Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo v State of New South Wales (Western Sydney Local Health District)

[2021] NSWPIC 280

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo v State of New South Wales (Western Sydney Local Health District) [2021] NSWPIC 280

APPLICANT:

Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo

RESPONDENT:

State of New South Wales (Western Sydney Local Health District)

SENIOR MEMBER:

Glenn Capel

DATE OF DECISION:

6 August 2021

CATCHWORDS:

WORKERS COMPENSATION-  Death claim; determination of dependency and payment of death benefit; Held- no dependants; order for payment of the death benefit and funeral expenses to the estate of the deceased.

DETERMINATIONS MADE:

1.     The deceased worker, Sandra Marlene Bartolo, died on 5 September 2020 as a result of injuries sustained during the course of her employment with the respondent.

2.     There were no persons wholly or partly dependent for support upon the deceased at the date of her death.

ORDERS MADE: 

3.     The name of the applicant is amended to Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo.

4.     The respondent to pay Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo compensation in accordance with the Workers Compensation Act 1987 as follows:

a.     $827,400 pursuant to sections 25(1)(a) and 85A(1)(a), and

b. $2,300 for funeral expenses pursuant to sections 26 and 85A(1)(a).

STATEMENT OF REASONS

BACKGROUND

1. The deceased worker, Sandra Marlene Bartolo, died on 5 September 2020 as a result of injuries sustained during the course of her employment with State of New South Wales (Western Sydney Local Health District) (the respondent).

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 30 June 2021, subject to a determination of potential dependants.

3. Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo (the applicant) filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 9July 2021.

4. The applicant seeks the lump sum death benefit of $827,400 in accordance with s 25(1)(a) of the 1987 Act, and funeral expenses of $2,300 pursuant to s 326 of the 1987 Act, together with an order authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act.

ISSUES FOR DETERMINATION

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 on 6 August 2021 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. Ms Havens provided a statement on 2 July 2021. She described the circumstances of her mother’s injury on 5 August 2020 and her untimely death on 5 September 2020. She confirmed that her brother had passed away and there was no one dependent on the deceased at the time of her death.

Documents

1. The documents attached to the Application confirm that the deceased passed away on
   5 September 2020 as a result of complications that arose following surgery on her injured left femur.

2. Probate was granted to the applicant as executrix of her late mother’s estate on
   23 November 2020. I was informed at the telephone conference that the applicant’s father, George Bartolo, had passed away.

3. The death certificate of her brother Anthony confirmed that he died in May 2015.

4. The account for funeral expenses discloses that the applicant paid $2,300 to Monaghan Funeral Services on 9 September 2020.

REASONS

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

2. There is no evidence to suggest that there were any persons wholly or partly dependent on the deceased at the date of her death. Accordingly, I am satisfied that there were no persons wholly or partly dependent on the deceased at the date of death.

3. In the circumstances, the lump sum death benefit of $827,400 payable pursuant to
   s 25(1)(a) of the 1987 Act and funeral expenses of $2,300 payable pursuant to s 26 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, Sandra Marlene Bartolo, died on 5 September 2020 as a result of injuries sustained during the course of his employment with the respondent.

2. There were no persons wholly or partly dependent for support upon the deceased at the date of her death.

ORDERS

1. The name of the applicant is amended to Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo.

2. The respondent to pay Lisa Havens as executrix of the estate of the late Sandra Marlene Bartolo compensation in accordance with the 1987 Act as follows:

   (a)    $827,400 pursuant to ss 25(1)(a) and 85A(1)(a), and

   (b) $2,300 for funeral expenses pursuant to ss 26 and 85A(1)(a).