Kimberley Riley v Q-COMP

Date of decision: 12 November 2009, I.M. Dwyer

Mr Harrison of Counsel, instructed by McKays Solicitors for the appellant

Mr S. Gray of Counsel, directly instructed by Q-COMP

Key words – Dependency application

Appeal Outcome: appeal allowed

Significant sections considered: s.201 in relation to the amount payable to a partial dependant of a deceased worker

Head Note

Ms Kimberley Riley lodged an application for dependency benefits with WorkCover. WorkCover accepted that application and in a letter dated 16 May 2008 advised her that they had determined that she had a partial dependency on her deceased husband’s earnings of 57%.

Ms Riley applied to Q-COMP for review of this assessment and on 10 October 2008 Q-COMP determined to increase her rate of partial dependency to 80%. In making this decision the Review Unit considered the case of Bate v The Worker’s Compensation Board of Queensland [1984] QWCR 269, in which the Court took into consideration the earnings of the deceased worker and the applicant for benefits over the preceding two years on the basis that the incomes of those persons at the time of the deceased’s death were short term.

The Review Officer considered that the earnings of deceased at the time of his death did not give a true indication of his earning capacity for the future given that he was injured and incapacitated to work at the time of his death. On this basis the previous financial year’s income was taken into account to determine the level of Ms Riley’s dependency.

Ms Riley appealed the decision of Q-COMP to the Industrial Magistrates Court at Mackay. On 12 November 2009 Industrial Magistrate Dwyer handed down his decision and found Ms Riley to be partially dependant on the deceased at the increased rate of 95%.

In making this decision IM Dwyer considered the evidence of the family’s financial arrangements, including the intention that Ms Riley not be required to work, and the buoyancy of the mining industry in which the deceased was employed at the time of his death. He concluded that the dependence of the family on Ms Riley’s earnings was marginal, despite the casual nature of the deceased’s employment, and that they were almost exclusively dependent upon the earnings of the deceased.

If you wish to obtain a copy of this decision, please apply in writing to:

The Privacy Officer

Legal Services Unit

Q-COMP

PO Box 10119

ADELAIDE ST QLD 4000

Email: legalservices@qcomp.com.au