Apportionment of workers compensation death benefits

Under the Workers Compensation Act 1987, dependants left behind following the death of a worker on or after 5 August 2015 are entitled to a lump sum death benefit of up to $ 750,000 (indexed), as well as reasonable funeral expenses, and in the case of a dependent child, weekly compensation.

This amount differs under the Workers Compensation (Dust Diseases) Act 1942 if the worker has passed away as a result of a pathological condition of the respiratory system specified in the Act caused by dust, or most commonly asbestos. In such cases, the dependants of the worker are entitled to a lump sum compensation payment of $335,650 (indexed), as well as reasonable funeral expenses and weekly payments to a dependant spouse or child. These amounts are reduced if there was only partial dependency.

If the worker only leaves behind one dependent (whether wholly or partially dependant), the lump sum death benefit amount is to be paid entirely to that one dependant. However, where there are two or more dependants on the worker, the lump sum death benefit is to be apportioned between them.

Any persons who are entitled to this compensation can make an application for apportionment to the NSW Trustee, or more commonly, to the Workers Compensation Commission. The Commission will apportion the benefit according to the level of dependency of each of the dependants . Each person claiming dependency must provide satisfactory evidence of such dependency.

Once the Commission has determined that an individual was in fact a dependent of the worker, they then look at apportioning the benefit. Unfortunately there is no clear cut approach as to how the lump sum will be apportioned, however the Commission has regard to matters such as:

• Whether the individual is a spouse or child;
• Ages of dependents, their health, special needs, and lifestyle;
• The demonstrated commitment of a remaining parent/carer to the children;
• Extent of past dependence;
• Anticipated future dependence;
• Whether there has been a loss of domestic services performed by the worker; and
• In the case of a de facto partner, whether a significant degree of mutual commitment to a shared life and financial inter-dependence was also present.

It is often the spouse or de facto partner of a deceased worker that receives the largest part of the lump sum death benefit, followed by any dependent with poor health/special needs and children, however, this can vary with the considerations listed above. If you are unhappy with the outcome of the apportionment, it is important that you lodge an appeal within 28 days of the decision.

If there are no dependents, the amount is to be paid to the workers’ legal representative.

Claims for the death benefit can be complex, and where multiple family members are involved it can at times become stressful and quarrelsome. If you feel overwhelmed by the situation, it may be prudent to seek advice from a legal professional.