Edwin Gomez was employed by Queensland Health as a registered nurse until made redundant in 2013. In 2011 he was working in Brisbane’s Princess Alexandra Hospital where he sustained an injury to his right shoulder. The injury triggered increasing pain and significantly restricted his movement. He subsequently developed anxiety and depression and claimed compensation through Work Cover Queensland.
Following his return to work on light duties, Gomez re-injured his shoulder in March 2012. After ceasing Work Cover in May 2012, Gomez applied to the Trustee for income protection benefits and in August 2012 sought to claim TPD benefits.
In January 2013 Gomez received a letter advising him that his claim had been rejected. Not satisfied with the decision, in 2014 Gomez presented the Board with new evidence, requesting they reconsider his claim. However the Board affirmed their initial decision.
In 2016 Gomez made a further request, again accompanied by submissions and additional material. He was later advised that the senior delegate of the Trustee had determined a review of the additional material did not indicate a reasonable possibility of a different result. Again, Gomez’s claim was refused.
In May this year the matter was heard before Justice David Boddice in Brisbane’s Supreme Court. In reviewing the trustee’s decisions, the court held the Trustee was not obliged to find Gomez’s TPD claim should be allowed.
The court declared that where the Trustee exercises such powers in good faith, giving real and genuine consideration to their duties under the relevant trust deed, the court should not interfere with the resulting
It was concluded that the Board had made a reasoned choice between competing bodies of medical evidence in accordance with their duties and obligations.
However, in considering the Trustee’s dealing of the third review, Justice Boddice held that the additional material provided by Gomez adequately addressed matters which had not been specifically considered previously. He had no difficulty in concluding the trustee board had breached its duty by failing to adequately assess the entire application before it for review.
He ordered the Trustee reconsider Gomez’s claim, giving consideration to the new material.