Policy

Sub-section 55(1) provides that:

“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.”

In this context, the reference to a claim for compensation can be read as either a claim for a particular benefit or a claim for 'initial liability' leading to claims for various forms of compensation.  These claims may relate to the injury that caused the death or to another service-related injury.

Any lump sum compensation does not have to be distributed equally between the dependants. Determining authorities have discretion to determine the size of each dependant's share, so the shares may or may not be equal. This is made clear by the wording contained in subsection 17(8), 'Comcare shall determine the shares of those dependants in that amount as Comcare sees fit'.

The ADF requires serving members to report whether or not they are married or in a de-facto partnership. There is also incentive or even necessity to do so in the shape of specific housing arrangements, allowances, welfare and social support services etc.

Occasions may arise when one of the persons eligible to receive compensation under S17 of the SRCA also has a potential entitlement under the Veterans' Entitlements Act (VEA). This may occur, for instance, if the ADF member dies while on declared Operational Service overseas.

As discussed in subsection 1.1 of this handbook, the criteria for investigating whether a death occurred in compensable circumstances are essentially the same as for any other grade of injury or disease. That is, the death must be shown to have resulted from a compensable injury (including disease).

This means that in general, the procedures set out in this Handbook's chapter on 'initial liability' should also be applied to investigations of deaths.

Section 17 of the DRCA (Compensation for injuries resulting in death) sets out the circumstances in which the Commonwealth is liable to pay compensation for ‘an injury to an employee [that] results in death’.

When considering whether the Commonwealth is liable to pay compensation under s 17(1) in relation to a veteran’s suicide, it will be necessary to determine whether the injury that resulted in the veteran’s death is excluded under s 14(2) of the DRCA.

Subsection 14(2) of the DRCA says:

With the exception of a number of circumstances as outlined in 9.4.1, section 48 operates regardless of whether the dependant's action is conducted against the Commonwealth as permitted by S44(3) or against a third party responsible for the death (e.g. a person involved in a motor vehicle accident in which the employee lost his/her life).

Section 17 commences: '17(1) This section applies where an injury to an employee results in death...', and Section 17 is in fact the main source of entitlements for a work related death.

The Additional Death Benefit ('ADB') was initiated by the 'Inquiry into Military Compensation arrangements for the Australian Defence Force' in 1997.  The ADB is provided through Defence Determination 2009/70 under the Defence Act 1903 and not by the SRCA. However, Military, Rehabilitation and Compensation Commission (MRCC) delegates have also been formally declared as Defence delegates for the purposes of the Determination.