Is permanent impairment compensation paid when a worker dies

Published 25 Sep 2018

If a worker is injured on the job, they are likely eligible to receive benefits. In addition, the Workers Compensation Act 1987 indicates that if they can prove permanent impairment, they could gain additional funds.

A recent death in NSW brought into question what the term 'permanent impairment' meant under the Act.

Personal impairment guidelines

Under the Workers Compensation Act 1987, Section 66 states that a worker must have suffered to a degree of ten per cent personal impairment or greater to receive this type of compensation. That means that the injury created an impairment of at least ten per cent of a person's bodily function.

Anything under ten per cent personal impairment is not an eligible injury. And it's noted that only one claim can be made for this type of fund.

The compensation structure is then outlined in line with these specifications. However, the highest percentage the Act outlines is 74 per cent impairment. This limit in the legislation makes it unclear what would happen if a person suffered greater than 74 per cent impairment from their injury. Could personal impairment compensation apply when someone dies?

When the definition becomes unclear

Section 66 under the Act does not specify whether or not the term applies to a death or 100 per cent impairment. This issue was brought to light recently in the NSW Court of Appeal.

A worker had been operating an excavator that then crushed him and killed him. He was said to have remained alive for a few minutes and then died before medical assistance could be given. The nature of the injury was so severe that within those minutes he had suffered mechanical asphyxiation, the ultimate cause of death.

Originally the court had found that the man's widow was eligible to receive permanent impairment compensation. This was on top of the death benefits provided by the man's place of work.

However, the company then appealed and the judge reversed that decision. The reasoning was that the man was only alive for a few minutes following the accident, and thus the compensation did not benefit him at all during that short time before death. The judge said that he could not have been aware of the loss of quality of life.

The ruling assumes that Section 66 was intended to compensate those suffering with a permanent injury who remain alive.

Should you have questions regarding your rights after a work-related injury, our lawyers can help. Get in touch with our team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation.