In some cases, the link between the client's death and their compensable disease may not be straight-forward, for example where medical evidence shows that the client's death was caused by a non-compensable disease, but that death occurred earlier than might be expected because of another disease which was work-related. In this case, s 7(5) operates to deem the death as resulting from the compensable disease, provided the client's death would otherwise have been significantly later.
Essentially, s 7(5) is a deeming provision to assist with this kind of borderline case. It is not an exhaustive statement of the circumstances in which a client's death is to be taken to have resulted from an aggravation of a disease, or the disease itself, for the purposes of s 14 of the Act. The actual terms of the provision are:
7(5)The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.
Example - application of s 7(5)
An Army technician suffers from a congenital heart condition which is manageable provided he exercises regularly and maintains physical fitness. Unfortunately, however, his exercise regime is disrupted by a compensable knee condition and his fitness level declines as a result.
Section 7(5) would be applicable if the medical evidence suggested that his subsequent death from the heart condition would have occurred at a significantly later time if he had been able to maintain his fitness.
Whether the death would have occurred at a “significantly later time” will depend on the facts of each case and the medical evidence.
In the context of s 7(5), the qualification of “later time” by the word “significantly” suggests that the time period which triggers the application of s 7(5) should be substantial, a matter of months or years rather than a few days.
“Significant” should not be given its other, possible meaning of significant in the particular circumstances of the case.