NSW has a workers compensation scheme that is designed not to compensate injured workers. Not surprisingly, some injured workers and their lawyers are sidestepping the scheme and making claims in relation to their work injuries in other jurisdictions in order to recover adequate compensation. While this is a great idea in theory, injured workers need to be careful that they aren’t inadvertently cashing in their workers compensation entitlements when they receive compensation for a claim that they have made in another jurisdiction for their work related injury.
This issue came before the Workers Compensation Commission in Super IP Pty Limited v Mijatovic  NSWWCCPD 33.
In this case, Ms Mijatovic was employed by Super IP as a contractor. She sustained a psychological injury during the course of her employment with Super IP which rendered her unfit to work from 6 March 2012.
On 27 March 2012, she submitted a workers compensation claim. At the same time, she lodged a claim against Super IP with the Australian Human Rights Commission. Her claim in the Australian Human Rights Commission alleged, amongst other things, discrimination on the basis of sex, pregnancy, family responsibilities, disability, and sexual harassment, by Super IP and certain specified employees. She alleged that certain actions by Super IP and the specified employees caused her to suffer her psychological injury.
On 12 September 2012, the proceedings in the Australian Human Rights Commission were resolved by agreement between the parties, with Ms Mijatovic receiving compensation in the sum of $8,700. The parties entered into a Deed of Release to formalise their agreement. The deed contained a clause stating that the payment of compensation finalised all claims that Ms Mijatovic had against Super IP except for her workers compensation claims.
Ms Mijatovic’s problems began when she made her workers compensation claim for permanent impairment compensation for her psychological injury on 19 January 2015. The workers compensation insurer declined the claim for a range of reasons, however one of the defences raised included a claim that Ms Mijatovic had extinguished her rights to compensation because she had received “damages” from her employer from the Australian Human Rights Commission proceedings. The insurer argued that receiving the payment of $8,700 was “damages” within the meaning of s.151A(1) of the Workers Compensation Act 1987.
Section 151A of the 1987 Act provides:
“151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid) …”
The dispute came before the Workers Compensation Commission. The Arbitrator found that after interpreting the Deed of Release the payment of $8,700 didn’t constitute “damages” for the purposes of s.151A(1) of the 1987 Act. This meant that Ms Mijatovic could pursue her workers compensation claim for permanent impairment compensation.
Super IP appealed the Arbitrator’s finding. The matter came before President Judge Keating in the Workers Compensation Commission. Super IP’s appeal was allowed and it was determined that the payment of $8,700 to Ms Mijatovic constituted “damages” for the purposes of s.151A(1) of the 1987 Act. This meant that because she had received compensation paid by her employer as a result of the proceedings in the Australian Human Rights Commission she had extinguished her workers compensation rights and was not entitled to receive any further workers compensation.
Significantly, President Keating decided that it didn’t matter what the Deed of Release said about preserving her workers compensation entitlements, rather what mattered was that she had received compensation for the same injury from her employer (Super IP).
Ms Mijatovic’s workers compensation entitlements could have been worth more than the $8,700 in compensation that she received from her Australian Human Rights Commission matter. Unfortunately, once she had received “damages” from Super IP from her claim in the Australian Human Rights Commission, her workers compensation rights were extinguished. This case highlights the need to exercise caution when commencing proceedings in more than one jurisdiction for a work injury. The last thing that an injured worker needs is to cash in their workers compensation entitlements for less than they are worth.