Double dipping is generally not permitted. Ask George Costanza.

Where an injured worker receives compensation from their employer for the injuries sustained and then subsequently recovers damages from another party who is ultimately held to be responsible for the injury, other than the employer, the worker is generally obliged to repay that compensation from the damages which they recover. They cannot double dip.

There is however an exception to the rule.

Imagine poor George Costanza, a truck driver who sustains injuries during the course of his employment. He is thereafter admitted to a hospital for treatment of the right knee. There is an x-ray of the knee performed which discloses no abnormalities. The attending medical officer suspected that George had suffered a patella ligament transaction and recommended an ultrasound. However no ultrasound was performed and George was discharged without any antibiotic cover. There were no follow-up appointments arranged.

George thereafter develops a severe infection in his knee. It arises as a result of foreign bodies that were left in the knee following the accident. He had to undergo two separate surgical procedures.

Of course, as he is perfectly entitled to do, George makes a workers compensation claim on his employer. Liability is accepted by the workers compensation insurer and George receives compensation for loss of wages for periods of absence from work and reimbursement of medical expenses incurred.

Separately a claim is made as against the hospital in negligence for failure to identify and remove the foreign bodies within the knee, failure to adequately clean out the wound and failure to administer antibiotic cover.

The claim as against the hospital is successful. George is very happy. There is a judgment in George’s favour which includes damages for economic loss and medical expenses.

An argument then arose as to whether there would be any recovery by the workers compensation insurer for benefits paid to George from the damages that George had recovered as against the hospital.

The Court of Appeal held that medical mistreatment was not an injury for which compensation was payable under the Workers Compensation Act. Therefore, the claim as against the hospital was completely separate and distinct from the claim that George had against his employer for the injury sustained in the original accident. The facts which gave rise to the liability for the knee injury on the part of the employer were not the same facts that grounded the course of action as against the hospital. There could be no claim for reimbursement by the workers compensation insurer for benefits paid to George from the damages that George had recovered from the hospital.

George was very happy.

If you need help with a workers compensation claim, contact Brydens Lawyers today.

For over 40 years now Brydens Lawyers has been operating a ‘No Win – No Fee”, policy which, simply put, provides that if a personal injury or compensation client is unsuccessful in their claim then Brydens Lawyers will not raise a tax invoice for having acted on behalf of the client. That is, if the claim is unsuccessful we do not get paid. More information about how this works can be found on our No Win – No Fee page.

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