Compensation payable

Overview

Death claims can be some of the most challenging claims a case manager is required to determine and manage. These claims require proactive and sensitive management.

Case managers determining death claims are required to make fair, evidence-based and timely decisions while interacting empathetically with family members, employers and other persons impacted by the death. Matters can be factually, legally and medically complex.

Case managers involved in determining and managing death claims require training and support. Insurers should consider how best to achieve this within their internal and external resources.

Entitlements

If a work injury results in the worker’s death, his or her dependants or estate are entitled to compensation. Entitlements can include:

• a lump sum death benefit apportioned among dependants. If there are no dependants the lump sum death benefit is paid to the legal personal representative of the deceased worker’s estate. The lump sum amount payable is the amount in force at the date of the worker’s death (not the date of injury or the date the claim is brought)
• an additional amount for the management of the lump sum death benefit. If the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with section 85 after the commencement of section 25(1A), the employer must, subject to the regulations, pay as additional compensation fees of a kind prescribed by the regulations concerning investing or otherwise managing the sum for the dependant’s benefit. Section 25(1A) commenced on 16 December 2022
• weekly compensation in respect of minor dependent children until the child reaches the age of 16 years and in the case of a child who is a student, until the age of 21 years
• reasonable funeral expenses up to $15,000. When considering what is reasonable, insurers should consider the diverse religious and cultural beliefs and practices that exist in Australian society in the 21^st century. Reasonable funeral expenses can include (but are not limited to):
  • the cost of the funeral service (including cremation or burial)
  • cemetery site
  • death certificate
  • flowers
  • coffin
  • funeral director’s professional fees
  • catering for mourners
  • any other reasonable costs associated with the legitimate disposal of a human body.
• expenses of transporting the body to the deceased’s usual place of residence or what would be an appropriate place for its burial or cremation (whichever is the lesser cost).

The monetary values of the lump sum death benefit and weekly benefits to children are indexed periodically and are listed in the Workers compensation benefits guide.

Entitlements may also exist at common law in respect of a workplace death, for example under the Compensation to Relatives Act 1897. Families should be encouraged to get independent legal advice on any common law entitlements.

Determining whether death results from an injury

Insurers should not wait for a formal claim from the family or estate of a deceased worker before commencing their investigation. Families may be unaware of their rights and delay may make it difficult for the insurer to gather contemporaneous evidence

Worker

When determining if the deceased is a ‘worker’ under the legislation, the usual rules apply – see GN 2.1 Worker or contractor.

Injury

Section 25 of the 1987 Act requires that 'death results from an injury'. Death itself is not an injury. Compensable 'injury' to the deceased worker needs to be proven in the usual way.

Causation

Death can occur immediately or soon after an incident or some considerable time later.

The test commonly applied on causation is that in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. A common-sense evaluation of the causal chain is required and there is no requirement that the injury be the immediate or proximate cause of death. Incapacity, impairment or death can have multiple causes - causation can be established if an event makes a material contribution to death.

Intentional self-inflicted injury

Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury (section 14(3) of the 1987 Act.

Where it is not clear the worker’s death was as a result of an accident or self-inflicted, the burden of proof falls on the employer to establish that the worker’s death was self-inflicted.

In matters that require a consideration of accidental or intentional self-harm, insurers should be mindful of the significant decision of the NSW Court of Appeal in Holdlen Pty Ltd v Walsh [2000] NSWCA 87.

The Holdlen decision was a case of death by suicide. The employer appealed the awards of lump sum and weekly payments to a dependent child. The worker committed suicide and the trial judge at the time found the worker’s death resulted from a work injury and the worker was insane at the time of his death. The Court of Appeal formulated the ‘proper enquiry' and it is this approach that continues to be applied in self-harm matters – that is, that the deceased’s volition was overthrown such that the suicide could not be characterised as an intentional act.

Information to determine liability

In determining a claim, evidence is required to establish:

• the cause of death
• the relationship between death and employment.

The type and amount of information required will vary based on the cause and circumstances of death. A case manager should gather and carefully consider the available relevant information in order to make a sound, evidence-based decision.

Documents may include (but are not limited to):

• death certificate
• post mortem (or autopsy) results
• accident reports (for example, Police reports)
• information from the employer and witnesses
• any factual investigation or expert reports
• treating medical records
• ambulance reports and hospital admission notes.

In the case of a worker who had an existing workers compensation claim prior to death, the entire claim file may need to be reviewed. Insurers should not, in the general course of events, defer making a decision solely because a matter is referred to the Coroner.

Role of the Coroner

The role of the Coroner is to investigate certain kinds of deaths in order to determine the identity of the deceased and the date, place, circumstances and medical cause of death. The State Coroner and Deputy State Coroners are all Magistrates, with Coroners situated in Local Courts around New South Wales.

Doctors, healthcare professionals, emergency service workers and police are under a statutory obligation to report deaths to the Coroner in a wide range of circumstances.

A large proportion of reported deaths do not result in an inquest. An inquest is a court hearing where the Coroner considers evidence to determine the identity of the deceased and the date, place, manner and cause of death of the deceased. The Coroner can decide a formal inquest is not necessary, if they are satisfied that there are no outstanding issues from the available evidence. It can take several months for the Coroner to obtain the information necessary to make this decision which is why it is important insurers should not, in the general course of events, defer making a liability decision solely because a matter is referred to the Coroner.

More information about the Coroners Court is available on the Justice website.

The Commission Procedural Direction WC1 – Compensation payable on death sets out the Commission’s functions where compensation is payable on death.  The Procedural Direction sets out the steps that must be taken by an applicant before commencing proceedings in the Commission, the practice and procedure of death claims in the Commission, and the payment of compensation under the 1987 Act.

Dependency

“Dependants” is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The definition is broad and inclusive. For example, children of the deceased born posthumously have been held to be a dependant. Dependency is a question of fact and can require a careful consideration of complex situations. Dependency extends beyond financial support and can include services rendered by the deceased which are capable of quantification in monetary terms.

In the context of death claims, dependency is relevant for two separate entitlements:

• lump sum death benefit
• weekly compensation payable to dependent children.

There is no limitation on age of dependants for the purposes of the lump sum death benefit - the adult children of a deceased worker can be considered dependant. A dependant can include a person who had a reasonable expectation of support, financial or in kind, from the deceased either at that time or in the future.

However, there are age limits for dependent children to be eligible to receive weekly compensation (section 25 of the 1987 Act).

Information to determine dependency

The identification of potential dependants should not delay the making of a liability decision. Optimal case management in death claims is not a linear process and insurers should progress multiple lines of enquiry simultaneously. Where there is no issue that the death benefit is payable, insurers should make the liability decision while continuing to communicate with all potential dependants.

It is often the case that insurers will need to commence proceedings in the Commission seeking orders for dependency, payment and/or apportionment. Proactively contacting potential dependants assists the Commission and families to speed up the process and reduce legal costs.

The following sources of information may inform dependency decisions:

• statutory declarations including declarations as to any other known dependants
• employment records (naming next of kin and superannuation nominations)
• marriage certificate
• birth certificate(s)
• death certificate
• last will and testament, grant of probate and/or grant of letters of administration
• financial records (tax returns, Centrelink details, bank account details)
• investigation reports into the cause of the injury and death and the issue of dependency.

Apportionment

If the insurer is fully satisfied there is only one dependant of the deceased (whether wholly or partially dependent), then the entire lump sum death benefit should be paid to that dependant.

If there are no dependants, the lump sum should be paid to the deceased’s legal personal representative in accordance with section 32 of the 1987 Act. A decision to pay in accordance with section 32 of the 1987 Act should be based on unequivocal evidence that the deceased left no dependants.

However, if there is more than one dependant or there is any reason to believe there may be more than one dependant, insurers must refer the matter to the Commission or the NSW Trustee & Guardian (section 29(1) of the 1987 Act).

It is essential that prior to commencing proceedings in the Commission all potential dependants have been informed of the claim, their rights and the impending proceedings in the Commission.

Insurers should be mindful of Rule 81 of the Personal Injury Commission Rules 2021 regarding joinder of dependants.

As far as is practicable, all parties should be separately represented. Each dependant may be able to seek funding for separate legal representation by contacting the Independent Review Office (IRO) on 13 94 76. This applies equally to the children of deceased workers where there is a surviving parent.

The facts relevant to the apportionment of compensation amongst dependants are set out in the decision in Wratten v Kirkpatrick & Others (1996) 15NSWCCR 32:

'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.'

It is important that the fact-finding exercise be carried out with due notice to those who may be entitled to a share of the compensation, and they should be entitled to present submissions to the Commission in relation to the apportionment.

People can have complex personal histories. The need for proper enquiry and independent legal representation is highlighted in the matter of Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6

Payment of compensation

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 18 years of age. It is also usual for the Commission to order payments of apportioned amounts in respect of minor children to be paid to the NSW Trustee and Guardian.

Weekly payments of compensation in respect of dependent children shall be paid to the surviving parent, if there is one. However, the Commission has discretion to make alternative payment orders. For example, where the child is in the care of a grandparent.

Parents and guardians of dependent children in receipt of weekly payments should be encouraged to get independent advice regarding the tax implications of such payments.

Interest

Section 109 of the 1998 Act provides for order by the Commission of interest on compensation prior to the date of order for payment. It is a discretionary power and may be made on the whole or part of a sum payable. It cannot be ordered in respect of periods before a claim is made, is not compound and its function is compensatory and not punitive.

Due to the size of the lump sum death benefit, substantial interest can accrue quickly and insurers should be aware of the potential financial consequences of not determining death claims promptly.