When determining whether a surviving spouse was wholly or partially dependent on a deceased worker under s 8(2B) of the Workers' Compensation (Dust Diseases) Act 1942 (NSW), the receipt of a Commonwealth age pension must be taken into account as a relevant factual consideration but is not determinative. It is an error of law to disregard the pension on the basis that it is equivalent to public charity or that the lump sum award may affect pension entitlements. The question remains one of fact in each case. Authorities on 'totally or mainly dependent' under the Workers Compensation Act 1987 (NSW) s 37(4) are not directly applicable to the 'wholly dependent' test under the Dust Diseases Act.
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