Attwood Marshall Lawyers Compensation Law Partner and QLD Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche and Senior Paralegal Amy Lewis review recent horrific cases of workers being killed on the job in Queensland. For the loved ones left behind after an unforeseen tragic work fatality, there is at least lump sum and weekly monetary compensation available through WorkCover. In some cases, there may also be other forms of compensation available to the families impacted by a work-related fatality.
Introduction
2023 has already been a terrible year for Queensland work-related fatalities, with two horror stories making news headlines.
In January, a Gold Coast helicopter pilot tragically lost his life while taking passengers for a joy ride at SeaWorld, Main Beach. The experienced pilot was an aviation veteran with over 6,000 hours of flying to his name. The unforeseen tragedy completely shocked the nation and made international news headlines, with an overwhelming response from the community who wanted to help those lucky enough to survive the crash.
Following a devastating January, February bought more bad news with two miners killed in an incident in North Queensland when the ute they were travelling in plummeted 15 metres into a deep void at the Dugald River underground mine.
March has been just as devastating, with a man being crushed to death by a fibreglass pool at a factory at Beaudesert in South-East Queensland on the 1st day of the month.
Sadly, work-related fatalities continue to happen despite stringent regulations and health and safety protocols being in place.
In 2022, there were 18 workers killed in Queensland for the period January to June. Of those 18 fatalities 14 were workers, and 4 were bystanders.
Sadly, there is estimated to have already been 17 Australian workers killed at work this year so far (based on the data available at the time this article was published).
Unfortunately, workers’ compensation means very little when a worker loses their life, however, benefits are extended to the loved ones left behind when a person dies at work, particularly the surviving spouse and children of the deceased worker. When a family loses the ‘breadwinner’ of the household, it can have a devastating financial impact on the lives of the spouse and children left behind. Not only must the grieving family deal with the loss of a loved one, the stark reality of financial survival can add another layer of uncertainty and anxiety for the family.
Australian Work Health and Safety Strategy 2023-2033
A new strategy has been released by Safe Work Australia labelled the “Australian Work Health and Safety Strategy 2023-2033 (the Strategy)”. The purpose of the strategy is to set an Australia-wide agenda for work health and safety practices and outline the principles to deliver improvements in this space, guiding the work of Safe Work Australia, its members, government representatives, employers, and workers.
The strategy aims to:
- Reduce work-related fatalities
- Reduce work-related injuries and illnesses
- Increase preventative action
The strategy acknowledges the persistent challenges and hazards workers face including challenges managing psychosocial risks such as high work demands, low job support, and harmful behaviours that create risk of physical and psychological injuries in the workplace.
The strategy also puts a focus on emerging challenges certain industries are facing and are set to face in the coming years, with the rise of artificial intelligence, automation, and related technologies, which may bring great benefits, but also may expose workers to new or additional work health and safety risks.
The strategy also identifies a shift in workforce demographics, particularly the number of older workers in the labour force.
These are just a few of the key focus areas outlined in the strategy.
Although the strategy may be ambitious, it will be fundamental to promoting consistency and progress in work health and safety practices across the country and hopefully support much needed improvements to reduce the risk of fatalities and injuries in the workplace.
WorkCover benefits for work-related deaths
Workcover death benefit claims are usually available in two different streams – statutory benefits and common law negligence claims. Here we explain the difference between the two different types of claims and who may be eligible to claim these benefits.
Statutory Benefits
When a fatality has occurred at work or during the worker’s journey to or from work, family members, including the deceased’s spouse and dependent children can make a claim for reasonable funeral expenses, a lump sum death benefit and/or periodic payments to the surviving spouse and the dependent children up to the age of 16. Payments to children can be extended beyond this age if the child is aged between 16-25 and studying full-time and not working.
Statutory benefits are payable on a no-fault basis, meaning they are paid regardless of who caused the accident or who was responsible for the death.
For example, if an employee is killed on their way home from work in a single motor vehicle accident which was due to their own fault or negligence, statutory lump sum and weekly benefits would be available to the family of the deceased worker. Likewise, if a worker dies through no fault of the employer (this does not happen very often), then the WorkCover benefits are payable.
The amount of the lump sum benefit and the weekly payments are paid according to a set formula which changes each year on the 1st of July. There is a table of benefits payable under the WorkCover legislation. For example, the lump sum payable to a dependant is currently $676,700.
Common Law Negligence Claims
In the circumstances where the fatality was caused because of the employer’s negligence (or the negligence of another third party), this opens the door to pursuing a ‘common law claim’ being made by the dependants of the worker who lost their life on the job. All employers in Queensland must by law have compulsory WorkCover insurance to cover their workers, although some large companies self-insure their workers. Most fatal work injuries are usually caused by the negligence of or failure of the employer to have proper safety systems at work.
It is important to understand that in any claim against an employer, the claim is paid by WorkCover Queensland, not the employer themselves. It is similar to your insurance company paying for a claim made against you if you have a car accident and it is your fault.
A claim made by family members who were financially dependent upon the deceased worker is known as a ‘dependency claim’ or a ‘compensation to relatives claim’ or in legal parlance, a ‘Lord Campbell’s claim’. Lord Campbell was an English House of Lords Judge who championed legislation to force employers to compensate families of workers killed on the railways during the industrial revolution. The legislation was known as ‘Lord Campbell’s Act’ and was the precursor to our modern-day laws regarding dependency claims.
Unlike the statutory WorkCover amounts, a common law dependency claim has no cap to the amounts recoverable and each case is dealt with on its own facts. The younger the children and spouse, the higher the compensation usually is because the claim is based on the loss of financial support of the deceased spouse/parent for the whatever time period is applicable. For example, a spouse may have been dependent upon the deceased worker for life. Likewise, a disabled child may have a lifetime financial dependency. Other children may have only been dependant until they were 18.
There is a claims process under the Queensland WorkCover legislation that requires a Notice of Claim for Damages to be completed and served upon the employer and WorkCover which we prepare on your behalf. A compulsory settlement conference must be held with WorkCover as part of the claims process. If the matter settles, any funds paid out in the statutory claim must be refunded. Usually, any settlement on behalf of minor children needs to be sanctioned by a Court and sometimes a trustee is appointed to manage the funds for the children until they turn 18.
If you have lost a family member to a work-related injury, it is important to understand the steps to take to make a dependency claim through WorkCover
First and foremost, when you lose a loved one, it is important to seek the support you need throughout the grieving process. This can come from family members, your General Practitioner, or a psychologist or psychiatrist.
WorkCover offer free grief and trauma counselling sessions to anyone who has been affected by a work-related death.
Following getting the immediate support you need; you can then take the steps to lodge a claim with WorkCover for compensation. This is the initial statutory benefits claim.
As part of the claim, WorkCover will need to know the cause of the person’s death, your relationship to the person and dependency on the person.
Usually, you will need the following documents to support your claim:
- Death Certificate;
- Birth Certificate of each dependant (if applicable);
- Funeral receipts;
- Marriage Certificate (or proof of a de facto relationship);
- For minor dependants, a bank account opened on trust must be established for the payment of the lump sum benefit;
- Income documents such as payslips or tax returns of the deceased;
- Will, Grant of Probate and/or Letters of Administration.
Depending upon circumstances, WorkCover may also request child support documentation and bank statements showing dependency (if for example, the dependent child’s parent is no longer in a relationship with the deceased).
For WorkCover to approve a claim of this nature, they will want to confirm that:
- The person was employed at the time of the injury by the employer
- The person was considered a “worker”
- The fatal injury was caused by a work-related incident
- That employment was a significant contributing factor to the fatal injury, or that the fatal injury occurred during a journey to or from work.
WorkCover will reimburse any reasonable costs of a worker’s funeral, either by paying the individual directly who covered these costs or paying the funeral home directly if appropriate to do so.
Other types of compensation and death benefits
Superannuation death benefits
Most workers have compulsory Superannuation paid by their employers and will usually have a lump death benefit attached to their Super. This can vary depending on the age of the worker and whether they take out additional cover. They will also have their Super contributions account. It is also wise to check with the ATO whether there are other Super accounts to see if they have a lump sum death benefit.
Death cover insurance policy or credit card death benefit
Some workers also have a separate life cover policy that has a lump sum benefit payable to the estate or family of the deceased.
You may also have a lump sum benefit attached to your credit card and this should be checked as well.
CTP insurance claim where a vehicle is at fault
If the fatality involves a car accident or a vehicle that was not the fault of the deceased, there could also be a CTP insurance claim against the insurer of the vehicle at fault. A claim can be lodged by serving a CTP claim form on the CTP insurer on behalf of the estate.
Attwood Marshall Lawyers – helping workers and their loved ones through difficult times
WorkCover Death Benefit Claims are understandably extremely difficult to work through, especially when dependents are grieving the loss of their loved one.
When making a WorkCover claim, it can be helpful to be supported by an experienced compensation lawyer who understands the process involved and the evidence required to ensure the claim can proceed as quickly and smoothly as possible. When leaning on a compensation lawyer, you can take comfort in knowing they are there to handle the day-to-day interactions and negotiations with the insurer, allowing the family to focus on healing and their immediate priorities.
There are usually complex issues that can arise as part of administering the estate of the deceased and obtaining a grant of probate or letters of administration if there is no Will. It can be even more complex if the spouse had separated from the deceased at the time of the death or there is conflict with the family of the deceased. Our firm has a dedicated Wills and Estates department that frequently handle these types of estate administration matters involving compensation and practice solely in this complex area of law.
Attwood Marshall Lawyers offer a free case assessment to review your claim and explain what you can expect right from the start.
Our lawyers have the experience to take on the big insurance companies and advocate for the rights of workers and their loved ones to get the outcome needed.
We operate on a No Win, No Fee basis for all workers’ compensation claims. For a confidential discussion about your specific circumstances, please call our Compensation Law Department on 1800 621 071 any time.
