Dependency Claims Guide

Dealing with a workplace death is an incredibly difficult and emotional experience.

If you have lost a loved one due to a work injury, you may be eligible to receive a number of entitlements. The experienced personal injury lawyers at Brave Legal will provide compassionate and expert legal support during this challenging time.

What is a dependency claim?

A dependency claim refers to compensation for the death of a loved one at work. To access this compensation, you must be named an “eligible” person to that claim, in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013. An eligible person may be able to receive support and assistance from WorkSafe Victoria.

How do you make a dependency claim?

If you wish to bring a dependency claim, you will need to complete the WorkSafe Claim for Compensation Following a Work-Related Death form and provide it to the deceased worker’s employer. Brave Legal recommends seeking legal advice when lodging this form to ensure maximum compensation.

Who can bring a dependency claim?

A dependency claim can only be brought by an “eligible person”. You will be classified as an eligible person if you can show that you are a dependent that is, but for the worker’s death, you would have been ‘wholly or mainly dependent’ on the worker’s earnings.

Dependents are usually children or partners (including a spouse and domestic partner) of the deceased worker.

A ‘family member’ meaning parent, grandparent, sibling or partner’s children may also be classified as a ‘dependent.’

How do you prove financial dependency?

To prove financial dependency, you must show that at the time of the worker’s death, you were ‘wholly, mainly or partly dependent’ on the worker’s earnings. This includes providing copies of your taxation returns, bank statements and other proof of income such as a family trust (if relevant).

Who would classify as a partially dependent partner in a dependency claim?

A partially dependent partner in a dependency claim is someone who is to any extent, dependent on the deceased worker’s earnings. A partially dependent partner is not entitled to the same benefits as a dependent partner (e.g. a weekly pension is only paid to dependent partners and children).

What entitlements are available under a dependency claim?

If your WorkCover Dependency Claim has been accepted, you may be entitled to the following:

1. Lump sum payment (maximum payment of $741,000.00 as at 1 July 2024, which is to be shared amongst all dependents);
2. Weekly pension (received for three years from the date of the worker’s death, only for a wholly dependent partner/child – no other person is entitled to a weekly pension);
3. Reimbursements of expenses for non-dependent family members who have experienced hardship as a result of the death of the worker;
4. Payment of the reasonable costs for:
   1. 1. Travel and accommodation for immediate family members to attend the funeral;
      2. Funeral expenses;
      3. Counselling services to immediate family members; and
      4. Medical and like expenses.

With respect to hardship and reimbursement of expenses (item three above), the governing Workplace Injury Rehabilitation and Compensation Act 2013 does not define what qualifies as an ‘expense.’ It is within the Court’s discretion to determine whether the expenses incurred by non-dependent family members due to the worker’s death are reasonable and of a reasonable amount and have caused financial hardship.

In the case of Samantha Burns v Allianz CG Pty Ltd [2020] VMC 14, the Plaintiff submitted that the expenses she incurred as a result of the death of her brother caused financial hardship. The Plaintiff experienced a loss of earnings and some of the expenses she incurred included:

• attending to her brother’s financial matters such as paying various bills, dealing with service and utility providers and transferring his car registration;
• assisting her parents in obtaining legal advice and making an application for Letters of Administration;
• paying for the cleaning of her brother’s rental property;
• paying for the disposal of rubbish from her brother’s rental property; and
• toll expenses incurred travelling to and from her brother’s rental property.

The Plaintiff, a senior clinical neuropsychologist, also stated that due to her inability to work, she had to cancel appointments and appoint an acting manager to oversee the clinic in her absence, as she was unable to fulfill that role herself.

In incurring the above expenses and experiencing the loss of earnings, some of the financial hardship faced by the Plaintiff included:

• she had to reduce her mortgage repayments for a period of time; and
• there was a change in the family’s lifestyle due to being more careful what they spent.

The Court accepted that the cleaning costs, rubbish disposal, and travel expenses incurred were legitimate ‘expenses.’ However, the Court did not find that the loss of earnings qualified as an ‘out-of-pocket’ expense suffered by the Plaintiff. Additionally, the Court did not find that hiring an acting manager was an expense paid for by the Plaintiff. Instead, it was paid for by the clinic and could not be regarded as an expense incurred by the Plaintiff.

Ultimately, the Court was not satisfied that the Plaintiff had experienced financial hardship as a result.

What are provisional payments?

Individuals who may be entitled to compensation following a worker’s death, such as dependents, may also receive provisional payments. These payments are categorised in the forms described above (e.g. provisional payment of weekly pension etc.). If the Victorian WorkCover Authority or a self-insurer determines that a person may be eligible for compensation due to the worker’s death, provisional payments may be made.

How are dependency claims calculated?

The payments for a dependency claim are based on the entitlement outlined in the governing Workplace Injury Rehabilitation and Compensation Act 2013 and varies depending on the circumstances.

For example, the amount of the weekly pension paid will vary for each dependency claim, as it is determined by the deceased worker’s pre-injury average weekly earnings. There are maximum limits on the amounts that can be paid to dependents.

How is the outcome of a dependency claim determined?

The outcome of a dependency claim is determined by meeting key criteria.

WorkSafe Victoria and their agent, with the assistance of an external legal firm, will look at the following to determine whether a dependency claim is to be accepted:

• Was the deceased worker a worker in Victoria?
• Did the death arise out of or in the course of the deceased worker’s employment?
• Was the deceased worker’s employment a significant contributing factor to their death?
• Is the person making a dependency claim a dependent as defined in the Workplace Injury Rehabilitation and Compensation Act 2013?

It usually takes 90 days from the date WorkSafe receives the claim form to determine whether liability is accepted by the agent. In some cases, it can take longer than 90 days and typically depends on the documents provided and whether further information is required.

If liability is accepted, the WorkSafe agent, together with the assistance of an external legal firm, will determine and make payments in accordance with your entitlements. Payments can include reimbursement of medical and like expenses, weekly pension (if you are an eligible dependent) and a lump sum payment.

Is there a Centrelink bereavement payment?

Yes.  You may be able to receive Centrelink bereavement assistance depending on your relationship with the deceased worker and whether you were previously receiving any Centrelink support payments.

Are there time limits to making my claim?

You have two years from the death of the worker to make a WorkCover dependency claim. In some rare cases, the deadline can be extended depending on the circumstances. You may be required to provide an explanation for the delay in the form of a Statutory Declaration or Affidavit.

Can I make any other claims in relation to a workplace death?

Yes, there are other claims that can be made in relation to a workplace death.

The Wrongs Act 1958 (Vic) is relevant in cases where a worker died in negligent circumstances, namely, their employer or a third party was at fault for the injury or condition that led to their death. In this circumstance, a dependent can pursue a common law claim (also known as a negligence claim).

In addition, as of 1 July 2024, a dependent can make a claim for past and future loss of financial dependency and services (such as cleaning, childcare, maintenance and the like) damages up to $1,212,210. This sum is indexed each year. Any WorkCover dependency benefits (i.e. the lump sum payment and pension) previously received will be deducted from any compensation (known as “damages”) obtained under the Wrongs Act.

Grieving the loss of someone close to you can be overwhelming, particularly when you are dependent on that person. At Brave Legal, we can help you to navigate this challenging time and understand the benefits and compensation that are available to you. Our team is here to advise and assist you during this time.

For a confidential discussion about your potential entitlements, please contact Brave Legal on 03 9070 9816.