Div 8Payments on death

Division 8—Payments on death 59—Weekly payments (1) Subject to this Act, if a worker dies as a result of a work injury, compensation in the form of weekly payments is payable as follows: (a) a dependent spouse or domestic partner is entitled to weekly payments equal to— (i) in the case of total dependency—50%; (ii) in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency, (b) a dependent child (being an orphaned child) is entitled to weekly payments equal to— (i) in the case of total dependency—25%; (ii) in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency, (c) a dependent child (not being an orphaned child) is entitled to weekly payments equal to— (i) in the case of total dependency—12.5%; (ii) in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency, (d) a dependent relative (not being a spouse, domestic partner or child) is entitled to such compensation by way of weekly payments as may be determined by the Corporation having regard to— (i) the extent of the relative's dependency on the deceased worker; (ii) the earning capacity of the relative; (iii) the relative's means; (iv) the extent of any other benefits provided under this Act in respect of the worker's death. (2) For the purposes of subsection (1), if a worker and the worker's spouse or domestic partner jointly contributed to the support of a dependent child immediately before the occurrence of the work injury that resulted in the worker's death, any contribution to the support of the child from the worker's spouse or domestic partner will be disregarded in determining whether the child is a dependant and, if so, the extent of the child's dependency. (a) a worker dies leaving a spouse or domestic partner and a dependent child; and (b) the spouse or domestic partner subsequently dies, the child (if still eligible to receive weekly payments under this section) will then be entitled to receive weekly payments under subsection (1)(b) as an orphaned child. (4) Compensation is payable, if the Corporation so decides, to a spouse or domestic partner or child of a deceased worker who, although not dependent on the worker at the time of the worker's death, suffers a change of circumstances that may, if the worker had survived, have resulted in the spouse or domestic partner or child becoming dependent on the worker. (5) Weekly payments will not be made to a dependent child under this section unless— (a) the child is under the age of 18 years; or (b) the child is a full-time student at an educational institution approved by the Corporation for the purposes of this paragraph and is under the age of 26 years; or (c) the child is, by reason of disability, incapable of earning a living. (6) Weekly payments will not be paid under this section beyond the date at which such payments would, assuming that the worker had survived but had been a seriously injured worker, have ceased to be payable to the worker. (7) If weekly payments payable under this section would, but for this subsection, exceed in aggregate the amount of the weekly payments to which the worker would have been entitled in the event of being a seriously injured worker with no current work capacity, the weekly payments must be proportionately reduced so as not to exceed that amount. (8) If a person who is entitled to a payment under this section is under the age of 18 years, the payment may, if the Corporation so determines, be made wholly or in part to a guardian or trustee for the benefit of that person. (9) Subject to subsection (10), if the child of a deceased worker who is entitled to weekly payments under this section is under the age of 18 years and is in the care of a person other than a dependent spouse or domestic partner of the worker, that person will, if the Corporation so determines, be entitled to a supplementary allowance to assist in the care of the child until— (a) the child attains the age of 18 years; or (b) the person ceases to have the care of the child, whichever first occurs. (10) If a child is by reason of a disability incapable of earning a living, the Corporation may pay a supplementary allowance under subsection (9) during the period of that incapacity even though the child has attained the age of 18 years. (11) A liability to make weekly payments under this section may, on application by the person entitled to the weekly payments, be commuted to a liability to make a capital payment that is actuarially equivalent to the weekly payments. (12) However, the liability may only be commuted if the actuarial equivalent of the weekly payments does not exceed the prescribed sum applying under Division 7. (13) The Corporation has (subject to this section) an absolute discretion to make or not to make a commutation under this section, and the Corporation's decision to make or not to make a commutation is not reviewable (but a decision on the amount of a commutation is reviewable). (14) If the Corporation decides to make a commutation and makes an offer under this section, the Corporation cannot, without the agreement of the applicant, subsequently revoke its decision to make the commutation. (15) In calculating the actuarial equivalent of weekly payments, the principles (and any discount, decrement or inflation rate) prescribed by regulation must be applied. (16) A commutation discharges the Corporation's liability to make weekly payments to which the commutation relates. disability means any physical, mental or intellectual disability. 60—Review of weekly payments (1) The Corporation may on its own initiative and must if requested by an employer or the person to whom weekly payments are payable, review the amount of weekly payments payable to any person under this Division. (2) A request for a review of the amount of weekly payments payable under this Division may not be made within 6 months from the completion of an earlier review. (3) The amount of the weekly payments payable under this Division must be reviewed at least once in each year. (4) On a review under this section the Corporation must make any adjustments to the amount of weekly payments— (a) to reflect changes in the income from employment or earning capacity of the person to whom the weekly payments are payable and any other relevant changes in the circumstances of that person but in any event not so as to take into account income derived from the investment of a lump sum paid to the person under this Division; and (b) if the review is an annual review conducted under subsection (3)—to reflect changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's injury arose. (5) For the purposes of a review under this section, the Corporation may, by notice in writing to a person who is receiving weekly payments under this Division, require that person to produce evidence to the satisfaction of the Corporation of— (a) income from employment; (b) earning capacity; (c) any other circumstances that are relevant to the payment, or the amount, of weekly benefits. (6) If a person fails to comply with a requirement under subsection (5) within the time allowed in the notice, the Corporation may suspend weekly payments to that person. (7) If the Corporation proposes the reduction of weekly payments to a person on a review under this section the Corporation must, at least 21 days before the proposal is to take effect, give notice in writing to the person— (a) containing such information as the regulations may require as to the grounds on which weekly payments are to be reduced; and (b) informing the person of the person's rights to have the Corporation's decision reviewed. 61—Lump sums child means a person who— (a) is under the age of 18 years; or (b) is a full‑time student at an educational institution approved by the Corporation for the purposes of this paragraph and is under the age of 26 years; or (c) is, by reason of disability, incapable of earning a living; disability means any physical, mental or intellectual disability; partner means a spouse or domestic partner; prescribed sum means the prescribed sum applying under Division 7 (as at the time of the occurrence of the work injury that resulted in the death of the relevant worker) but less any amount paid to the relevant worker under Division 7, or a corresponding previous enactment. (2) Subject to this Act, if a worker dies as a result of a work injury, compensation in the form of a lump sum is payable in accordance with this section. (3) If the worker leaves a partner or partners, and no child, the amount of compensation is an amount equal to the prescribed sum payable to the partner or, if there is more than 1 partner, an amount payable to each partner determined by dividing the prescribed sum into equal shares. (4) If the worker leaves no partner and a child or children, the amount of compensation is an amount equal to the prescribed sum payable to the child or, if there is more than 1 child, an amount payable to each child determined by dividing the prescribed sum into equal shares. (5) If the worker leaves a partner, or partners, and 1 (and only 1) child, the amount of compensation is— (a) an amount equal to 90% of the prescribed sum payable to the partner or, if more than 1, an amount payable to each partner determined by dividing 90% of the prescribed sum into equal shares; and (b) an amount equal to 10% of the prescribed sum payable to the child. (6) If the worker leaves a partner, or partners, and more than 1 and not more than 5 children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares: (a) an amount equal to 5% of the prescribed sum payable to each child; (b) the balance to the partner or, if more than 1, an amount payable to each partner determined by dividing the balance into equal shares. (7) If the worker leaves a partner, or partners, and more than 5 children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares: (a) an amount equal to 75% of the prescribed sum payable to the partner or, if more than 1, an amount payable to each partner determined by dividing 75% of the prescribed sum into equal shares; (b) an amount equal to 25% of the prescribed sum payable to the children in equal shares. (8) If the worker does not leave any partner or child but leaves a person who is to any extent dependent on the worker's earnings, the Corporation may, if it considers that it is justified in the circumstances, pay compensation not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that person (and if the Corporation decides to make a payment of compensation to more than 1 person under this subsection then the sums paid must not in total exceed the prescribed sum). (9) If the worker, being under the age of 21 years at the time of the work injury, leaves no partner and no child but, immediately before the injury, was contributing to the maintenance of the home of the members of his or her family, the members of his or her family are taken to be dependent on the worker's earnings for the purposes of subsection (8). (10) If a person who is entitled to a payment under this section is under the age of 18 years, the payment may, if the Corporation so determines, be made wholly or in part to a guardian or trustee for the benefit of that person. (11) A claimant is entitled to interest at the prescribed rate on an amount of compensation payable under this section in respect of the period beginning on the date the claim for compensation was lodged in accordance with this Act and ending on the date of the payment. 62—Funeral benefits (1) If a worker dies as a result of a work injury, a funeral benefit is payable equal to— (a) the actual cost of the worker's funeral; or (b) the prescribed amount, (2) A funeral benefit payable under subsection (1) will be paid— (a) to the person who conducted the funeral; or (b) to a person who has paid, or is liable to pay, the funeral expenses of the deceased worker. (3) An amount prescribed by regulation under subsection (1) may, if the regulations so provide, be indexed so as to provide annual adjustments according to changes in the CPI. 63—Counselling services (1) If a worker dies as a result of a work injury, a family member is entitled to be compensated for the cost of approved counselling services to assist the family member to deal with issues associated with the death. (2) Compensation in respect of costs under this section may be paid— (a) to the family member; or (b) directly to the person to whom the family member is liable for those costs. (3) Compensation under this section will be payable in accordance with scales determined or approved by the Minister and published in the Gazette. (4) A reference in this section to approved counselling services is a reference to counselling services of a kind, or provided by a person, approved by the Corporation for the purposes of this section. (5) In this section— family member means a spouse, domestic partner, parent, sibling or child of the worker or of the worker's spouse or domestic partner.