A guide to claiming WorkCover death benefits

In the unfortunate event that a worker dies as a result of an injury or condition at or related to work, a person will be entitled to make a WorkCover death benefit claim for financial support on the grounds that they were wholly or mainly financially dependent on the worker (“dependent”).

Under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”), a dependent is entitled to claim the following financial support after the death of a worker:

1. Weekly pension;
2. Burial, cremation and counselling expenses;
3. Lump sum compensation.

The following people are considered dependents under the Act:

• Domestic partner;
• Spouse;
• Child; or
• Other family members (parents, grandparents, siblings).

A dependent can also be a non-family member where there is proof of dependency.

If there is a dispute over whether or not you are a dependent for the purposes of a WorkCover death benefits claim, you should seek advice from an experienced worker’s compensation lawyer.

A person can claim compensation in the form of weekly pension once it is established and accepted that they are a dependent under the Act, and were reliant on the deceased worker’s income.

A dependent is entitled to receive a pension for a period of 3 years from the death of the worker.

For the first 13 weeks, the pension is paid at 95% of the deceased worker’s pre-injury average weekly earnings (capped at $2,660 a week as at 1 July 2023) and at 50% of those earnings for the balance of that period. It is calculated based on the deceased worker’s average weekly earnings for 12 months before their death.

A successful WorkCover death benefit claim entitles a dependent to claim:

1. reasonable burial or cremation expenses;
2. the cost of grief counselling services and/or other reasonable medical treatment expenses;
3. travel and accommodation costs for attending the burial or cremation.

These claimable expenses are capped by the Act. There may be some out-of-pocket expenses if the expenses claimed are more than the capped amount.

A dependent must provide proof of these expenses to claim reimbursement or payment by providing receipts, quotes and/or invoices.

After the death of a worker in a work-related accident, a dependent can claim 2 types of lump sum compensation:

1. No fault lump sum compensation;
2. Common law damages under Wrongs Act 1958 (Vic).

Once it is established and accepted that the claimant is a dependent at the time of worker’s death, they will be entitled to claim lump sum compensation.

How much lump sum compensation is payable under a WorkCover death benefits claim?

The amount of lump sum compensation is determined by a complex set of rules and is heavily influenced by the age of the deceased worker and circumstances that lead to the death. The maximum a person can claim is $713,780 as at 1 July 2023. This amount gets indexed each year.  The lump sum is to be shared between all eligible dependents.

If there is proof that the deceased worker was not at fault for the injury/condition that led to their death, a dependent can claim common law damages under the Wrongs Act 1958 (Vic). The maximum a person can claim is $1,152,040 as at 1 July 2023. Any no-fault lump sums and pensions paid will be deducted from any damages awarded.

A dependent has 3 years from the date of death to commence a claim for death benefits lump sum compensation, after which time the right to bring a claim expires.

A claim form titled “A Claim for Compensation Following a Work-related Death” must be lodged with WorkSafe and the employer of the deceased worker. The employer is required to forward the claim to WorkSafe or their WorkCover insurer within ten days of receipt.

The claim form can be found on the WorkSafe website here.

A claim must be lodged within two years after the date of death. A statutory declaration or affidavit may be required to provide written explanation of any delay to WorkSafe. In rare circumstances, the time limit can be extended or waived.

If your claim is outside the time limit, you should seek advice from a WorkCover lawyer.

The documents to have ready before claiming WorkCover death benefits are unique to each case. However, in general, it is recommended to have documents that show dependency, which could include some of the following:

• utility and household bills;
• rental agreement;
• Loan/mortgage agreement;
• joint account bank statements;
• statutory declaration stating dependency;
• tax returns of deceased worker and claimant; and
• any legal documents showing a relationship (e.g. marriage certificate).

Other documents worth collating in support of your claim include:

• toxicology report/autopsy report;
• medical reports confirming the cause of death;
• police report;
• ambulance report/records; and
• payslips/income of the deceased worker 12 months prior to death.

In most workplaces, where the death of a worker was unexpected or unnatural, the Coroners Court of Victoria may get involved and investigate the death.

The death certificate would require a cause of death, and where that cannot be determined, a Coroners Court may get involved.

If the Coroners Court is involved, the next of kin or family member responsible for managing the affairs of the deceased worker will be notified and contacted throughout the process.

The Coroners Court may request documents similar to those provided in the dependency claim, particularly in relation to medical and police records.

In some cases, an inquest hearing may be held to determine the cause of death.

The findings of a Coroners Court inquest or investigation can have an impact on the outcome of the WorkCover death benefits dependency claim.

Once a WorkCover death benefits claim has been lodged and received by WorkSafe, a panel firm is allocated to manage the claim and is required to respond to the claim within 90 days. This period can be extended in exceptional cases based on the circumstances of the claim and where the parties agree.

In some circumstances, whilst the claim outcome is pending, the WorkCover insurer will provide provisional payments immediately following the death of a worker for up to 12 weeks.

In addition to claiming WorkCover death benefits, a beneficiary can claim death benefits through the deceased worker’s superannuation fund.

A death benefit may not always form part of basic insurance cover in every superannuation fund (although it is very common to have cover). It is important to review any relevant superannuation policy(s) to ensure that death benefit insurance is available and that a beneficiary is named in the policy.

If there is a death, the beneficiary can apply to the super fund for a payout of the death benefit. Documents provided will be similar to those prepared and obtained for the dependency claim. A decision will be made by the superannuation fund in response to the claim in due course.

Often, WorkCover death benefit claims are straightforward. However, issues can arise around dependency and who is eligible to claim. Should the claim be rejected or there are any other issues in relation to the application, contact a Polaris worker’s compensation lawyer for assistance with this claim.