A fatal workplace accident has a devastating impact on all concerned and, most distressingly, the deceased worker’s family.

Those who tragically lost a family member through a workplace accident may be entitled to financial compensation. While no amount of money can come close to making up for the loss of a loved one, the unexpected and premature loss of a family support person can leave an enormous financial burden on the family who may no longer rely on that person’s income to pay a mortgage, bills, and raise children.

Are you eligible for death benefits?

Lump sum compensation and funeral benefits may be payable to a dependant or the estate of a worker who dies from an accident or illness sustained as a consequence of:

  • Performing his or her usual work duties on or off work premises.
  • An incident arising out of his or her employment.
  • Travelling to and from work (in very limited circumstances).

What are your entitlements?

The Workers Compensation Act 1987 (NSW) (the ‘Act’) provides compensation for the dependant/s or estate of a worker who dies as a result of a workplace injury or illness.

Weekly or ongoing payments for dependent children of the deceased worker are also payable as well as payments to cover funeral expenses.

If the insurer accepts liability for the work-related death, the payments presently stated under the Act are as follows:

  • If the deceased worker leaves one or more dependants and the death results from a workplace injury, a lump sum benefit of $798,100.
  • An additional weekly payment of $142.90 for each dependent child of the worker under 16 years and/or each dependent child of the worker who is a full-time student aged between 16 and 21 years.
  • Reasonable funeral expenses up to $15,000, or only up to $9,000 if the expenses are associated with claims under the Workers’ Compensation (Dust Diseases) Act 1942 or the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.
  • In some circumstances, lump sum benefit for 100% permanent impairment of $598,560 to $610,930.

Funeral expenses the insurer will pay for can include the funeral director’s fees, funeral service cost (including burial or cremation), coffin, mourning car, cemetery site, flowers, newspaper notice, death certificate, and transporting the deceased’s body.

Lump sum and weekly payments are indexed and subject to change every six months. Where only one dependant survives the deceased worker, the full lump sum benefit goes to that person. If there’s more than one dependant, the amount is apportioned between all, as determined by the Workers Compensation Commission. If there are no dependants, a lump sum benefit will be paid to the deceased’s estate.

How do you make a claim for death benefits?

The deceased worker’s family member who wishes to claim death benefits must first notify an insurer, such as icare, of the work-related death from an injury or accident, and then complete and lodge a workplace fatality compensation claim form with the insurer.

The insurer will require various details and supporting documents to consider a death benefit claim and any entitlements. To determine liability, the insurer may require information such as:

  • Statements from the employer and witnesses.
  • The death certificate.
  • The autopsy report and/or coroner’s report.
  • Treating medical records.
  • The police report.
  • The Will (if there is one).
  • Grant of probate or letters of administration.

The relationship between the claimant and worker also needs to be established. Proving that you were a member of the worker’s family may simply require providing copies of a marriage and/or birth certificates. In some cases, such as where the claimant and worker were in a de facto relationship or formed part of a blended family, the process may be a little more complex.

The insurer may also require evidence of the level of dependency the claimant and his or her family had on the worker. Documents used to support this include taxation returns, child support letters, bank statements, etc.

Individually-prepared statements can also be used to provide evidence of dependency. These will set out specific aspects of the relationship such as how long the dependency existed, how daily expenses were shared, the income of the claimant, and any special considerations that apply such as the disability of a claimant or dependant.

Each case is different, and the extent of the information required will depend on the individual circumstances.

What happens after you lodge your claim?

After being notified of the death, the insurer may contact the deceased’s employer, health professionals or institutions, and any relevant third party they consider may have contributed to the injury to help determine liability. The insurer will also write to the worker’s family or legal representative to inform them of the progress of the claim and to advise that compensation may be payable. How long it’ll take to determine liability depends on the individual circumstances.

If the insurer accepts liability for the work-related death, the compensation payments include funeral expenses and lump sum benefits (if there are dependants).

Speak to an experienced workers compensation lawyer

Making a workers compensation claim for death benefits can be extremely difficult after losing a family member and, at the time, is often the furthest thing from one’s mind.

Statutory time limits however apply, and it’s important to seek legal advice early to ensure your rights are protected and that maximum benefits can be obtained to assist you and your family.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9212 2422 or email info@tklegal.com.