Entitlement to compensation on death before claim accepted

State of Queensland v WorkCover and Ors

S.110(3) Workers Compensation and Rehabilitation Act 2003 (“WCRA”) – Whether the entitlement to compensation ends on the death of the worker (and cannot be transferred to the executor) in circumstances where the application for compensation had been lodge but not accepted at the date of death of the worker. The claim was subsequently accepted after the worker’s death and his estate paid. The State of Queensland appealed the decision of Q-COMP upholding WorkCover’s decision.

Industrial Magistrate Tina Previtera noted the issue had not been judicially considered in Queensland, despite its long history. Her Honour relied on interstate and U.K authorities and in particular The United Collieries, Limited v Isabella Simpson (“United Collieries”) 1909 A.C 383, section 45 of the Succession Act 1981 (Qld), sections 5, 46, 48, 116-119, 128A-128E, 134, 141, 144A, 144B, 200, 201A, 202 and 204 of the WCRA.

Her Honour found the insurer could not reject a claim because of a worker’s death and that legal personality of the worker was the executor on the worker’s death, and in such a capacity, the restriction in s.110(3) did not apply to the executor.  

Brisbane Barrister – David Cormack

  

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