The applicant sought leave to commence proceedings pursuant to s. 43(1) of the Personal Injuries Proceedings Act 2002 (PIP Act). There was, however, a preliminary issue as to whether s. 6(2)(c) of the PIP Act applied because the applicant had received workers’ compensation payments for the injury.
Section 6(2)(c) states:
“injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act …”
The answer to the question was determined by whether the respondent, Ikea Pty Ltd was the “employer” of the applicant. If the respondent were the employer, it would have the benefit of the applicant being excluded from making a common law claim for damages, because of the acceptance of the lump sum offer under s. 239(2) of the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act).
The applicant was first injured when employed by Action James (Qld) Pty Ltd and subsequently placed on an accredited ‘return to work’ program with the respondent. The return to work program was outlined in an agreement, although not executed by the respondent. While undertaking the return to work duties, the applicant was injured. The applicant subsequently applied for statutory compensation which was accepted and later the applicant accepted a lump sum offer for the injury.
Her Honour considered the application of the WCR Act and in particular the meaning of damages, worker, employer and injury. Her Honour considered the distinction between compensation claims and common law damages, noting that Chapter 5 of the WCR Act governed entitlement to damages, whereas Chapters 3 and 4 of the WCR Act govern compensation.
Her Honour was satisfied that the respondent was not the applicant’s employer. In coming to this conclusion, Her Honour found that the applicant was at the respondent under the accredited return to work program because the employer, Action James could not provide a return to work duties program. Her Honour found solace in the applicant still being an employee of Action James, and that the agreement with the respondent and WorkCover Queensland meant that the respondent did not pay any wages to the applicant. WorkCover instead paid the applicant compensation while undertaking the return to work program. Her Honour noted that the agreement with the respondent contemplated that the applicant may at the end of the program enter into an employment relationship, which added to support to the applicant not being an employee at the time of the injury. Finally, her Honour found that under s. 228 of the WCR Act, Action James remained the applicant’s employer.
David Cormack – Brisbane Barrister & Mediator