An injured worker who received a total and permanent disability (TPD) payment and was later denied access to salary continuance payments by the Financial Ombudsman Service (FOS) is seeking leave to appeal to the High Court.

The move, led by lawyers Maurice Blackburn, is the first attempt to challenge a FOS ruling in the High Court.

It concerns Cane Mickovski, a former employee of packaging group Visy Board who injured his lower back in 1995.

He returned to work on light duties after a six-week recuperation but stopped because of his injuries in September 1998.

Mr Mickovski was paid salary continuance by MetLife Insurance through cover taken out by Visy.

When his situation did not improve he lodged a claim for TPD through the Visy super fund, which he was granted and paid in August 1999. His salary continuance payments were then stopped.

In 2007 MetLife took legal action to clarify the definition of its salary continuance policies, resulting in a clear definition of TPD. Previously MetLife had accepted it to mean anyone who had gained a TPD payout.

Mr Mickovski then sought to reinstate and backdate his salary continuance payments, claiming although he had received a TPD payment and could not perform his old job at Visy, he did not meet the new definition for TPD.

MetLife rejected his claim in October 2008 and in November he lodged a complaint with FOS, which dismissed the complaint. It said more than six years had passed from the time when Mr Mickovski should have known all the relevant facts of his situation, so his case fell outside its terms of reference.

He appealed to the Victorian Supreme Court, which dismissed his claim in June last year.

Mr Mickovski challenged that decision but in August the Court of Appeal found in favour of FOS, saying its determinations are not subject to judicial review unless tainted by fraud, bad faith or dishonesty.

If leave to appeal is granted, Mr Mickovski will challenge in the High Court. FOS will not discuss the case with insuranceNEWS.com.au because of the appeal request.