Decade-long battle ends in compensation-cut review

Friday, 05 June 2009

An injured Queensland worker has won the right to have a WorkCover decision to cut her workers compensation reviewed after an 11-year battle.

The Queensland Transport customer services officer suffered a nerve injury to the back of her right eye and a disc injury to her neck and spine after falling at work in December 1996. She was awarded compensation.

In October the following year WorkCover informed the worker in writing that her condition was not an injury within the meaning of the State Workers' Compensation and Rehabilitation Act 2003, and that her payments would cease.

The letter also stated that information on seeking a review of the decision was included in an attached brochure. The brochure, the worker alleged, was not included.

The worker - who claimed she was still suffering the effects of the personal injury - contacted her union, and was informed that it would, on her behalf, apply for a review of the decision.

The union, she claimed, forgot, and later directed her to take a letter to WorkCover requesting a "late review". She lodged such a letter, but received no response.

Over the following 10 years, the worker engaged in "an extensive and consistent campaign" of email and other contact with WorkCover staff, medical practitioners and politicians complaining about her treatment.

In October 2008, she applied for a review of WorkCover's 1997 determination. Q-COMP rejected the application on the grounds that it was lodged outside of the prescribed time. The worker appealed.

Persisiting against all odds

In the Industrial Relations Commission, Q-COMP raised doubts about the worker's claim that she had applied for a "late review" at the direction of her union in 1997.
If the worker had lodged the letter on the date she alleged it would have been well within the conventional time for seeking a review, it argued, and it was unlikely that her union would have advised her that the time for applying had expired.

But Commissioner Ingrid Asbury found that it was far less probable that the worker would fabricate the application story complete with a misunderstanding of the review-request time limits.

Commissioner Asbury also accepted the worker's claim that WorkCover had failed to provide her with the brochure on time frames, and found that she had not been informed of the time limits through any other means.

This was a case, Commissioner Asbury said, where the discretion to extend time to apply for a review should be exercised.

"It is true that the delay of some 11 years is substantial," she said. "However, there is an explanation for the delay.

"This is not a case where [the worker] took no action for 11 years, and emerged from left field, taking WorkCover and later Q-COMP by surprise. On the contrary, [she] has persisted against all odds, to articulate her grievances right up until the present date."

Commissioner Asbury noted that the length of the delay would make it difficult for Q-COMP to obtain medical opinions and other evidence upon review.

However, the difficulties faced by the worker in pursuing the matter were far more significant than those faced by the State insurer, she said so she consulted legal advice.