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Date: 07 February 2017

Legal Alert: Double dipping in an asbestos claim

Belinda Hughes, Special Counsel, Kaden Boriss Legal Brisbane

QIRC decision of Alan Seymour Yarrow (as Executor of the Estate of the late William David Keith Cameron) v Workers’ Compensation Regulator – WC/2016/6

This matter relates to eligibility for compensation under the Queensland Workers Compensation Act (‘the Act’). In particular, section 118 of the Act, which is gate keeper provision that prevents double dipping, with the ultimate aim of ensuring fair distribution of compensation and maintaining a sustainable scheme.

The facts surrounding the claim are sad. Mr Cameron had been diagnosed with mesothelium after 17 years of asbestos exposure in New Zealand and 2 years of exposure in Queensland. Through his lawyers, he made a claim for compensation in Queensland and on the same date also made a claim for compensation in New Zealand through the New Zealand Compensation Scheme (‘ACC’). Shortly after he received a lump sum payment from the ACC. This was prior to the claim being accepted by WorkCover Queensland (‘WorkCover’).

The decision to claim in both jurisdictions was deliberate. In later submissions Mr Cameron’s lawyers argued the payment from the ACC should have no affect on his claim for compensation in Queensland. It is not clear if there was a practice of seeking compensation in multiple jurisdictions or if it was limited to this matter.

However, it meant Mr Cameron was unable to comply with section 118(2) which required him to supply a statutory declaration that:
(a) A claim for payment for the injury under the entitlement under the law of the Commonwealth or the place other than Queensland has not been made; and
(b) A claim mentioned in paragraph (a) will not be made.

WorkCover issued a Reasons for Decision advising Mr Cameron was precluded from seeking compensation as he had been compensated under another scheme.

Kaden Boriss Legal (Brisbane) were instructed by WorkCover. We agreed that the position adopted by WorkCover was correct and drafted submissions to the Regulator to the effect section 118 of the Act was a pre-condition for compensation with clear effect. That is, it requires workers to elect Queensland as the jurisdiction in which they intend to seek compensation and provide a statutory declaration confirming this.

WorkCover’s position was upheld by the Regulator and the matter then progressed to a hearing in the Queensland Industrial Relations Commission before Deputy President Kaufman.

During the hearing, the lawyers acting for Mr Cameron’s estate argued the payment from the ACC did not correspond to compensation under the Act as it was not paid by an insurer to a worker. However the Deputy President held ‘It is the character of the payment that is at issue, not the means by which, the nature of the scheme under which, or by whom, it is paid. The compensation payment made under the New Zealand Scheme was clearly compensation that corresponds to compensation under the Act. More accurately, the entitlement to the payment of compensation under the New Zealand scheme was an entitlement that corresponds to compensation payment under the Act’.

The effect of attempting to double dip on compensation meant that Mr Cameron and his estate was barred from claiming a more significant sum in Queensland after electing to seek compensation in New Zealand.

For more information on the above case or advice on a workers’ compensation matter please contact Belinda Hughes, Special Counsel at Kaden Boriss Legal Brisbane on (07) 3013 2733.

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