Burns v Catholic Schools Office-Diocese of Maitland/Newcastle
[2023] NSWPIC 503
•27 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Burns v Catholic Schools Office-Diocese of Maitland/Newcastle [2023] NSWPIC 503 |
| APPLICANT: | Chloe Burns |
| RESPONDENT: | Catholic Schools Office – Diocese of Maitland/Newcastle |
| MEMBER: | Gaius Whiffin |
DATE OF DECISION: | 27 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; determination as to whether the applicant was dependent for support upon the worker at the date of her death, and whether there were any other persons dependent for support upon her as at that date; consideration of statement evidence, claim correspondence, and factual material; Held – the applicant was partly dependent for support upon the worker at the date of her death; there were no other persons dependent for support upon the worker at the date of her death; respondent liable to pay the amount of $838,750 in accordance with section 25(1)(a) together with agreed interest; amount to be paid to the applicant in accordance with section 29(1A); award also made in relation to the worker’s funeral expenses. |
| DETERMINATIONS MADE: | The Commission determines: 1. That Teresa Anne Burns (the worker) died on 21 May 2021 as a result of an injury arising out of or in the course of her employment with the respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 3. That the applicant was partly dependent for support upon the worker at the date of her death. 4. That there were no other persons dependent for support upon the worker at the date of her death. 5. That the respondent is liable to pay the amount of $838,750 pursuant to s 25(1)(a) of the 1987 Act. 6. That the respondent, in accordance with the agreement between the parties, is liable to pay interest at the rate of 6.1% per annum on the amount awarded pursuant to s 25(1)(a) of the 1987 Act, from 8 April 2023 to 10 July 2023 (an agreed total of $11,213.98) in accordance with s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 7. That the amount of $838,750 plus interest is to be paid to the applicant, in accordance with 8. That the respondent is liable to pay the worker’s funeral expenses, agreed to total $9,935, in accordance with s 26 of the 1987 Act. The Commission orders: 1. The respondent is to pay the applicant the amount of $838,750 in accordance with s 29(1A) of the 1987 Act. 2. The respondent is to pay the applicant the amount of $11,213.98 in accordance with s 109 of the 1998 Act. 3. The respondent is to pay the applicant the amount of $9,935 in accordance with s 26 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
Teresa Anne Burns (the worker) died on 21 May 2021 following complications arising from a left knee injury which she sustained in a fall on or around 7 December 2020. The fall occurred during the course of her employment as an administrative assistant with Catholic Schools Office - Diocese of Maitland/Newcastle (the respondent).
I do not need to go into the details of either the injury or the complications endured by the worker in this regard as the respondent has rightly conceded that the injury arose out of or in the course of her employment with it in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act), as well as that her employment with it was a substantial contributing factor to the injury. The respondent has also conceded that the worker’s death resulted from the injury.
The respondent has therefore admitted liability for compensation flowing from the worker’s death pursuant to Part 3 Division 1 of the 1987 Act. It has conceded that it is liable to pay an amount of $838,750 pursuant to s 25(1)(a) of the 1987 Act.
Chloe Burns (the applicant) is the worker’s daughter. She alleges that as at 21 May 2021, she was partly dependent for support upon the worker. She also alleges that as at
21 May 2021, she was the only person dependent for support upon the worker.By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (Commission), the applicant seeks an order that the amount of $838,750 plus interest be paid to her (as the worker’s sole dependant) in accordance with s 29(1A) of the 1987 Act. She also seeks an order for reimbursement in relation to the worker’s funeral expenses.
ISSUES FOR DETERMINATION
The parties agree that the only issues still requiring determination by the Commission are:
(a) was the applicant dependent for support upon the worker at the date of her death, and
(b) if so, were any other persons dependent for support upon the worker at the date of her death.
PROCEDURE BEFORE THE COMMISSION
The ARDW proceeded to a preliminary conference before the Commission on
5 September 2023. On that occasion, the applicant was represented by Mr Griffith, solicitor, and the respondent was represented by Mr Patterson, solicitor. The applicant was present with her aunt, Ms Olsen (the worker’s sister), and Ms Gagic from the respondent’s insurer was also present.At the preliminary conference, the respondent agreed to the Commission making an order that it pay the worker’s funeral expenses as claimed in the ARDW - an amount of $9,935, as particularised at page 27 of the ARDW. The respondent also confirmed that once it received the Commission’s findings in relation to the two issues requiring determination (see paragraph 6 above), it did not dispute its liability to pay $838,750 pursuant to s 25(1)(a) of the 1987 Act. It did not wish to make any submissions or lodge any further evidence regarding those two issues.
The respondent however advised that agreement between the parties had not yet been reached regarding the interest to be paid by it (pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) in relation to the lump sum of $838,750.
The applicant advised that it intended to lodge further evidence regarding the two issues requiring determination (see paragraph 6 above).
The following orders were therefore made at the preliminary conference:
“1. This applicant is to lodge an application to admit late documents (with further statement evidence) as well as written submissions addressing her claim for interest, prior to 12 September 2023.
2. The respondent is to lodge written submissions addressing the applicant’s claim for
interest, prior to 19 September 2023.
3. Following the receipt of these submissions, the Commission will determine the dispute ‘on the papers’.”
Since these orders were made, the Commission has received submissions from the applicant advising that the parties have agreed that an amount of $11,213.98 should be awarded as interest pursuant to s 109 of the 1998 Act. As the respondent has not lodged submissions to the contrary, the Commission is willing to award interest in accordance with this agreement once it has determined the two issues requiring determination (see paragraph 6 above).
I am grateful to the parties for their assistance at the preliminary conference, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARDW and its attached documents (specifically the worker’s death certificate at page 7, the applicant’s birth certificate at page 28, and the signed statements from the applicant (at page 1), the worker’s mother (Anne Burns) (at page 4), the worker’s father (Kevin Burns) (at page 5), and the worker’s sister (Wendy Olsen) (at page 6));
(b) the respondent’s Reply (Reply) and its attached documents, and
(c) the applicant's Application to Admit Late Documents dated 12 September 2023 (applicant’s AALD) and its attached documents (specifically the signed statement from the applicant (at page 2) and the signed statement from Wendy Olsen (at page 3)).
Oral evidence
There was no oral evidence called.
FINDINGS AND REASONS
Was the applicant dependent for support upon the worker at the date of her death?
Section 25 of the 1987 Act provides:
“(1) 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 amount of $750,00 has been indexed, and the parties agree that the correct amount to be awarded as at 21 May 2021 was $838,750.
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent…”
According to the applicant’s statement dated 2 June 2023 in the ARDW:
(a) she was 18 years old at the time of her mother’s death;
(b) she was completing her Higher School Certificate at the time;
(c) she resided with her mother at the time;
(d) she was not working or earning any income at the time;
(e) her mother paid all household expenses for the two of them at the time – including rent, car expenses, gas and electricity expenses, phone and internet expenses, as well as her mobile phone expenses;
(f) her mother also paid expenses towards groceries at the time - although Anne Burns (who also lived with the two of them at the time) also paid these expenses, and
(g) her mother used to drive her to school, wash her clothes, prepare her meals, and perform household chores for her.
There is no evidence whatsoever to contradict the applicant’s statement in this regard, and I accept it in full. There is no doubt that the applicant received significant support from her mother, and was indeed wholly dependent upon both her and (to a significantly lesser extent) Anne Burns, as at 21 May 2021.
On the evidence, I have no hesitation in finding that the applicant was partly dependent for support upon the worker at the date of her death.
Were any other persons dependent for support upon the worker at the date of her death
Having regard to this finding, the applicant is entitled to be awarded the entirety of the relevant lump sum conceded to be payable by the respondent in accordance with s 25(1)(a) of the 1987 Act, should she be the only person dependent for support upon her mother at the date of her mother’s death. In this regard, s 29(1A) of the 1987 Act reads as follows:
“(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.”
The worker left the following family members:
(a) the applicant - her daughter;
(b) Anne Burns - her mother;
(c) Kevin Burns – her father, and
(d) Wendy Olsen – her sister.
The worker left no spouse nor partner. Indeed, I refer to Wendy Olsen’s statement dated
5 September 2023 in the applicant’s AALD:“Further, I can confirm that Teresa was never married, nor was she in any relationship as at the date of the passing…Chloe has never known her father or had any relationship with him. Indeed, Chloe’s father does not appear on her birth certificate.”
Wendy Olsen’s statement in the applicant’s AALD also confirms that she was the worker’s only sibling, as well as that the applicant was the only child of the worker.
The applicant’s statement dated 5 September 2023 in the applicant’s AALD further confirms that she was the only child of her mother, that her mother was not in any relationship at the date of her death, that she has never met nor known her father, and that she had been “raised since birth by my mother as a sole parent”.
There is as a result no evidence before me of any other family members who may have been dependent for support upon the worker at the date of her death, other than the four mentioned at paragraph 22 above. In relation to those four:
(a) I have already found that the applicant was dependent for support upon her mother;
(b) Anne Burns states categorically in her statement dated 26 July 2023 in the ARDW that she was not financially dependent upon the worker, even though she resided with the applicant and the worker;
(c) Kevin Burns states categorically in his statement dated 26 July 2023 in the ARDW that he was not financially dependent upon the worker, and
(d) Wendy Olsen states categorically in her statement dated 26 July 2023 in the ARDW that she was not financially dependent upon the worker.
I therefore have no difficulty in finding on the evidence that the applicant was the only person dependent for support upon the worker at the date of her death.
SUMMARY
I therefore find that the worker died on 21 May 2021 as a result of an injury arising out of or in the course of her employment with the respondent, pursuant to s 4 of the 1987 Act. I also find that the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act.
I find that that the applicant was partly dependent for support upon the worker at the date of her death. I also find that there were no other persons dependent for support upon the worker at the date of her death.
I find that the respondent is liable to pay the amount of $838,750 pursuant to s 25(1)(a) of the 1987 Act.
Considering my findings, the amount of $838,750 is to be paid by the respondent to the applicant, in accordance with s 29(1A) of the 1987 Act.
I note the agreements between the parties regarding the payments to be made by the respondent in relation to funeral expenses pursuant to s 26 of the 1987 Act, and interest pursuant to s 109 of the 1998 Act.
There will as a result be awards in favour of the applicant pursuant to ss 25(1)(a) and 26 of the 1987 Act, as well as pursuant to s 109 of the 1998 Act.
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