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4.6 Client is Deceased
Where the client has died before an amount of compensation for NEL has been assessed and determined, S55(4) of the SRCA applies with the effect that a payment of compensation for NEL under S27 will not be made.
The relevant subsections in S55 state:
Survival of Claims
55(1) Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person's personal representative.
55(2) A claim is not affected by the death of the claimant after the claim was served.
55(4) This section does not apply in relation to a claim for compensation under Section 27.
In effect, S55 allows a claim for PI to be made, assessed and paid after the death of the member only under S24. As long as liability can be found to exist for the injury and the degree of permanent impairment is capable of being assessed medically, the claim for permanent impairment under S24 can be processed irrespective of the timing of the claim (i.e. whether or not a claim for, or determination of liability, has been made prior to the death). When determining if an impairment is capable of being assessed, it should be noted that S24 is designed to compensate a person for the difficulties and inconveniences suffered as a result of having to live with a disability.
The disentitlement to NEL payments also applies if, at the time of the client's death, a reassessment is being undertaken by the delegate (i.e. a reassessment following an earlier interim payment under S25(1), or a reassessment under S25(4)) and has not been finalised prior to the death of the client.
Where the death occurs after determination of a PI claim
If the client dies after a claim for compensation (including a claim for NEL under S27) has been determined, S111 of the SRCA provides that the compensation is to be paid to the estate of the client, unless the client dies intestate (i.e. without making a will) and 'there is no other person apparently entitled to claim the estate'.
If an original determination granting compensation (including a payment for NEL) has been made, but the client dies while the determination is under reconsideration or review by the AAT, the reconsideration or review should be completed and a decision conveyed to the personal representative of the deceased client. Payment would be made to the estate of the deceased client under S111 if appropriate.
Where however, at the time of the client's death, a reassessment is being undertaken by the delegate (e.g. a reassessment following an earlier interim payment under S25(1), or a reassessment under S25(4)), no amount of compensation for NEL should be included in the reassessment determination.