March 26, 2019

Insurance

On 6 March 2019 in Redding v The Workers Compensation Regulator [2019] QIRC 042 Swan DP of the Queensland Industrial Relations Commission (the Commission) found that the economic interests of a self-funded retiree did not amount to “earnings” for the purposes of the Act and that the wife of the deceased worker (the deceased) was not completely or partly dependent on any "earnings" for the purposes of determining any “dependency” at the time of the workers death for the purposes of the Act. 

Sadly, the deceased died of mesothelioma. 

The deceased made a claim for workers compensation for this condition with a former employer - the Gold Coast City Council (a self insurer). 

This claim was accepted and benefit was paid pursuant to section 128B of the Act. 

The deceased's wife (the Claimant) also made a claim for a loss of dependency pursuant to section 128D of the Act.

Section 128D of the Act provides:

128D WORKER’S DEPENDANTS

This section applies if the worker has dependants.

The worker’s dependants are entitled to lump sum compensation equal to the sum of the following amounts—

15% of the amount payable under section 200 (2) (a) ;

2% of the amount payable under section 200 (2) (a) for the reasonable expenses of the worker’s funeral.

An insurer may pay the compensation under this section—

to the worker; or

to the worker’s dependants at the same time as the insurer pays the worker lump sum compensation under section 128B .

The worker’s dependants are not entitled to further compensation under chapter 3 , part 11 for the death of the worker.

In this section— 

"dependant" , of a worker, means a member of the worker’s family who is completely or partly dependent on the worker’s earnings. 

"member of the family" , of a worker, means—

(a) the worker’s—

(i) spouse; or
(ii) parent, grandparent or step-parent; or
(iii) child, grandchild or stepchild; or
(iv) brother, sister, half-brother or half-sister; or
(b) if the worker stands in the place of a parent to another person—the other person; or
(c) if another person stands in the place of a parent to the worker—the other person.

The financial interests of the deceased worker that the Claimant contended were “earnings” for the purposes of the Act related to an investment the deceased had in motels. 

As to whether the income arising from such an investment were “earnings” for the purposes of the Act the Commission found that such income was not earned through personal exertion and was just a return on an investment [see 112]. 

As to dependency, the Commission accepted that before his death the income received by the deceased had been put in one account for the utilisation of the deceased and the Claimant. After his death, all of this income went directly to the Claimant. In these circumstances the Commission found that there was “no loss of dependency” for the purposes of the Act [see 127].

The decision can be found here https://archive.sclqld.org.au/qjudgment/2019/QIRC19-042.pdf