One of the more difficult tasks performed by members of the Superannuation Complaints Tribunal is to adjudicate on the non-payment of total and permanent disability payments by insurers.

In a recent decision, the tribunal found against the insurer - but unfortunately the fund member who was refused the payment had died before the decision was handed down.

Hopefully, insurers will take note of the decision and read their own policies carefully before denying benefits to those who should have been paid.

The decision involved a solicitor, 59, who had cancer. His treatment meant absences from work while undergoing chemotherapy, which left him fatigued, stressed and underperforming. The amount involved in the claim was just less than $500,000.

He became ill in 2003 with non-Hodgkin's lymphoma but continued to work as a lawyer until May 2005 when his employment was terminated due to poor performance. He claimed this was a result of his illness. A disability claim was lodged. Two months later he took a three-month job as a clerk. The job involved lower stress levels and far less pay and responsibility, while his treatment continued.

The fund trustee made a claim for total and permanent disability and was rejected. It queried the decision and was again rejected. The fund member then approached the insurer and his claim, too, was rejected. In the interim, the super fund paid out what was owed to the member, less the amount of the disputed TPD benefit.

The battle continued between the member and insurer until he died in June last year. It meant he spent the last two years of his life fighting a large insurer's harsh - and as was subsequently proved, wrong - decision. This was despite extensive medical evidence from his doctors - which the insurer did not dispute - that he was unable to work as a solicitor.

Essentially, the insurer refused to pay on the grounds that the member was not disabled for six consecutive months and could not work again because he took the clerical job. The tribunal got stuck into the insurer.

It noted that in a letter to the insurer in April last year, the member's doctor said there was a definite link between the illness and absence from work commencing in April 2005 due to the side effects from chemotherapy.

The member should perhaps have made his situation clear to his employer - he had tried to soldier on without explaining how sick he was.

The tribunal read the insurance clause carefully and determined as irrelevant the insurer's argument that the member was not absent from work for six consecutive months because he worked as a clerk - the policy, it found, related only to the first employer. The insurance clause stated that the benefit would be paid if he could not work in his own or a similar occupation - as a solicitor - with that employer.

"The tribunal finds that the work carried out by the member with employer two was clerical work, which did not require a legal qualification. It was not, therefore, in the view of the tribunal, work of a similar occupation. The member's participation in that work for a period of three months did not, therefore, have the effect of the member failing to meet the second part of the definition of total and permanent disablement in the policy and it is the view of the tribunal that the insurer should have reached that conclusion."

The tribunal said there was sufficient evidence for the insurer to be able to conclude that, at the date of the termination of his employment, the member would never again work in his own occupation as a solicitor or in a similar occupation.* Under its charter, the tribunal cannot name any of the parties to its decision.