9.9 Damages Recovered under State Workers Compensation - S118

The SRCA contains separate provisions with respect to the effect of awards from certain State 'specified laws' and awards under State worker's compensation legislation.

• Section 119 of the SRCA (which is discussed at 9.7 above), prevents a dependent of a deceased Commonwealth employee from receiving double benefits via a group of specified State Acts that provides compensation to citizens who suffer death injury or loss from a variety of circumstances. Those specified Acts apply to ordinary Australian citizens, not just government employees. Those specified Acts are not Workers Compensation Acts. Those specified Acts may apply to ADF members who are killed or injured in a manner that brings them under the provisions of that specified Act.
• Each State government provides Workers Compensation legislation which applies to workers within those commercial enterprises operating in that State. These are Acts which are analogous in purpose to the SRCA. Previously, it has been asserted that a Commonwealth employee, (who is, naturally, covered by the SRCA for work-related injury or death) also has coverage under the relevant State Workers Compensation legislation i.e. in the State in which he/she was injured.

Note: This section of the Handbook deals only with the effect of awards from State workers compensation jurisdictions, as identified by S118 of the SRCA. Those Acts 'specified' by S119 therefore play no part in the following discussion:

• Section 118 of the SRCA acts to prevent a Commonwealth employee (or a dependant of a deceased employee) deriving 'double benefits' by accessing both State and Commonwealth Workers Compensation Acts for the same injury, including an injury resulting in death.

• Note that S118 also applies to amounts payable under the Acts of a foreign country, i.e. it would apply in cases where an ADF member was on duty overseas 'on loan' to an allied defence force.

• S118 operates in a similar fashion to S48 and S119, i.e.:

• S118(1) prevents payment of death benefit in respect to an employee where the dependant has already accessed benefits from a State Workers Compensation Act in relation to that death.
• S118(2) provides for recovery of the whole amount of SRCA compensation paid to a person if and when that person subsequently accesses benefits from a State Workers Compensation Act. There is no discretion to recover a lesser amount if the dependant achieves a lesser amount from the State Act than was paid under the SRCA.

SPECIAL NOTE – JUDICIAL DECISION – S118 NUGATORY

The above paragraphs detail the manner in which S118 was intended to operate. The SRCA contemplates the possibility that a dependant may make a claim under both the Commonwealth compensation jurisdiction, and also under a State workers compensation Act. The purpose of the Section is to ensure that a dependant does not achieve double compensation by applying for payment in two separate jurisdictions.

However, the very notion of a 'dual entitlement' under both Commonwealth and State Workers Compensation has now been subjected to legal scrutiny. The previous assumption – i.e. that State Workers Compensation may apply to a Commonwealth worker employed by the Commonwealth in that State – has, since 1999, been significantly weakened, and perhaps completely nullified.

The test case

In Worthing v Telstra Corporation Limited (1997), the NSW Compensation Court held that the SRCA does not provide an exclusive scheme for compensation for Commonwealth employees and that therefore the NSW Compensation Court has jurisdiction to determine claims in circumstances where a Commonwealth employee is injured at work in NSW.

The High Court ruling

However in Telstra Corporation Limited v Worthing (1999), the decision of the Court of Appeal was reversed by a unanimous decision of the High Court which held that the SRCA covers the field and that the NSW Worker's Compensation Act has no applicability to Commonwealth employees.

• Delegates curious as to the High Court's reasoning should refer to the extended commentary at S118 in the 'Annotated SRCA' (Ballard/Sutherland).

The High Court decision is applicable to the SRCA's relationship to State workers' compensation jurisdictions in every State or Territory not just NSW. Taken on its face, this means that no Commonwealth worker – and therefore no ADF member – has access to a State Workers Compensation Act.

In cases w — here clients inquire whether they may have a claim under State workers compensation in lieu of the SRCA, those clients should be referred to the decision in Telstra Corporation Ltd v Worthing. They should also be advised to seek professional legal advice as to the applicability of that case to their own circumstances.

If a delegate becomes aware that a dependent of a deceased ADF employee appears, (contrary to the Worthing decision), to have achieved a State Worker's Compensation payment in respect of that death, that Delegate should:

1.not only invoke S118, but

2.also refer the matter to Policy for consideration.