The purpose of this blog article is to explain the rights and entitlements which exist for family members with WorkCover Queensland when a worker dies at work.
Unfortunately, there are many deaths which occur at work in Queensland each year.
Statistics
The most recent data published by WorkCover Queensland is for 2022 which identified 43 worker fatalities. All worker fatalities were male. Queensland had the second highest rate of worker fatalities with 43. New South Wales had 46 with Victoria third with 34.
Data from Safe Work Australia in their Quarterly Newsletter published in November 2023 reveals:-
- There were 144 worker fatalities in Australia in 2023
- 127,800 serious injury claims in Australia in 2023
Entitlements with WorkCover Queensland
To establish an entitlement to make a claim for compensation for fatal injury the surviving spouse or family members who were dependent upon the deceased worker needs to show:-
- The deceased person was employed at the time of the injury by the employer
- The deceased person is considered to be a worker
- The fatal injury was caused by a work-related event
- The deceased person was fatally injured out of, or in the course of, employment, if employment is a significant contributing factor
- Employment does not need to be a significant contributing factor for a fatality that occurs during a journey or recess (e.g., heart attack while driving)
The surviving spouse and other family members who were dependent upon the deceased worker are entitled to receive compensation for the following:-
- Funeral Expenses
- Dependency payments for the spouse of a deceased worker, children of the deceased work who are under the age of 16 or up to the age of 21 who are still full time students and regardless of whether they were living with the deceased, grandchildren or foster children of the deceased, adult child of the deceased, parent of the deceased, any person who has consistently been financially supported by the deceased, at the time of their death provided they are a member of the deceased’s family although a biological relationship is not required
What information or documents does WorkCover require to process the claim?
- The Will of the deceased worker if one exists
- Letter of Administration (if relevant or necessary)
- Marriage Certificate or proof of de facto relationship such as bank accounts, utilities accounts in both names
- Tax returns of the deceased worker and the person seeking compensation
What are the compensation entitlements?
- Lump sum payment which is calculated by WorkCover based on the provisions of the Workers Compensation & Rehabilitation Act 2003 which can be very substantial and as much as $700,000.00
- Quarterly payments for dependents which can also be very substantial when paid over a long period of time if the deceased worker has young children
- Funeral Expenses
Time Limits?
Time limits do apply. The application for compensation must be submitted to WorkCover Queensland within six months of the date of death. A claim can be lodged outside the six month time limit but a reasonable excuse for delay is required but it is always best to lodge the claim within the six month time limit if possible.
Common Law Claim for Damages
In some cases, it may be possible and worthwhile to pursue a common law claim for damages to achieves a damages outcome which exceeds or may significantly exceed the statutory benefits from WorkCover but best to seek legal advice on this important topic.
In some cases, the statutory benefits may actually exceed the value of a common law claim so it is best to seek advice on whether any possible common law claim has reasonable prospects of success and also whether the claim is economically viable to proceed.
The time limit for commencing a common law claim for damages is three years from the date of the accident/death. If court proceedings are not commenced within three years from the date of accident/death, the claim will become statute barred, however, children have three years from when they turn 18 years of age to commence a common law claim.
This blog article was prepared by Greg Black who is a Director of vbr Lawyers and is based in their Brisbane CBD office.
