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29.4 Liability where Award Received under Other Compensation Legislation
Last amended: 16 October 2013
Section 118 of the SRCA provides that where an employee recovers damages for an injury under a State Workers' Compensation Act, compensation is not also payable under the Commonwealth Act (i.e. the SRCA) for the same injury or illness to the employee. Similarly, where a dependant of a deceased employee recovers damages in respect of the employee's death under a State Worker's Compensation Act, compensation is also not payable under the Commonwealth Act for the death to the dependant.
However, s118 does not preclude a dependant from making a SRCA claim in respect of the death of an employee where the deceased employee had, while they were still alive, received State Worker's compensation for the injury which subsequently resulted in their death.
Section 118 requires that any SRCA compensation that has been paid to the employee in respect of the same injury, or, to the dependant in respect of the employee's death prior to the State award, is recoverable by the Commonwealth.
In the case of an ADF employee who has previously received an award for injury under a State worker's compensation Act and subsequently “aggravates” the condition after enlisting in the ADF, liability to pay compensation under the SRCA still exists but only in respect of the aggravation component. However, it is important to point out that liability may be excluded if the employee has concealed the former injury at the time of enlistment, (refer to 27.1 for more information in this respect).
Section 119 of the Act refers to awards from other State legislation i.e. from other than workers compensation Acts. This section has reference to 'specified laws' which means a schedule of Acts mainly being criminal compensation and road accident victim compensation Acts. That schedule is available at the Annotation to S119 in the Annotated SRCA (Ballard/Sutherland).
Similarly to the provisions of S118, receipt of damages under a S119 'specified law' permanently removes the Commonwealth's liability to pay compensation under the SRCA. Furthermore, if liability had been accepted and benefits paid under the SRCA prior to the award under the specified law, all of that money is recoverable by the Commonwealth.