A painter who failed to tell his insurer about previous treatment for neck pain has won a court battle to have his total and permanent disability claim accepted. 

Nathan Rich made a claim on his TAL policy in September 2017 after leaving his job as part-time manager at a paint and panel business to undergo anterior cervical spine fusion. 

He had been working at the business since November 2016, after a motor accident in June that year left him with neck and shoulder pain and restricted motion. The job was funded by the Transport Accident Commission, the Victorian agency that provides after-accident support services.

Mr Rich said his “compression of spinal cord C5/C6” and “tear in left shoulder” rendered him totally and permanently unable to do any job matching his education, training and experience. He said the only role suitable for him was automotive spray painter.

But TAL said it had grounds to decline the TPD claim, including the right to apply a cervical spine exclusion under section 29 of the Insurance Contracts Act, which allows an insurer to vary terms of coverage if the insured made a misrepresentation before entering into the life contract.

The insurer said the exclusion discharged its liability even if Mr Rich met the policy’s TPD definition.

Mr Rich accepted he made a misrepresentation on his application form in 2014 when answering “no” to a question that asked if he had received medical advice or treatment for back or neck pain including sciatica. He had in fact received treatment for neck pain.

But he told the County Court of Victoria he had a valid claim because he met the TPD definition; the exclusion clause did not apply; even if the clause applied, his cervical spine injury was new; and if that injury was not new, the left shoulder injury had left him totally and permanently disabled.

The court ruling centred on the extent of Mr Rich’s shoulder injury and work capacity.

Judge Julie Clayton said medical evidence provided shows “he is unlikely to return to any employment for which he is suited. I also accept that his shoulder injury means he could not reliably and consistently attend work, even on a part time basis.”

She said his part-time role at the paint and panel business “was not a real job ... This job was, apparently, created for him as part of a TAC-sponsored return to work program.

“Although Mr Rich may have been providing some assistance ... the fact that the role ceased once the support of the Transport Accident Commission was withdrawn raises a strong inference that the job was of insufficient utility to warrant the salary once the TAC subsidy was withdrawn."

She ruled Mr Rich is entitled to the insured amount on the date he became incapacitated, June 1 2016.

Appropriate orders and costs will be decided after a hearing with the parties. Click here for the ruling.