Service v Post Super Pty Ltd (ACN 064 225 841) (as Trustee of the Australia Post Superannuation Scheme)
[2017] VCC 1500
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-02540
| GINA SERVICE | Plaintiff | |
| v | ||
| POST SUPER PTY LTD (ACN 064 225 841) (AS TRUSTEE OF THE AUSTRALIA POST SUPERANNUATION SCHEME) | First Defendant | |
| and | ||
| INDEPENDENT CLAIMS MANAGEMENT PTY LTD (ACN 108 408 055) | Second Defendant | |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11 and 12 October 2016 | |
DATE OF JUDGMENT: | 19 October 2017 | |
CASE MAY BE CITED AS: | Service v Post Super Pty Ltd (ACN 064 225 841) (as Trustee of the Australia Post Superannuation Scheme) & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1500 | |
REASONS FOR JUDGMENT
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Subject:SUPERANNUATION
Catchwords: Claim for lump sum payment for Total and Permanent Disability – whether decision to refuse the plaintiff’s claim was unreasonable
Legislation Cited: Superannuation Industry (Supervision) Act 1993 (Cth);
Cases Cited:Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276; Karger v Paul [1984] VR 161; Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173; Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534; Banovic v United Super Pty Ltd [2014] NSWSC 1470; Lazarevic v United Super Pty Ltd [2014] NSWSC 96; Hanover Life Re of Australasia v Colella (2014) 47 VR 1; Apostolovski v Total Risk Management Pty Ltd [2010] NSWSC 1451; Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618; Beverly v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327; Rapa v Patience (Unreported, NSWSC, 14 April 1985)
Judgment: Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Hassan | Ryan Carlisle Thomas |
| For the Defendants | Mr B Jellis | Allens Lawyers |
HIS HONOUR:
1 This proceeding was commenced by writ on the 23 May 2014.
2 The first defendant is the trustee of the Australia Post Superannuation Scheme (“the fund”). The fund was established by a trust deed in writing dated 19 June 1990 which has been amended from time to time (“the deed”). The fund is a superannuation entity which is not excluded within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth).
3 The second defendant, Independent Claims Management Pty Ltd (“the Claims Assessor”) carries on the business as an insurance claims manager. It was retained by the first defendant to assess claims made on the fund.
4 The plaintiff is a member of the fund, and subject to qualifying within the terms of the deed, possibly entitled to be paid a benefit from the fund should she become totally and permanently disabled.
5 On 3 February 2010, through her solicitors, the plaintiff lodged a claim for total and permanent disablement benefits from the fund with the first defendant (“the first claim”).[1] The letter from the plaintiff’s solicitors attached a great deal of material in support of the plaintiff’s claim.
[1]CB 940-942
6 On 14 February 2011, both defendants rejected the plaintiff’s first claim.[2] The letter of rejection attached (as attachment 1) a list of the documentary material that had been considered in reaching the decision.[3] The letter advised that whilst the plaintiff may be incapacitated from engaging in her previous work, having regard to her training and experience, any ongoing impairment did not preclude her engaging in other employment within her training and experience. In other words, the defendants rejected the plaintiff’s claim because they were not satisfied the plaintiff was totally and permanently incapacitated from all forms of work for which she was qualified.
[2]CB 1004-1007
[3]CB 1006
7 On 22 July 2011, the plaintiff’s solicitors requested the defendants to review the rejection of the plaintiff’s first claim (“the second request”), and the defendants agreed to do so.[4] The second request drew the defendants’ attention to two medico-legal reports obtained by the solicitors from Dr Ralph Poppenbeek, occupational physician, dated 12 August 2010, and 4 November 2011 that related to the plaintiff’s level of disability. The solicitors submitted that having regard to the content of Dr Poppenbeek’s reports, whilst the plaintiff may have been immediately fit for work on a full-time basis within significant restrictions, when assessing whether she was totally and permanently disabled, that had to be assessed having regard to her actual ability to obtain and maintain the type of work that she could do on the open labour market having regard to her capacity, education, training and experience. The plaintiff suffers from degeneration of her right Achilles tendon, with associated bursitis and heel pain.
[4]CB 1027-28
8 On 20 October 2011, the defendants rejected the plaintiff’s second request.[5] The letter of rejection said, amongst other things:
“The Claims Assessor and Trustee’s decision was based on the medical evidence that suggests that Ms Service has some level of disability but not to the extent that would preclude her from engaging in employment for which she is reasonably qualified. Further, there is no evidence to suggest that Ms Service would be unable to obtain appropriate employment in the near future.”
[5]CB 1040-1041
9 On 27 June 2013, the plaintiff’s solicitors requested the defendants to again review the rejection of the plaintiff’s claim (“the third request”), and the defendants agreed to do so.[6] In the third request, the plaintiff’s solicitors conceded that the medical evidence showed that the plaintiff could undertake sedentary work but that manual work was beyond her. The third request enclosed a vocational assessment report provided by a psychologist, Katrine Green, which pointed out that whilst the plaintiff might be physically able to carry out some sedentary work in a range of occupations, this was work that she had no previous experience of, and for which she had no skills, or occupational knowledge.
[6]CB 1067
10 On 29 August 2013, the defendants rejected the third request.[7]
[7]CB 1078-1079
11 On or about 18 May 2015, after this proceeding had been commenced, the parties agreed that the defendants would reconsider the plaintiff’s claim in the light of further evidence submitted to the defendants in support of the plaintiff’s claim (“the fourth request”).
12 On 23 August 2016, the defendants rejected the fourth request.[8] The letter rejecting the fourth request was addressed to the plaintiff’s solicitors.[9] The letter said, amongst other things:
“Under the APSS Trust Deed, the APSS Claims Assessor is required to issue a certificate to the effect that it is of the opinion that your client is incapacitated to such an extent as to render her unlikely ever to engage in regular employment for which she is, for the time being, reasonably qualified by reason of education, training or experience.
The Claims Assessor has informed the APSS Trustee that, after considering the information submitted, it is of the view that the evidence indicates your client does not meet the above requirement.
The Claims Assessor has considered this recent evidence provided and in accordance with the Trustee’s Guidelines, on the balance of probabilities, is not satisfied that your client meets the above requirement.
The Claims Assessor has considered this recent evidence, in conjunction with all evidence already on file and has reached the following conclusions.”
[8]CB 1164 to 1170
[9]CB 1165
13 The letter then went on to summarise a great deal of the evidence assembled to that point, including many medical reports that related to the plaintiff. The letter attached, as attachment 1, a list of all of the medical reports taken into consideration by the Claims Assessor.
14 Each of the letters from the defendants to the plaintiff’s solicitors rejecting the plaintiff’s four requests for the payment of a total and permanent disablement benefit advised that if the plaintiff was dissatisfied with the decision of the Trustee and the Claims Assessor, the plaintiff could lodge a complaint with the Superannuation Complaints Tribunal. The plaintiff did not take that course.
15 Instead she makes a claim in this Court. The claim is pleaded in a Second Amended Statement of Claim dated 19 September 2016.[10]
[10]CB 86
16 In summary, the plaintiff claims that she is totally and permanently disabled within the meaning of the trust deed. The plaintiff claims that in dealing with her four requests, or claims, the second defendant:
· did not accord her procedural fairness
· did not exercise reasonable care, skill and diligence
· did not act in good faith
· did not act fairly and reasonably
· did not give the plaintiff’s claim real and genuine consideration
· did not take into account all relevant considerations
· did not consider the correct question; and
· did not come to the correct decision on the evidence.[11]
[11]CB 95
17 The plaintiff also claims that the second defendant was negligent in assessing the plaintiff’s claims by failing to exercise reasonable care, skill and diligence in the performance of its functions.
18 As against the first defendant, the plaintiff claims that as trustee it:[12]
[12]CB 98-99
· wrongly accepted the Claims Assessor’s opinions as valid
· failed to independently consider the merits of the plaintiff’s claim
· failed to properly supervise the Claims Assessor
· failed to require the Claims Assessor to form a valid opinion as to whether or not the plaintiff was totally and permanently disabled
· failed to ensure that the Claims Assessor performed its functions with reasonable care, skill and diligence
· failed to ensure that the Claims Assessor was not negligent and did not breach various duties of care pleaded in paragraph 14B of the Second Amended Statement of Claim
· failed to pursue the plaintiff’s claim with the Claims Assessor in the plaintiff’s best interests; and
· failed to ensure that the Claims Assessor performed its functions in accordance with the covenants that would have been applicable to the trustee in exercising similar functions.
19 Further, the plaintiff claims that in rejecting the plaintiff’s claims, the trustee breached a fiduciary duty owed to the plaintiff, and acted in breach of trust.[13]
[13]CB 99
20 The plaintiff claims that the trustee did not reach its own opinion, and in relying on the opinion about the plaintiff’s claim of the Claims Assessor, the trustee again acted in breach of trust.[14]
[14]CB 99
21 As a result it is alleged the plaintiff has suffered loss and damage.[15]
[15]CB 100
22 In addition to claiming damages, interest, and costs, the plaintiff claims a declaration that the defendants have not formed a valid opinion as to whether she is totally and permanently disabled within the meaning of the trust deed. The plaintiff also claims, as against each defendant, a declaration that she is totally and permanently disabled, and other relief.[16]
[16]CB 100 - 101
23 In its Defence, in summary, the first defendant admits that as trustee it owed duties of a trustee of a superannuation scheme to the plaintiff.[17] The first defendant points to the definition of “Total and Permanent Disablement” in sub-clause (b)(ii) of clause 2 of the trust deed, which requires the second defendant as the Claims Assessor to form an opinion that “… the Member is incapacitated to such an extent as to render the Member unlikely ever to engage in regular employment for which the Member is, for the time being, reasonably qualified by reason of education, training or experience”.[18]
[17]CB 105
[18]CB 150-151
24 Both defendants argue that the assembled evidence shows that although the plaintiff has impairment and loss of function, she nevertheless has capacity to perform sedentary work and she is not totally and permanently disabled within the definition in the trust deed.[19] Accordingly, the defendants admit that the first defendant formed an opinion that the plaintiff was not totally and permanently disabled and it did not issue a certificate required by the trust deed to the effect that the plaintiff was totally and permanently disabled.[20]
[19]CB 108 [15]
[20]CB 109 [21A]
25 There are many other allegations pleaded by the plaintiff, and responded to by the defendants, but at the end of the day this case comes down to one issue, that is, whether or not on the available evidence assembled over the four requests or claims by the plaintiff, it was reasonable for the second defendant to form the opinion that it did, namely that the plaintiff was not totally and permanently disabled within the definition in the trust deed. Having examined all of the evidence, in my judgment, the opinion reached by the second defendant was reasonably open to it.
26 On 28 September 2016, Judge O’Neill ordered that the trial of this matter proceed on the papers, and subject to the order of the trial Judge, the trial would proceed as a hearing on a preliminary question agreed by the parties. The question to be answered is “Whether the defendants (or one or other of them) have breached any duty owed to the plaintiff as alleged by her in the Further Amended Statement of Claim?”[21] This trial proceeded on this preliminary question. For the reasons here stated, I have reached the conclusion that the preliminary question should be answered in the negative and the plaintiff’s claim be dismissed.
[21]CB 103-104. The Second Amended Statement of Claim is 17 pages in length and is found at CB 86-102. The joint Defence to the Second Amended Statement of Claim is 12 pages in length and is found at CB 105.
27 The parties filed a joint Court Book (“CB”) consisting of some 1200 pages and a very large book of authorities. In reaching my decision in this case, I have had regard to all of this material.
28 In addition, and pursuant to the directions of Judge O’Neill, the plaintiff filed an outline of 21 pages in length prepared by Ms Hassan of counsel who appeared on behalf of the plaintiff dated 29 September 2016 and a list of issues. I marked these documents as exhibit B.
29 The defendants filed a written outline of submissions of 20 pages in length prepared by Mr Jellis, counsel for the defendants, which I marked as exhibit 3.
30 Both parties addressed their respective submissions filed at length and at the end of the trial I asked both counsel to expand those submissions into further written final submissions. To that end Ms Hassan filed a final submission in writing of some 46 pages in length dated 17 October 2016, and Mr Jellis, on behalf of the defendants, filed a final submission which included an attached a chronology of invitations to the plaintiff to file further evidence. In total the defendants’ final submissions extended to some 58 pages in length.
31 In reaching my decision in this case, I have had regard to all of the submissions made by the parties. Time does not permit me to here repeat all of the submissions in full, nevertheless in reaching my decision, I have had full regard to them.
32 The background giving rise to this proceeding is not in dispute. In late 2002, the plaintiff developed pain in her feet. By March 2004, her pain had become severe and more widespread and she lodged a workers’ compensation claim. She was diagnosed with plantar fasciitis, and Achilles tendonitis. She was placed on modified light duties. In around July 2006, she underwent surgery. It did not relieve the pain which continued to worsen. On 29 January 2009, she ceased employment at Australia Post. She has not worked since.
33 The plaintiff, as a member of the fund, is entitled to a total and permanent disability payment from the fund provided she satisfies the definition of total and permanent disablement in the trust deed which provides as follows:
“Total and Permanent Disablement means in relation to a Member disablement due to illness or injury as a result of which:
(a) …
(b)(i) the Member has been continuously absent from work for a period of not less than six months or such lesser period (if any) as may be agreed between the Corporation and the Trustee from time to time either generally or in any particular case; and
(ii) the Trustee receives a certificate signed on behalf of the Claims Assessor to the effect that in the opinion of the Claims Assessor the Member is incapacitated to such an extent as to render the Member unlikely ever to engage in regular employment for which the Member is, for the time being, reasonably qualified by reason of education, training or experience.”[22]
[22]Clause 2
34 The plaintiff submits that where the trust deed requires the Claims Assessor to form an “opinion”, that does not give the Claims Assessor unfettered discretion to come to any decision it likes. The plaintiff submits a decision by the Claims Assessor will only answer the description of an “opinion” as contemplated by the trust deed if the decision has been made:
(a)in good faith;
(b)upon real and genuine consideration of the claim which includes considering the correct question;
(c)for proper purposes;
(d)upon sound reasons; and
(e)reasonably.
35 The plaintiff relies on Finch v Telstra Super Pty Ltd[23] that forming an “opinion” is not a matter of discretionary power to think one thing or the other. The plaintiff also relies upon the judgment of Justice of Appeal Callaway in Telstra Super Pty Ltd v Flegeltaub.[24]
[23](2010) 242 CLR 254
[24](2000) 2 VR 276
36 The plaintiff also submits (again relying upon Finch) that a superannuation scheme is a strict trust where a beneficiary is entitled as of right to a benefit, provided the beneficiary satisfies any necessary condition to obtain the benefit. In these circumstances, the trustee, in forming such an opinion, is at least bound by the principles in Karger v Paul[25] to form its opinion only after a properly informed consideration of all the evidence.
[25][1984] VR 161
37 The plaintiff submits that the reasoning in Finch applies equally to this case despite the relevant “opinion” being formed by a Claims Assessor rather than a trustee.
38 The plaintiff submits that the definition of total and permanent disablement in the trust deed does not address whether the plaintiff is physically capable of work for which she is theoretically qualified. It asks whether she is “unlikely ever to engage in regular employment”. The plaintiff submits that is not simply a medical question. The plaintiff relies on Baker v Local Government Superannuation Scheme Pty Ltd,[26] where Baker J emphasised that the opinion formed requires an analysis of the real world probabilities.
[26][2007] NSWSC 1173 at paragraph [58]
39 The plaintiff submits that the definition of total and permanent disablement in the trust deed required the second defendant to do a number of things. Firstly, identify the plaintiff’s physical and mental limitations. Secondly, identify the kinds of employment for which the plaintiff is, for the time being, reasonably qualified by reason of education, training or experience. Thirdly, consider whether, in light of the plaintiff’s physical and mental limitations, there is a need to accommodate her disability, and the low skilled nature of her education, training and experience, and the extent to which she is likely to be sufficiently competitive in the open labour market to obtain and retain employment over other candidates.
40 The defendants disagree with the third step and submit that only the first two issues need to be considered.[27] Alternatively, they argue the evidence shows that the second defendant in fact considered the likelihood of the plaintiff obtaining sedentary work in the real labour market.
[27]Defendants’ outline of submissions dated 7 October 2016, [78].
41 The plaintiff submits that in assessing the likelihood of future employment for the purposes of total and permanent disability entitlements, the decision maker must take a common sense approach. It is not a question of whether, theoretically, a person might have the physical capacity to do some type of work. The decision maker must consider whether there is a real chance of the person being able to get that work in the real world. The plaintiff relies upon Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme Super,[28] and the authorities referred to therein. The plaintiff also relies upon Banovic v United Super Pty Ltd[29] and the authorities referred to therein by Justice Hall, especially Lazarevic v United Super Pty Ltd.[30]
[28][2016] NSWSC 534
[29][2014] NSWSC 1470
[30][2014] NSWSC 96 at paragraphs [108]-[109]
42 The plaintiff submits that if a disabled person is realistically unlikely ever to be sufficiently competitive in the open labour market to obtain employment, that person is unlikely ever to engage in regular employment within the definition of total and permanent disablement in the trust deed.
43 The defendants submit that the Court of Appeal decision in Hannover Life Re of Australasia v Colella[31] stands for the proposition that the question of competitiveness on the open labour market is irrelevant to the question at hand.[32] The plaintiff submits this decision should be ignored. It is distinguishable because it was dealing with a different issue and did not purport to overrule or distinguish a long line of established authority to the contrary.
[31][2014] VSCA 205
[32]Defendants’ outline of submissions dated 7 October 2016, [79]
44 Ms Hassan submitted that the trustee of a superannuation fund, like any trustee, is required to exercise the same degree of care, skill and diligence as an ordinary prudent person of business would exercise in conducting their own affairs. She relied upon Apostolovski v Total Risk Management Pty Ltd.[33]
[33][2010] NSWSC 1451 at paragraphs [28]-[31]
45 Ms Hassan submitted that in addition to the duties of a trustee at common law, the Superannuation Industry (Supervision) Act 1993 (Cth) imposes further covenants on a trustee and this Act is incorporated by reference into the trust deed. The Act requires a trustee of a superannuation fund to:
(a)act honestly in all matters concerning the Scheme;
(b)exercise the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to the Scheme; and
(c)perform its duties and exercise its powers in the best interests of the members.[34]
[34]Superannuation Industry (Supervision) Act 1993 (Cth), s 52(2).
46 The plaintiff submits that in the light of the approach taken by the High Court in Finch,[35] and the emphasis given to the importance of superannuation in the community, a prudent trustee would be careful to ensure that its beneficiaries are not being denied total and permanent disablement entitlements through substandard decision making by the claims assessor.
[35]Supra
47 Here, the trustee submits that it discharged its duty by creating guidelines for the trustee to follow and establishing a system whereby the scheme solicitor reviewed all rejected claims. The plaintiff, on the other hand, submits, that the establishment of that system does not discharge the trustee’s duty. In effect, the trustee sought to outsource its duty to supervise the Claims Assessor to the Scheme solicitor. The plaintiff submits that in reviewing the Claims Assessor’s decisions, the Scheme solicitor stood in the shoes of the trustee and purported to perform the trustee’s supervisory role for it. The plaintiff submits that here, the Scheme solicitor failed to perform the supervisory role properly, and if that is so, then the trustee is liable for that failure.
48 The plaintiff contends that whilst ultimately it is the rejection of the plaintiff’s fourth request by the Claims Assessor that is critical to the outcome of this proceeding, it is also necessary to consider the Claims Assessor’s rejection of the first three requests because those decisions provide evidence of the approach the Claims Assessor took to the issues at hand, and of the approach that both the Claims Assessor and trustee took to their various duties. Also the plaintiff submits that examination of the first three rejections by the Claims Assessor is necessary because, if the plaintiff succeeds, there will be an application for pre-judgment interest, and that will involve deciding from when any interest ought be calculated.
49 Ms Hassan devoted a significant part of her final submissions to what it was the evidence shows the Claims Assessor, and the trustee, did in deciding to reject each of the plaintiff’s requests for a total and permanent disability payment from the trustee. She submits that the first three decisions reveal that from the outset, the defendants adopted an incorrect approach to assessing the plaintiff’s claim. She submits the defendants failed to seek plainly relevant information to resolve a key conflict of opinion, and they each approached the definition of total and permanent disablement as a question of physical capacity to perform the tasks of occupations for which the plaintiff is qualified, rather than a question of realistic ability to obtain employment in the real world.
50 Dealing with the issue of failing to seek relevant information, the plaintiff submits the evidence shows:
(a) the plaintiff has pain in both heels, legs and back and that the pain is “constant”;[36]
[36]Q4 (CB 749), Q14 (CB 750), Q25 (CB 752).
(b) the plaintiff wakes up with pain during the night;[37]
[37]Q4 (CB 749), Q24 (CB 752).
(c) the plaintiff performed modified duties before her last day at work;[38]
[38]Q20(c) (CB 751).
(d) the plaintiff’s pain has not abated since ceasing work;[39]
(e) that after taking her son to school in the morning, the plaintiff performs about half an hour housework then has to rest for about one to two hours.[40]
[39]Q25 (CB 752).
[40]Q24 (CB 752).
51 The plaintiff provided to the defendants a list of her treating medical practitioners.[41] She also provided a report from her treating general practitioner, Dr Miglic, responding to the defendants’ questions.[42] Dr Miglic informed the defendants that the plaintiff has pain not only when standing but also when sitting and lying, and:
[41]CB 754.
[42]CB 783.
(a) he had been treating the plaintiff for many years and that she had first attended him for this disability in May 2005’;[43]
[43]Q4 (CB 783) and Q5 (CB 784)
(b) the plaintiff suffers “ongoing pain standing sitting lying” and “poor sleep”;[44]
[44]Q2 (CB 783) and Q16(1) (CB 785)
(c) the plaintiff is “not likely to improve”;[45]
[45]Q10 (CB 784)
(d) the plaintiff is not capable of performing either her usual duties or some other form of employment;[46]
(e) in his opinion, the plaintiff meets the definition of total and permanent disablement due to “persistent pain”.[47]
[46]Q16(a) to 16(c) (CB 785-786)
[47]Q21 and 22 (CB 787)
52 The plaintiff is critical of the defendants because, having received Dr Miglic’s medical assessment, and the details of the plaintiff’s treating practitioners, neither of the defendants sought further information from her treating practitioners about matters relevant to claim. The Claims Assessor limited its investigation to requesting, from the plaintiff’s employer, reports produced for the purpose of the plaintiff’s workers’ compensation claim, and those reports did not address the question of the total and permanent disablement definition. The Claims Assessor obtained its own medico-legal assessments from a psychiatrist (Dr Sheehan),[48] an occupational physician (Dr Poppenbeek),[49] a functional capacity evaluation,[50] and a vocational assessment.[51]
[48]CB 865
[49]CB 872
[50]CB 879
[51]CB 895
53 The plaintiff submits that when the Claims Assessor rejected the plaintiff’s first request on 9 August 2011, it gave its reasons for not giving a certificate that, in its opinion, the plaintiff was not incapacitated to such an extent as to render her unlikely ever to engage in regular employment for which she is for the time being reasonably suited by education training or experience.[52]
[52]CB 735 at 747
54 The plaintiff submits that whilst the Claims Assessor’s rejection of the plaintiff’s first request summarised the key points from all the reports before it, the Claims Assessor’s reasons make clear that its reasoning was supported almost entirely by the reports it had commissioned without any attempt to understand why Dr Miglic had expressed the view that the plaintiff did meet the total and permanent disablement definition. The plaintiff submits the Claims Assessor’s report does not attempt to understand why Dr Miglic, the plaintiff’s treating doctor, had opined that the plaintiff does meet the relevant definition, and there was no attention given by the Claims Assessor to attempt to resolve a critical conflict of opinion between Dr Miglic, and Dr Poppenbeek, that was central to Dr Poppenbeek’s opinion that the plaintiff is capable of sedentary work. That key conflict concerns the question of whether Ms Service has pain when she is sitting. Dr Miglic opined that she does. Dr Poppenbeek is of the opinion that she does not.
55 The plaintiff submits that given the obvious conflict between the opinions of Dr Miglic, and Dr Poppenbeek, it was not open to the Claims Assessor to ignore Dr Miglic, and rely upon Dr Poppenbeek. It had to attempt to resolve that conflict. Again relying on Finch,[53] the plaintiff submits the High Court emphasised that there is a “high duty” on a trustee to make enquiries for information, evidence and advice which may be relevant before making a decision on a person’s eligibility for a benefit. The plaintiff submits that knowingly excluding relevant information is a breach of duty, and a failure to seek relevant information to resolve conflicting bodies of material is also a breach of duty.
[53]Supra
56 The plaintiff also relies upon Alcoa of Australia Retirement Plan Pty Ltd v Frost[54] where the Court of Appeal said, inter alia:
[54](2012) 36 VR 618 at paragraph [48]
(i) a claim for superannuation benefits is not an adversarial process and a member claiming a benefit does not bear any onus of providing the trustee with sufficient evidence to prove the claim;
(ii) once a member puts on material capable of yielding an inference that they are eligible for the benefit, the trustee comes under a duty to give properly informed consideration to the claim.[55] Where the trustee is faced with inconsistent or insufficient evidence, the duty requires the trustee to make further enquiries as are relevant to confirm or allay its concerns or properly determine the application.[56]
[55]Alcoa of Australia Retirement Plan Pty Ltd v Frost (supra) at paragraph [48]
[56]Alcoa of Australia Retirement Plan Pty Ltd v Frost (supra) at paragraphs [45], [48], [57], [60] (Nettle JA), and [72] (Redlich JA)
57 Applying these principles, the plaintiff submits the trustee, faced with an apparent conflict of opinion between Dr Poppenbeek, an expert who had the opportunity to examine the plaintiff on one occasion for the purposes of providing a medico-legal report, and Dr Miglic, a practitioner who had treated her for over four years, the Claims Assessor should have made further enquiry of Dr Miglic and asked him to clarify his opinion. The Claims Assessor did not send Dr Poppenbeek’s report to Dr Miglic or ask him to identify any points of disagreement and explain why he might disagree. Further, the Claims Assessor did not send to Dr Miglic the functional capacity evaluation, or vocational assessment report, for his comment despite deeming it appropriate to seek Dr Poppenbeek’s,[57] and Dr Sheehan’s,[58] views on those reports and acting on those views. The plaintiff submits that by failing to avail itself of further opinion from the plaintiff’s treating doctor, Dr Miglic, the Claims Assessor acted upon inadequate material, and failed in its duty to resolve conflicting bodies of material that it had before it.
[57]CB 918
[58]CB 921
58 Further, the plaintiff submits that not only did the Claims Assessor fail to seek plainly relevant information, but it refused the plaintiff the opportunity to address the adverse material it had obtained by refusing to provide her with copies of the reports it had commissioned before making its final assessment despite two requests from her solicitor.[59] In doing so, the Claims Assessor failed to gather relevant information, and to act reasonably, fairly and in good faith. The plaintiff relies upon Beverly v Tyndall Life Insurance Co Ltd.[60]
[59]CB 974, 975, 977, 978, 980, 992, 993, 994, 996.
[60](1999) 21 WAR 327 at paragraphs [12]-[15] (Malcom CJ) and [88]-[93] (Ipp J)
59 The plaintiff submits that the Claims Assessor’s reasoning as set out in the first summary report shows that from the outset, the Claims Assessor did not address the correct question necessary to decide whether the plaintiff was totally or permanently disabled. The plaintiff submits the reasons show that the Claims Assessor did not deal with the real barriers that would decrease the likelihood of the plaintiff actually obtaining employment in the real world even though the evidence of those barriers was contained in the reports the Claims Assessor relied upon.[61]
[61]Report of Dr Poppenbeek CB 874; the Functional Capacity Evaluation at CB 880-890; Report of Dr Sheehan at CB 869-70; the Vocational Assessment Report at CB 900-905
60 The plaintiff submits the reports obtained by the Claims Assessor show the plaintiff suffers with severe and constant pain. She is irritable because of her pain. She has low mood and is socially withdrawn. Because of her poor sleep and pain, she is tired and performs her daily tasks slowly. She takes rest breaks throughout the day. She has poor concentration and is not mentally alert.
61 The roles that the vocational assessment suggested were appropriate for the plaintiff to perform were a call centre operator/telemarketer, enquiry clerk, filing clerk, logistics clerk, and cashier. The plaintiff submits that the information gathered by the Claims Assessor raises real questions about the plaintiff’s ability to compete for those roles on the open labour market. Given the plaintiff’s lack of particular experience, and the low-skilled nature of the suggested occupations, the plaintiff submits it is unlikely that an employer will be willing to accommodate her needs, and prefer her over other candidates who have no special requirements. In these circumstances, the plaintiff submits that the Claims Assessor’s first report reveals no appreciation of those issues. Rather, it reveals that it treated the relevant question as one that is ultimately to be answered by medical professionals. The plaintiff submits that from the time of the rejection of the plaintiff’s first request, the Claims Assessor did not address the correct question, and its reasons were unsound. The plaintiff submits this infected the reasoning in the three subsequent rejections of the plaintiff’s claim that followed.
62 The Claims Assessor sent the first summary report to the scheme solicitor for review.[62] The plaintiff is critical of the review conducted by the scheme solicitor that the decision is reasonable.[63] The solicitor’s review did not pick up the obvious conflict on the evidence between the treating doctor, Dr Miglic, and Dr Poppenbeek, that the plaintiff was in pain even when seated. Further, the plaintiff submits the solicitors failed to observe that the plaintiff’s solicitors were not given the opportunity to view and comment upon adverse material obtained by the Claims Assessor. Finally, the plaintiff submits the review by the scheme solicitor did not address what the plaintiff submits is a the key issue, namely the likelihood of the plaintiff obtaining employment in the real world.
[62]CB 923.
[63]CB 939.
63 It is the plaintiff’s submission that a review done by a solicitor in the best interests of members of the fund, and with the same degree of care, skill and diligence as a prudent superannuation trustee, would have noticed these failures and required the Claims Assessor to address them, and advise the trustee accordingly.
64 As I have said earlier, the evidence is that on 22 July 2011, the plaintiff’s solicitor wrote to the trustee seeking reconsideration of the first rejection of the plaintiff’s claim.[64] The solicitor queried whether the Claims Assessor had properly considered the plaintiff’s realistic prospects of obtaining and maintaining employment on the open labour market. The letter that the solicitor had received had set out the Claims Assessor’s conclusion, but not their reasoning in rejecting the plaintiff’s claim.[65]
[64]CB 1027
[65]CB 1004
65 The defendants submit that in this letter, the plaintiff’s solicitor has agreed with Dr Poppenbeek’s conclusion that she is able to perform sedentary duties.[66] I think a fair reading of the letter reveals that the solicitor noted Dr Poppenbeek’s conclusions and queried whether, even in light of that conclusion, the plaintiff would be realistically employable, and whether there had been sufficient attention to that key issue.
[66]Defendants’ outline of submissions 7 October 2016 at paragraph [53]
66 On 15 September 2011, the Claims Assessor produced a draft summary report responding to the solicitor’s complaint.[67] The plaintiff submits that report contains no analysis of the issues raised by the plaintiff’s solicitors but is a bare assertion that the Claims Assessor maintains its opinion that “the ongoing symptoms are not sufficient to prevent a return to work in the future … and that full time work is possible”.
[67]CB 1011
67 The Scheme solicitor gave the Claims Assessor the following suggestion:
“It seems … desirable to direct your mind to the question … if you think it necessary to obtain further information …, it would seem appropriate for you to do so.”[68]
[68]CB 1014
68 The plaintiff submits this advice from the Scheme solicitor to the Claims Assessor was inadequate. The solicitor, having reviewed the decision, in accordance with the trustee’s duty to act with due care, and in the best interests of the member, ought to have directed its own mind to the question, and identified to the Claims Assessor the issues that needed to be considered. If it thought additional information was necessary, it ought to have identified that information and directed the Claims Assessor to obtain it.
69 The Claims Assessor did not seek further information, and it produced another summary report on 21 September 2011.[69] In that report, the Claims Assessor again did not engage with the issue raised by the plaintiff’s solicitor in the second request, but simply restated the conclusion made in its first report.
[69]CB 1020
70 The review of the Claims Assessor’s summary report was essentially identical to its previous one. The Scheme solicitor was satisfied that the plaintiff’s second request had been dealt with. The plaintiff submits that a scheme solicitor, reviewing the decision in accordance with the trustee’s duty to act with due care, and in the best interests of the member, would have noted the lack of any real change in the Claims Assessor’s summary, and required the issue to be properly addressed.
71 The plaintiff submits that the Scheme solicitor’s letter revealed that it too had failed to address the correct question. It agreed that the evidence supports the Claims Assessor’s decision on the basis that “there is no evidence that would suggest that Ms Service is unable to obtain appropriate employment”. The plaintiff submits that the definition of total and permanent disablement does not require that a member be “unable” to obtain employment, but whether the member is “unlikely” to do so, and that is a much lower standard.
72 The plaintiff also submits the Scheme solicitor failed to undertake an analysis of all the evidence the Claims Assessor had gathered that showed that the plaintiff was unlikely to be able to obtain employment even in a sedentary occupation in the real world.
73 The plaintiff’s third request on 27 June 2013[70] provided the defendants with the vocational assessment report of Katrine Green, a psychologist.[71] Ms Green outlined reasons why the plaintiff was unlikely to be able to engage in suggested alternate occupations. Ms Green opined that the plaintiff does not have the kind of sedentary skills that would enable her to secure employment where she could organise her daily tasks around her physical tolerances.[72] She concluded that the plaintiff is unlikely to engage in regular employment, noting:
[70]CB 1067
[71]CB 1045
[72]CB 1053
(a) the plaintiff’s work history has relied on manual labour;
(b) the plaintiff has no real experience or training in clerical roles;
(c) the plaintiff’s pain and adjustment difficulties would have a negative impact on her job performance;
(d) the plaintiff would require breaks that would be beyond the acceptable amount of time normally taken in the occupations suggested by the Claims Assessor’s vocational assessment, and some would require prolonged standing or manual handling beyond the plaintiff’s limitations.[73]
[73]CB 1057-1058
74 The plaintiff is critical of the way in which the Claims Assessor was dismissive of the report of Katrine Green. On 13 August 2013, the Claims Assessor produced a summary report outlining its reasons for again rejecting the claim.[74] The report first complained that no information regarding Ms Green’s experience or prior professional activity was provided. The report very briefly summarised Ms Green’s conclusion, and stated that its own vocational assessment had “produced transferable skills which would allow employment in alternate positions”. The plaintiff submits report of the Claims Assessor reveals a lack of real and genuine consideration of the issues Ms Green presented.
[74]CB 1042
75 The plaintiff is also critical of the review of the Claims Assessor’s report by the Scheme solicitor. The Scheme solicitor informed the Claims Assessor that it was “entirely open to prefer the independent medical and other assessments already on record to the report submitted on behalf of the claimant”.[75] The plaintiff submits that it is not open to a decision maker acting in good faith, reasonably, and giving real and genuine consideration to the claim, to simply “prefer” one report over another. The plaintiff submits there must be some analysis of the points of difference, and some rational basis for the preference. The plaintiff submits a reviewer, acting in the best interests of members, would have required the Claims Assessor to explain that rational basis.
[75]CB 1064
76 As I referred to earlier, after this proceeding was commenced, the plaintiff submitted further material in support of her claim to the Claims Assessor which agreed to consider it. A number of further reports from treating professional were supplied. Those reports were from Dr Victor Gordon, a treating neurologist, dated 6 December 2013[76] and 1 September 2015, and an undated report and a second dated report of Dr Kira Turlakow, a general practitioner.[77]
[76]CB 1109
[77]CB 1110
77 The Claims Assessor gave copies of this further material to Dr Poppenbeek for his further opinion.[78] The Claims Assessor also wrote to Dr Turlakow a letter requesting further clarification of her opinion.[79] Dr Turlakow provided a detailed response dated 13 July 2016 which supported the plaintiff’s case that she was totally and permanently disabled.[80]
[78]CB 1118
[79]CB 1156
[80]CB 1122
78 The plaintiff submits that the further reports from the treating doctors provided to the Claims Assessor in what I have called the fourth request, confirm that the plaintiff’s treating practitioners disagree with Dr Poppenbeek’s critical conclusion that the plaintiff will not have pain if she is not standing. The plaintiff submits these reports highlight the degree of debilitation the plaintiff suffers even in doing her household tasks, and a little volunteer work.
79 On 25 May 2016, the Claims Assessor issued its final summary report and again refused to certify that the plaintiff was totally and permanently disabled.[81] The plaintiff submits the reasoning of the Claims Assessor is unsound, because it fails to address the key issue as to whether or not the plaintiff would be likely to obtain a sedentary job in the real world. The plaintiff submits the Claims Assessor’s reasoning is unreasonable in light of all the evidence.
[81]CB 1082
80 The plaintiff submits it is not reasonable for the Claims Assessor to accept (as it did) the opinion of Dr Poppenbeek over the contrary opinions of three treating practitioners. Further, the plaintiff submits that in considering the plaintiff’s realistic likelihood of obtaining employment, the severity and constancy of her pain cannot be ignored. The plaintiff submits that because the Claims Assessor preferred the opinions of Dr Poppenbeek over the opinions of the treating doctors, then this was the consequence making the Claims Assessor’s reasoning unreasonable.
81 The plaintiff is also critical of the review of the Claims Assessor’s fourth rejection. The plaintiff submits that the solicitor’s review consists of a bald conclusion that the process followed was appropriate and the conclusions are open.[82] The plaintiff submits an examination of the review reveals no appreciation of the significant issues raised in the new material submitted by the plaintiff in her fourth request. The plaintiff submits the conclusion of the solicitor is itself unreasonable, and a reviewer exercising due care, skill and diligence, would not have advised as the solicitor did.
[82]CB 1137
82 The plaintiff relies upon Flegeltaub.[83] The plaintiff submits:
[83]Supra
(a) the decision by the Claims Assessor to reject the plaintiff’s fourth request was not made in good faith;
(b) the decision by the Claims Assessor to reject the plaintiff’s fourth request was not made upon real and genuine consideration (which includes consideration of the wrong question);
(c) the decision by the Claims Assessor to reject the plaintiff’s fourth request was not made in accordance with the purposes for which the power was conferred; and
(d) the reasons provided by the Claims Assessor to reject the plaintiff’s fourth request are not sound.[84]
[84]Telstra Super Pty Ltd v Flegeltaub (supra) at paragraph [26]
83 The plaintiff contends that if any of those four grounds referred to in Flegeltaub[85] are made out, then no opinion has been formed by the Claims Assessor under the trust deed. The plaintiff also contends that if the Claims Assessor’s decision is unreasonable on the whole of the evidence, then the Court can infer a breach of one of the four duties referred to in Flegeltaub[86] and no opinion has been formed under the trust deed.
[85]Supra
[86]Supra
84 In response to criticism of the defendants that the plaintiff has tried to turn this proceeding into a merits review of the decision by the defendants, the plaintiff submits that the fourth limb of the principle in Flegeltaub[87] obliges this Court to analyse the Claims Assessor’s reasons, and assess the soundness of those reasons. That is inherently an exercise relating to the merits of the Claims Assessor’s decision.
[87]Supra
85 The plaintiff submits that if I find that no opinion has been validly formed, then I should not remit the matter back to the trustee for reconsideration. That is because both the trustee, and the Claims Assessor, have each considered this matter on four occasions. Each rejection of the plaintiff’s request has been unsatisfactory. The plaintiff’s claim has now been on foot for six years. Whilst the defendants complain that she did not put on extra medical material until late in the piece, there was no onus on her to do so. The plaintiff submits the defendants had a duty to seek all relevant material, and they did not, and the interests of finality weigh in favour of the Court to exercising its own judgment as to whether the plaintiff satisfies the definition of total and permanent disablement.
86 The defendants submit that the preliminary question should be answered in the negative. In their outline of submissions prepared by Mr Jellis and filed before trial, the defendants summarised their case in this way:
“This is because the matters raised in the Plaintiff’s Outline Of Submissions dated 29 September 2016: (1) largely ignore the series of inquiries that were undertaken by ICM and also the considerable evidence that supports the opinion that it formed; (2) require a strained construction of selective quotations from reasons given by ICM and, (3) ultimately, resolve into a series of complaints about the merits of ICM’s opinion rather than any reviewable error. It is not sufficient that the plaintiff disagrees with the decision – the plaintiff must go so far as to show that no decision maker acting reasonably would have made the decision. That is a high hurdle.”
87 Having considered all of the evidence, I accept this submission. The defendants point out that it is the second defendant, and not the trustee, that is the Claims Assessor under the deed and relevantly it is the opinion of the second defendant as Claims Assessor that matters.
88 The trustee supervises the claims process. The trustee published guidelines to the Claims Assessor.[88] Further, the trustee established a procedure for review by the Scheme solicitor.[89] Under that procedure, before making any decision not to issue a certificate, the Claims Assessor was required to forward its draft reasons, and all supporting material, to the Scheme solicitor to review the decision for reasonableness, compliance with the guidelines, and the trust deed.[90] The defendants submit that the review by the Scheme solicitor was satisfactorily completed in respect of all four decisions made by the Claims Assessor. I accept this submission.
[88]CB 229, 237, 457-488
[89]CB 406-456, 489-493
[90]CB 455
89 The defendants submit that the duties imposed on the first defendant as trustee of the scheme relevantly include obligations to:
(a) act honestly in all matters concerning the scheme; and
(b) exercise the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to the scheme; and
(c) perform its duties and exercise its powers in the best interests of the members.
90 Clause 2 of the trust deed provides that it is the opinion of the second defendant which is the essential precondition of the payment of a total and permanent disablement benefit, not the opinion of the first defendant, which is commonly the case in other superannuation schemes.
91 The defendants both accept the duties owed by the first defendant as trustee to the plaintiff set out above. The defendants rely upon Rapa v Patience[91] and Finch v Telstra Super,[92] where the High Court found there is “a high duty on the Trustee to make inquiries for ‘information, evidence and advice’ which the Trustee may consider relevant”.
[91](Unreported) NSWSC, 14 April 1985 per McLelland J
[92](Supra) at paragraph [66]
92 However, the defendants contend that in all of the circumstances here, the trustee has discharged its duties by the processes and procedures it has put in place, and applied, in supervising the decisions made by the second defendant as manager of the scheme in relation to the plaintiff’s claim. Further, the defendants submit there is no error in the decisions made by the second defendant in the decisions or opinions made in relation to the plaintiff’s claim. Having considered all of the evidence, I accept this submission.
93 The defendants submit, and I did not understand the plaintiff to disagree, that it is the task of the Court, in a case like this, not to substitute its own opinion for the opinion that was formed by the decision maker under the Deed. The Court is not concerned with the merits of the decision, and (in this case) unless the decision is one that no person acting reasonably could have made, the decision of the second defendant will stand. I accept this is the correct approach to my task.
94 Relying on these principles, the defendants submit that the decision by the second defendant to reject the plaintiff’s claim, was a decision that was reasonably open to it on the evidence. I agree with that submission, and the preliminary question must be answered in the negative. The plaintiff’s claim must fail.
95 It is necessary however to examine the evidence the see why it is that the decision or opinion of the second defendant was reasonably open on the evidence.
96 The first defendant’s rejection of the plaintiff’s first claim took into account a number of matters. The plaintiff had been examined on behalf of the defendants by Dr Poppenbeek. By report dated 12 August 2010,[93] he concluded:
[93]CB 872
“… I consider Ms Service would be immediately fit for any duties which are sedentary in nature. This could include such tasks as beautician work (which she has expressed an interest in), process work, assembly, receptionist, administrative and clerical work. If suitable duties can be found, she can have a graduated return to work, ultimately reaching full-time work”[94]
[94]CB 877
and
“Do you consider Ms Service might be able to return to work on either a part-tine or full-time basis in the future?
I consider Ms Service is able to return to work immediately on a part-time basis. Ultimately she should be able to reach full-time work.”[95]
[95]CB 878
97 The plaintiff was examined by Dr Sheehan, consultant psychiatrist, on behalf of the defendants. In his report of 2 August 2010,[96] Dr Sheehan concluded:
“From a psychiatric perspective alone, excluding her physical condition, I consider she has a capacity to perform full-time employment if required and all duties of her occupation as a mail officer within any restrictions relevant to her physical condition.”[97]
[96]CB 865
[97]CB 870
98 The plaintiff was referred for a functional assessment by occupational therapist, Tony So, to be carried out at the request of the defendants. Dr So also concluded that the plaintiff had the capacity to carry out sedentary work on a full-time basis.[98]
[98]CB 879
99 This opinion was consistent with another opinion also obtained by the defendants from Drago Sapina, a vocational rehabilitation consultant, on 3 November 2011. That report identified a number of suitable sedentary jobs including call centre operator, telemarketer, logistics clerk and enquiry clerk that the plaintiff was capable of performing on a full-time basis.[99]
[99]CB 895
100 The second defendant provided the reports of Dr So, and Mr Sapina, to Doctors Poppenbeek and Sheehan for their further assessment and comment. Both agreed with the findings and opinions expressed.[100]
[100]CB 918 and CB 921
101 On 1 February 2011, the second defendant forwarded to the Scheme solicitor a draft of its first summary report, along with all of the evidence relevant to the claim.[101] In response, the Scheme solicitor confirmed that the decision was reasonable.[102] The plaintiff’s solicitors were duly advised of the rejection of the plaintiff’s claim but invited to contact the first defendant if further information came to light.
[101]CB 923
[102]CB 939
102 By letter dated 22 July 2011, the plaintiff’s solicitors sought review of the first decision.[103] The second defendant conducted a review of the plaintiff’s claim, but concluded that it remained of the same opinion having regard to the report of Mr Sapina and, the reports of Doctors Poppenbeek and Sheehan.
[103]CB 1027
103 The second defendant forwarded a draft of the second summary report to the Scheme solicitor. The Scheme solicitor responded by suggesting that the second defendant further direct its mind to the question raised in the plaintiff’s complaint, namely whether it had failed to consider whether there was any realistic prospect of the plaintiff obtaining employment.[104] An amended summary report was then subsequently provided,[105] and was confirmed by the Scheme solicitor.[106]
[104]CB 1014
[105]CB 1020
[106]CB 1023
104 On 27 June 2013, the plaintiff’s solicitors again wrote to the first defendant seeking another review of the plaintiff’s claim.[107] The letter said, inter alia:
“… medical evidence indicates our client could undertake sedentary work but that manual work is now beyond her. … .”
[107]CB 1067
105 The letter from the plaintiff’s solicitors also enclosed a vocational assessment from Ms Katrine Green dated 4 December 2012[108] and, said, inter alia:
[108]CB 1045
“Miss Green confirms that the physical limitations as described by Dr Poppenbeek and various other Doctors indicate Miss Service could undertake sedentary work”[109]
[109]CB 1067
and
“… The medical evidence clearly establishes that our client cannot undertake manual labour and is now only physically capable of sedentary employment. Her vocational history does not provide her with any transferrable skills that would allow her to obtain sedentary employment. Therefore she cannot be considered to have a realistic prospect of obtaining employment in the open labour market.” … .[110]
[110]CB 1067-8
106 The second defendant considered these submissions as put to it by the plaintiff’s solicitors when it made the third summary report rejecting the plaintiff’s claim. The third summary report dated 13 August 2013 is at Court Book page 1042. It sets out the reasoning of the second defendant. The reasoning, inter alia:
(a) notes that Ms Green’s report indicates that Ms Service is able to cope with most (light) home duties including child care;
(b) refers to the transferrable skills that are listed in the Sapina report;
(c) compares the conclusions reached by Ms Green with the reports of Dr So, and Mr Sapina, and the two reports of Dr Poppenbeek, and the two reports of Dr Sheehan.
107 The third summary report concludes that:
“While Ms Green has provided a differing view, we are not convinced this outweighs the evidence on file and continue to prefer the reports of the experienced independent assessors.”[111]
[111]CB 1043
108 The plaintiff’s claim rested at this point until May 2015, some twenty-one months later, when the plaintiff provided the first defendant with further medical reports from Doctors Kumar, Turlakow and Gordon.
109 On 26 May 2015, the solicitors for the defendants wrote to the solicitors for the plaintiff confirming that the first defendant would request that the second defendant reconsider its decision not to issue a certificate in light of this new evidence. The letter also invited the plaintiff to submit any further evidence or other material that she would like the second defendant to consider when making its decision.[112] No further material was provided until March 2016, when the plaintiff provided two further medical reports from Doctors Turlakow and Gordon.[113]
[112]CB 1138
[113]CB 1145
110 The second defendant considered the further material submitted to it. It noted the potential inconsistencies between the opinion expressed by Dr Turlakow and the evidence previously received on the claim (including all of the findings on examination and opinions received in 2010). The second defendant made further enquiries by seeking yet further reports from both Doctors Turlakow and Poppenbeek.[114] Supplementary reports were subsequently received from Doctors Turlakow[115] and Poppenbeek[116] which expressed different opinions about the plaintiff’s capacity as at the date of assessment. The second defendant then considered both of these further reports, along with all of the evidence previously obtained, and made the decision, for the fourth time, again rejecting the plaintiff’s claim.
[114]CB 1156 and 1158
[115]CB 1122
[116]CB 1118
111 In rejecting the plaintiff’s claim, the second defendant concluded, inter alia:[117]
“Dr Turlakow indicates Ms Service’s condition has a significant impact on her activities of daily living however other reports, such as those of Medibank Health Solutions and Ms K Greene, would indicate that Ms Service is able to cope with those duties provided they are paced and included regular rest breaks.
Evidence shows Ms Service has experience which would allow alternate employment.
While noting Dr Turlakow is the regular attending physician, we remain of the opinion it is reasonable to accept the opinion of independent and qualified assessors (Dr Poppenbeek and Medibank Health Solutions) to determine the actual capacity for employment at the effective date.”
[117]CB 1082
112 Having read all of the documentary evidence in the Court Book, I have concluded that the plaintiff has failed to prove that the decisions of the second defendant in rejecting the plaintiff’s claim on four occasions were decisions that were not reasonably open on the evidence. In particular I have noted all of the material considered by the second defendant in forming each of its opinions. That material was extensive and relevant to the issues before it. In my view, each of the four decisions made to reject the plaintiff’s claims was open to the second defendant on the evidence before it. It cannot be said those decisions were not reasonably open to the second defendant.
113 In my view, on all of the evidence assembled, it was reasonably open to the second defendant to conclude (as it did) that the plaintiff was not totally and permanently incapacitated within the definition in the trust deed because she was capable of performing sedentary work for which she was qualified. The plaintiff had been carrying out sedentary work before she ceased work. I am satisfied the defendants gave proper consideration to the evidence and properly assessed the plaintiff’s capacity in light of the reality of her prospects for employment.
114 Most, if not all, of the plaintiff’s submissions are argumentative. Naturally they contend for the contrary position but they do not get around the fact that at the end of the day, on all of the evidence before both defendants, the decisions made and the opinions formed were reasonably open.
115 In my view, neither defendant has breached any duty that may arguably have been owed by either of them to the plaintiff in Tort. I can find no evidence of the first or second defendant having acted in bad faith towards the plaintiff and neither is there evidence of the first defendant having breached any fiduciary duty owed to the plaintiff.
116 The claim must be dismissed.
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