Injured worker weekly payments reinstated after 9 years


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.

The defendant (workcover/insurer) of course rejected the request on the basis her condition was due to her subsequent employment, and on the basis she was capable of suitable employment.
How disgusting!

At the Court hearing the injured worker gave evidence of …

…repeated attempts to return to work, which resulted in her suffering increased back symptoms for which she took a ‘cocktail’ of analgesic medication.
Sounds very familiar to us!!!!

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!

The Decision

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.

Of note is that the Court also found the injured worker was not prevented from seeking further weekly payments just because she did not dispute the original termination.

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]


One Response to “Injured worker weekly payments reinstated after 9 years”

  1. Would it not be great if when I have to take a day off work to go for a assessment for an injury I sustained 24 years ago that the insurance company pay my wage for that day instead of me having to use my acquired sick pay or holiday pay to make up my weekly wage. An even better idea would be if they actually payed me at my rate in my current job and not the job I was injured at.