Transmissibility of statutory entitlement to compensation on death

State of Queensland v WorkCover Queensland & Anor [2010] QMC 19

This decision provides an examination of the matters to be considered in the scenario where an application for compensation has been lodged, but the worker pre-deceases payment:

MAGISTRATE: Previtera T

[58] In determining any legislative intent as to whether or not a statutory entitlement to compensation is transmissible on death, an examination of the provisions of the QLD Act reveals the following:-

1. There are no specific, clear or unambiguous provisions in the QLD Act indicating that a statutory entitlement to compensation is not transmissible on death.

2. One of the objects of the QLD Act as stated in s 5(1)(a) of the QLD Act is to establish a workers’ compensation scheme for Queensland- providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits.

3. S 46(1) provides that an employer is legally liable for compensation for injuries sustained by a worker employed by the employer.

4. S 48(1) provides that every employer must insure and remain insured against injury sustained by the worker for legal liability for compensation and damages.

5. Chapter 3 Part 2 Division 4 of the QLD Act (s 116-119) deals with the issue of when an entitlement to compensation ends. There is no mention of death.

6. Chapter 3 Part 3 Division 5 (s 128A-128E) deals with workers with latent onset injuries that are terminal conditions, that is, injuries of the kind suffered by Mr. Templeton in this case. Contrary to the submission of the appellant, there is no statement in that Division that any provided amounts must be paid to the worker. Rather, it speaks of an entitlement of the worker.

7. There is no mention that the entitlement to compensation in s 128B ceases upon death.

8. There are, however, provisions within Division 5 (s 128C) to reduce the amount payable under s 128B so as to avoid an overlap or overpayments or double dipping.

9. S 128D and E (introduced after the death of the worker in this case) deal with rights arising upon death. S 128D(4) makes it clear that if dependants receive a payment under s 128D, they are not entitled to further compensation under chapter 3 Part 11. This court accepts the respondents’ submissions that the provisions are alternative to, and not cumulative of, the rights appearing in Chapter 3 Part 3 Division 5 (s 128A – 128E). Therefore, whilst provision is made in Chapter 3 Part 3 Division 5 for latent onset injuries, the worker or the worker’s personal representative, (if the worker has not so applied prior to death) may not seek the latent onset injury terminal compensation payment, but could make application under Chapter 3 Part 11 instead.

10. S 134(1) provides “A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.” Against theappellant’s argument that Workcover should have closed or dismissed the claim under s 128B and sought an application from the dependants under

chapter 3 Part 11; there is no provision which allows for the closure or dismissal of a claim which has been validly made under s 131, in respect of an extant right arising otherwise under the Act, due to death.

11. The effect of s 141 of the QLD Act (which provides the time for which the

compensation is payable, which in this case, is from the time the worker had been diagnosed by his GP), the worker’s right had vested at the time of his diagnosis.

12. S 144A and 144B provide for when the entitlement to compensation stops.

They do not mention death.

13. S 204 of the QLD Act gives effect to the scenario in the United Collieries case, that is, if a dependant dies after the death of the worker but prior to the payment of any compensation the compensation payable between the date of the two deaths is made payable to the estate of the dependant.

14. S 200O, s 201A, s 202 and s 204 provide for amounts of compensation to be paid. They are all liquidated sums; debts or claims for which a right to compensation is considered by the authorities discussed above to be analogous.

 

Brisbane Barrister – David Cormack

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