BMG v CFA
[2024] NSWPIC 467
•23 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BMG v CFA [2024] NSWPIC 467 |
| APPLICANT: | BMG |
| RESPONDENT: | CFA |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 23 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; no issue on liability; no issue on apportionment; Held – orders made awarding totality of death benefit to widow of deceased worker. |
DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to Reg 132 of the Personal Injury Commission Rules 2021 the entirety of this decision is to be de-identified. 2. BMH (the worker) died on 9 June 2021 as a result of an injury arising out of or in the course of his employment with the respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 3. The worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 4. The applicant, BMG, was partly dependent for support upon the worker as at the date of his death. 5. There were no other persons dependent for support upon the worker at the date of his death. 6. The respondent is liable to pay the amount of $838,750 pursuant to s 25(1)(a) of the 1987 Act. 7. The respondent, in accordance with the agreement between the parties, is liable to pay interest at the rate of 6.35% per annum on the amount awarded pursuant to s 25(1)(a) of the 1987 Act from 12 June 2024 to 19 August 2024 in accordance with s 109 of the Workplace Injury Management and Workers Compensation Act 1998, agreed to total $10,068.45. 8. The amount of $838,750 plus interest of $10,068.45 is to be paid to the applicant, in accordance with s 85A(1)(a) of the 1987 Act. Notation: A. The respondent has already paid the worker’s funeral expenses, in the maximum sum of $15,000, in accordance with s 26 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
On 23 September 2003, BMH (the deceased) was injured in the course of his employment with CFA (the respondent) when he suffered a hernia while lifting luggage, requiring mesh implantation.
Up to and including 9 June 2021, the deceased continued to experience ongoing effects of his injury, including but not limited to a prescription opioid addiction.
On 9 June 2021, the deceased took his own life. Th parties agree his employment was a substantial contributing factor to his death.
Liability in respect to the deceased’s death has been accepted.
At the date of his death, the deceased was married to BMG (the applicant).
There is no issue that at the dated of the deceased’s death, the relevant benefits payable upon the death of a worker pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) was $838,750.
There is also no issue that at the date of his death, the deceased had the following adult children:
· BMJ, and
· BML.
Each of the deceased’s children have provided statement evidence to the effect they were not financially dependent on the deceased at the date of his death.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is apportionment of the death benefit payable.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application in Respect of Death of Worker and attached documents, and
(b) Response and attached documents.
FINDINGS AND REASONS
Apportionment of the applicable benefit
I am satisfied to the applicable standard of proof that the applicant was the only person dependent on the deceased at the date of his death. She has provided statement evidence to the effect the applicant’s siblings were not dependent upon him for financial support at the date of his death. I accept the applicant as a witness of truth and have no issue accepting her evidence at face value, as it is not the subject of any challenge.
The statement evidence of the deceased’s children discloses they were not dependent upon him, and that they were offered the opportunity to obtain separate legal advice on the matter but declined to do so. They also gave evidence the applicant was the only person dependent on the deceased at the date of his death. I accept that evidence.
In the circumstances and given the quantum of both the principal benefit and interest payable on it have been agreed, I am satisfied the whole of the benefit payable under s 25 of the Workers Compensation Act 1987 together with interest in the amount proposed by the parties should be payable to the applicant.
Given the circumstances of the deceased’s death, I also consider it appropriate to make an order pursuant to Reg 132 of the Personal Injury Commission Rules 2021 to de-identify the deceased, the applicant and the applicant’s children.
SUMMARY
The Commission will make the findings and Orders set out on page 1 of the Certificate of Determination.
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