Australia: FAQs: Victorian Workcover dependency claims

Last Updated: 2 October 2019
Article by Nadia Grech

Seventeen deaths have been recorded to date in the State of Victoria for 2019.

Today I am saddened to hear that a 56 year old man has died after a residential brick wall fell on him in Ballarat. Recently a 22 year old woman died when she fell from a horse at the Cranbourne Racecourse on 30 August 2019. On 12 August 2019 a man in his mid 60s died after falling from a ladder at a residential construction site at Rutherglen. Prior to this, in April 2019 a man died when he slipped off a roof and was impaled on a metal picket. Also in April 2019 a 56 year old man died after he was pinned between a fence and a garbage truck in Koonwarra.

Such tragedies devastate the loving family and friends connected to the victim.

If you are the partner or child or even supporting friend of a person who has died on a Victorian worksite, you may be entitled to compensation. While compensation will never change the loss of a life it may help you financially, especially once that person has gone.

Here are my FAQs regarding Victorian WorkCover Dependency claims:

How is compensation for the death of a worker determined?

According to Section 235 of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013 (the Act):

If a worker's death results from, or is materially contributed to by, an injury which entitled the worker's dependants to compensation, the amount of compensation must be determined in accordance with the Act.

Who is a dependent?

(Section 234 of the Act).

A child is:

considered as under the age of 16 years or is over 16 years but under the age of 25 years and a full time student or full time apprentice.

A dependent child is:

an orphan child and is a child born after the death of the worker where the deceased worker is that child's parent.

A dependent partner is:

a partner who is, or would be, but for the incapacity of the worker due to the injury, wholly or mainly dependent on the worker's earnings. Note: you are a deemed dependent partner if you were a partner who resided with the worker at the time of the worker's death.

An orphan child is:

a child of the worker and whose other parent was dead before the death of the worker or was not, at the time of the death of the worker, a dependent partner of the worker and did not at that time wholly, mainly or in part provide economic support for the child

or

who is not a child of the worker and whose parents were both dead before the worker died or neither of whose parents, at the time of the death of the worker, wholly, mainly or in part provided economic support for the child and neither of whom was at that time a dependent partner of the worker.

A partially dependent partner is:

a partner who is, or would be, but for the incapacity of the worker due to injury, to any extent dependent on the worker's earnings.

If a worker has died, what possible entitlements are available?

  • Payment of the reasonable costs of medical and like services provided to the worker;
  • Payment of the reasonable costs of family counselling services;
  • Payment of the reasonable costs of burial or cremation up to maximum of $20,410 (indexed 1 July 2019);
  • Payment of the reasonable costs for travel and accommodation for immediate family members to attend the burial or cremation service up to $5,210 (indexed 1 July 2019) paid to family members if held more than 100km from their normal residence;
  • A lump sum payment for dependents;
  • A weekly pension for dependent partner(s), child(ren) or orphans and
  • Reimbursement of expenses for non-dependent family members.

Are there any time frames to lodge a dependency claim?

From the date of the worker's death, you have two years to make your claim. It can be extended in special circumstances and WorkSafe will look at each individual case to establish these special circumstances.

It's a very sad time in your life when you are dealing with the death of a loved one, however, we recommend you seek the assistance of a personal injury lawyer so that you do not miss any timeframes as soon as possible.

Am I entitled to a weekly pension after the worker's death?

For an entitlement to a weekly pension, you need to qualify as a dependent. When you qualify as a dependent, the law analyses your family's unique situation and calculates your monetary weekly pension according to the number of dependents in your immediate family.

You will need the assistance of a lawyer to help you work out what your weekly pension will be if there is more than one dependent.

How long would a dependent receive a weekly pension after the worker's death?

A dependent will receive a weekly pension for a total period of three years from the date of the worker's death.

How do I make a claim as a dependent for eligibility for a weekly pension claim?

You will need to complete a WorkSafe Victoria form entitled: "Claim for Compensation Following a Work-Related Death".

This form can be located on the WorkSafe Victoria website or alternatively you can acquire one from our law firm.

The completed form must be given or served on the deceased worker's employer.

What is a lump sum dependency claim?

A lump sum dependency claim is a maximum payment of up to $623,950 (indexed as of 1 July 2019) paid to a worker's dependent partner or dependent partners with or without children or orphan children.

Section 236 of the Act has many different scenarios that are unique to your family's circumstances which spreads the share of the maximum payment amongst the deceased worker's dependents.

Seeking the assistance of a lawyer is highly recommended to ensure all family members are acknowledged when it comes to this lump sum entitlement.

Can I receive a weekly pension as well as a lump sum dependency claim?

Absolutely.

I am a family member of the deceased worker but I do not qualify as a dependent. Am I entitled to anything?

If you are a family member and have incurred expenses as a result of the worker's death such as:

  • payment of the medical services provided to the deceased worker such as ambulance, hospital and medical treatment;
  • burial and cremation expenses;
  • travel/accommodation expenses for family members to attend a burial/cremation service if held more than 100km from their normal residence;
  • reimbursement of expenses in cases of financial hardship for non-dependent family members.

You will need to apply to a Victorian Magistrates' Court for an order that the Authority (WorkSafe) or Self-Insurer reimburse you for expenses you incurred as a result of the worker's death.

To do this you will need to specify the expenses incurred as a result of the death and how the incurring of those expenses caused financial hardship to you.

Your application must be made within 2 years after the date of the worker's death.

The Magistrates' Court will consider your case and can order that more than one applicant is entitled to a share of the maximum amount available.

The maximum amount you might be able to claim is $37,220 (indexed as of 1 July 2019) in total expenses as a result of the worker's death.

Does there have to be negligence on the part of the employer for a dependent to receive a weekly pension, a lump sum dependency claim and/or reclaiming of expenses for a family member?

No there does not need to be negligence.

What is a Wrongs Act claim?

Under the Wrongs Act (Vic) 1958, dependents of a deceased worker are able to recover damages of up to $1,030,920 (indexed as of 1 July 2019).

These applications consider the employer's wrongful act, negligence or default which caused the worker's death. Claims cannot be made before the worker's death.

It is important to be aware that if a Wrongs Act claim is made, any paid WorkSafe entitlements (such a lump sum dependency and weekly pension) are deducted from damages obtained under the Wrongs Act.

A Wrongs Act claim considers the following:

  1. Negligence – as there a failure to exercise reasonable care by the employer or another party?
  2. Financial viability – a consideration of the quantum of this claim versus the amount of damages already paid out under the WorkSafe no fault entitlements received by the dependents.

We highly encourage you seek our advice in making a Wrong's Act claim as well as advice pertaining to dependency no fault benefits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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