Other compensation payable

Entitlements following a work-related death

If a work injury results in the worker’s death, the worker’s dependants or estate will be 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
• if a dependent child’s portion of the lump sum death benefit is paid to the NSW Trustee and Guardian, additional compensation is payable to cover the cost of investing or managing the lump sum death benefit
• weekly compensation for dependent children. These payments continue until the child reaches 16 years of age, or if the child is a student, 21 years of age
• reasonable funeral expenses
• expense 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 amount of compensation payable is indexed twice a year in April and October and is available in the Workers compensation benefits guide.

Information to determine liability

Information and documents are required to establish:

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

The type and amount of information required will vary according to the cause and circumstances of death. The insurer must gather and carefully consider the available information in order to make a sound, evidence-based decision. Required documents may include, but are not limited to:

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

In the case of the death of a worker who had an existing workers compensation claim prior to death, the entire claim file may need to be reviewed.

Death can occur immediately or soon after an incident or a considerable time later. There is no requirement that the injury is the immediate cause of death. Incapacity, impairment or death can have multiple causes.

Information to determine dependency

Dependency is relevant for two separate entitlements:

• lump sum death benefit
• weekly compensation payable in respect of dependent children.

For the purposes of the lump sum death benefit, there is no age limit for dependants - adult children of a deceased worker can be dependants.

There are age limits for weekly compensation payments made to dependent children. (See below 'Weekly payments of compensation to dependent children').

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
• probate or letters of administration
• financial records including superannuation nominations.

Apportionment of lump sum death benefit

When there are no dependants

If there are no dependants, the lump sum should be paid to the deceased’s legal personal representative. This decision should be based on unequivocal evidence that the deceased left no dependants.

When there is one dependant

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

When there is more than one dependant

If there is more than one dependant, or there is reason to believe there may be more than one dependant, insurers must refer the matter to the Personal Injury Commission (the Commission) or the NSW Trustee and Guardian. (In a practical sense, this power is not exercised by the NSW Trustee and Guardian and they will refer matters to the Commission).

Each potential dependant may 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. Dependent children have their own entitlement to their share of the lump sum benefit – their right does not derive through their surviving parent.

When making findings as to dependency, the Commission must be fully satisfied that there are no other persons who may be dependent. Once apportioned, it may be difficult to satisfy any further claims of dependency and/or variation of apportionment orders.

Weekly payments of compensation in respect of dependent children

Dependent children include children under 16 years of age, and full-time students under 21 years of age.

Weekly payments of compensation in respect of dependent children will be paid to the surviving parent. The Commission has discretion to make alternative payment orders (for example where the child is in the care of a grandparent).

It is important that a surviving parent or guardian seek advice regarding the tax implications of such payments.

Intentional self-inflicted injury

Generally, compensation is not payable in respect of any injury to/death of a worker caused by an intentional self-inflicted injury. The law in this area is complex and families should seek independent legal advice by contacting the Independent Review Office (IRO) on 13 94 76.

Where it is not clear the worker’s death was 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.