A concussion victim has been denied a total and permanent disability benefit after the industry ombudsman found he did not meet his insurance policy’s terms.

The insured suffers severe post-concussion syndrome following a head injury and cannot work.

He complained to the Australian Financial Complaints Authority when Zurich and Brighter Super Trustee rejected his modified TPD claim.

The cover required him to be totally and irreversibly unable to perform at least two activities of daily living, as defined in the policy, without help. 

An AFCA panel says the man cannot bathe without the help of his wife, but it is not satisfied he is unable to dress or walk without help, as he claimed.

Zurich argued the claimant’s need for “standby assistance” was not equivalent to total and irreversible inability to perform an activity, but the panel disagrees, saying it is not fair to adopt an overly restrictive approach.

The insurer provided a surveillance report, drawing on publicly accessible information online, showing the man playing golf, carrying his baby and travelling to the US.

AFCA says the report featured irrelevant material and, since the insurer was aware the man had suffered depression and anxiety, including this could affect him. The panel notes it does not have the power in a superannuation complaint to award compensation for non-financial loss.

But it adds that videos of the man playing golf and attending a sporting event do support the claim he can walk independently and with some confidence.

The modified TPD definition is a high threshold to meet, the determination says.

Read the ruling here.