OFAC revokes so-called U-turn authorization for Cuba-related financial transactions
OFAC published a final rule that modifies the Cuban Assets Control Regulations to revoke the so-called "U-turn" authorization.
The decision in Hannover Life Re of Australasia Ltd v Jones1 adds a further challenge for life insurers in making decisions on Total and Permanent Disablement (TPD) claims by limiting the scope of occupations for which an insured may be considered fitted by reason of their education, training or experience (ETE).
An insurer must have regard to both physical and psychological aspects when assessing the capacity and likelihood of an insured engaging in future employment.
When identifying suitable occupations, only occupations for which the insured is "fitted" by way of their ETE should be considered. Even entry level positions which an insured could physically perform that only require "on the job" re-training are off-limits unless the insured's ETE has fitted them for that position.
The plaintiff insured, Mr Jones, was born in 1982 and completed his School Certificate in 1998. He left school at the end of year 10. He served an apprenticeship with a roofing contractor which he completed in March 2003, qualifying as a tradesman roof plumber. He subsequently gained a number of additional tickets including Professional Association of Climbing Instructors, asbestos removal, safe work at heights ticket, OHS induction, explosive power tools, and a 20-tonne crane licence.
On 10 December 2002 he suffered a repetitive strain injury of the lower back. He was subsequently diagnosed with a disc prolapse. He underwent a hemi-laminectomy in June 2003 which provided immediate relief.
He returned to work in October 2003 as a roofing supervisor with a reduced but continuing requirement to engage in heavy lifting. He remained in various supervisory roles until he eventually ceased work in late 2011.
Although the operation in June 2003 was successful it did not entirely resolve his complaints. He continued to have pain in his lumbar spine which radiated down the back of his left leg. His symptoms became more troublesome in 2011. Importantly, he also developed a fear-avoidance syndrome.
He ceased working on 10 October 2011 when his employer closed down. Its jobs and employees were transferred to other contractors. However, the plaintiff did not resume work.
The insurer declined the claim because whilst it agreed the plaintiff could not return to his pre-injury tradesman duties, it was not convinced that, based on his restrictions along with his education, training and experience, he would never return to some form of meaningful employment. In this respect the insurer referred to 4 vocational options which did not require retraining and which it considered the plaintiff had the functional capacity to perform, being:
The Court of Appeal reaffirmed the principle in Edwards v The Hunter Valley Co-Op Dairy Co Ltd and Hannover Life Re Australia v Sayseng in respect to the first-stage inquiry. That is:
The court held that:
The trial judge had found that the concept of an occupation or work 'for which the insured person is reasonably fitted by education, training or experience' directs attention to the insured’s vocational history to date, and to occupations for which that vocational history fits the insured. Therefore the ETE clause referred not to any work for which the insured might have physical and mental capacity without further training, but to work for which the insured has been prepared and shaped by their prior education, training and/or experience, that is, not any occupation which may be conceived which can be performed without further education, training or experience.
Regarding these findings the insurer argued on appeal that:
The Court of Appeal held that:
The Court of Appeal found that the trial judge did not err in finding that the plaintiff's aptitude was only for manual labour. In response to the insurer's argument that the plaintiff had worked in a supervisory position as a roof plumber and that the vocational assessment had taken into account the plaintiff's functional and work capacity and had identified his transferrable skills (and the positions identified were entry level only) the Court of Appeal found that it was unrealistic to isolate some aspects of work for which the insured may have had some individual skills in the face of significant injury that deprived the insured of the capacity to perform work in other respects. Therefore, since the insured communication skills developed as a roofing supervisor, were quite different from those required of a person dealing with customers, it was clear that a customer service position was not an occupation by which the plaintiff was suited to by his ETE.
The Court of Appeal declined to comment on whether there was a geographic test, holding that it was not necessary to deal with this issue since the trial judge's remarks in this regard were obiter dicta (not essential in forming his opinion) because there was no issue as to the availability of employment in the plaintiff's geographical location.
This decision considered an ETE clause that requires an insured to be "fitted for" an occupation. The words "suited to" would probably be interpreted similarly. However if a TPD definition instead refers to an insured being "reasonably capable of performing" employment by reason of their ETE then the outcome may be different, as was held in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd.2
 NSWCA 233
On 5 September 2019, Professor John McMillan AO’s Final Report (Report) on the operation of the Narcotic Drugs Act 1967 (ND Act) was tabled in Parliament. Section 26A of the ND Act required the Minster to cause a review of the operation of the ND Act to be undertaken.