WCRA: NZ mesothelioma payment precludes Qld worker’s compensation

Yarrow v Workers’ Compensation Regulator [2017] QIRC 002

Deputy President Kaufman

In issue was whether a payment of NZD $133,802.28 made by the Accident Compensation Commission (‘the ACC’) under the Accident Compensation Act 2001 (NZ)) for mesothelioma to a worker was caught by s 118 of the Workers’ Compensation and Rehabilitation Act 2003. If caught, the worker was precluded making an application for compensation in Queensland.

The worker argued that the payment was not caught because it was not for compensation by an insurer. Furthermore, the worker argued that s.118 was inconsistent with and in conflict with s 128B and s 128C.

Deputy President Kaufman took solace from the explanatory memorandum to the predecessor s.143 of the Workcover Queensland Act:

[Section 143] applies to a person, who because of an injury, lodges an application for compensation and has an entitlement to a payment that corresponds to compensation under a law of the Commonwealth or a place other than Queensland. This clause requires a worker to choose between receiving compensation under this legislation or under another arrangement. The worker must give an undertaking that they have not applied, and will not apply, under that other arrangement if they choose to be paid under this legislation.

Deputy President Kaufman found that the payment under the ACC was of the nature of compensation and that it mattered little it was not paid by an insurer, rather the characterization of the payment was important, and not the means.

As to the conflict with ss.128B and 128C, Deputy President accepted that the provisions of the legislation were remedial and to be given a liberal interpretation to achieve the purpose of the Act [1], read in its totality[2].

Deputy President Kaufman drew the distinction that s.128 referred to payments in Australia, whereas s.118 included payments outside of Australia and s.128C was worded to reduced payments by reference to specific categories of compensation or damages. On this finding his Honour determined that the NZ ACC payment was not caught by s.128C. In his Honour’s view, s.118 was the ‘gate keeper’ and then s.128 operated to reduce payments.

Deputy President Kaufman concluded that the provisions were hard to construe and expressed that Parliament might consider appropriate amendments.

David Cormack – Brisbane Barrister & Mediator

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