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7.4 Permanent Impairment in the Period before Death
Claims for lump sum compensation for permanent impairment may be made and paid after the death of the employee providing that the degree of permanent impairment can be properly assessed retrospectively, e.g. by the doctor who was treating the employee before the death. However with respect to posthumous permanent impairment assessments S55(4) also says:
55(4) This section does not apply in relation to a claim for compensation under Section 27.
This means that only the Section 24 amount can be paid to the estate of a deceased employee. The 'Non-Economic Loss' (i.e. the S27 component of a lump sum) is not payable in such cases.
Where an employee suffers a long and terminal illness, it is reasonable to pay a series of lump sums to reflect the increased impairment i.e. while the person is still living and enduring that impairment.
However Delegates should resist the proposition which is sometimes made, that the death of any employee from other than instantaneous (i.e. accidental) causes, demonstrates a maximum impairment on the appropriate table(s), i.e. even if this level was reached only moments before death. Delegates should not pay posthumous lump sums in such circumstances, but bear in mind that the purpose of Sections 24 and 27 is to compensate an injured employee for the effects of having to live with the impairment. It is not appropriate, for example, to pay a PI lump sum to a person involved in an ultimately fatal accident simply because that person did not die instantaneously but – for example – survived for an hour or perhaps for a week in hospital.
However it is not possible to be prescriptive regarding the circumstances in which it may be possible to award a permanent impairment lump sum. Each case must be considered on its own merits having regard to the effects of an injury on the individual.
Clearly, it is a matter for judgement of the delegate on the facts of each individual case, whether it would be reasonable to pay a permanent lump sum to the estate of a deceased employee. However, where such a case arises and a delegate is under pressure to award lump sum compensation, the matter should be discussed with the local Manager/Team Leader and where necessary, referred to Policy for consideration.