Workers Compensation Survival Kit – Part 7

In Part 7 of the Workers Compensation Survival Kit, Adelaide injury lawyer Mal Byrne writes about the compensation available to families of a worker who dies in a work related accident.

Tragically, the rate of workplace deaths in Australia is a scandal given that this is a developed country.  Despite a unionised workforce, particularly in the industrial sector and/or strict occupational health and safety laws, too many workers die on the job.

In South Australia, spouses, dependant children and some other categories of dependant relatives of deceased workers can make claims under workers compensation laws if the worker dies of a work related injury.

To initiate the claim, all you must do is complete a Worker Report Form and submit it to the employer with a copy of the death certificate.  There are two types of compensation payments available. Dependant spouses and/or dependent children of the deceased workers can claim a lump sum payment or compensation of $400,000 plus ongoing weekly payments that are based on the rate of financial dependency of the spouse or child upon the deceased worker at the time of the worker’s death.  The definition of spouse includes de facto spouse (domestic partner), but the de facto spouse has to have been cohabiting with the injured worker at the date of their death for three years, or must have had a child with that injured worker. Hence it is possible in some circumstances for two spouses to share the death payment.  The injured worker’s ex-spouse can claim if they were not divorced at the time of the worker’s death, and the worker’s current de facto spouse may also claim if such spouses had a child of the worker or they were cohabiting for three years prior to the date of death.  Spouses and dependent children can claim a percentage of the deceased’s weekly payments but there must be some form of financial dependency.  Hence adult children living independently and working will not be able to claim but adult children under 26 years and engaged in full-time study may claim.

Unfortunately, some death claims are not straightforward.  The deceased worker’s spouse and/or child must prove that death was caused by the work related injury.  Clearly, when a worker dies in a freak accident such as a heavy fall or being crushed by machinery at work, the claim is straightforward.  However, not all deaths occur in those circumstances.  Examples of more complex death claims include where a worker dies from a cardiovascular accident such as a heart attack or stroke.  If the heart attack or stroke occurs at work, there will be a presumption that it was work related, but the insurer might contest the claim if they can prove that the heart attack was caused by factors not related to work such as family history, high cholesterol, high blood pressure or obesity.  While there must be a connection to work, the death does not necessarily have to occur at work.  A worker who dies from a heart attack at home may still have died from a work related injury if that heart attack was, for example, caused by extreme stress at work.  Hence, if your spouse has died at home, do not assume that you cannot claim workers compensation.

The other complex and often contested death claim is where a worker commits suicide.  The worker might suffer a serious work related physical injury, suffer depression as a result of that physical injury, the depression becomes overwhelming and the worker takes their own life.  Another example would be a worker who is suffering from serious work related depression due to the stress of the job, bullying, or some sense of failure and takes their own life.  The worker’s spouse and other dependants will need to prove that the suicide itself was caused by the work related injury.  That is to say, the loved one will have to show that the actual suicide itself, the decision to take the person’s life, was caused by work related injury and not by other factors in the worker’s life such as relationship difficulties, financial difficulties or bereavement.  These claims can be very distressing for the worker’s family.  The worker’s family will already be grieving and then will have to undergo investigation into their private life focusing on why the worker committed suicide.

Nevertheless, while the claim experience will be distressing, spouses and dependants should not be put off lodging a claim if they think that they have some entitlement.  Given the amount of compensation involved and the complexity of the law in this area, I could not recommend more strongly that you instruct a lawyer.

Part 8 of the Workers Compensation Survival Kit will cover Surviving the New Laws (Return to Work Act SA)

For a free initial interview about your workers compensation claim, contact us. TGB assists workers in South Australia, Western Australia and Northern Territory.