capacity and transferable skills, the following job options were identified as suitable:
Interest 74The plaintiff claimed an award of interest on the amount of $100,000 for the period 29 September 2009, alternatively 14 December 2009, to 20 June 2011 when liability was admitted. 75It was agreed that a finding that the decision of 23 September 2009 was unreasonable entitled the plaintiff to an award of interest of $14,239.73, and that a similar finding in respect of the decision of 14 December 2009 entitled him to an award of interest in the amount of $12,521.91. 76Accordingly, there is to be an award for the plaintiff in the amount of $14,239.73.
Conclusion 77I direct the plaintiff to prepare short minutes to give effect to these reasons, and to deliver same to my associate by 4pm 12 December 2011. 78Failing agreement on the question of costs, the parties have liberty to arrange with my associate by 4pm 12 December 2011 to re-list the matter for the purpose of submissions on costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2011
Savelberg
United Super Pty Ltd trading as Cbus Superannuation Fund & Anor