Sections 40(2), 41(13) and S42(11) prevent – in similar terms – payment of compensation under:
if the member dies within three months after the date of injury.
Section 40(2) states:
40(2) This section does not apply in relation to an injury where that injury or another injury sustained at the same time results in the death of the employee within three months after the date of that injury or those injuries.
Section 41(13) states:
41(13) Compensation is not payable under this section in relation to an injury where that injury or another injury sustained at the same time results in the death of the employee within three months after the date of that injury or those injuries.
Section 42(11) states:
42(11) Compensation is not payable under this section in relation to an injury where that injury or another injury sustained at the same time results in the death of the employee within three months after the date of that injury or those injuries.
Note that the sections quoted above would now only very rarely arise in practice, if ever, because the date of injury must have been before 1 December 1988 and the client's death must have occurred within 3 months of that injury (i.e. before 1 March 1989).
It should be noted that the meaning of an 'injury' for the purposes of the 1971 Act does not fully correspond with the concepts of 'injury' and 'impairment' under the SRCA. However, for the purposes of the application of Ss40(2), 41(13) and S42(11) it is appropriate to refer to the period between the date of injury (which includes disease and aggravation) and the client's death from any condition or impairment relating to that injury. Where, however, the death is a result of some other cause (e.g. a completely separate compensable injury or an unrelated event), Ss40(2), 41(13) and S42(11) have no application.
Note that the Ss40(2), 41(13) and S42(11) periods start running on the date of injury and not on some later date when the injury results in a particular loss, becomes stable, or becomes permanent.
In the case of disease, S26(2)(g) of the 1971 Act provides that the earlier of the date of loss or the date on which medical treatment was first obtained is deemed to be the date of injury.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20919%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20938%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20734%23comment-form