Compensation Claim Following Death of a Worker

Hunter Quarries v Alexandra Mexon for The Estate of The Late Ryan Messenger [2018] NSWCA 178

Ryan Messenger, a young and healthy 25-year-old gentleman, unfortunately suffered permanent impairment and ultimately passed away as a result of his fatal injury from a workplace incident in 2014.

Mr Messenger suffered a severe high-crush-force injury to his upper body after the heavy earth-moving excavator – of which he was operating – as well as the heavy boulder that he was manoeuvring, tipped onto its side and landing onto the embankment of a washed away road he was working on.

Hunter Quarries Pty Ltd accepted liability and Mr Messenger’s dependents were able to receive a lump sum death benefit under the Workers’ Compensation Act.

His Estate further lodged a claim seeking a payout for ‘permanent impairment’ (PI) under the Workers’ Compensation Act as he had suffered such circumstances in the remaining minutes of his life. Pursuant to section 293 of the Workplace Injury Management and Worker’s Compensation Act 1998, the respondent was medically assessed as suffering 100% PI.

A ‘Reconsideration Medical Assessment Certificate’ (RMAC) stated that the Respondent had not suffered an impairment (0%), and due to this, there was an appeal made by the Respondents’ Estate as they believed that the Judge had made an error with the law with regards to the PI and the RMAC.

In a unanimous decision, the appeal was heard and the RMAC which had assessed the Respondent as being 0% PI, the judges and justice officials affirmed their original decision, dismissing the appeal as the injury ultimately resulted as being fatal.

It was noted that Her Honour believes that even if death follows not long after the injury, where a worker is killed instantly… a worker may suffer a 100% permanent impairment.

Prior to this incident, the government had made it difficult to lodge claims for permanent impairment (PI) as it was unclear as to what could be claimed under death benefits, as well as workplace injuries.

After amendments were made in August 2015 to the Worker’s Compensation Scheme, “the additional impairment is now worth a maximum payment of $598, 560 in compensation… [which] is in addition to the current death benefit of $781, 900”.

In this case, the decision from the Court was on the basis of the deceased’s livelihood. While “permanent injury” defines that the injured worker is able to live beyond the injury, it is important to understand that compensation is only rewarded if the worker’s impairment and reduction in daily function are persistent for the remainder of the worker’s life who is able to live beyond subject to the injury.

Despite the outcome, it is important to know what you are entitled to claim for and receive as a result of a work injury for either yourself or a loved one.

Should you find yourself in such a situation, feel free to contact us or visit our office for a free initial consultation with an expert in this field.