Workers compensation death benefits claims
Published on June 26, 2026 by Georgia Comans and Julia Harrison
The Workers Compensation Act 1987 (NSW) provides an entitlement to compensation to dependants of a deceased worker who dies as a result of a work-related injury or illness.
In this article, we set out some useful information and the general steps in the claims process.
Time frames
Death benefit claims should be lodged within three (3) years of the date of death. In general, the deceased worker’s employer will notify their workers compensation insurer of the death, and the insurer should begin the process of contacting dependants to advise of their potential entitlements.
If you have been contacted by an insurer regarding a work-related death, it is important that you speak with a lawyer.
What is the general process?
- Liability
The insurer may conduct an investigation to determine whether the death was work-related. Often, liability decisions are made on the basis of a death certificate, coroners or autopsy report, police report and any documents from relevant witnesses or the deceased’s employer.
During this time, you may be asked to provide details of your dependency on the deceased to the insurer. Sometimes this may come via questions from an investigator. We recommend that you request a list of questions from the investigator to prepare a written response. We also recommend that you seek legal advice if you have been contacted by an investigator.
- Dependants
During the above process, the insurer will need to establish who was potentially dependant on the worker at the time of their death.
The Workers Compensation 1998 Act (s4) sets out the definition of a dependant.
“…members of the worker’s family as were wholly or in part dependant for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependant.”
These include: spouse, de facto partner, divorced spouse, children and stepchildren.
However, dependency can also extend to family members and other people close to the deceased worker, such as grandparents, siblings and adult children, if they can provide evidence of their dependency on the deceased at the time of their death.
For the purpose of death benefit claims, dependency is not restricted to purely financial reliance, however, significant weight is placed on financial dependency for the purposes of apportionment.
- Personal Injury Commission
As part of this process, proceedings will be commenced in the Personal Injury Commission (PIC) by your lawyer. Each dependant is required to have their own legal representation, and to file relevant documents for the PIC Member to consider.
These documents will usually include a statement outlining your dependency on the deceased worker, attaching any evidence which may assist the PIC Member to form a view as to your dependency.
Initially, the matter will be listed for a Preliminary Conference, which is generally procedural in nature. In some cases, apportionment of the lump sum can occur at the Preliminary Conference. In other cases, the PIC Member may list the matter for Hearing.
- Apportionment
Apportionment is the process of allocating the lump sum between the dependants. If the matter proceeds to a Hearing, the lawyers may make submissions on behalf of their client as to what they believe the appropriate apportionment may be.
Apportionment may also be decided between the parties, and approved by the PIC Member.
The PIC Member may look at the following factors when considering an apportionment proposal:
- Extent of past dependence and anticipated future dependence
- Ages of dependants
- Any special needs of dependants
As included in the Procedural Direction WC1 – Compensation payable on death | Personal Injury Commission.
What compensation is available?
Lump sum compensation. This amount is indexed twice per year, applicable at the date of the worker’s death. The ‘Workers compensation death benefits guide’ sets out the relevant lump sum figures at 4.2.1. For example, work-related death which occurred on 1 April 2026 would entitle dependants to apportionment of $990,350.
Interest can also be payable on the lump sum, which is generally calculated from the date that the insurer accepted liability, to the date that the claim was ‘fully particularised’. As seen within BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724 (15 December 2022).
The workers compensation insurer is also liable to pay for reasonable funeral expenses, this can include the cost of burial and a wake.
Children or stepchildren who are found to be dependent on a deceased worker are also entitled to weekly payments up to the age of 16 years. If the child is in full-time education, these payments can continue to age 21 years in some circumstances.
If the dependant is under 18 years old or under legal incapacity, any lump sum compensation will be paid to the NSW Trustee & Guardian to be held until the individual reaches 18 years of age.
Who pays my legal fees?
We recommend that you obtain legal representation to assist you in the process. Once you make contact with a lawyer, they will make an application to the Independent Review Office (‘IRO’) who pay your legal fees. At the conclusion of your matter, you should not be responsible for the payment of any legal costs.
This article was published on 26 June 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now.
