By Ryan Heath
In recent years we have seen a significant increase in the number of Police Officers medically retired by the Queensland Police Service (QPS). The majority of those medical retirements have been initiated by the QPS in circumstances where the officer is suffering from symptoms which preclude them returning to first response policing.
Whereas previously officers who were not capable of returning to first response were accommodated within the QPS in alternate roles in recruitment, communications etc these opportunities no longer seem to be available.
Officers should be aware that if they are medically retired they have an entitlement to access Total and Permanent Disablement (TPD) benefits pursuant to their QSuper policy.
The entitlement to a TPD benefit exists irrespective of the cause of the medical condition resulting in the medical retirement.
Often the medical retirement arises from injuries sustained in the course of duty. This may be injuries of a physical or psychological nature. However injuries or illnesses suffered independent of work will also result in an entitlement to a TPD payment.
The medical retirement, especially if it is initiated by the QPS, can be both a very confronting and anxious process for officers. This is particularly the case in circumstances where the injuries resulting in the medical retirement has been caused in the course of employment.
Officers should ensure that they obtain appropriate legal advice to ascertain if the circumstances in which the injury was suffered would give rise to a civil or common law claim.
It is important for officers to understand that just because they are medically retired from the QPS that they are not automatically entitled to a TPD payment. In assessing an officers entitlement to a TPD payment QSuper have reference to the relevant provisions of the Trust Deed and Insurance Terms.
Section 4 of the Superannuation (State Public Sector) Deed 1990 provides that “total and permanent disablement means disablement of a degree which, in the opinion of the board, after obtaining the advice of not fewer than two medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.”
Very often we have seen TPD applications rejected by QSuper based upon medical evidence which they have obtained from their own medical examiners. It is common place for QSuper to refer officers to medical specialists of their choice. Those reports are then taken into account in addressing the definition referred to above.
It is further common for QSuper to refer officers for Vocational Assessment to determine residual employment opportunities.
If those medical specialists reports determine that the wording of the definition referred to above is not satisfied, the TPD application will be rejected. This results in an officer not only being unable to work in their chosen field but also denied significant superannuation payments which would assist with easing their financial pressures with vocational re-training.
Accordingly, the nature of the medical evidence that is placed before the QSuper board in determining whether an officer is entitled to a TPD payment is crucially important.
The issue with a medical opinion obtained from a QSuper appointed doctor is that that medical practitioner would have limited knowledge of the officer’s injury and employment history. We believe that a report from a treating medical practitioner, be that a GP or a specialist, should be preferred to that of an independent practitioner due to the ongoing nature of the relationship with the officer.
An individual officer’s education, training and experience is directly relevant as to whether they will succeed in a TPD application. In those circumstances it is crucial that the medical specialist who provides a report gets full details of the officer’s education (whether that is High School or Tertiary), any trade qualifications or trade tickets and employment history prior to entering the QPS.
Clearly if an officer has limited work experience outside of the QPS and the injury or illness suffered has precluded that employment, it is more likely than not that he or she will be entitled to a TPD payment.
We have enjoyed considerable success in acting for officers in appealing QSuper decisions to reject their applications for TPD payments. In conducting those appeals we generally undertake the following steps:-
- Obtain a complete history from the officer as to their education, trade qualifications and employment history;
- Obtain a report from a treating medical specialist as to the extent of the officer’s injuries or illnesses and the effect that they would have on the capacity to remain employed in the QPS or to successfully seek alternative employment; and
- Obtain an independent report from a medical specialist who is properly briefed with the officer’s education, training and experience and reports from treating doctors and comment on whether they would satisfy the QSuper definition for a TPD payment.
It should be remembered that if the injury or illness resulting in the medical retirement has arisen as a result of the officer’s employment they will have further entitlements pursuant to the Workers’ Compensation Legislation.
Clearly if an injury is suffered in the course of employment the officer is entitled to lodge a claim with WorkCover Queensland. After determining that the officer’s employment was a significant contributing factor to the injury WorkCover is obliged to make payment of any time off work as well as medical expenses in treating the injury. This applies equally to injuries of a physical or psychological nature.
It is important to remember that the obligation upon WorkCover Queensland to pay for loss wages will continue even subsequent to an officer’s medical retirement in circumstances where the injury is not yet determined to be stable and stationary.
Once WorkCover determines that the injury is stable and stationary they may issue the officer with a Notice of Assessment containing an offer of lump sum compensation based upon their degree of permanent impairment (DPI).
Should the officer be assessed with a DPI of less than 20%, they will need to make an irrevocable choice as to whether they wish to accept the amount of lump sum compensation or proceed with a claim for common law damages.
A claim for common law damages will exist where the officer is able to establish that the injury was caused by the fault or negligence or breach of duty of care of the QPS.
Should we be able to establish negligence or breach of duty of care the officer will be entitled to common law damages which includes payment for pain and suffering and loss of amenities of life, any economic loss past or future, any loss of superannuation entitlements and payments for any future medical expenses.
In circumstances where the injury is substantial enough to result in the officer’s medical retirement the amount damages may well be substantial. Any award of compensation recovered in a common law claim will not reduce or effect an officer’s entitlement to pursue a TPD payment.
We are available to provide free initial consultations to any member’s wishing to discuss medical retirement, the TPD processes, WorkCover claims or common law claims. Officers are invited to contact Mr Ryan Heath on 3867 8839 to discuss at any time.