If a worker passes away during the course of their employment, it is a tragic, difficult, and confusing time for the loved ones left behind. Often in these circumstances, family members are dependent on the deceased worker financially and are uncertain of their entitlement to compensation as a result of the death of their loved one. Here at Carroll & O'Dea Lawyers, we assist those dependents with claims for lump sum death benefits for the family members of a worker whose death has resulted from a work injury. This article will discuss death benefits claims in the Workers Compensation Division.
What compensation benefits are available following the death of a family member in NSW?
Under section 25 (1) of the Workers Compensation Act 1987, the following is stated:
"(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be—
a) the amount of $750,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative,"
Who is entitled to make a claim for compensation?
As noted above, to be entitled to a portion of the lump sum death benefit, a family member needs to establish that they were partly dependent on the deceased for support. The term "Dependants" is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 as:
"dependants of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes—
(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b) a divorced spouse of the worker so dependent, and
(c) a person so dependent who—
(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement—is the de facto partner of the worker."
This means that a family member may be considered dependent if they can establish that they were wholly or partly dependent for support on the worker at the time of the worker's death. What this "support" looks like has been the subject of many determinations in the Compensation Court and Personal/Workers Compensation Commission over the years. In Wratten v Kirkpatrick [1996] NSWCC 2; 15 NSWCCR 32 at paragraph 34 it was held:
"The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc."
This means that dependency is not limited to actual financial dependency but what is relevant is determination of what would have been the expectation of financial or non-financial benefit to each surviving family member had the deceased worker survived.
If a family member is able to establish that they have been and are likely to continue being dependent on the deceased, they are then entitled to a portion of the death benefit lump sum. This apportionment will depend on the extent of the relative dependency of each dependant.
Additional compensation benefits including interest
As well as the above apportionment of the death benefit lump sum, a dependent may be entitled to further compensation for interest on the lump sum death benefit. Interest is governed under section 109 (1) of the Workplace Injury Management and Workers Compensation Act 1998. Under this section it states:
"(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section."
The granting of interest is a discretionary power granted to the Commission and its Members. The granting of interest has been considered in multiple determinations in the Personal Injury Commission, with a significant one being BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724 ("BFG"). In this matter the question of interest was raised, along with the question of the date from which interest should run. This has been held to depend on when the claim for dependency was "duly made" (see Kaur v Thales Underwater Systems Pty Limited [2001] NSWWCCPD 6).
In Member Haddock's decision in BFG, the Member stated the following as it relates to interest at paragraphs 265 and 266:
265 – "Duly made" has been held to mean "fully particularised". It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC 36, in which Arbitrator Isaksen, as he then was, referred to the decision of Arbitrator Wynyard, as he then was, in Shanika Cooper v G & W Mudge Concreting Pty Ltd & others (WCC6411/18) and his own decision in Lavelle.
266 – It is possible for the claims of the parties to be "duly made" at different times."
On this basis, the Member concluded that interest ran from different dates as it related to various dependants depending on the date when evidence of dependency was provided.
This highlights the importance of "fully particularising" the claim for dependency as soon as possible. Although interest may only be a small amount compared to the death benefit, it is money that has been invested by the insurer following their acceptance of liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
