Making a Workplace Death Claim in Qld

Grief and dependency

Making a Workplace Death Claim in Qld

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Workers are right to expect that they will be safe at work and on their journeys to and from the workplace. A workplace death has a lasting emotional and financial impact upon those left behind. 

In Queensland, dependants are entitled to claim compensation and damages in respect of their loved one’s death, in particular circumstances. 

What happens if someone dies at work?

If someone dies at work, or on a journey to and from work, there are usually investigations undertaken in respect of the cause of that person’s death.

The investigations into the death can include (but are not always):

  1. Autopsy;
  2. Coronial investigations;
  3. Workplace Health and Safety; 
  4. Queensland Police. 

What is the procedure to be followed for a death in the workplace?

An employer will notify authorities that it is required to by law. This may include the Queensland Police, Workplace Health and Safety and WorkCover Queensland.

The employer should also prepare an incident report relevant to the event and keep all records and evidence that it has for the relevant authorities to inspect or seize. 

What is a workplace death for the purposes of workers’ compensation?

To be considered a compensable death for the purposes of the workers’ compensation scheme in Qld, a dependant of the deceased needs to be able to demonstrate that:

  1. the death arose out of, or in the course of employment; and
  2. the work was a significant contributing factor to the injuries; or
  3. the death occurred on a journey for, to or from work.

What compensation payouts are available for a death at work in Qld?

There are four (4) main types of amounts available for a work related death through the Qld workers’ compensation scheme. These are:

  1. Reimbursement of funeral expenses;
  2. Lump sum compensation;
  3. Ongoing periodic compensation for children;
  4. Common law damages. 

Who is eligible to claim for a death at work payout?

The surviving dependants of a deceased are able to claim compensation for the deceased’s death. This includes persons such as a spouse, de facto spouse and the children of the deceased. The statutory benefits are not payable to the estate of the deceased.

How to claim compensation for a workplace death

In Queensland, a claim for a workplace death is made by notifying WorkCover Queensland or the self-insurer of the claim. This can be done over the phone or in writing.

Compensation versus damages for workplace death

Once a dependant has an accepted claim for statutory benefits, the dependants may consider their entitlement to pursue a common law claim for damages for a workplace death.

Statutory compensation is paid on a no-fault basis whereas for a common law claim, dependants or the estate bringing the action must prove that wrongdoing on the part of the employer materially contributed to the deceased’s death.

What documents are required to support a claim for a workplace death

WorkCover or the self-insurer are likely to require a number of documents in support of an application for compensation relating to the death of a worker.

The documents that the insurer is likely to require include:

  1. A death certificate
  2. Proof of identity by the dependant
  3. Marriage certificate
  4. Lease or mortgage documents
  5. Tax documents of the deceased and dependents
  6. Household bills evidencing household expenditure

If a dependant cannot provide all of these documents, they should submit what they can to the insurer.

Where a claim is being made in respect of a deceased de facto partner, the insurer is also likely to require some general background information regarding the history of the relationship. 

Do I require a grant of probate or letters of administration to make a claim?

A workers’ compensation insurer should not require a dependant to apply for letters of administration or a grant of probate. Entitlement to compensation is paid to and on behalf of dependants – not to the estate of the deceased.

However, it is helpful for an insurer to have the deceased’s tax documents from previous financial years, in order to assess the dependant’s level of dependency and entitlements.

What is the time limit for applying for death benefits for death at work?

A claim should be submitted to the workers’ compensation insurer within six (6) months of the deceased’s death. However, a claim may be submitted at a later date and accepted, in the insurer’s discretion.

Strict time limits apply to common law claims for damages. If you believe that the death of a loved one may have been caused by the negligence of the employer or another person, you should seek legal advice about the applicable time limits, as soon as possible. 

What are the entitlements payable?

The amount of lump sum compensation payable to an individual will depend upon:

  • Whether one or more of the dependants was totally dependent on the deceased;
  • The number of dependants.

If one of the dependants was a child, all dependants will be considered totally dependent and the maximum statutory lump sum compensation will be payable.

What is the WorkCover death payout amount in Qld?

The maximum statutory lump sum compensation payable to all dependants of a deceased is 404.87 x the Queensland full-time adult persons ordinary time earnings (QOTE) declared by the Australian Statistician.

The current QOTE is $1,615.40. The maximum statutory lump sum payable to total dependants of a deceased worker is therefore – $654,026, as at 1 July 2021.

Who pays the WorkCover death payout in Qld?

If the employer was not a self-insurer under the scheme, the death payout is paid by WorkCover. This is irrespective of whether or not the employer held a policy of workers’ compensation insurance at the time of the incident. 

If the employer held no insurance, WorkCover pays the claim and then will pursue the employer for recovery of all amounts paid in compensation or damages. 

What amount is payable to a partial dependant?

The insurer will consider the application and exercise its discretion to assess the level of the dependant’s dependency. A person determined to be partially dependant will be entitled to receive a proportion of the maximum statutory lump sum payable, determined by the insurer. 

Relevant matters that the insurer will consider include:

  1. both the deceased’s and the dependant’s contribution towards household expenses; 
  2. the deceased’s and the dependant’s income prior to the deceased’s death. 

Who is considered a “de facto” spouse for workers’ compensation death benefits?

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) states that a de facto spouse eligible to claim dependency benefits includes:

  1. A person with whom the deceased lived for a continuous period of at least 2 years ending on the worker’s death; or
  2. A person with whom the deceased lived for a shorter period ending on the deceased’s death, if the circumstances of the de facto relationship of the deceased and the de facto partner evidenced a clear intention that the relationship be a long-term, committed relationship; or
  3. A person with whom the deceased had a child and lived together on a genuine domestic basis.

What is the death compensation calculation in a a damages claim?

A claim for damages allows dependants to claim for the loss of the deceased financial and domestic contributions into the future. Depending on the deceased’s age at the time of death, these future losses can be significantly higher than the statutory compensation that is payable.

A simple common law method for assessing financial dependency is to calculate the deceased’s future earnings and reduce the total for the amounts which would have been spent on the deceased for their own benefit for the remainder of their working life. 

Do I need a lawyer to make a claim for a death at work payout?

No. Strictly speaking you are not required to be legally represented. However, due to the complexity of these matters and the possible need to consider any entitlement to common law damages, it is generally advantageous for dependants to be legally represented. 

Compensation for death in road accident

In circumstances where the deceased is killed on a journey to, from or for work, it is necessary to determine who caused the deceased’s death.

If the death was caused by some failure on the part of the employer to maintain a safe system of work, then the dependants or the estate may have a potential common law claim against the employer.

Whereas if the death was caused by the negligence of another road user, the dependants and the estate will have a potential claim against the compulsory third party insurer of the vehicle at fault. This type of claim is a CTP claim. Strict time limits apply in CTP claims and it is essential to seek legal advice, as soon as possible after an accident.

In journey claims dependants can claim both workers’ compensation and CTP benefits, however, the workers’ compensation benefits payable to all dependants must be refunded from the CTP death payout. 

Lawyers for death claim payouts in Queensland

For advice with respect to a workers’ compensation or CTP death claim, contact us on (07) 3067 3025. We assist:

  1. Dependants with making a claim to a workers’ compensation insurer;
  2. Dependants and estates with making common law claim for damages for loss of dependency against employers;
  3. Dependants and estates with common law claims for damages against CTP insurers; 
  4. Family members with liaising with third party agencies investigating the death.