Judge says non-complainers should not miss out on compo

Written by: Norrie Ross ,Herald Sun
December 17, 2008 01:16pm

THE determination of an injured worker to get on with his life without
complaint may have worked against his compo claim, a judge said today.
Justice Geoffrey Nettle said if Geelong man Brett Dwyer had been more
of a whinger his claim for accident compensation would probably not have
been disputed by WorkCover.

Mr Dwyer, 44, of Grovedale, suffered horrific injuries to his arm when a
crane fell on him in March 2000. Today the appeal court ruled he had
the right to claim compensation after an epic battle that went all the way
to the High Court.

Justice Nettle said Mr Dwyer's strong character and determination to get
on with his life may have worked against him. "I suspect that, but for the
way the appellant (Mr Dwyer) has been prepared to put up with his pain
and suffering and get on with his business as best he can, the respondent
(WorkCover) may well not have disputed his claim," Justice Nettle said.
"It would be unfortunate, and in my view wrongheaded, if in future such
an applicant were treated less favourably than another who, being of less
strength of character, simply resigned himself to his injury."

The ruling that Mr Dwyer suffered a “serious injury" under the Accident
Compensation Act means that WorkCover will have to make an assessment
of appropriate compensation.

Slater & Gordon lawyer Danny Connor says WorkCover's rejection of Mr
Dwyer's claim was inexplicable. "Brett has been penalised for being a good
bloke," Mr Connor said. "Eight years ago he suffered a terrible injury which
means he wakes in pain every day and his right arm is permanently deformed,
with a loss of strength and function. "He gave up social activities including
golf and motor cycle riding, and the injury affected relationships with his family.
"Despite this, earlier courts ruled that this was not a serious injury, and for three
years we have fought for justice, from Grovedale to the High Court and back.
"The court today effectively found that WorkCover discriminated against Brett
because of his strength of character, his work ethic, and his ability to handle
pain and try to get on with his life." Mr Connor says he will enter negotiations
with WorkCover to finalise Mr Dwyer's compensation.