SCT makes key determination on ‘modified duties’

The complexities surrounding the sale of businesses and consequent changes to superannuation fund insurance arrangements have been laid bare in a recent Superannuation Complaints Tribunal (SCT) determination.

An important element of the determination was the tribunal's view of the issues which arise when a member of a superannuation fund is injured and the subject of "modified duties" at the time of the business transfer and change of fund insurance provider.

The complexity of the issues was highlighted by the fact the injured member's inability to carry out her normal duties saw her terminated by the new employer, raising issues about which of the two insurers should be deemed "on risk".

Both the new employer and the new insurer held that the original insurer was on risk — something which was substantiated by the determination of the SCT, even though the original insurer argued that it was not at risk because the woman was at work [and] that her " ‘restricted duties' had become, by way of habituation, the complainant's ‘normal work duties' ".

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The SCT determination rejected the contention of the original insurer stating: "The tribunal has difficulty accepting insurer 1's reasoning that ‘permanently modified duties' which have been ‘modified' in accordance with the requirements of the certificate, can then be classified by it as somehow constituting the complainant's normal work duties".

It said it did not accept that ‘modified duties'… could factually be described as ‘actively performing all the duties of their [the complainant's] usual occupation'.