South Australian Repealed Acts

This legislation has been repealed.

WORKERS REHABILITATION AND COMPENSATION ACT 1986 - SECT 44

44—Compensation payable on death—weekly payments

        (1)         Subject to this Act, where a worker dies as a result of a compensable 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,

of the amount of the notional weekly earnings of the deceased worker;

            (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,

of the amount of the notional weekly earnings of the deceased worker;

            (d)         a dependent child (not being an orphaned child) is entitled to weekly payments equal to—

                  (i)         in the case of total dependency—12½ per cent;

                  (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,

of the amount of the notional weekly earnings of the deceased worker;

            (e)         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.

        (4)         For the purposes of subsection (1)

, where 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 compensable injury that resulted in the worker's death, any contribution to the support of the child from the worker's spouse or domestic partner shall be disregarded in determining whether the child is a dependant and, if so, the extent of the child's dependency.

        (5)         Where—

            (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) shall then be entitled to receive weekly payments under subsection (1)(b)

as an orphaned child.

        (6)         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.

        (7)         Weekly payments shall 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 physical or mental injury, incapable of earning a living.

        (8)         Weekly payments shall not be paid under this section beyond the date at which such payments would, assuming that the worker had survived but had been permanently incapacitated for work, have ceased to be payable to the worker.

        (9)         Where 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 total and permanent incapacity, the weekly payments shall be proportionately reduced so as not to exceed that amount.

        (10)         Where 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)         Subject to subsection (12)

, where 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 shall, 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.

        (12)         Where a child is by reason of a physical or mental injury, incapable of earning a living, the Corporation may pay a supplementary allowance under subsection (11)

during the period of incapacity even though the child has attained the age of 18 years.

        (13)         Where the worker had received compensation under Division 4B, a person is not eligible for weekly payments under this section to the extent (if any) that those payments would coincide with a period in respect of which the compensation under Division 4B was paid but otherwise weekly payments are payable under this section as if compensation had not been paid under that Division.

        (14)         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.

        (15)         However, the liability may only be commuted if the actuarial equivalent of the weekly payments does not exceed the prescribed sum (within the meaning of section 43

).

        (16)         The Corporation has (subject to this section) an absolute discretion to commute or not to commute a liability under this section, and the Corporation's decision to make or not to make commutation is not reviewable (but a decision on the amount of a commutation is reviewable).

        (17)         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.

        (18)         In calculating the actuarial equivalent of weekly payments, the principles (and any discount, decrement or inflation rate) prescribed by regulation must be applied.

        (19)         A commutation discharges the Corporation's liability to make weekly payments to which the commutation relates.