Today’s correspondent has a family member who is entitled to a death benefit under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) (see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022). My correspondent says:

We have been led to believe that before a death payment in a worker’s compensation can be paid to an estate, all possible people who might be able to make a claim against an estate (including parents, grandparents, siblings, children and ex-spouses) are advised of the amount due to the estate and requested to provide a statutory declaration that they will not be making a claim against the estate.

We don’t have an issue with a statutory declaration being completed. However, I think that the amount due to the estate should not be divulged under any circumstances. This completely compromises the beneficiaries of the estate and seems to contravene the intent of privacy laws.

If I was a beneficiary of an estate in these circumstances, I would be horrified that my extended family, divorced partner, or any others, became aware of my imminent circumstances.

Would it be possible for you to please let me know, how the privacy legislation works in these particular circumstances? Which takes precedence in NSW law – the privacy legislation or worker’s compensation under iCare.

Although this question is related to the emergency services, it is not really an emergency management or emergency services question so I am wandering outside my area but I’ll give it a go. This question however really needs an answer from a solicitor with experience in privacy law and/or wills and estates law.

It appears to me that the question is somewhat misguided. Where a person dies, they leave an estate.  Assuming it is big enough (and it’s big enough if there is any ‘real property’ (eg a house)) then a legal personal representative will be appointed.  Ideally, we should all have a will identifying who is to be the executor of our estate.  That person applies to the Supreme Court for a grant of probate. The grant of probate is sufficient evidence for anyone dealing with the estate that the person named has all the necessary legal authority to call in or sell assets.  The executor has to call in all the assets and distribute the estate according to the will.

Whether a death benefit under the Workers Compensation Act is payable to the estate depends on whether or not there are dependants.The Practice Guidance – Death Claims published by the State Insurance Regulatory Authority sets out guidance for insurance to help them determine who is entitled to a share of any benefit.  If the insurer identifies any dependents, then they get the value of the death benefit.  That money never forms part of the estate and is not administered by the deceased’s executor. The dependants do not make a claim ‘against’ the estate, rather they make a claim to the insurer.  Accordingly if they are advised of the value of the benefit they are not being advised of ‘the amount due to the estate’ because, at that point, it is not due to the estate.  It only becomes due to the estate if there are no dependents.  

As for the value of the benefit, that is not private information. The Workers Compensation Act 1987 (NSW) s 25(1) says

If death results from an injury, the amount of compensation payable by the employer under this Act shall be–

(a) the amount of $750,000 (the “lump sum death benefit”), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative…

The sum of $750,000 has been indexed and currently stands at $871,200.  The present value of the death benefit is published in a publicly available booklet – Workers Compensation Benefits Guide (October 2022).  If people are told that there is an entitlement to a death benefit, then anyone can look up the benefits guide to see what the value of that benefit is. It is public information.

I can see that writing to potential dependents may reveal private information – eg that the deceased is in fact dead and that they died in a work related injury, but releasing that information to potential dependents is consistent with the purpose for which the insurer receives it – ie to give effect to the Workers Compensation Act.  The value of the benefit is not information ‘about’ either the deceased or the beneficiaries of the estate.

Conclusion

As I say this is outside my area of claimed expertise. It only arises here because, I am told, compensation was payable because of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  With that limitation in mind, I cannot see how telling potential beneficiaries the value of the death benefit, given that is set by statute and published in a publicly available booklet, is breaching anyone’s privacy.  It is not revealing information that i-care has collected ‘about’ anyone.  The only information that might be private is the conclusion that the deceased died due to work related injuries but releasing that information as part of the insurers due diligence to identify potential dependents is using the information for the very purpose that i-care collected it – ie to give effect to the Workers Compensation Act.

I cannot see that the question raises an issue of “Which takes precedence in NSW law – the privacy legislation or worker’s compensation under iCare?” because I cannot see that the issues as described – ie the potential dependents ‘are advised of the amount due’ – raises issues under the Privacy Act because the value of a death benefit is not private information.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.