The risk of a plaintiff's weekly payments being reinstated, despite a termination many years before, has been highlighted by the recent Magistrate's Court decision of Smith v Woolworths (Garnett S, 2 May 2013).

 

Facts

The plaintiff had an accepted claim for injury to her back, and she received weekly compensation until her payments were terminated at 104 weeks on the basis she had a work capacity. The plaintiff did not challenge the decision at the time, and she subsequently returned to alternative employment with other employers, although the plaintiff did undergo spinal surgery twice after her payments were terminated.

In August 2011 the plaintiff sought reinstatement of her weekly payments, alleging a deterioration in her condition resulted in her having no current work capacity. The defendant rejected the request on the basis her condition was due to her subsequent employment, and on the basis she was capable of suitable employment.

At the hearing the plaintiff 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. Medical evidence, even from the defendant’s doctors, was that the worker was not capable of work.

Decision

Due to the worker’s ongoing pain and medication, Magistrate Garnett concluded the plaintiff did not have a realistic capacity for suitable employment, and reinstated her weekly payments. The Court also found the plaintiff 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 Magistrate Garnett 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. Finally, it was noted the plaintiff opposed the referral.

In the circumstances, if a medical panel referral is contemplated in a proceeding, it is recommended the opposing party and the Court be informed at the earliest possible opportunity.