Procedural Direction WC1 – Compensation payable on death

Introduction

1.    If death results from an injury, certain entitlements may arise under the workers compensation legislation. This Procedural Direction concerns the Commission’s functions where compensation is payable on death, and sets out:

(a)   steps that must be taken by an applicant before commencing proceedings in the Commission;

(b)   the practice and procedure of death claims in the Commission, and

(c)   the payment of compensation under the Workers Compensation Act 1987 (the 1987 Act).

Preliminary

2.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

3.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

5.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules2021 (the PIC Rules).

Applicable legislation and rules

6.    Parties should be familiar with the following provisions:

(a)   Part 3, Div 1 of the 1987 Act, and

(b)   Rule 81 of the PIC Rules.

Steps taken prior to commencing proceedings

7.    Prior to commencing proceedings in the Commission (whether or not liability has been accepted by the insurer) the applicant should take certain steps to ensure that all potential dependants have been informed of the claim, their rights, and the impending proceedings in the Commission.

Contacting potential dependants

8.    It is imperative that all potential dependants be informed of the claim and their potential dependency on the deceased on the date of death, regardless of the views of any other dependants.

9.    The definition of dependant includes “such of the members of the worker’s family”. Members of a family means:

(a)   spouse (including wife or husband);

(b)   father;

(c)   mother;

(d)   grandfather;

(e)   grandmother;

(f)    stepfather;

(g)   stepmother;

(h)   son;

(i)    daughter;

(j)    grandson;

(k)   granddaughter;

(l)    stepson;

(m)  stepdaughter;

(n)   brother;

(o)   sister;

(p)   half-brother, or

(q)   half-sister.

10.  The above persons should be contacted prior to commencing proceedings. It is not enough to allege in a statement or statutory declaration that those persons were not dependent.

11.  The Application should include evidence about attempts to contact any potential dependants.

12.  Ultimately, the Commission must be able 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.

13.  Potential dependants should be contacted in writing, 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 correspondence 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.

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

Representation

15.  As far as is practicable, all parties should be separately represented.

16.  Depending on the circumstances, this can include separate legal representatives or the same legal representatives instructing separate counsel to provide advice and submissions as to apportionment.

17.  Where parties have adverse interests or are in dispute as to any aspect of the claim, separate legal representatives must be obtained. The applicant and the insurer should assist all parties to obtain appropriate representation.

18.  The Independent Review Office (IRO) should be able to assist in providing the contact details for an approved lawyer. The Independent Legal Assistance and Review Service (ILARS) may provide funding, including for counsel, in relation to legal costs associated with the claim.

Commencing proceedings

19.  Proceedings are commenced by lodging an Application in Respect of Death of Worker in the Commission. The Application must specify the compensation claimed. The compensation payable to dependants or the legal personal representative of the deceased worker consists of:

(a)   lump sum compensation, apportioned between dependants or payable to the legal personal representative (sections 25(1)(a), 29 and 31 of the 1987 Act);

(b)   additional weekly payments in respect of dependent children (section 25(1)(b) of the 1987 Act), and

(c)   funeral and associated expenses (sections 26 and 28 of the 1987 Act).

Compensation payable

20.   The Application must specify the amount of compensation claimed correctly in accordance with the Workers compensation benefits guide published by the State Insurance Regulatory Authority.

21.   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.

22.   The Application must also specify if any interest is claimed on the amount.

23.   If the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant after 16 December 2022, the employer must pay additional compensation fees to the NSW Trustee for the death benefits funds management fee (section 25(1A) of the 1987 Act). The formula for the fee is set out in clause 177 of the Workers Compensation Regulation 2016.

24.   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 or an Application to Resolve a Dispute should also be completed.

Parties to proceedings

25.   Proceedings may be commenced by the legal personal representative of the deceased, the insurer of the deceased’s employer (including the nominal insurer), or a person claiming to be dependent on the deceased on the date of death.

26.   All other parties should be named as respondents.

27.   Where the proceedings are commenced by a party other than the insurer, the employer should be named as the first respondent.

28.   All potential dependants should be named as respondents. If the applicant has obtained evidence that a potential dependant was not dependent on the deceased on the date of death and does not wish to make a claim for apportionment of the lump sum compensation payable, that party does not need to be named as a respondent.

Evidence in support

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

(a)    death certificate;

(b)    authority as the appointed legal personal representative of the deceased worker;

(c)    financial records;

(d)    invoice/account of funeral expenses;

(e)    invoice/account of transportation expenses;

(f)     marriage certificates;

(g)    birth certificates;

(h)    last will and testament, grant of probate and/or grant of letters of administration;

(i)     evidence as to the efforts made by a party to contact potential dependants;

(j)     statutory declarations from potential dependants who do not wish to make a claim;

(k)    statements 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

(l)     investigation reports into the cause of the injury and death and the issue of dependency.

Service and reply

30.   The applicant is to serve a sealed copy of the Application, and any attachments, on all respondents 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.

31.   The respondents have 21 days from the date of registration of the Application to respond by lodging a Reply, attaching all relevant documents in support, with the Commission. A sealed copy of the Reply must also be served on each other party. The Commission may still progress the application in the absence of a Reply.

Dispute resolution

32.   Once registered, the Application will be reviewed by a member of staff to ensure the matter is ready to proceed. This will occur regardless of whether liability is accepted or declined. The Commission does not determine disputes in a piecemeal fashion (i.e. determining liability before considering which parties may or may not be dependent) and all parties should be afforded the opportunity of addressing the issues in dispute.

33.   Once reviewed, the matter will be allocated depending on any issues that need to be resolved.

Initial review

34.   If the matter is not procedurally ready to be referred to a member, it will be allocated to a delegate of the President for review and resolution of procedural issues. Depending on the circumstances the delegate may take one or more of the following actions:

(a)    issue a direction on the applicant and/or the respondents;

(b)    convene one or more procedural online conferences (via audio or audio-visual link), or

(c)    refer the matter to a member.

35.   The matter may be subject to further review and actions as above as replies and further documents are lodged in the Commission.

Direction

36.   Where necessary, the delegate will issue a direction concerning procedural compliance. Matters that may be covered in such directions include:

(a)    informing all potential dependants of the claim and proceedings in the Commission;

(b)    obtaining statutory declarations from said dependants, should they not wish to make a claim;

(c)    joining parties to proceedings, and

(d)    ensuring all parties are appropriately represented.

37.   The delegate may list the matter for a preliminary conference in the direction, or upon receipt of appropriate evidence addressing the issues raised in the direction. It will not be necessary in all matters that a direction be issued.

Procedural online conference

38.   In addition to or as an alternative to the above, the delegate may convene one or more procedural online conferences (to be held via audio or audio-visual link).

39.   The purpose of the online conference is to discuss and address any procedural issues arising out of the application, including informing potential dependants, joining appropriate parties, and ensuring all parties are appropriately represented.

40.   Legal representatives must attend procedural online conferences. It is not necessary that dependants attend, but they may do so if they desire. If a dependant wishes to be joined to the online conference, he or she should inform the Commission prior to the listing. One or more claims officers may also attend the procedural online conference.

41.   Following the online conference, the delegate may issue a direction on the parties requiring certain steps to be taken. The delegate will then monitor the matter to ensure that the proceedings are ready for the next listing, whether before a member or a further procedural online conference.

Listing before a member

42.   Once all procedural issues have been resolved, the matter will be listed before a member for a preliminary conference.

43.   If the issues are not complex, (for example, the apportionment of a lump sum benefit only, with no competing interests) the matter can be resolved at this stage. In such circumstances, parties should be prepared to provide oral submissions concerning the appropriate orders to be made. The member may also require written submissions to be filed following the preliminary conference.

44.   The member may also take any of the usual steps in proceedings, including issuing directions and listing the matter for a conciliation/arbitration hearing.

45.   In rare circumstances, the Commission may write to a party where previous attempts at contact have been unsuccessful.

Awards of compensation

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

47.   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

48.   The lump sum death benefit may be apportioned among dependants of the deceased worker.

49.   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.

50.   Factors relevant for consideration in apportionment include, but are not limited to:

(a)    the extent of past dependence;

(b)    the anticipated future dependence;

(c)    the ages of the dependants;

(d)    their health;

(e)    special needs, and

(f)     lifestyle.

51.   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).

52.   The Commission may have regard to any agreement reached as to apportionment, however, such agreement may not be determinative.

Payment of compensation

53.   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.

54.   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.