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Home | Blog | Preserving your workers compensation rights and entitlements

As a worker, it is important to be cautious not to unknowingly extinguish your workers compensation rights and entitlements by accepting compensation in another jurisdiction for the same injury.

Workers in NSW may be entitled to bring more than one claim in relation to a work place injury.

This issue was considered in the case of Super IP Pty Limited v Mijatovic [2016] NSWWCCPD 33. 

On 27 March 2012, the worker, Ms Mijatovic made a complaint against her employer for sexual harassment and discrimination on the basis of her disability in accordance with the Disability Discrimination Act 1992 alleging discrimination, sexual harassment and disability discrimination. Her claim settled on 12 September 2012 and she received a commercial settlement of $8,700. The worker executed a deed of release which would make her exempt from accessing the workers compensation system to obtain further compensation.

The worker subsequently brought a further claim for permanent impairment with respect to a psychological injury arising from the same incident. The insurer declined liability for her claim on the basis that the deed of release constituted damages with respect to the same injury and as such, the worker was unable to make a claim pursuant to Section 151A(1) of the Workers Compensation Act 1987. Section 151A of the workers compensation Act 1987 (NSW) states that once an injured workers has been in receipt of “damages in respect of an injury” they cease to be entitled to claim any further workers compensation benefits for the same injury.

At first instance, Arbitrator Harris found in the Workers Compensation Commission in favor of Ms Mijatovic and did not accept that her previous settlement constituted “damages” in respect of an injury. He considered the definition of damages pursuant to section 149 as “any form of monetary compensation”. The arbitrator examined clause 4 of the deed of release which intended to preserve the workers compensation rights. Arbitrator Harris stated “My view of the deed, which I accept is somewhat obscure and ambiguous, is that the worker was giving up all rights save as to any rights under the applicable workers compensation legislation. Accordingly, the deed on its face does not relate to damages ‘in respect of an injury’”. As such, the worker was able to pursue a workers compensation claim for lump sum compensation. 

This decision was appealed by the employer, Super IP in the Workers Compensation Commission. The matter was heard before President Judge Keating who overturned the  decision of the Arbitrator. He found the money received did constitute damages in accordance with the case of Adams v Fletcher International Exports Pty Ltd. Importantly, it was noted that the legal effect of the payment of $8,700 fell into the extended definition of damages pursuant to section 149 of the Workers Compensation Act 1987 despite the deed not referring to damages. It was found on appeal that the payment and receipt of $8,700 pursuant to the deed consisted damages for the same injury that were subject to the proceedings. The worker was not entitled to further compensation under the 1987 Act by the operation of section 151A(1).

This was an unfortunate outcome for the worker which resulted in the loss of valuable workers compensations rights and serves as a reminder to workers that settlements in various jurisdictions can finalise workers compensation claims. Further, terms of deeds should be examined and considered prior to settling cases in multiple jurisdictions in order to preserve workers rights for future claims for compensation under the Workers Compensation 1987 Act.

Seek legal advice

If you’ve injured yourself at work, had a claim denied or you need advice about a work-related injury, please contact our experienced Workers’ Compensation lawyers at Turner Freeman on 13 43 63.

 

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