348Determination of serious injury application after death of worker

348 Determination of serious injury application after death of worker (a) a worker dies; and (b) before his or her death, the worker had made an application under section 328(2); and (c) at the time of the worker's death— (i) the application of the worker was pending; or (ii) the worker had issued proceedings seeking the leave of the court to commence proceedings following the rejection of the application of the worker by the Authority or a self‑insurer; or (iii) the period specified in section 335(2)(d) within which a worker is required to institute proceedings had not expired; and (d) the worker's death was not caused or materially contributed to by the injury which is the subject of the application under section 328(2); and (e) the worker left a dependant or dependants. (2) If this section applies— (a) the legal personal representative of the deceased worker may take the same action as could have been taken by the worker had the worker not died— (i) in respect of an application made by the worker under section 328(2) before his or her death; or (ii) in respect of an application referred to in section 335(2)(d), within the unexpired period of time that would have been available to the deceased, or after that period with the consent of the Authority under section 337(1); and (b) if an application under section 328(2) was pending at the time of the worker's death, the Authority or self-insurer, within the unexpired period of time in which it had to determine the application, must determine whether, as at the date the application was served*,* the worker had a serious injury assessed in accordance with this section; and (c) any right arising from a determination by a Court, the Authority or a self-insurer that a worker had a serious injury is deemed, for the purposes of section 29 of the **Administration and Probate Act 1958**, to have vested in the worker before the worker's death and survives for the benefit of the deceased worker's estate. (3) For the purposes of the assessment of serious injury in respect of an application or proceedings commenced or continued under this section, the assessment must be made in accordance with section 325(2) except where this section otherwise provides. (4) For the purposes of the assessment of serious injury under this section, the assessment must be made as at the date the application was served by the worker before his or her death under section 328(2). (5) If it is determined that a worker referred to in subsection (1) had a serious injury as at the time he or she served the application under section 328(2), notwithstanding anything to the contrary in this Division, the legal personal representative of the deceased worker may bring proceedings for the recovery of— (a) damages for pain and suffering in respect of the injury; and (b) if the deceased worker's application established the matters specified in section 325(2)(e), (f) and (g), pecuniary loss damages in respect of the injury— from the date the injury was sustained to the date of death of the worker. (6) For the purposes of subsection (5)(b)— (a) section 325(2)(e) applies as if a reference to "the date of the hearing of an application" were a reference to the date on which the application under section 328(2) was served; and (b) section 325(2)(f) applies as if a reference to "that date" were a reference to the date on which the application under section 328(2) was served. (7) The death of a worker does not affect the admissibility of— (a) evidence obtained before or after the worker served an application under section 328(2); and (b) evidence that would have otherwise been admissible under this Division. (8) A reference to service of an application under section 328(2) in this section means the service of an application in accordance with directions given by the Minister under section 352. (9) In this section, ***dependant*** means a person who at the time of the death of the worker referred to in subsection (1)— (a) was wholly, mainly or partly dependent on the earnings of the worker; or (b) would have been wholly, mainly or partly dependent on the earnings of the worker but for— (i) the incapacity of the worker resulting from, or materially contributed to by, the serious injury the subject of the application; or (ii) any incapacity of the worker due to the injury or disease which caused or materially contributed to the worker's death.