Knezevic v Laticrete Pty Ltd

[2018] NSWWCCPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Knezevic v Laticrete Pty Ltd [2018] NSWWCCPD 11
APPELLANT:	Bronwyn Louise Knezevic
RESPONDENT:	Laticrete Pty Ltd
INSURER:	AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-2946/17
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	23 October 2017
DATE OF APPEAL DECISION:	19 March 2018
SUBJECT MATTER OF DECISION:	Inferential finding of fact in determination of liability; r 10.5 of the Workers Compensation Commission Rules 2011 – dependants required to be party to proceedings for lump sum benefits.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Adelstein Solicitors
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 23 October 2017 is revoked. 2.     The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

1. Ms Bronwyn Knezevic brought proceedings in the Commission in respect of the death of her husband, Mr Jovo (John) Knezevic.

2. Mr Knezevic died at approximately 10.00 am on 13 June 2012 when he was struck by a truck on the M7 Motorway. At the time of his death, Mr Knezevic was married with three dependent children under the age of 9 years.

3. Ms Knezevic claimed a lump sum benefit for herself and “on behalf of” the three dependent children pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act). She also claimed weekly benefits pursuant to s 25(1)(b) of the 1987 Act with respect to the dependent children. In these proceedings, Ms Knezevic alleged her husband was in the course of his employment when the incident occurred or, in the alternative, it arose out of his employment.

4. The Insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 22 January 2015, declining liability.

5. The s 74 notice recorded that the initial notification of injury was made on 22 October 2014. The claim was disputed on the basis that it was alleged that:

   (a)    Mr Knezevic had abandoned his employment with Laticrete Pty Ltd (Laticrete) on 12 June 2012 and Laticrete was therefore not his employer;

   (b)    in the alternative, he was not in the course of his employment when the incident occurred;

   (c)    employment was not a substantial contributing factor to the injury (s 9A), and

   (d)    the death was caused by intentional self-inflicted injury within the meaning of s 14(3) of the 1987 Act.

6. The matter proceeded to Arbitration on 18 September 2017. There was no application to cross-examine and the matter proceeded ‘on the papers’. The Arbitrator handed down his decision on 16 October 2017 giving oral reasons. He determined that he was not satisfied the death of Mr Knezevic arose out of or in the course of employment.

7. A Certificate of Determination (COD) was issued to that effect on 23 October 2017.

8. Ms Knezevic appealed the decision. In the Application – Appeal Against Decision of Arbitrator (Appeal Application) the name of…