Have a rejected workers’ compensation claim? – You need some legal advice!
The recent decision in Pryszlak v. Workers’ compensation Regulator highlights the need for injured workers’ to obtain sound legal advice from an expert workers compensation lawyer.
In this case, Mr Pryszlak made application for compensation in early 2015 but received a letter from WorkCover Queensland dated 27 August, 2015, to advise that they did not think that his ‘work was a significant contributing factor causing his injury’ and thus rejected his claim. WorkCover advised Mr P that he had 3 months in which to lodge a Review Application with the Workers compensation Regulator (an independent body set up by the government to review decisions of workers compensation insurers).
Mr Pryszlak didn’t lodge a review until some 18 months later (i.e. 15 months outside the 3-month time limit provided by the Workers Compensation and Rehabilitation Act 2003 (the Act) via his solicitors.
The Act, whilst stipulating that an application for review must be made within3 months from receiving the decision (in this case to reject the application for compensation), it also notes that the injured worker can ask the Regulator to allow further time to apply for the review- and the Regulator can grant that extension of time ‘..if it is satisfied that specials circumstances exist’.
Mr Pryszlak (through his solicitors) supplied the Regulator with reasons why he did not lodge the application for review until some 15 months outside the time limit, but the delegate of the Regulator decided that ‘ (she did) not consider it appropriate to waive the legislative time frame to lodge your review application’.
In attempting to explain the delay Mr Pryszlak noted (in his application to the Regulator):
- He did not appreciate that the initial decision maker (i.e. WorkCover Qld claims officer) didn’t have all the relevant medical evidence (medical records) before him when he decided to reject the claim
- He made this (erroneous ) assumption on the basis that he had provided WorkCover with a complete authority to allow them to get his medical records (they didn’t do this as he subsequently learned).
- Mr Pryszlak didn’t appreciate that what was communicated to him was something he could challenge (i.e. given he thought they had all the relevant medical records, he didn’t think there was any point to challenge it- what else could he provide them he though?)
- This ‘lack of understanding’ of the whole process was, it was claimed by Mr Pryszlak’s solicitors, due to his ‘lack of sophistication, his illiteracy and intellectual incompetence’.
The Judge in this case (Justice McMeekin) decided to not follow an earlier supreme court decision (of Devi Workers Compensation Regulator (footnote omitted) which decided that ‘relevant circumstances must relate to the explanations of the delay’ (and to discount earlier judicial statements concerning the downplaying of issues that impact on the justice of the case). Rather, His Honour made the following observation (at paragraph 26):
“On this approach, such things as the prejudice to parties, or lack (of it), and the merits of the review are not relevant. In my view any circumstance that bears on the justice of the case is relevant and the issue for the decision maker is whether all those circumstances, taken as a whole, amount to ‘special circumstances ‘ justifying the extension sought’
His Honour noted that the decision maker had failed to apply the proper legal process to determine the issue at hand, which consisted of a ‘two-stage’ process, which was:
- firstly to determine whether there were ‘special circumstances’; and then
- if there where (special circumstances), whether the discretion should be exercised (to allow the application for review outside the 3-month time limit)
In reviewing the Decision Maker’s decision, His Honour noted (at paragraph 45):
“ the reasons taken as a whole do not show any appreciation of the need to first identify the circumstances said to be special, then determine whether or not they had that quality and then determine whether they were sufficient to justify the long extension sought’
This was (ultimately the basis for His Honour’s determination (on this application to the court) to set aside the decision of the Decision Maker (not to accept the application for review out of time) and refer it back to the Regulator for further consideration (and hopefully acceptance of it).
This case serves to again highlight that ‘it’s never over until it’s over’ when it comes to workers compensation claims. Mr Pryszlak’s injury continued to cause him a lot of grief some nearly 2 years since he applied for workers compensation benefits – he sought the advice of an experienced workers’ compensation lawyer who has been able to give him some hope of eventually being properly compensated for his work-related injury.
This article relates to Australian law; either at a State or Federal level.
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