Having a pre-existing health condition won't automatically disqualify you from being able to make a Total and Permanent Disability (TPD) claim. In fact, there are many Australians with past health issues, whether it’s depression or chronic back pain, who have successfully claimed for TPD benefits when they suffer a new injury, or an existing condition significantly worsens and leaves them unable to work.
Confusion often arises in cases such as these because of complex insurance policies and stark differences in rules for superannuation default cover and standalone policies. Claims can be denied by insurers because of pre-existing exclusions, but it must be categorically proven that these exclusions apply, leading to many denials getting overturned on appeal.
This handy guide is a deep dive into when pre-existing conditions affect your claim, how to distinguish between different types of cover and the evidence you’ll need to make a successful claim.
Understanding Pre-Existing Conditions in TPD Insurance
What Legally Qualifies as a "Pre-Existing Condition"?
A pre-existing condition is a health issue that existed before your insurance coverage started or increased. The exact definition can vary dramatically between different policy types:
Superannuation default cover: most supers generally define pre-existing conditions as symptoms, illnesses or injuries you experienced and knew about before your cover began. There are certain policies which specify timeframes for things like symptoms or treatment within six months before cover came into effect.
Standalone policies: these often have broader definitions which have the potential to exclude conditions where you had symptoms, sought advice or received treatment within 6-24 months before the policy started, even if you went undiagnosed despite doing so.
Practical examples:
- Depression that was diagnosed five years ago with no recent treatment won't usually count as being "pre-existing" if you got new coverage two years ago
- Chronic back pain you saw a physiotherapist for three months before getting standalone cover would likely be considered as a pre-existing condition
- Diabetes diagnosed after your policy started isn't pre-existing even if you had undiagnosed symptoms beforehand (unless you knew this and failed to disclose it)
Your Rights and Entitlements
What you're entitled to:
- Fair assessment: insurers are obligated to prove that exclusions apply with evidence of symptoms before your policy comes into effect. They cannot make decisions based on assumptions
- Appeal rights: an internal dispute resolution should be completed within 90 days, then there’s an AFCA review within two years if your appeal is denied
- Aggravation coverage: if a new incident has significantly worsened a pre-existing condition, you will likely be covered for the additional disability
- Medical assessments: your own specialists' reports can be used to counter medical opinions from an insurer
What you must do:
- Disclose honestly: you must reveal all known medical conditions when making an application for increased cover, as per the Insurance Contracts Act 1984, even if they’re seemingly minor
- Claim promptly: the majority of policies require that a claim is made within three years of a disability becoming permanent
- Attend assessments: always comply with reasonable medical examination requests from insurers
- Provide evidence: submit thorough medical records and employment history within the requested timeframes (typically 30-60 days)
Key deadlines:
- Claim lodgement: within three years of total permanent disability
- IDR complaint: within 90 days of claim denial
- AFCA dispute: within two years of IDR outcome
Common Scenarios and Questions
I had Depression Five Years Ago but Haven't Needed Treatment Recently. Can I Still Make a Claim?
Quick answer: yes. Your case will be strengthened significantly if you can show that your current inability to work is because of a new episode or significant worsening unrelated to that past period. There have been some recent cases of successful claims even with mental health history.
What to do:
- Get detailed reports from your current treating psychiatrist or psychologist which explain your new or worsened condition
- Gather evidence showing that you were able to work successfully between the old depression and current disability
- Document any new triggering events that have arisen, such as workplace stress, trauma and life changes
Important note: a 2024 AFCA determination approved TPD for someone with bipolar disorder who had prior depression, because updated psychiatric evidence proved permanent incapacity despite the five-year gap.
My Super Fund has "At Work" Limited Cover. What Does This Mean for Pre-Existing Conditions?
Quick answer: "at work" limited cover will only pay out if you are unable to perform your usual job, while full "any occupation" cover requires you to be unable to work in any job suited to your education and experience. Limited cover usually has fewer pre-existing exclusions.
What to do:
- Check your Product Disclosure Statement for your specific TPD definition (often limited for first 6-12 months of membership)
- Keep in mind that you might qualify under the easier "at work" test even with a pre-existing condition
- Remember that once you've worked full-time for the qualifying period, your cover typically upgrades to "any occupation" automatically
Important note: super fund default cover through your employer will typically have minimal or no pre-existing exclusions if you were working normal duties when cover began.
I'm Applying for Additional Cover and Have Past Health Issues. What Must I Disclose?
Quick answer: you must disclose absolutely everything you know about your health, even when it comes to conditions you might consider minor or resolved. Material non-disclosure can lead to your entire policy being null and void.
What to do:
- Ensure you detail all past diagnoses, treatments, surgeries and ongoing medications, even if they were many years ago
- Include any mental health consultations, physiotherapy sessions, chronic pain and conditions you manage without medication
- Ask your GP to review your medical history and provide a comprehensive summary to support your claim
- If you aren’t sure if something is important, you should disclose it anyway (you can explain it's minor)
Important note: as per section 21 of the Insurance Contracts Act, insurers can only use non-disclosure to deny claims if they are able to prove that the undisclosed information would have changed their decision to insure you or the terms they offered.
The Insurer Says My Current Disability is Just My Pre-Existing Condition. How Do I Prove Otherwise?
Quick answer: insurers bear the burden of proof when it comes to exclusions applying. You will need to provide medical evidence which shows either a new, and unrelated, condition, or significant aggravation beyond your pre-existing state of health.
What to do:
- Get specialist reports which explicitly address how your current condition is different from, or worse than, your past condition
- Seek functional capacity assessments which compare your abilities before and after the worsening of your condition
- Document specific incidents such as workplace accidents, new diagnoses, etc. which triggered your permanent disability
- Find employment records that prove you were working successfully despite the pre-existing condition you had before your current disability
Important note: AFCA reviews show that a lot of pre-existing denials get overturned when claimants are able to provide evidence that their symptoms were unknown, minimal or stable before recent deterioration.
Can I Claim TPD if a Work Accident Made My Old Back Injury Significantly Worse?
Quick answer: yes, aggravation of pre-existing conditions is generally covered in cases such as these. Your claim is for the additional disability caused by the workplace incident, not your original condition.
What to do:
- Seek medical opinions which specifically state that the work accident worsened your back beyond its pre-existing state
- Compare your pre-accident functional capacity (i.e. the work you were able to do) with your post-accident incapacity
- Document your workplace accident through incident reports, witness statements and medical records
- Consider making a workers' compensation claim alongside TPD, as they don't prevent you from making super claims
Important note: under Queensland law, you have the potential to pursue both CTP or workers' compensation common law claims as well as TPD super benefits for the same aggravating incident. This way you can maximise your total compensation.
My Standalone Policy has a Pre-Existing Exclusion. Does that Mean My Super Fund Will Deny Me, too?
Quick answer: no. Cover from a super fund default cover typically has much narrower pre-existing exclusions than a standalone policy you apply for individually.
What to do:
- Check all your super accounts using the ATO's online services because you may have multiple TPD policies
- Review each Product Disclosure Statement separately to find their specific exclusion clauses
- Focus on super policies you had while working full duties because they rarely exclude pre-existing conditions
- Keep in mind that default cover will often only exclude conditions that prevented you from working when cover started
Important note: a lot of Australians have TPD cover through multiple super funds from past employers that they don’t know about, and one policy's denial doesn't affect the others.
Step-by-Step Process for Claiming TPD with Pre-Existing Conditions
- Locate your policies: check all super funds (use ATO and/or myGov), employer group insurance and any standalone policies. Review Product Disclosure Statements for TPD definitions and exclusions (request from funds if needed).
- Gather comprehensive medical evidence: obtain detailed reports from all treating doctors which address how your current permanent disability relates to, or differs from, any pre-existing conditions. Include your employment history to show you worked despite past health issues.
- Complete claim forms accurately: answer all questions in great detail and truthfully, noting past conditions and explaining how the current disability is new or has been significantly worsened. Attach supporting medical evidence rather than waiting for insurer requests.
- Respond promptly to insurer requests: attend any and all independent medical examinations and provide additional information within the stated timeframes. Keep copies of everything you submit.
- Challenge denials through IDR: if you are denied because of pre-existing exclusions, lodge an internal dispute resolution complaint within 90 days, along with additional evidence which shows the insurer hasn't met their burden of proof.
- Escalate to AFCA if necessary: if IDR fails, take your dispute to the Australian Financial Complaints Authority within two years. Ensure you emphasise that the insurer's burden to prove the exclusion applies.
- Consider legal representation early: engage lawyers experienced in TPD claims before lodging complex claims, or immediately after denial, to maximise success chances.
Legal Framework
Primary legislation: the Insurance Contracts Act 1984 (Cth) governs disclosure duties and exclusion requirements, and the Superannuation Industry (Supervision) Act 1993 (Cth) regulates default TPD cover in super funds.
Red Flags and Warning Signs
You should take immediate action if:
- Your insurer asks you to sign broad medical releases giving access to all your historical records without limit
- You're pressured to accept a settlement quickly and without independent legal advice on the suitability of the offer
- Denial letters cite pre-existing conditions but provide no specific evidence of your symptoms before your policy began
- An independent medical examiner's report contradicts multiple treating specialists without examining your full history
Common mistakes to avoid:
- Failing to disclose past conditions when applying for increased cover, even if they were fully resolved, as it gives insurers grounds to void policies
- Accepting insurer denials without challenging them through IDR and AFCA, as it’s a missed opportunity to overturn incorrect exclusion claims
- Providing inconsistent information about your medical history across different claim forms and medical appointments
- Delaying the lodgement of your claim until after the three-year limitation period expires
When to Seek Legal Advice
It’s always a good idea to seek legal advice at the earliest possible opportunity, especially if you're considering lodging a claim with any pre-existing health conditions. This will help you gather the right evidence from the start and avoid common pitfalls that lead to denials.
You should seek advice immediately if:
- You're denied a claim citing pre-existing conditions and believe the insurer hasn't proven that exclusions apply to your case
- You have past health issues and are unsure whether to disclose them when applying for additional cover
- Your super fund or insurer requests extensive historical medical records without explaining why
- You need help working out whether your current disability is a new condition or an aggravation of an old one
- You're dealing with IDR or AFCA deadlines after a denial
Key Takeaways
Remember these essential points:
- Pre-existing conditions don't automatically disqualify TPD claims, which means your success will depend on the specific policy type, timing and whether you can prove you have a new or significantly worsened disability
- Super fund default cover generally has much narrower pre-existing exclusions than standalone policies you apply for individually
- Insurers are obligated to prove that exclusions apply with robust evidence of symptoms before coverage begins.
- Depression and/or other mental health conditions that happened years ago won't necessarily prevent claims as long as you can show that your current permanent disability is new or materially different
- Always disclose all known health conditions when applying for increased cover so you can avoid your policy being voided. Keep in mind that honest disclosure doesn't automatically lead to denial
Get Help Now
If you're unable to work permanently and worried that your past health issues will prevent you from making a successful TPD claim, seeking early legal advice helps you understand which policies you can claim under, gather the right medical evidence and challenge unfair denials.
Many successful claims involve people with pre-existing conditions who proved their current disability was new or significantly worse.
Contact Smith's Lawyers today:
- Call: 1800 960 482 for a free, no-obligation consultation about your TPD entitlements
- No upfront costs: we operate under a No Win, No Fee, No Catch® basis, so you only pay if your claim succeeds
- Or request a call back: use the form below to have our experienced TPD claims team contact you to discuss your situation
We help Queenslanders and Australians nationwide with TPD claims, including complex cases involving pre-existing conditions, and can also assist with related personal injury claims.
