Registrar's practice guide for death claims

PURPOSE

This Guide sets out the practice and procedure of the Workers Compensation Commission (the Commission) in relation to disputes arising out of the death of a worker under Div 1 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act).

This Guide must be considered in the context of the objectives of the Commission and, in particular, the duty to provide a just, timely and effective dispute resolution service in relation to entitlements under the workers compensation legislation.

Entitlement to compensation                                                  

The compensation payable to dependants or the legal personal representative of the deceased worker consists of:

• Lump sum compensation, apportioned between dependants or payable to the legal personal representative (ss 25(1)(a), 29 and 31 of the 1987 Act);
• Additional weekly payments in respect of dependent children (s 25(1)(b) of the 1987 Act); and
• Funeral and associated expenses (ss 26 and 28 of the 1987 Act).

Determining the amount of the entitlement

On 16 October 2015 the amendments made by the Workers Compensation Amendment Act 2015 to sections 25 and 26 of the 1987 Act commenced. The amount of compensation is connected with the date of death in the following manner:

• For deaths that occurred before 5 August 2015 (but after 24 October 2007): $425,000 pursuant to section 25 and $9000 pursuant to section 26;
• For deaths that occurred on or after 5 August 2015: $750,000 pursuant to section 25 and $15,000 pursuant to section 26.

The increase in compensation payable also applies to paramedics, police officers and firefighters (see cl 14 of Pt 19I to Sch 6 of the 1987 Act).

The amounts provided for in section 25 for lump sum compensation and weekly payments in respect of dependent children are adjustable in accordance with Div 6 of Pt 3 of the 1987 Act. For a full table of compensation entitlements, including periods prior to 24 October 2007, see the Workers compensation benefits guide published by the State Insurance Regulatory Authority.

PROCEDURE BEFORE THE WORKERS COMPENSATION COMMISSION

The Commission’s role in resolving disputes in relation to the death of a worker include determining whether death results from an injury (including general liability matters such as worker, injury, substantial contributing factor and conduct of the worker), determining dependency of interested parties, and making orders for apportionment of payments between dependants.

Lodgment of Application

The approved form to apply in respect of a claim for compensation for the death of a worker is the Application in Respect of Death of Worker (Form 2D) (the Application). Information and documents which the applicant intends to rely on should be attached to this form.

If compensation is claimed for a period prior to the death of a worker, such as weekly benefits compensation and medical, hospital or related expenses, either an Application for Expedited Assessment (Form 1) or an Application to Resolve a Dispute (Form 2) should also be completed. For the appropriate form, see the Guide to Completing Form 1 and Guide to Completing Form 2 on the Commission’s website at www.wcc.nsw.gov.au.

The applicant is to serve a sealed copy of the Application, and any attachments, on the respondent and the insurer/scheme agent within 7 days of the Commission registering the Application. If the applicant is a dependant, the employer and insurer(s)/scheme agents(s) for the nominal insurer must be served.

Evidence in support

Depending on the nature of the Application before the Commission, certain documents should be attached in support. Supporting documents may include:

• death certificate;
• authority as the appointed legal personal representative of the deceased worker;
• financial records;
• invoice/account of funeral expenses;
• invoice/account of transportation expenses;
• marriage certificate;
• birth certificates;
• last will and testament, grant of probate and/or grant of letters of administration;
• evidence as to the efforts made by a party to contact potential dependants;
• statutory declarations from dependants and/or guardians or legal personal representatives addressing issues of the nature and extent of dependency and knowledge of persons who may be dependent, and
• investigation report into the cause of the injury and death and the issue of dependency.

Parties to proceedings

Rule 10.5 of the Workers Compensation Commission Rules 2011 (the Commission Rules) provides for who must be joined to proceedings for lump sum compensation for death, being:

• The personal representative (if any) of the worker, if that personal representative is not already an applicant;
• The other dependants, if the proceedings are brought by or on behalf of only some of the dependants, and
• Any other person claiming to be a dependant.

Generally the employer will be named as the first respondent.

In relation to joinder, see rule 11.1 of the Commission Rules and Practice Direction No 12.

Any person who has an interest adverse to the applicant should be independently represented.

Reply by the respondent

A respondent has 21 days from the date of registration of the Application to respond by lodging a reply (Form 2A), attaching all relevant documents in support, with the Commission and serving a sealed copy of the reply on each other party. The Commission may still progress the application in the absence of a reply.

Dependants

Where there is more than one person claiming benefits and those persons do not have an adverse interest, all persons claiming dependency must be named as co-applicants or as additional respondents. Persons claiming dependency with an interest adverse to the applicant should be named as respondents.

It is important that all potential dependants are identified, including their full name, date of birth and relationship to the deceased worker. This includes dependants who the applicant is unsure are eligible to make a claim, or intend to make a claim. The Commission determines who was dependent on the deceased at the time of death.

The question of whether a dependant is wholly dependent for support on a deceased worker for the purposes of section 25 of the 1987 Act can include reference to past acts and future probabilities. Past acts and future probabilities are highly relevant to the quantification of an award made to a dependant.

Apportionment

The lump sum death benefit (section 25(1)(a) of the 1987 Act) may be apportioned among dependants of the deceased worker.

Apportionment is provided for by section 29 of the 1987 Act, and will be required where there is more than one person dependent for support upon the deceased worker at the time of the worker’s death, regardless of whether those persons are wholly or partially dependent.

Factors relevant for consideration in apportionment include, but are not limited to: the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, and lifestyle.

The Commission may vary any previous apportionment among the dependants of a deceased worker due to circumstances of the dependants changing or for any other sufficient cause (section 30(1) of the 1987 Act). An Application to vary a previous apportionment may be made by a person entitled to compensation (section 30(2) of the 1987 Act).

Informing potential claimants

Ultimately, the Commission must be in a position to make a factual finding that there are certain persons dependent, and no other persons dependent, at the date of death, before it makes orders for payment. It is in the interests of all parties if notice is given to any persons who may be dependent at an early stage.

This should involve writing to the interested party and informing them of the death of the worker and that they may have an entitlement to claim in relation to the lump sum death benefit. There is no prescribed form for what is required when informing a potentially interested party, however it should include matters such as information identifying the deceased; the potential to claim dependency for support; the nature of proceedings in the Commission; and the availability of legal advice.

Where a party, other than a legal personal representative, does not wish to claim that they are dependent for support on the deceased then they should provide formal acknowledgement in the form of a statutory declaration or statement that reflects their position.

An Arbitrator may also make orders directing a party to inform any relevant person. In rare circumstances, the Commission will write to a party where previous attempts at contact have been unsuccessful.

Payment of compensation

Section 85 of the 1987 Act provides that compensation in respect of the death of a worker shall be paid to the NSW Trustee & Guardian. If the deceased worker’s widow or widower (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee & Guardian in respect of the worker’s death, the NSW Trustee & Guardian is required to pay out the compensation to the widow or widower. The same applies with respect to de facto partners.

Despite section 85, section 85A of the 1987 Act provides that the Commission may authorise payment of compensation to the person entitled to it, or to such other person for the benefit of the person entitled to it. It is usual for the Commission, when ordering and apportioning lump sum compensation, to order that the insurer pay the apportioned amount directly to the widow, widower or de facto and any other dependants who have reached their majority. It is also usual for the Commission to order payment of apportioned amounts in respect of children to the NSW Trustee & Guardian.

2016