Retrospective Changes to Workers Compensation Lump Sum Death Benefit By Christine Tsekouras | March 2009 Area of Expertise | Workers Compensation
Summary The Workers Compensation Legislation Amendment (Benefits) Act 2008 has made retrospective changes to the amount of the lump sum benefit payable in respect of a work related death and to the circumstances in which the benefit is payable.
Who Does This Impact? Employers, self-insurers and scheme agents.
What Action Should Be Taken? Review all claims in respect of work related deaths that occured after 24 October 2007 and make adjustment payments.
The Workers Compensation Legislation Amendment (Benefits) Act 2008 (the 2008 amending Act) was passed through both Houses of Parliament and was assented to on 10 December 2008. The 2008 amending Act made significant changes to the provisions in the Workers Compensation Act 1987 which govern the benefits payable in respect of the death of a worker. The changes apply to all deaths that occurred on or after 24 October 2007 irrespective of when the injury was received. However, the changes do not apply to deaths that resulted from an injury received prior to 30 June 1987. The 2008 amending Act increased the lump sum death benefit payable to $425,000. Previously, a lump sum death benefit was only payable when the deceased worker left at least one person either wholly or partly dependent for support. If the worker died without leaving any such dependants, a lump sum death benefit was not payable. As a result of amendments made by the 2008 amending Act, the lump sum death benefit is now payable irrespective of whether the deceased worker left any dependants. If the deceased worker left only one person who was either wholly or partly dependent, that person receives the whole of the lump sum death benefit. If the deceased worker left more than one person either wholly or partly dependent, the whole of the lump sum death benefit is apportioned between the various dependants. The sum of the apportioned amounts must equal the full amount of the lump sum death benefit. If the deceased worker did not leave any person wholly or partly dependent, the worker’s legal personal representative is entitled to the lump sum death benefit. The worker’s legal personal representative is the executor/executrix nominated in the worker’s will and appointed by the Supreme Court in a grant of probate, or if the worker died without a will, the administrator/adminstratrix appointed by the Court under Letters of Administration.
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Retrospective Changes to Workers Compensation Lump Sum Death Benefit by Christine Tsekouras
Reasonable funeral expenses not exceeding $9,000 or such other amount as prescribed by the regulations remain payable in addition to any lump sum death benefit. The liability to make weekly payments in respect of dependent children under section 25(1)(b) has been amended. Previously, the weekly payment in respect of dependent children was only payable when a worker left at least one person wholly dependent for support. If the worker only left partial dependants, the partially dependent children were not entitled to the weekly benefit. Section 25 has been amended so that partially dependent children are entitled to the weekly benefit even when there is no person wholly dependent on the worker. Workers compensation self insurers and Scheme Agents should review all claims where the worker died after 24 October 2007, as a result of a work injury sustained after 30 June 1987, and make an adjustment payment so that in each case the amount of $425,000 is paid to the dependants or legal personal representative, as the case requires. If there is any doubt as to whether the worker left any dependants, or if the worker left more than one dependant but it is unclear how the sum should be apportioned amongst the various dependants, the lump sum death benefit should be paid to the Public Trustee pursuant to section 85 of the Workers Compensation Act 1987. The dependants can then apply to the Workers Compensation Commission for an order regarding apportionment of the sum paid. Self Self-insure rs and Scheme Agents should also ensure that the weekly benefit is paid to all dependent children of any worker who died after 24 October 2007 from an injury sustained after 30 June 1987, irrespective of whether their dependency is total or partial.
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Retrospective Changes to Workers Compensation Lump Sum Death Benefit by Christine Tsekouras
For more information, please contact:
Christine Tskouras Special Counsel T: 02 8257 5735 christine.tsekouras@turkslegal.com.au
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