Talking about work capacity and weekly payments, the possibility of an injured worker’s weekly payments being reinstated, despite a termination many years before (in this case nine years), has been highlighted in a fairly recent Magistrate’s Court decision – Smith v Woolworths (Garnett S, 2 May 2013).
Injured worker weekly payments reinstated after 9 years
Background of the case
The injured worker had an accepted claim for injury to her back (in 2002), and she received weekly payments until her payments were terminated at 104 weeks on the basis she had a work capacity.
At the time, the injured worker did not challenge the decision, and she subsequently returned to alternative employment with other employers, although the injured worker did undergo spinal surgery twice after her weekly payments were terminated.
In August 2011 the injured worker sought reinstatement of her weekly payments, alleging a deterioration of her condition resulted in her having no current work capacity.
At the Court hearing the injured worker gave evidence of …
Medical evidence, even from the defendant’s doctors (IMEs), was that the injured worker was not capable of work, and yet they fought tooth and nail!
Due to the injured worker’s ongoing pain and medication, the Magistrate (Garnett) concluded the injured worker did not have a realistic capacity for suitable employment, and -thankfully-reinstated her weekly payments.
The defendant, had sought to refer the matter to the Medical Panel at the commencement of the hearing, but the Magistrate, who could clearly see through the scheme, refused the application on the basis it was an abuse of process, on the basis the defendant’s solicitors had not given notice of its intentions at least 14 days before the hearing, as required under the Act, nor had the referral application been made at conciliation or earlier in the proceeding, despite a number of adjournments.
The late referral would have also caused considerable delay to the matter being determined, while the defendant had also raised a number of legal issues as part of its defence which required a determination by a Court.
You can read the full text of the case here : Smith v Woolworths (Garnett S, 2 May 2013)
[Post dictated by WCV and manually transcribed on behalf of WCV]