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

Those who tragically lose 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.

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).

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 dependant and the death results from a workplace injury, a lump sum benefit of $798,100; and
  • 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; and
  • in some circumstances, lump sum benefit for permanent impairment of $610,930.

Lump sum and weekly payments are indexed and subject to change.

Where only one dependant survives the deceased worker the full lump sum benefit goes to that person. If there is 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.

Lodging a claim

After being notified of the death, the insurer should write to the worker’s family or legal representative to advise that compensation may be payable.

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, autopsy report and / or coroner’s report, treating medical records, the police report and the Will (if there is one), and / or 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 information required will depend on the individual circumstances.

Conclusion

Making a 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 is 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.