GUIDELINES FOR CLAIMS FOR COMPENSATION FOLLOWING THE DEATH OF A WORKER

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1 GUIDELINES FOR CLAIMS FOR COMPENSATION FOLLOWING THE DEATH OF A WORKER Release Date: 1 July 2014 Contact Person: Greta Madsen Contact Number: Effective Date: 1 July

2 Contents PREAMBLE... 3 INTRODUCTION... 3 LEGAL REPRESENTATION... 3 EMPLOYERS... 4 COOPERATION... 4 CLAIM FOR COMPENSATION LATE LODGEMENT... 4 EARLY DISCUSSION... 5 INFORMATION AND DOCUMENTS GENERALLY REQUIRED... 5 DEATH CAUSED BY TRAUMATIC EVENT - LIABILITY... 5 DEATH RESULTING FROM ILLNESS OR DISEASE - LIABILITY... 6 DEATH BY SUICIDE - LIABILITY... 7 DEPENDENCY... 7 COSTS OF BURIAL OR CREMATION AND FAMILY COUNSELLING... 8 EXPENSES INCURRED BY NON-DEPENDENT FAMILY MEMBERS... 8 INFORMATION AND DOCUMENTATION GENERALLY TO BE PROVIDED TO THE CLAIMANT S REPRESENTATIVE... 8 DECISION TO ACCEPT OR REJECT THE CLAIM... 9 OTHER... 9 APPOINTMENT OF TRUSTEE... 9 OTHER POTENTIAL CLAIMANTS... 9 PROCEEDINGS AND PAYMENT OF COMPENSATION COSTS

3 PREAMBLE 1. The Victorian WorkCover Authority ( VWA ) has adopted these guidelines 1 to promote an efficient procedure for the determination of entitlement and payment of compensation to claimants pursuant to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 ( the legislation ), following the death of a worker. INTRODUCTION 2. These guidelines are intended to facilitate the efficient determination of entitlement and delivery of compensation through early, cost effective and comprehensive exchange of relevant information and documents in respect of such claims, whether death was caused by traumatic event, suicide, illness or disease. 3. These guidelines contemplate early discussions between the parties and their representatives to facilitate this exchange and to resolve or at least narrow issues in dispute. LEGAL REPRESENTATION 4. The VWA does not expect a claimant to have legal representation where a claim is only for the reasonable costs of burial or cremation and/or for counselling expenses, or is for dependency not involving a minor or a person under a disability. However, recognising that a claimant may have complex entitlements outside the legislation (including in relation to superannuation or life insurance), and that some claimants may wish to have independent legal advice in relation to a claim notwithstanding the VWA proposes to accept the claim in full, where the Agent has not already provided relevant information the VWA will make claimants aware of their ability to obtain independent legal advice, and that appropriate solicitors can be identified through the Law Institute of Victoria. 5. The VWA (through its representatives) will encourage a claimant to seek suitable legal representation in relation to a claim where the claimant is not legally represented and: the VWA does not propose to admit liability and any claimed dependency; or a claim requires the VWA to assess the extent of the dependency in order to calculate the amount of compensation; or 1 These Guidelines are a revision of the Guidelines previously adopted following agreement between the Victorian WorkCover Authority and APLA Lawyers for the People. They have been adopted by the VWA after consultation with the VWA s legal Liaison Group, in April and May

4 a claim will require the court to determine the amount of compensation by reason that the claimant is a minor or a person under a disability. EMPLOYERS 6. Employers are encouraged to provide full cooperation with the VWA and its legal representatives, to provide relevant information and confirm relevant facts. In particular, the cooperation of employers is required to allow the VWA to determine whether the deceased was a worker for the purpose of the legislation, the circumstances of the death, the remuneration received by the worker prior to the death and any information held by the employer in relation to dependency. COOPERATION 7. Employers, claimants, their advisers and representatives are reminded that: (a) (b) (c) under the legislation and the relevant policy or contract of insurance, the VWA is subrogated to all rights of action and recovery of the employer against any person, in respect of any claim for compensation under the legislation. Accordingly, the VWA requires employers to fully co-operate with the VWA (including its authorised agent and any solicitors appointed by it) as its insurer; in the event of any litigation, each named party, their legal representatives and the VWA as insurer have obligations under the Civil Procedure Act 2010 and/or relevant Rules of the court to cooperate and to provide relevant information and documents; compensation payable under the legislation is generally not based on any finding of fault by the employer, the deceased worker or any other party. In responding to a no-fault claim for compensation, the culpability of an employer or the deceased is usually not in issue. What is relevant is whether the death resulted from or was materially contributed to by an injury that arose out of or in the course of Victorian employment, and is otherwise compensable under the legislation. CLAIM FOR COMPENSATION LATE LODGEMENT 8. Where a claim form is lodged more than 2 years after the date of the death, the VWA will usually require an affidavit or statutory declaration from the claimant or other person lodging the claim. The affidavit or statutory declaration should explain the reason/s for not making the claim within the timeframe provided in the legislation, in order for the VWA to decide whether it is satisfied the person making the claim had a special excuse, and to decide whether it will waive or extend the time limit to enable the claim to be made. The VWA considers that for the purpose of the legislation a valid claim has not been made until the mandatory statutory timeframe in which a claim is to be lodged has been waived or extended. 4

5 EARLY DISCUSSION 9. The claimant and the VWA (through any appointed legal representatives) should discuss the claim, either at a conference or by telephone, generally 4 6 weeks after receipt of the claim by the VWA. To this end, at or before the conference, the parties should use their best endeavours to: (a) (b) (c) (d) (e) identify information and documents required by the parties from each other; determine an appropriate and efficient method of acquiring the information and documents required by each other; determine a time frame for exchange of all information and documents agreed to be exchanged by the parties; commence, at the earliest possible date, meaningful discussions which are intended to identify and or resolve all issues in dispute and the entitlement of the claimant to compensation; where the parties agree that compensation for dependency is payable and a court determination is required, agree who will commence the proceeding and in what timeframe. 10. The representatives of the claimant and the VWA may agree to convene further conferences as may be required for the purposes of these guidelines. INFORMATION AND DOCUMENTS GENERALLY REQUIRED 11. Where practicable and relevant, the VWA generally requires the following types of information and documents to make a determination of entitlement of the claimant for compensation following the death of a worker. Some documents and information will be in the possession or power variously of the claimant, employer, their representatives or third parties. Death caused by traumatic event - liability i Proof/confirmation of employment. Where the deceased was a proprietor, director or share-holder of the employer named on the claim form, copies of all relevant employment records including contracts of engagement, other documents proving a contract or relationship of employment, and wage and accounting records; ii iii iv Full death certificate. Particulars of how the injury causing death has arisen out of or in the course of the deceased s employment. Where applicable, evidence available to the claimant supporting their claim. Such evidence might include: a. statements from any lay witnesses upon whose evidence the claimant intends to rely; 5

6 b. where there has or is likely to be a coronial investigation, a copy of the coronial brief and documents relating to any inquest; c. ambulance records; d. medical opinion in support of entitlement to compensation upon which a claimant intends to rely. Where there has been a post mortem, a copy of the post mortem report may be sufficient. v Police report (if applicable) Death resulting from illness or disease - liability In addition to the information and documents listed above, the following additional information and documents may be required: i ii Particulars of every fact, matter or circumstance of the deceased s employment which are alleged to have been responsible for the illness or disease and which are alleged to have been a significant contributing factor to the illness or disease. For the 3 years preceding death or commencement of the treatment for the fatal illness or episode, whichever occurs first, copies of: a. All relevant radiological and pathological investigations; b. Clinical notes from providers of medical or hospital services; c. Medicare printout of past benefits in respect of all relevant medical treatment provided to the deceased, subject to the right of the claimant s representative to advise the VWA of the intention to withhold sensitive, non-relevant information. iii Details of any previous relevant illnesses/injuries including, but not limited to: a. The nature of the previous illness/injury; b. The circumstances of occurrence or onset of the previous illness/injury; c. The date(s), period(s) of occurrence of the previous illness/injury; d. Details of any claims made in respect of the previous illness/injury; e. All relevant radiological and pathological investigations; f. Clinical notes from providers of medical or hospital services in respect of previous relevant illness/injury; g. Medicare printout of past benefits in respect of all relevant medical treatment provided to the deceased, subject to the right of the 6

7 claimant s representative to advise the VWA of the intention to withhold sensitive non-relevant information. Death by suicide - liability In addition to the information and documents listed above, in the event of alleged death by suicide, where practicable and relevant, the claimant should also provide copies of all records or notes made or left by the deceased or any other relevant person. Dependency i Where a claim is made on the basis that the claimant was a partner of the deceased, a copy of any certificate of marriage, or evidence of a registered relationship under the Relationship Act 2008, or other documents demonstrating that the claimant and the deceased worker were living as a couple on a genuine domestic basis prior to the death. ii iii iv Where the claim is made by a child, a copy of the child s birth certificate or passport. Where the child is aged between 16-25, documentation to establish the child is a full time student or full time apprentice. Complete tax returns for the three years prior to and including the year of death for: a. The claimant(s); b. The deceased; c. Any business in respect of which the deceased or the claimant(s) had a financial interest or, if the tax returns cannot be obtained, details of any distribution or profit paid to the deceased or claimant(s) from any business in respect of which the deceased or the claimant(s) had a financial interest. d. Any family trust relevant to the deceased or the claimant(s), or, if the tax returns cannot be obtained, details of any distribution or profit paid to the deceased or claimant(s) from the family trust. v vi vii Details and records of the income of all claimant(s) from all sources during the 12 months prior to the death of the deceased including income from all investments, employment or business. In the event of partial dependence, details of the nature and extent of alleged dependence together with copies of relevant domestic accounts and receipts if applicable. Where relevant and appropriate, the VWA may request a statutory declaration of these details. Bank records and statements relating to the claimant(s) and the deceased where the extent of dependency is or is likely to be in issue. 7

8 viii ix A list of the entitlements in money and property of any partially dependent claimant(s) as a result of the deceased s death. A Statutory Declaration as to dependency, details of all known dependents, and other matters relevant to dependency, in the form of Schedule A to these Guidelines 2. Costs of burial or cremation and family counselling i Details of the service, including type, date that the service was provided, and details of service provider. ii Details of any payment made, including date of payment, by whom paid, and a copy of any invoice or receipt. EXPENSES INCURRED BY NON-DEPENDENT FAMILY MEMBERS 12. Where a worker did not have any dependants at the time of death, and a member of the worker s family has incurred expenses as a result of the worker s death and this has caused financial hardship, that person may be able to apply to the Magistrates Court for reimbursement of some or all of those expenses in accordance with S92AA of the Accident Compensation Act 1985 or section 240 of the Workplace Injury Rehabilitation and Compensation Act INFORMATION AND DOCUMENTATION GENERALLY TO BE PROVIDED TO THE CLAIMANT S REPRESENTATIVE 13. If there is a dispute about liability and/or dependency, where practicable the VWA s representatives will provide relevant information and documents requested by the claimant. In particular, the VWA will provide the following information and documents: i The deceased s employment records for 12 months preceding the death including, but not limited to: a. Wage records b. Attendance records c. Medical centre records ii All statements provided by witnesses other than those to which legal professional privilege applies 3. 2 Note: Where the VWA considers that issues of dependency are complex or uncertain, the VWA may request an affidavit to be sworn or affirmed as to relevant matters, including where appropriate the exhibiting of relevant documents. 3 Note: Where statements provided by witnesses are documents to which legal professional privilege applies, the VWA will nevertheless consider disclosing relevant information where to 8

9 iii All medical reports obtained by the VWA from: any provider of a medical or hospital service to the worker; or a previous examination of the worker conducted in accordance with the legislation. iv All medico-legal reports obtained by the VWA upon which it intends to rely. DECISION TO ACCEPT OR REJECT THE CLAIM 14. Where all of the necessary and available information and documents have not been provided by the parties in accordance with these guidelines, the parties will inform each other as soon as possible: What further information is required; That the information is required within 21 days. 15. A decision to accept or reject the claim will generally be made by the VWA within 90 days after receipt of the claim. However, the VWA may determine to extend the period beyond 90 days if considered appropriate to do so in all of the circumstances. 16. Where the claim is to be rejected, the reasons for rejection will be provided to the claimant (or the claimant s representative) upon rejection. OTHER Appointment of Trustee 17 The claimant s representative(s) will use their best endeavours to ensure complete compliance with Section 92A(11) of the Accident Compensation Act 1985 or Section 238 of the Workplace Injury rehabilitation and Compensation Act 2013 (as and when applicable) by identifying, within 30 days of an admission of liability or an agreement to pay compensation, a suitable trustee for appointment by the court. Other potential Claimants 18. Where relevant and practicable at the time of lodging the claim for compensation for death of a worker, the claimant should provide details of the name and current residential address of any other person whom the claimant has reason to believe was or may have been a dependant of the deceased worker or who may make a claim for compensation in respect of the death of the worker. do so would assist the progress or resolution of the claim, and where the interests of the witness, employer or other affected persons are not adversely affected by the disclosure. 9

10 Proceedings and payment of compensation 19. If it is determined there is entitlement to compensation (either by the VWA where determination of the court is not required by the legislation, or otherwise by the court), the parties, their representatives and the VWA will use their best endeavours to ensure that any payment, whether of lump sum compensation, pension, family counselling services or of burial or cremation, is made promptly (including the provision to the VWA or its Agent of necessary information). 20. To ensure efficient payment, claimants should provide the following information/documentation at an early time: (i) (ii) Tax File Number Declaration for each claimed dependant entitled to receive a weekly pension. (Where the pensioner is a minor or a person under a disability, the parent or guardian who has custody of the minor or trustee of the person under a disability must complete the TFN Declaration Form on their behalf) 4 ; For Electronic Fund Transfer of entitlements - the name and address of the banking institution, account name, and BSB and account number. 21. Where a claim is accepted and the amount of compensation is determined by the VWA (and not by a court), each person claiming compensation (or their legal representative) will usually be required to sign an agreement which records the details of the claim and entitlements to be paid and any applicable terms of settlement. 22. Where all issues in dispute have been substantially or totally resolved before the issue of any necessary proceedings, the proceeding for determination by the court should be commenced by Application in the Magistrates Court, in accordance with any Practice Direction or relevant Rules of that Court, and as soon as practicable - (a) (b) by the claimant s legal representative, where the claimant is legally represented; or where the claimant is not represented, or where a proceeding is not commenced within 30 days, by the VWA s legal representative. 4 The legislation requires pension payments to be commenced within 14 days. In the absence of a valid TFN Declaration Form, tax will be deducted at the highest marginal rate to allow the payment to be made. 10

11 23. Where a claim is rejected or not accepted in full and a claimant intends to dispute the decision of the VWA, proceedings should be commenced as soon as possible but otherwise within 60 days of the VWA s decision. Costs 24. Where a claimant has legal representation, in relation to payment of legal costs the VWA has a separate policy: Policy regarding plaintiff legal costs in Dependency Claims, where the VWA determines compensation without court involvement, available at If there is an Order of the Court in favour of the claimant, the VWA acknowledges that work necessarily and properly performed before the issue of proceedings in pursuit of these Guidelines will be treated as work performed for the purpose of the proceedings. 26. Nothing in these Guidelines derogates from the VWA s entitlement to contend that any work performed may have been unnecessary or improper in all the circumstances of the claim or the proceedings, notwithstanding the work may have been performed pursuant to these Guidelines. 27. Further, these Guidelines do not require the VWA to make payment for work done before proceedings are issued if that same work is duplicated after proceedings are issued and payment is claimed on a party/party basis. For example, a charge for perusing documents before proceedings are issued in pursuit of these Guidelines will be allowed only once as a cost in the proceeding, whether or not it is necessary to peruse the same documents again in the course of a proceeding subsequently issued. 11

12 Schedule A Statutory Declaration made by a person seeking lump sum compensation following the death of a worker, under Victorian workers compensation legislation Worker: Employer: Claim No: [name of deceased worker] [name of deceased employer] [WorkSafe claim number] I, [full name and address] do solemnly and sincerely declare that:- 1. [Set out in detail the facts constituting dependency including dates and details of any marriage or relationship to the worker, details of earnings of the deceased, details of all income received by the claimant/s in the 12 months (or longer) period before date of death; details of any partial dependence including estimate of the extent of that dependency etc] 2. Disregarding any money I had earned or was earning by my own personal exertion and disregarding any savings arising from such earnings, at the time of the worker s death I was wholly or mainly dependent on the earnings of the deceased (or would but for the incapacity arising from the worker s injury causing death have been so dependent). 3. At the time of the death of the worker there were the following children of the worker: [Full name Date of Birth Address Relationship to worker] 4. To the best of my knowledge, information and belief the following children were wholly, mainly or partly dependent on the earnings of the worker at the time of the death (this may include persons referred to in paragraph 3): [Full name Date of Birth Address Education status] 5. To the best of my knowledge, information and belief, apart from myself and the persons identified in paragraph 4 the following other persons were or may have been in whole, mainly or in part dependent on the earnings of the worker at the time of death: [Full name Date of Birth Address nature and extent of dependency] 6. To the best of my knowledge information and belief, at the time of the death of the worker there was no other person wholly, mainly or in part dependent on the earnings of the worker or would but for the incapacity resulting from the injury causing death have been so dependent. I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury. Declared at.in the State of Victoria this... day of.20..[signature of declarant] Before me..[signature of authorised witness] The authorised witness must print or stamp his or her name, address and title under section 107A of the Evidence Act 1958 (Vic). 12

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