 |
 |
 |
Breaking News
Worker loses compensation rights after accepting deed payment
17th November, 2008
A worker who accepted payment as part of a deed of release agreement with his employer had waived his compensation rights, a full bench of the NSW Court of Appeal has ruled, finding the payment constituted damages for his injuries.
The meat worker of Fletcher International Exports Pty Ltd was awarded compensation in arbitration in 2003 for injuries to his left upper extremity and for the aggravation, acceleration, or exacerbation of his psoriatic arthrities in his left hand and wrist.
Justice Handley noted that the decision of the Commission was based on the payment of $2500 received by the worker as part of an undated deed release signed in 2005.
He said the deed itself could not have affected the worker's right to compensation because s234 of the 1998 Act provided that the two Acts apply despite any contract to the contrary.
"The worker's difficulties flow not from the deed as such, but from his acceptance of the payment of $2500."
Justice Handley pointed out that s151(1)(A) of the Workers Compensation Act 1987 Act provides that if a person recovers damages in respect of an injury from the liable employer, then the person ceases to be entitled to any further compensation under the Act.
He said the meaning of "recovers" in relation to damages or compensation was settled as the receipt of a sum of money, in Smith v Commonwealth Oil Refineries Ltd (1938) HCA 33, 60 CLR 141.
"It is clear therefore that the worker recovered the sum of $2500 and the only question under s151(1)(a) is whether this amount was 'damages in respect of an injury'," he said.
He noted that the letter accompanying the cheque said the money was "in respect of the agreed work injury damages" and singled out, without limitation, the injury to the worker's left hand and wrist.
"Accordingly he ceased to be entitled to compensation 'in respect of the injury concerned'," he said, finding the decision of the Commission correct.
"It is a most unfortunate result for this worker who gave away rights of substantial value for an immediate payment of a mere $2500."
www.ohsalert.com.au Thursday 13th November 2008