Jepson v Pipeline Scaffolding Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jepson v Pipeline Scaffolding Pty Ltd [2024] NSWPIC 296
APPLICANT:	Lynette Marie Jepson
RESPONDENT:	Pipeline Rigging Pty Ltd
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Death claim; determination of dependency and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors discussed and applied; Held – no other dependants; orders for payment of the death benefit and agreed interest.
DETERMINATIONS MADE:	1. The deceased worker, Stuart Peter Davis, died on 25 June 2021 as a result of injury sustained during the course of his employment with the respondent on 23 March 2010. 2. Lynette Marie Jepson was partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The deceased’s death was not caused by an intentional self-inflicted injury. 5. The respondent is liable for the payment of lump sum compensation, funeral expenses and interest. The Commission orders: 6. The respondent is to pay the applicant lump sum compensation of $838.750 pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 7. The respondent to pay the applicant $8,527 in respect of funeral expenses pursuant to s 26 of the Workers Compensation Act1987. 8. The respondent to pay interest on the lump sum of $838,750 in the agreed sum of $14,843.13 pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998

STATEMENT OF REASONS

BACKGROUND

The deceased worker, Stuart Peter Davis, was 41 years old at the time that he suffered an injury to his right shoulder and back on 23 March 2001 in the course of his employment as a scaffolder with Pipeline Rigging Pty Ltd (the respondent). Given the lack of evidence surrounding the deceased’s injury, for the sake of completeness, I have reviewed the two previous proceedings that concluded in 2017 and 2019.
Liability was accepted by Allianz Australia Workers Compensation Ltd (Allianz) in respect of the deceased’s right shoulder injury.
On 23 May 2016, the deceased’s solicitor served a notice of claim for lump sum compensation in respect of injuries sustained to his right upper extremity (shoulder), cervical spine and lumbar spine.
On 11 July 2016, Allianz issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the deceased had injured his cervical spine and lumbar spine.
The deceased filed proceedings in the former Workers Compensation Commission in February 2017 (matter no. 522/17). These proceedings were discontinued at a conciliation conference in May 2017.
The applicant’s solicitor served a further notice of claim for lump sum compensation on the insurer on 9 July 2018 in respect of both upper extremities and the cervical and lumbar spines. Fresh proceedings were filed in October 2018 (matter no. 5683/18).
These proceedings were contested before Arbitrator Young in February 2019. The Arbitrator issued a Certificate of Determination on 26 February 2019 as follows:
“The Commission determines:
1.      The applicant in the course of his employment with the respondent on 23 March
2010 suffered injury to his right shoulder (right upper extremity).
2.      The applicant’s right shoulder injury caused or materially contributed to the applicant’s consequential lower back (lumbar spine) condition.
3.      Award in favour of the applicant in respect of injury to his right upper extremity and consequential lumbar spine condition which occurred on 23 March 2010.
4.      Award in favour of the respondent in respect of the applicant’s allegations of injury or consequential condition regarding his cervical spine and left upper extremity.
5.      The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s right upper extremity and consequential lumbar spine condition.
6.      The Registrar is requested to place before the AMS a copy of the Application to Resolve a Dispute and attachments (Application), a copy of the Reply and attachments (Reply), a copy of the Application to Admit Late Documents and attachments (AALD) and a copy of these Reasons for Decision”.
The deceased filed an Election to Discontinue Proceedings on 4 April 2019. Sadly, the deceased hanged himself in a shed on his property on 25 June 2021.
On 22 September 2023, Mr Grady, the solicitor for Lynette Marie Jepson (the applicant), served a notice of claim in respect of the death of a worker on Allianz, seeking payment of the death benefit of $838,750 pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act), together with interest pursuant to s 109 of the 1998 Act. Management of the claim passed to AAI Ltd t/as GIO (the insurer).
On 9 October 2023, the respondent’s solicitor, Mr Harris, sought particulars and documents relevant to the claim, including details of potential dependants. Mr Grady provided a response on 23 October 2023.
By letter dated 16 November 2023, Mr Harris indicated that a valid claim had not been made because there was no medical evidence by a qualified expert to support the allegation that the deceased’s death had resulted from the injury on 23 March 2010 and because full records from the Coroner and any records held by the police had not been provided.
On 20 December 2023, Mr Grady served a copy of a report from Dr Tessa Daws dated 11 December 2023 and requested a determination as to liability in respect of the deceased’s death.
On 9 January 2024, Mr Harris requested a copy of the letter of instructions sent to Dr Daws and a copy of the coroner and police records. He advised that the insurer was unable to determine the claim without access to these documents.
The applicant filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 20 February 2024. She described the injury and cause of the deceased’s death as follows:
“On 23 March 2010, the deceased was in the process of carrying heavy ladder beams on a worksite when he fell, suffering injury to his right shoulder, right arm, right leg, cervical spine and lumbar spine. The deceased became totally incapacitated and was terminated from his employment in February 2012. Pain and limitations caused by these injuries persisted and worsened over the course of the following decade.
In June 2021, the deceased attended Tamworth Hospital for treatment of his injuries. During his stay at Tamworth Hospital, the deceased exhibited symptoms of depression, attributed to the ongoing and debilitating effects of his injuries upon him. The deceased was discharged from hospital on 23 June 2021. Two days later, on 25 June 2021, the deceased was found dead, having ended his own life by way of hanging.”
The applicant seeks the lump sum death benefit of $838,750 in accordance with s 25(1) of the 1987 Act, an order authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act, the payment of funeral expenses pursuant to s 26 of the 1987 Act and interest pursuant to s 109 of the 1998 Act.
On 8 March 2024, the insurer issued a notice pursuant to s 78 of the 1998 Act, disputing that the deceased’s death road resulted from an injury arising out of or in the course of his employment and that his employment was a substantial contributing factor to the injury that resulted in his death. Further, in the alternative, the insurer claimed that the deceased’s death was caused by an intentional self -inflicted injury such that compensation was not payable. It cited ss 4, 4(a), 9A, and 14(3) and 25 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

A preliminary conference was conducted by Senior Member Haddock on 19 April 2024. She issued a Direction as follows:
“The Commission directs:
1. The Application in Respect of Death of Worker is amended to claim funeral expenses pursuant to s 26 of the Workers Compensation Act 1987.
2.     The respondent maintains the dispute as notified to the applicant.
3.     The respondent is granted leave to issue Directions for Production in accordance with the Direction for Production Order.
4.     The matter is remitted to the Division Head, to be re-allocated to another member, on a date to be agreed with the parties.”
The matter was referred to me and I decided to conduct a conciliation conference and arbitration hearing at 10.30 am on 4 June 2024.
On 30 May 2024, Mr Harris sent an email to the applicant’s solicitor and informed him that the insurer had rescinded the dispute notice and accepted liability in respect of the claims pursuant to ss 25 and 26 of the 1987 Act. Accordingly the conciliation conference and arbitration hearing was cancelled and I scheduled a preliminary conference on 3 June 2024.
At the preliminary conference, the nature of the dispute was clarified. 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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;
(b) orders in relation to payment of funeral expenses – s 26 of the 1987 Act, and
(c) orders in relation to payment of interest – s 109 of the 1998 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application and attached documents;
(b)    Reply with attachments, and
(c)    Application to Admit Late Documents received on 30 April 2024.

Oral evidence

The parties did not seek leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Statement of Ruby Lynette Marie Jepson

The applicant, the defacto partner of the deceased, provided a statement on 22 September 2023. She confirmed that the deceased did the housework and maintenance at home, even though it was very painful for him. He felt useless without contributing. He struggled with many of the tasks and had to take frequent breaks.
The applicant stated that the deceased provided almost all income. He paid the bills, groceries, mortgage repayments and expenses when they went on trips and go camping. After his injury, payment for the expenses were split, until his weekly compensation ceased in 2016. She was required to work more often to pay for the household expenses and the deceased did the house work. After the deceased died, their daughter moved back into the house with her two children.
The applicant indicated that the deceased provided immense and immeasurable emotional support and comfort. She had lost this support following his death. Their two children, Aaron and Kayla, received both financial and non-financial assistance as well as emotional support and advice from their father. He also assisted his mother Barbara with housework, maintenance and financial assistance when she required it prior to his payments ceasing. He was estranged from his father who resided overseas and he was not dependent on the deceased.

Statutory declarations of Kayla Jepson and Aaron Jepson

Kayla and Aaron Jepson provided identical statutory declarations on 13 February 2024. They had been advised that they might be classified as dependents of the deceased, but they did not wish to seek legal advice or make a claim.

Correspondence from Lamrocks Solicitors

On 15 November 2023, the solicitor for Barbara Davis, the deceased’s mother, advised that his client wished to make a claim on the death benefit. However, on 31 January 2024, the solicitor indicated that Ms Davis no longer wished to make a claim.

Medical evidence

Given that the insurer has withdrawn the dispute notice, it is not necessary for me to comment on the medical evidence. Suffice to say that the psychiatrists who treated the deceased at the Tamworth Hospital diagnosed an adjustment disorder with depressed mood.
The qualified psychiatrist, Dr Daws. diagnosed Major Depressive Disorder and she concluded that the deceased’s injury and its sequelae was the main contributing factor to the deceased’s depressive illness. This was on the background of a possible pre-existing history of depression, a genetic predisposition to depressive illnesses, and other stressors including illness to his family members.
Dr Daws cited paragraphs from the decision of Holdlen Pty Ltd v Walsh[1] and stated that it was more likely than not the deceased had experienced an episode of Major Depressive Disorder with psychotic features, and the presence of possible delusional beliefs reflected the severity of his condition and its influence on his cognitions. Therefore, on the balance of probabilities, she thought it likely that his suicide was influenced by his depressive illness and that it was not an intentional act.
[1] [2000] NSWCA 87, (Holdlen Pty Ltd v Walsh).
There was no evidence filed by the respondent to challenge Dr Daws’ report.

Documents

A tax invoice from Burke & Douglas Funerals quantified the cost of the deceased’s funeral at $8,527. This was apparently paid by Stuart Jepsen and the applicant reimbursed him.

SUBMISSIONS

Given that the dispute notice was withdrawn, I saw no need for the parties to make submissions.

REASONS

Dependency

It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton,[2] Albury Real Estate Pty Ltd v Rouseand anor[3] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day to day activities and emotional support.
[2] (1995) 11 NSWCCR 546, [554] to [555].
[3] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris,[4] McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[5]
[4] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[5] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd,[6] President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[7]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[8]
[6] [2011] NSWCCPD 6 (Kaur).
[7] Kaur, [126].
[8] Kaur, [148].
The deceased provided almost all the household income and paid for the expenses, but after his injury, they shared the outgoings until his weekly compensation ceased in 2016 and she had to do more work to earn the funds to pay the bills. Whilst it seems that the deceased relied heavily on the applicant after his compensation payments ceased, he assisted with household tasks and the applicant was obviously emotionally dependent on her partner.
Accordingly, I am satisfied that the evidence shows that the applicant was partly dependent on the deceased at the time of his death.
According to the applicant, Kalya and Aaron received financial and emotional support and advice from their father, who also assisted his mother, Barbara. However, none of them want to make a claim on the death benefit. Therefore I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of his death.

Interest

The parties have reached agreement as to quantum of interest in the sum of $14,843.13.

FINDINGS

The deceased worker, Stuart Peter Davis, died on 25 June 2021 as a result of injury sustained during the course of his employment with the respondent on 23 March 2010.
Lynette Marie Jepson was partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.

ORDERS

The respondent is to pay the applicant lump sum compensation of $838,750 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act.
The respondent to pay the applicant $8,527 in respect of funeral expenses pursuant to s 26 of the 1987 Act.
The respondent to pay interest on the lump sum of $838,750 in the agreed sum of $14,843.13 pursuant to s 109 of the 1998 Act.

[2024] NSWPIC 296

3 June 2024