Jessup v AJ Bush & Sons Pty Ltd

[2021] NSWPIC 475

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Jessup v AJ Bush & Sons Pty Ltd [2021] NSWPIC 475

APPLICANT:

Cheryl Anne Jessup

RESPONDENT:

AJ Bush & Sons Pty Ltd

MEMBER:

Glenn Capel

DATE OF DECISION:

19 November 2021

CATCHWORDS:

WORKERS COMPENSATION - Death claim; determination of dependency and payment of death benefit; Held - order for payment of the death benefit.

DETERMINATIONS MADE:

1.     The deceased worker, Robert John Jessup, died on 14 September 2020 as a result of injuries sustained during the course of his employment with the respondent on 1 November 1993.

2.     Cheryl Anne Jessup was wholly dependent for support upon the deceased at the date of his death.

3.     There were no other persons dependent for support upon the deceased at the date of his death.

ORDERS MADE:

4. The respondent is to pay the applicant lump sum compensation of $827,400 pursuant to sections 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987.

5.     No order in respect of the claim for funeral expenses.

STATEMENT OF REASONS

BACKGROUND

1. The deceased worker, Robert John Jessup, died on 14 September 2020 as a result of injuries sustained during the course of his employment with A J Bush & Sons Pty Ltd (the respondent) on 1 November 1993.

2. Liability was accepted by Employers Mutual Ltd (the insurer) pursuant to ss 25(a) and 26 of the Workers Compensation Act1987 (the 1987 Act) on 5 August 2021, subject to a determination of potential dependants.

3. On 25 July 2021, the solicitor for Cheryl Anne Jessup (the applicant) served a notice of claim on Employers Mutual Ltd (the insurer) in respect of the death benefit.

4. 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 October 2021.

5. The applicant seeks the lump sum death benefit of $827,400 in accordance with s 25(1)(a) of the 1987 Act, funeral expenses pursuant to s 26 of the 1987 Act, and an order authorising payment of the lump sum to her pursuant to s 85A(1)(a) of the 1987 Act.

ISSUES FOR DETERMINATION

1. At the telephone conference on 18 November 2021, I was informed that the insurer had paid the funeral expenses of $11,200.

1. The parties agree that 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, and

   (b) orders in relation to payment of the compensation – s 85A(1)(a) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

1. 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 at the telephone conference of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and taken into account in making this determination:

(a)    Application in Respect of Death of Worker and attached documents, and

(b)    Reply.

REVIEW OF EVIDENCE

Applicant’s statement

1. The applicant provided a statement on 25 July 2021. She described the deterioration in her husband’s health after he ceased work with the respondent and how she relied on his income and his worker’s compensation payments that ceased in 2015. Her husband’s income was used to pay for household and living expenses. She was his carer until he passed away on 14 September 2020.

2. The applicant stated that their only son, Matthew, is 35 years old and he had not been dependent on his father. The deceased’s two living sisters live independently and were not financially dependent on their brother.

Documents

1. The documents attached to the Application confirm that the deceased passed away on
   14 September 2020 as a result of sarcoidosis. The applicant was the beneficiary under the deceased’s will. There are a number of utility accounts and bank statements in joint names, consistent with the applicant’s evidence.

2. Matthew Jessup provided a statutory declaration on 4 November 2021. He indicated that he had sought legal advice and whilst he was aware that he had a right to make a claim, he was not dependent on his father at the time of his death. He stated that the death benefit should be paid to his mother.

REASONS

1. Given the discrete nature of the dispute, I did not call for submissions from the parties.

2. Having regard to the evidence of the applicant and her son, I am satisfied that the applicant was wholly dependent for support upon the deceased at the date of his death.

3. Further, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of death.

4. In the circumstances, the lump sum death benefit of $827,400 payable pursuant to
   s 25(1)(a) of the 1987 Act will be paid to the applicant pursuant to s 85A(1)(a) of the 1987 Act.

FINDINGS

1. The deceased worker, Robert John Jessup, died on 14 September 2020 as a result of injuries sustained during the course of his employment with the respondent on  1 November 1993.

2. Cheryl Anne Jessup was wholly dependent for support upon the deceased at the date of his death.

3. There were no other persons dependent for support upon the deceased at the date of his death.

ORDERS

1. The respondent is to pay the applicant lump sum compensation of $827,400 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act.

2. No order in respect of the claim for funeral expenses.