Heycox v Colebrook and Sons Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Heycox v Colebrook and Sons Pty Ltd [2008] NSWWCCPD 133
APPELLANT:		Tina Heycox
RESPONDENT:		Colebrook and Sons Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		WCC976-08
DATE OF ARBITRATOR’S DECISION:		9 May 2008
DATE OF APPEAL DECISION:		11 November 2008
SUBJECT MATTER OF DECISION:		Death benefits claim; dependency; sections 25 and 26 of the Workers Compensation Act 1987; procedural fairness.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Kennedy & Cooke Lawyers
Respondent:	Curwood Lawyers
ORDERS MADE ON APPEAL:		1.       Paragraphs 1 and 2 of the decision of the Arbitrator dated 9 May 2008 are revoked 2.       Paragraph 3 is confirmed  3.       The matter is remitted to another Arbitrator for redetermination in accordance with these reasons. 4.       The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 4 June 2008 Tina Eileen Heycox (‘the Appellant/Mrs Heycox’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 9 May 2008.

1. The Respondent to the Appeal is Colebrook and Sons Pty Ltd (‘the Respondent/ Colebrook’).

1. Mrs Heycox is the widow of Brett James Heycox (the deceased) who died in the course of his employment with Colebrook on 3 February 2005. There were no children of the marriage.

1. By her ‘Application to Resolve a Dispute’ (‘Application’) filed in the Commission on 12 February 2008, Mrs Heycox claimed that her dependency, although partial, was in excess of the maximum amount available, and sought lump sum compensation in the sum of $296,250.00 plus interest. 

1. The parties attended a conciliation/arbitration hearing on 3 April 2008. The Arbitrator determined that Mrs Heycox was partially dependent on the deceased, and awarded her the sum of $149,000.00 on that basis.

1. It is from this decision that Mrs Heycox seeks leave to appeal.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 9 May 2008 records the Arbitrator’s orders as follows:

“1.The Respondent is to pay the Applicant, Mrs Tina Eileen Heycox, the sum of $149,000.00 pursuant to section 26 of the Workers Compensation Act 1987.

2. No interest is payable on the sum in Order (1) provided same is paid within 28 days of the date of the Notice of Charge and then interest is payable pursuant to section 109 of the Workplace Injury Management and Workers CompensationAct 1998.

3.   The Respondent to pay the Applicant’s costs as agreed or assessed. The matter is certified complex and there is to be a 15%increase of costs otherwise available.”

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and…